Carter v Brine - [2015] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CARTER v BRINE
[2015] SASC 204
Judgment of The Honourable Justice Blue
22 December 2015
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS
ESTOPPEL
EQUITY - EQUITABLE REMEDIES - EQUITABLE COMPENSATION
EQUITY - GENERAL PRINCIPLES - EQUITABLE ESTATES AND INTERESTS
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL
Professor Brine died in December 2012. He left to the plaintiff Ms Carter life interests in his principal residence in Australia at the date of his death, a French townhouse and (subject to 40% of any rental being payable to one of his sons) an English apartment. He left the residue of his estate to the defendants being his sons and grandchildren.
Ms Carter entered into a relationship with Professor Brine in 1989. Until they retired in 1997, Ms Carter lived and worked in Leicester and Professor Brine lived and worked in Adelaide. They spent significant time together but the majority of their time apart. From 1997, they lived together as domestic partners, initially in Australia, England and France and from mid 2001 onwards primarily in Australia. Throughout their relationship, each maintained their own properties, investments and bank accounts and paid their own income into their own bank accounts. Between 1997 and 2012, Professor Brine contributed more monies than Ms Carter for the general purposes of their relationship (including their own individual expenses).
In 1989, Ms Carter and Professor Brine purchased a thirteenth century townhouse in France as tenants in common. They each contributed half of the purchase price. They renovated it over the ensuing years. Ms Carter claims that she contributed more to the renovation and holding costs than Professor Brine. She adduced evidence from an accountant that she contributed 83% of those costs. She claims that a proprietary estoppel by acquiescence arises in her favour against the estate such that she became entitled to a beneficial interest as joint tenant and upon Professor Brine’s death to the entire ownership. In the alternative, she claims that a failed joint endeavour contribution constructive trust arose pursuant to which she is entitled to return of the excess of her contributions above 50% together with interest.
In 1999, Ms Carter and Professor Brine purchased an apartment in Leicester as tenants in common in the ratio 60:40. They fitted it out in 2000. From 2004 to 2012 (with one break) they rented it out. They also incurred holding costs. Ms Carter claims that she contributed approximately 75% of the purchase price, fit out costs and holding costs in relation to the apartment. She claims that a failed joint endeavour contribution constructive trust arose pursuant to which she is entitled to return of the excess of her contributions over 60% of the renovation and holding costs together with interest.
At the beginning of the relationship, Professor Brine owned a house in Gilles Street and a vacant block next door. Renovations were undertaken to the house between 1997 and 2009, including a rear extension constructed at a cost of approximately $200,000. Ms Carter claims that she contributed 20% to the total costs of the renovations of about $250,000.
In 2011, Professor Brine and Ms Carter were granted development approval to construct a duplex house on the vacant block in Gilles Street. The parties contributed approximately equally to the cost of construction. At Professor Brine’s death, costs totalling approximately $160,000 had been incurred in the partial construction of the duplex house.
Ms Carter claims that proprietary estoppel by encouragement arises such that she became beneficially entitled to an interest as a joint tenant in the Gilles Street house and block and upon Professor Brine’s death to the entire beneficial ownership or alternative as tenants in common. In the alternative, she claims that a failed joint endeavour contribution constructive trust arose pursuant to which she is entitled to return of her contributions together with interest.
The rent from the English apartment was paid into Professor Brine’s Royal Bank of Scotland bank account. That account contained approximately £61,000 when Professor Brine died. Ms Carter claims that the money in the account was held on trust in proportion to their beneficial ownership of the English apartment and claims equitable compensation for the balance of the rent no longer in the account.
Ms Carter claims that, by reason of Professor Brine’s testamentary dispositions, she was left without adequate provision for her proper maintenance, education or advancement in life and claims under the Inheritance (Family Provision) Act 1972 an order that additional provision be made in her favour.
Held:
French townhouse
1.       (a)     Ms Carter did not believe that she had an interest as joint tenant in the townhouse (at [369]-[386]);
(b)     Professor Brine did not engage in conduct capable of engendering such belief (at [388]);
(c)     The cause of action of proprietary estoppel by acquiescence fails (at [390]).

2.       (a)     From 1989 to mid 2001, Ms Carter and Professor Brine engaged in a separate joint endeavour involving the acquisition, renovation and holding of the French townhouse. Ms Carter contributed approximately 67% of the acquisition, renovation and holding costs to mid 2001 (at [441]);
(b)     After mid 2001, the French townhouse was subsumed in a larger overall joint endeavour. Professor Brine made greater contributions than Ms Carter to the overall joint endeavour from 1997 to 2012 (at [438]);
(c)     There was no “failure” of the French townhouse joint endeavour within the meaning of the principle articulated in Muschinski v Dodds and Baumgartner v Baumgartner (at [450]);
(d)     Consideration whether a new or extended category of constructive trust should be recognised when a co-owner in a domestic relationship has expended monies on improvements or maintenance increasing or preserving the value of a property for the purpose of the relationship, the relationship later ends, an objective intention should be imputed to the co-owners that the expenditure should result in a change in the beneficial ownership of the property in the circumstances that have eventuated and it would be unconscionable for the other co-owner to deny that change (at [454]-[460]);
(e)     The fact that Ms Carter made greater contributions towards the French townhouse was superseded by subsequent events in which Professor Brine effectively gave to her a 50% interest in the Gilles Street block (at [462]-463]);
(f)      The cause of action of failed joint endeavour contribution constructive trust fails (at [464]).

English apartment
3. (a) Ms Carter failed to prove that she made additional contributions to the fit out or holding costs of the English apartment above a proportionate 60% share (at [495]);
(b) The cause of action of failed joint endeavour contribution constructive trust fails (at [499]).

Gilles Street properties
4.       (a)     Professor Brine did not make representations that led Ms Carter to believe that she had or would have any beneficial interest in the Gilles Street properties (at [509]-[517]);
(b)     Mr Carter failed to prove that she made contributions to the renovation costs of the Gilles Street house (at [522]);
(c)     The cause of action of proprietary estoppel by encouragement in respect of the Gilles Street properties fails (at [529]).

5. The cause of action of failed joint endeavour contribution constructive trust in respect to the Gilles Street properties fails (at [531-[534]).
Gilles Street block
6.       (a)     Professor Brine represented to Ms Carter that she was or would become equal beneficial owner as tenant in common of the Gilles Street block (at [546]);
(b)     Ms Carter relied on that representation to contribute approximately half of the costs of construction of the duplex house (at [547]-[548]);
(c)     Ms Carter would suffer detriment if Professor Brine’s estate were permitted to deny that she has an equal beneficial interest in the Gilles Street block as tenant in common and it would unconscionable for it to do so (at [549]-[550]);
(d)     The cause of action of proprietary estoppel by encouragement is established in respect of the Gilles Street block (at [556]).
(e) Declaration that the estate holds the Gilles Street blocks subject to a construction trust as to a 50% interest as tenant in common in favour of Ms Carter (at [556]).

RBS bank account rental
7.       (a)     Professor Brine held the proceeds of the rent from the English apartment insofar as they remained in his Royal Bank of Scotland account on trust as to 60% for Ms Carter (at [575]);
(b)     As at 14 December 2012, the sum of £6,560 was held on trust for Ms Carter (at [575]);
(c)     Ms Cater otherwise has no claim in respect of the bank account or rent (at [575]).

Principal residence in Australia
8.       On the proper construction of Professor Brine’s will, his principal residence at the date of his death was the Gilles Street house and did not encompass the Gilles Street block (at [578]).
Inheritance Act claim.
9.        Ms Carter was not left without adequate provision for her proper maintenance, education or advancement in life by reason of Professor Brine’s testamentary dispositions (at [649]).
Orders
10.     (a)     Declaration that Ms Carter is entitled to a 50% beneficial interest in the Gilles Street block subject to accounting to the estate for $11,182. Declaration that Ms Carter has a beneficial entitlement to £6,560 forming part of the balance of Professor Brine’s RBS bank account. Equitable claims otherwise dismissed (at [652]-[654]);
(b) Declaration under Family Relationships Act 1975 that Ms Carter and Professor Brine were on 14 December 2012 domestic partners within the meaning of that Act (at [655]);
(c) Claim under the Inheritance (Family Provision) Act 1972 dismissed (at [655]).

Australian Consumer Law s 18; Family Relationships Act 1975 (SA) s 4, s 6, s 7; Inheritance (Family Provision) Act 1972 (SA) s 11, s 11A, s 11B, referred to.
Baumgartner v Baumgartner (1987) 164 CLR 137; Bowyer v Wood [2007] SASC 327; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Delaforce v Simpson-Cook [2010] NSWCA 84, (2010) 78 NSWLR 483; Finch v Telstra Super Pty Ltd [2010] HCA 36, (2010) 242 CLR 254; Giumelli v Giumelli (1999) 196 CLR 101; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; Lloyds Bank plc v Carrick [1996] All ER 630; Muschinski v Dodds (1985) 160 CLR 583; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723; Ryan v Dries [2002] NSWCA 3; Sidhu v Van Dyke [2014] HCA 19, (2014) 251 CLR 505; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133; The Commonwealth of Australia v Verwayen (1990) 170 CLR 394; Thompson v Palmer (1933) 49 CLR 507; Worladge v Doddridge (1957) 97 CLR 1, discussed.
Allen v Kent (1957) 136 A (2d) 540; Attorney-General for Hong Kong v Reid [1994] 1 AC 324; Atwood v Maude (1868) LR 3 Ch App 369; Australian Olympic Committee Inc v The Big Fights Inc (1999) 46 IPR 53; Bahr v Nicolay (No 2) (1988) 164 CLR 604; Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; Bloomenthal v Ford [1897] AC 156; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Brown v Brown (1993) 31 NSWLR 58; Byrnes v Kendle [2011] HCA 26, (2011) 243 CLR 253; Calverley v Green (1984) 155 CLR 242; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752; Collins v McGain [2003] NSWCA 190; Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235, (2007) 35 WAR127; Dewhirst v Edwards [1983] 1 NSWLR 34; Foran v Wight (1989) 168 CLR 385; Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; Freeman v Cooke (1848) 2 Ex 654 (154 ER 652); Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130; Goodman v Windeyer (1980) 144 CLR 490; Greenwood v Martins Bank Ltd [1933] AC 51; Hughes v Metropolitan Railway Co (1877) 2 App Cas 439; Hunt v Carew (1649) Nels 46 (21 ER 786); In Re Pavlou [1993] 1 WLR 1046; Jorden v Money (1854) 5 HL Cas 187 (10 ER 868); JT Developments Ltd v Quinn [1991] 2 EGLR 257; Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342; Kraft v Kupferwasser (1991) 23 NSWLR 236; Legione v Hateley (1983) 152 CLR 406; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; McCosker v McCosker (1957) 97 CLR 566; Mulherin v Quinn Villages Pty Ltd [2007] QSC 231; Napier v Public Trustee (WA) (1980) 32 ALR 153; Nelson v Nelson (1994) 33 NSWLR 740; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, (2004) 218 CLR 451; Parsons v McBain [2001] FCA 376, (2001) 109 FCR 120; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Pickard v Sears (1837) 6 Ad & El 469 (112 ER 179); Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Re Chapman; Hales v Attorney-General [1922] 1 Ch 287; Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; Riches v Hogben [1985] 2 Qd R 292; Sarat Chunder Dey v Gopal Chunder Lahar (1892) LR 19 Ind App 203; Singer v Berghouse (1994) 181 CLR 201; Sorna Pty Ltd v Flint (2000) 21 WAR 563; Squire v Rogers (1979) 39 FLR 106; Svenson v Payne (1945) 71 CLR 531; Symes v Hughes (1870) LR 9 Eq 475; The “Nerano” [1999] 1 Lloyds Rep 1; Tito v Waddell (No. 2) [1977] Ch 106; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors [2004] HCA 52, (2004) 219 CLR 165; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; Vigolo v Bostin (2005) 221 CLR 191; W v D [2012] SASCFC 142, (2012) 115 SASR 61; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; White v Barron (1980) 144 CLR 431; Wilmott v Barber (1880) 15 Ch D 96; Wirth v Wirth (1956) 98 CLR 228, considered.

CARTER v BRINE
[2015] SASC 204
Civil
BLUE J:

The plaintiff, Norma Annie Carter, seeks equitable relief against the estate of Francis John Brine (Professor Brine) in relation to contributions to properties owned by Professor Brine or by Professor Brine and herself. She seeks a declaration that on the proper construction of Professor Brine’s will she was left a life interest over land in Gilles Street Adelaide comprised in two certificates of title and not just one. She seeks an order under section 7 of the Inheritance (Family Provision) Act 1972 (SA) that additional provision be made out of the estate for her proper maintenance, education or advancement in life.
The substantive defendants are the beneficiaries of the estate being Professor Brine’s three sons Martin Lindsay Brine, Matthew Charles Brine and Daniel James Brine and his grandchildren Lucy and Gabriel Lever-Brine and Casey Brine (by his litigation guardian Matthew) (collectively the Brines).[1] The nominal defendants are the four executors of the estate being Martin, Matthew, Daniel and Ms Carter.
[1] Professor Brine’s former wife, Dr Judith Brine (who was also a Professor), is also a beneficiary but only of a specific bequest of a one quarter interest in a property which property was valued at $85,000 as at the date on which Professor Brine died. No point is taken by the Brines that Judith ought to have been joined as a defendant.
Professor Brine died in December 2012. In his wills, he gave to Ms Carter a life interest in “my principal residence in Australia at the date of my death”, interests more or less tantamount to life interests in a French townhouse and English apartment[2] owned by them as tenants in common and a 1971 Mercedes car. He otherwise left his assets to his children and grandchildren. He also had two superannuation entitlements: a monthly annuity benefit and a lump sum benefit. As a result of the subsequent exercise of the superannuation trustee’s discretion, both benefits ultimately passed to Ms Carter.
[2] The life interest in the English apartment did not give Ms Carter the right to rental if the apartment were rented out rather than occupied by Ms Carter. In that event Ms Carter would be entitled to 60% of the rent by virtue of her own 60 % beneficial interest in the apartment and Professor Brine’s son Daniel would be entitled to 40% of the rent by virtue of Professor Brine’s 40% beneficial interest in the apartment.
Professor Brine and Ms Carter purchased as tenants in common a townhouse in France in 1989 and renovated it over the ensuing years. Ms Carter claims that, although the purchase price was contributed equally, she contributed 83% of the subsequent renovation and holding costs.
Ms Carter claims that an equitable proprietary estoppel by acquiescence arises so as to estop Professor Brine’s estate from denying that the French townhouse was held as joint tenants and that she became entitled to the whole beneficial interest on his death. She claims relief by way of equitable compensation for the value of Professor Brine’s 50% legal interest said to be worth €150,000 as at the date of his death.
Ms Carter claims in the alternative that it is unconscionable for Professor Brine’s estate to retain the benefit of additional contributions beyond 50% made by her for the purpose of a discrete joint endeavour that failed without attributable fault on Professor Brine’s death in circumstances where it was not intended that the estate should enjoy that benefit to her detriment. She claims relief by way of equitable compensation of €85,000[3] said to be the value of her additional contributions as a proportion of the property’s total value at the date of Professor Brine’s death.
[3] Currency figures in this section are rounded to the nearest thousand.
Ms Carter and Professor Brine purchased as tenants in common in the beneficial ratio 60:40 an apartment in England in 1999. They fitted it out in 2000. Ms Carter claims that she contributed 75% of the purchase price and fitout, holding and maintenance costs.
Ms Carter claims that it is unconscionable for Professor Brine’s estate to retain the benefit of the additional contributions made by her to fitout, holding and maintenance costs beyond 60% for the purpose of a discrete joint endeavour that failed without attributable fault on Professor Brine’s death in circumstances where it was not intended that the estate should enjoy that benefit to her detriment. She claims relief by way of equitable compensation of £15,000 said to be the value of her additional contributions as a proportion of the property’s total value at the date of Professor Brine’s death.
Professor Brine owned property in Gilles Street, Adelaide comprised in two certificates of title. Ms Carter claims that it was and is a single property encompassing a house and garden or grounds comprised in two certificates of title. She claims that she contributed 20% of the cost of renovations to the existing house on the land comprised in the first certificate of title amounting to $50,000 and 46% of the cost of partial construction of a new duplex house on the land comprised in the second certificate of title amounting to $62,000.
Ms Carter claims that an equitable proprietary estoppel by encouragement arises so as to estop Professor Brine’s estate from denying that the whole property was held as joint tenants and that she became entitled to the whole beneficial interest upon his death or alternatively as tenants in common such that she was entitled to a 50% beneficial interest in the property. She makes alternative claims in respect of each property comprised in the separate certificates of title. She claims relief by way of transfer to her of, or alternatively 50% of his interest in the property as a whole or alternatively in either property comprised in the separate certificates of title.

Ms Carter claims in the alternative that it is unconscionable for Professor Brine’s estate to retain the benefit of her contributions to the renovation of the existing house and partial construction of the new duplex house for the purpose of a discrete joint endeavour that failed without attributable fault on Professor Brine’s death in circumstances where it was not intended that the estate should enjoy that benefit to her detriment. She claims relief by way of equitable compensation of $112,000 or alternatively $50,000 and $62,000 separately said to be the amount of her contributions plus interest from the date of Professor Brine’s death.
The English apartment was rented out for several years and the rent was paid into Professor Brine’s bank account. Ms Carter claims that he received the rent subject to a resulting or constructive trust in her favour in respect of that proportion of the rent reflecting her proportionate beneficial interest in the English apartment. She claims relief by way of declaration of trust over £61,000 that remains in the bank account and equitable compensation to the extent that rent proceeds no longer remain in the bank account.
Ms Carter contends that, on the proper construction of Professor Brine’s will, his “principal residence in Australia” at the date of his death represented the whole of the Gilles Street property comprised in both certificates of title and not just the property on which the existing house was situated. It is necessary to determine the proper construction of the will as a precursor to considering whether Ms Carter was left without adequate provision for her proper maintenance, education or advancement in life.
Ms Carter claims (depending on the result of her equitable claims) that she has been left without adequate provision for her proper maintenance, education or advancement in life within the meaning of section 7 of the Inheritance (Family Provision) Act 1972 (SA) and is entitled to an order that greater provision be made out of the estate.
Martin, Matthew and Daniel as executors of Professor Brine’s estate have brought a separate action claiming that Ms Carter breached her fiduciary duties as executor in relation to her claim for Professor Brine’s lump sum superannuation and is obliged to account to the estate for the lump sum paid to her. This action was heard concurrently with the Brine action and all evidence adduced at trial was evidence in each action. For convenience, I deliver separate reasons for judgment in the Brine action.[4] Both reasons for judgment refer to and should be read in conjunction with each other.
Background
[4] Brine v Carter [2015] SASC 205.
Ms Carter
Ms Carter was born in the north-east of England in March 1937. In 1958, she was awarded a Bachelor of Arts with Honours. In 1959, she married Norman Pears. They lived in London.
In 1960, Ms Carter commenced employment with the London County Council as a town planner. She concurrently undertook a Diploma in Town Planning, which was awarded in 1963.
At the beginning of 1965, Ms Carter and Norman moved to Melbourne for three years. Ms Carter met Professor Brine at the University of Melbourne. They became family friends. In 1966, Ms Carter’s elder daughter Susan Pears was born.
At the end of 1967, Ms Carter and Norman returned to England. In 1968, they moved to Leicester. Ms Carter became a lecturer in town planning at the School of Architecture at the Leicester Polytechnic, which in 1991 became De Montfort University.
In 1968, Ms Carter and Norman bought a three bedroom house at 13 Pine Tree Avenue, Humberstone, a suburb of Leicester (the Pine Tree Avenue house). In 1969, Ms Carter’s younger daughter Rachel Pears was born.
At the end of 1973, Ms Carter and Norman separated and in 1975 they were divorced. Ms Carter retained the Pine Tree Avenue house and continued to live in it with her daughters. She assumed responsibility for the mortgage. After the divorce, she made a will leaving her estate to and appointing guardians for her daughters. She made a further will to the same effect without guardianship when Rachel turned 18. She did not make any subsequent will.
In June 1975, Ms Carter became a principal lecturer in town planning at the Leicester Polytechnic, where she remained until her retirement in August 1997. She made superannuation contributions while at Leicester Polytechnic.
In 1978-1979, Ms Carter extended the Pine Tree Avenue house and increased her mortgage loan to fund the extension.
In 1984, Susan commenced a geography degree. In 1989, she completed a degree in town planning. She commenced working as a town planner in Manchester. She married in 1993. She now has three children and lives in Leicester.
In 1988, Rachel commenced a Bachelor of Material Science and Engineering degree, which was awarded with Honours in 1991. She completed a Masters Degree in Conservation in 1996. She was employed by ICI while undertaking those degrees. She moved to Townsville in 1999 and was awarded a Ph D by James Cook University in 2005. She married in 2006.
Ms Carter had a United Kingdom bank account with Midland Bank (which later became an HSBC bank account).[5]
[5] Account number no 111107.
Professor Brine
Professor Brine was born in September 1935 in Victoria. He undertook a Bachelor of Architecture degree and a Master of Town and Regional Planning degree.
In 1955, Professor Brine began a relationship with Judith Brine, who also became an architect (and later a PhD and a Professor). They married in 1958. In 1961, Martin Brine was born. In 1964, Matthew Brine was born. In 1966, Daniel Brine was born.
At some point,[6] Professor and Judith Brine acquired a house at Albert Park in Melbourne (the Albert Park house). They held that property as tenants in common.
[6] No evidence was adduced when or how it was acquired. It was owned by them at the end of 1988 when Judith moved to Canberra. Although nothing turns on the date of its acquisition, I infer that it was purchased while the Brines were living in Melbourne.
In mid-1967, the Brines moved to Edinburgh. Professor Brine undertook a Ph D at the University of Edinburgh. He opened a United Kingdom bank account with the Royal Bank of Scotland (the RBS account).[7]
[7] Account number 71020358.
In 1972, the Brines moved to Adelaide. Professor Brine became a lecturer at the University of Adelaide.
In March 1973, Professor and Judith Brine purchased a house property at 440-444 Gilles Street Adelaide (the Gilles Street house or 440 Gilles Street) for $43,000 as tenants in common. Next door to the east was a vacant block at 446-448 Gilles Street (the Gilles Street block or 446 Gilles Street). Next door to the vacant block to the east was a block of six units on the corner of Gilles Street and East Terrace. The Gilles Street block had been part of the land on which the units were situated but the land was subdivided in the early 1970s.
In May 1973, Professor and Judith Brine purchased the Gilles Street block for $17,000 as tenants in common. They did this to prevent its development as units.
I use the term Gilles Street property or Gilles Street properties to denote the Gilles Street house and block or either of them.
In 1981, Professor Brine’s father died. He left to Professor Brine vacant land at Pakenham Upper in Victoria (the Pakenham land). He left money to Professor Brine, Martin, Matthew and Daniel.
In about 1981, Martin left home. He completed a Bachelor of Arts degree followed by a Bachelor of Architecture. He then worked as an architect in private practice and for the Commonwealth and State governments in the heritage area.
In 1983, Daniel moved to Sydney and undertook Bachelor of Science and Architecture degrees. He then worked in arts administration in Sydney. He has lived overseas since 1996 apart from three years in Sydney from 2009 to 2011.
In December 1984, Professor Brine joined UniSuper as a division A member.
In 1986, after graduating with a Bachelor of Economics degree, Matthew commenced working for an accounting firm. He left home in 1990 to undertake a Master of Business Administration in Chicago. In 1991, he commenced working in management. He has lived in the United States more or less continually since then.
In 1985 and 1986, Professor Brine purchased three lots totalling approximately 90 hectares at McGrath Flat (lots 12, 14 and 15) (the McGrath Flat land). The title to the land was placed in the names of Professor Brine and Judith jointly as to 40% and as tenants in common with Martin, Matthew and Daniel Brine who each had a 20% interest.
Professor and Judith Brine owned vacant land at Warrandyte in Victoria (the Warrandyte land) that Professor Brine’s mother had purchased in 1962. They held that land as tenants in common.
At the end of 1988, Judith Brine moved to Canberra to take up a position in a university in Canberra. At some point,[8] Professor and Judith Brine acquired a unit at Forrest in the Australian Capital Territory (the Canberra unit). They held that property as tenants in common.
[8] No evidence was adduced when or how it was acquired. It was owned by them at 1995 when the parties were addressing a property settlement. Although nothing turns on the date of its acquisition, I infer that it was purchased before Judith moved to Canberra at the end of 1988.
As at 1989, Professor Brine was a reader at the University of Adelaide. He later became an Associate Professor. He had a bank account with Westpac.[9]
[9] Account number 510729.
The beginning of the relationship
In January 1989, Ms Carter took six months’ sabbatical leave from her position at the Leicester Polytechnic. She undertook her sabbatical leave based at the University of Melbourne.
In about March 1989, Professor Brine visited Ms Carter in Melbourne. This marked the beginning of their relationship. During the balance of Ms Carter’s stay in Melbourne, Professor Brine stayed with her on more than one occasion. They discussed the idea of buying and renovating a rundown holiday home in rural France. Ms Carter came to South Australia on one occasion in April 1989 and they stayed at the McGrath Flat property. Ms Carter visited the Gilles Street house but did not stay there.
In June 1989, Ms Carter returned to Leicester. In July 1989, Professor Brine travelled to Leicester and stayed with her when they were not travelling in France. He met Susan and Rachel during this trip.
French townhouse
In July 1989, Professor Brine and Ms Carter travelled to France. They located a three storey thirteenth century townhouse and a separate garage in Castelnau-Montratier in the south-west of France (the French townhouse). They entered into separate agreements to purchase the house and garage for 175,000 francs. Ms Carter paid a deposit of 17,500[10] francs being equal to €2,668.[11]
[10] All currencies referred to herein, including the franc, euro, pound and dollar are rounded at least to the nearest whole franc, euro, etc.
[11] The euro had a fixed exchange rate to the French franc of 6.55957 francs to one euro. The euro existed for the purpose of electronic transactions but no physical currency had yet been issued at that time. The franc co-existed with the euro for ten years until 1999.
It was agreed between Professor Brine and Ms Carter that they would each contribute to the purchase of the property. Professor Brine suggested that the property be held as tenants in common on a 50/50 basis and Ms Carter agreed. They received advice that under French law, if either of them died, his or her interest in the property would pass automatically to his or her heirs.[12] Ms Carter wanted her interest in the property to pass to her daughters if she died and tenancy in common ownership suited her.
[12] I find that this advice was premised on their holding the property as tenants in common and that, if they had wished, they could have held the property as joint tenants. I make this finding because the discussion between the parties about holding the property as tenants in common implies that there was an alternative, namely joint tenancy, and because neither party adduced evidence to prove or suggested that French law is different to Australian law in this respect. The parties accept this positon.
Professor Brine and Ms Carter opened a joint current account with Credit Agricole in France (the first joint Credit Agricole account).[13] On 2 September 1989, they transferred 250,000 francs into this bank account. There is no record of the ultimate sources of this deposit but it is common ground that it was contributed equally by Professor Brine and Ms Carter.
[13] Account number 11072105.
On 14 September 1989, settlement took place. The titles were transferred into the names of Professor Brine and Ms Carter as tenants in common. The total purchase price including charges was 197,594 francs being equal to €30,123. At prevailing exchange rates this was equivalent to $41,594. On 2 September 1989, 181,500 francs was paid out of the Credit Agricole bank account to the notaire to pay the balance of the purchase price of 180,094 francs.[14]
[14] Subsequently the notaire refunded the excess of 1,406 francs which was deposited into the joint French bank account.
The property was very run down. Professor Brine and Ms Carter commenced renovation and maintenance work almost immediately. They engaged a local agent[15] to arrange for that work. They also engaged tradespersons directly.
[15] Pierre Passemard.
Later on (in late 1996), Professor Brine and Ms Carter opened a joint savings account with Credit Agricole (the second joint Credit Agricole account).[16] Interest was earned on this account. In 2008, they opened a joint French account with the Hong Kong and Shanghai Banking Corporation (HSBC) (the joint HSBC France account).[17] They used the new HSBC account in place of the Credit Agricole accounts.
[16] Account number 50000145752.
[17] Account number 03506938094.
All expenses associated with the French townhouse, including renovation, repairs and holding costs, were paid out of the joint French current account (initially Credit Agricole and later HSBC). When the property was later rented (from 2001), rent was paid into the account. General expenses incurred in mainland Europe, unrelated to the French townhouse, were also paid out of the joint French account. Both Professor Brine and Ms Carter paid monies into the joint French account from time to time to place or keep it in credit.
In November 1989, Professor Brine returned to Adelaide.
1989 to 1997
In December 1989, the Brine family (including Professor and Judith Brine) spent Christmas at McGrath Flat.
In June–July 1990, Professor Brine travelled to Europe for six weeks. He stayed with Ms Carter in Leicester and they also travelled to France to work on the French townhouse.
In April 1991, Ms Carter was working in Canada on a research project. Professor Brine travelled to Canada for a month to undertake his own research and to spend time with Ms Carter. He travelled to Europe for one month in July 1991 and for two months in December 1991.
In April 1992, Ms Carter travelled to Australia for five weeks. She stayed with Professor Brine in the Gilles Street house.
In 1992, Ms Carter and Professor Brine engaged a local architect in Castelnau-Montratier.[18] He took over the local role previously performed by the local agent.
[18] Noel Escudier.
In July–August 1992, Professor Brine travelled to Europe for 10 weeks. He and Ms Carter stayed in the French townhouse for the first time. In September 1992–January 1993, Professor Brine travelled to Europe for four months.
In 1993, Professor Brine purchased two hectares of land at McGrath Flat (lot 11) that adjoined the existing McGrath Flat land (the McGrath Flat block).
In May 1993, Matthew Brine was married in the United States. Professor Brine attended the wedding. In May 1993, Susan Pears was married in England. Professor Brine and Ms Carter attended the wedding.
In July–August 1993, Ms Carter travelled to Australia for two and half months.
In November 1993, Professor Brine inherited from his aunt a unit in Prahran (the Prahran unit) and a share portfolio worth approximately $50,000 as at November 1995.
In December 1993, Matthew and his wife spent Christmas in Adelaide with Professor Brine. Professor Brine was very upset and crying. On 23 December 1993, Professor Brine wrote a letter to Judith in which he said that he was still hopeful of getting back with her somehow even if it took some time. He said that he was naturally enough a disappointment to Ms Carter being so much in love with Judith and he had best disengage himself from Ms Carter’s life as soon as possible. He asked Judith if he could come to Canberra in February to meet with her.
In December 1993, Professor Brine travelled to Europe for six weeks.
Professor Brine travelled to Europe for 10 weeks in July–August 1994 and for seven weeks in December 1994–January 1995.
In 1994 or 1995, Ms Carter met Martin at the Gilles Street house.
In the mid-1990s, Professor Brine was granted a right of abode in the United Kingdom. He subsequently became a British citizen in about 2002.
In April–September 1995, Professor Brine travelled to Europe for six months.
In 1995, Professor Brine retained Ms Hastwell to act for him in relation to a matrimonial property division between Judith and him. Professor Brine was distraught and emotional when he saw Ms Hastwell. Ms Hastwell prepared a statement of assets and liabilities in the Family Court as at November 1995. His assets included shares valued at $114,000.
In November 1995, Professor Brine wrote two letters to Judith. He referred to correspondence between their respective solicitors and said that he did not want their marriage to end if there was any way it could be repaired. He apologised for his behaviour in 1989. He arranged to drive to Canberra to see Judith, which he did. Judith told him that she did not want to reconcile, although Professor Brine remained hopeful that this might occur.
In December 1995, Professor Brine wrote another letter to Judith. He said that his relationship with Ms Carter had been unsatisfactory from her perspective in its incompleteness and in her understanding a good deal of how he felt about Judith. He said that he expected that they would drift further apart.
In December 1995–January 1996, Professor Brine travelled to Europe for six weeks.
Between February and December 1996, Professor Brine wrote several letters to Judith continuing to express his love but increasingly accepting that their relationship was over.
In March 1996, on the application of Judith, the Family Court made an order nisi for the divorce of Professor and Judith Brine.
In June 1996, Ms Carter was working in Vancouver on a research project. Professor Brine travelled to Canada to undertake his own research and spend time with her. They met Daniel in New York and Matthew in Vancouver. They visited Matthew’s family in Seattle. They then travelled to Leicester before Professor Brine returned to Adelaide. In December 1996, Professor Brine travelled to Europe for six weeks.
In 1997, Professor Brine sold the Prahran unit for $240,000.
In 1997, Professor and Judith Brine agreed on a property settlement. Judith transferred her interest in the Gilles Street house and block and the Warrandyte land to Professor Brine. He transferred his interest in the Albert Park house and the Canberra unit to Judith.
Gilles Street house
The Gilles Street house was built in 1867. Before 1997, there was a brush fence covered with wisteria on its front boundary. On its eastern side boundary, there was a concrete wall extending 18 metres from the rear boundary approximately halfway towards the front boundary. There was then a timber paling fence covered with wisteria and ivy extending 13 metres to seven metres from the front boundary. The final seven metres was unfenced, although there were shrubs on both sides of the boundary between the Gilles Street house and block. The timber paling fence returned for a few metres eastwards into the Gilles Street block, running parallel with the front boundary of the Gilles Street block but set back about seven metres from the front boundary.

In May 1997, Professor Brine lodged a development application with the Adelaide City Council for construction of a new front fence at a cost of $3,500 and exterior refurbishment. In a covering letter, he said that he proposed to install new gutters, downpipes and stormwater drains; repair and replace as required fascias, bargeboards, finials etc to the roof; clean creepers from and re-point bricks and stonework as required; make good window joinery; and repaint all external woodwork, etc. He estimated that the total cost of the work would be in the vicinity of $20,000. He requested financial assistance under the local Heritage Incentives Scheme.
In June 1997, the existing front brush fence was removed and replaced by a new picket fence. The picket fence was returned along the side boundary between the Gilles Street house and block for approximately seven metres to meet the timber paling fence. Work on gutters and downpipes was also undertaken. Landscaping was carried out at the front of the house. The net cost of the works was approximately $5,000.[19]
[19] The total cost was $6,172, to which the Council contributed $1,543 pursuant to the Heritage Incentives Scheme.
Retirement
At the beginning of July 1997, Professor Brine retired from the University of Adelaide. His salary in the year ended June 1997 had been $70,335 per annum. He elected to divide his superannuation entitlements between a lump sum component and an annuity. The lump sum component continued to be invested with UniSuper and he could draw down against it when he chose (the Flexi Pension). The annuity comprised monthly payments of $3,497 indexed, presumably to the Consumer Price Index (the Indexed Pension).
In March 1997 upon turning 60, Ms Carter commenced to receive a State pension. On 31 August 1997, she retired from De Montfort University. She did not give evidence of the amount of her salary before retirement. She commenced receiving monthly Teachers’ and Aviva Pension superannuation payments. She also received lump sum superannuation payments. Over the next three years, she undertook some freelance research work.
In July–December 1997, Professor Brine travelled overseas for six months. He and Ms Carter travelled to Ecuador for a holiday and otherwise spent time in Leicester and France.
Over the next three years, Ms Carter and Professor Brine spent time in Adelaide, Leicester and France.
On 12 May 1998, Professor Brine made a will (the 1998 will). He appointed his three sons as executors. He left his vintage Mercedes Benz motor vehicle situated in the Birdwood Museum to Martin. He left any motor vehicle situated in England or France to Ms Carter. This referred to his 1992 Mercedes 300TD that was a United Kingdom model but was located in France (the European Mercedes). He left his interest in land at McGrath Flat to his co-owners. He left the Warrandyte and Pakenham land and his shares to his grandchildren. He left a beneficial life interest in the French property to Ms Carter and the remainder interest to his grandchildren. He left the residue of his estate to his sons. The will was drawn by Lesley Hastwell.
English apartment
In 1999, Ms Carter and Professor Brine looked for an apartment to buy in Leicester in which they could stay when in England. The house at Pine Tree Avenue was no longer suitable and they wanted an apartment that was low maintenance and they could simply lock up and leave when away. They found an apartment in the Pick building in the centre of Leicester.
In October 1999, Ms Carter and Professor Brine agreed to purchase a 125 year lease over apartment 22 in the Pick building (the English apartment) for £94,000 with a ground rent of £150 per year. They purchased a shell and were required to fit out the apartment internally. £94,000 was then equivalent to approximately $238,000.
On 15 November 1999, Professor Brine wrote to Ms Hastwell instructing her to amend his 1998 will in light of the fact that Ms Carter and he were buying a property in England as tenants in common in shares 60/100 and 40/100 respectively. Upon his death, Ms Carter was to have the option of living in the apartment during her lifetime and otherwise the income and outgoings were to be shared with his estate in proportion to their beneficial ownership and when sold his share was to become part of the residue of his estate. He understood that under French law his half share in the French townhouse would formally pass to his children equally, but it was his wish that it pass to his grandchildren and he was confident that his children would respect that wish.
On 18 November 1999, settlement of the purchase of the English apartment took place. Ms Carter and Professor Brine became legal owners as tenants in common of the leasehold interest. It was Professor Brine’s suggestion that they hold the property as tenants in common the same as the French townhouse and the same he said as he had held the Gilles Street property with Judith.
The funds for the purchase of the English apartment were paid out of Ms Carter’s bank account and Professor Brine’s bank account. No evidence was adduced as to the amount each contributed except for an estimate by Ms Carter that she contributed approximately 75%.
On 18 November 1999, Ms Carter and Professor Brine executed a declaration of trust (the Pick Declaration of Trust). It contained a recital acknowledging that the equity in the property had been contributed by Ms Carter as to 60% and Professor Brine as to 40%. It provided that they would hold the property on trust for themselves as tenants in common in the proportions 60% for Ms Carter and 40% for Professor Brine.
Ms Hastwell prepared a new will by making amendments to the 1998 will to add Ms Carter as a fourth executor, deal with the English apartment in accordance with Professor Brine’s instructions and leave the remainder interest in the French townhouse to his children. The new will was otherwise substantially the same as the 1998 will. On 19 November 1999, Professor Brine signed the new will witnessed (the 1999 will).
Between January and October 2000, Ms Carter and Professor Brine organised the fitout of the English apartment, undertaking some work themselves. The cost of the fitout was approximately £60,000.
By 2001, Ms Carter had opened a second Midland Bank account (which later became an HSBC account).[20]
[20] Account number 31116304.
After completion of the fitout, Ms Carter put the Pine Tree Avenue house on the market for sale. It was sold for £133,000 giving net proceeds of £125,000. Settlement was completed in June 2001. Ms Carter invested part of the proceeds of sale in investments in the United Kingdom. She transferred £65,000 to her Westpac account in Australia.
Australia
In about 2000, Ms Carter opened a bank account in Australia with Westpac.[21] In 2000, she applied for Australian citizenship. In 2001, she became an Australian resident.
[21] Account number 518302.
On 15 January 2001, Professor Brine applied to UniSuper to restructure his lump sum superannuation entitlement to receive a regular monthly Allocated Pension of $26,122 per annum against the capital balance of his Flexi Pension. He wrote on the application form that his preferred beneficiary upon death was his estate. He wrote a covering letter saying that in respect of his Indexed Pension his de facto spouse was Ms Carter. He said that with respect to his Flexi Pension the beneficiary was to be his estate, he having made provision for his children in his will and the funds remaining were to be applied to the provisions of his will.
On 18 January 2001, the capital balance of Professor Brine’s Flexi Pension was $410,111 and he commenced receiving a regular monthly Allocated Pension of $2,177. His monthly Indexed Pension was $2,328.
France
In April and July 2001, Ms Carter and Professor Brine rented out the French townhouse for short terms. They decided to remodel it, including by adding a second kitchen, so that they could rent out one part while staying in the other part. From July 2003 to February 2010, they rented out part or all of the townhouse for holiday rentals from time to time. Rent was paid into the joint French bank account.
Australia
By 2002, it had become settled that Professor Brine and Ms Carter would live primarily in Australia rather than England or France.
On 30 October 2002, Professor Brine saw Ms Hastwell. He said that he and Ms Carter owned the English apartment as tenants in common in the ratio 40/60. He said that he now wished to leave the remainder of his share in the English apartment to Daniel rather than forming part of the residue of his estate.
In February 2003, Professor Brine wrote to the Adelaide City Council saying that expenditure to date on conservation work for the Gilles Street house was $13,271 and that the estimate for work still to be completed was $6,615. The Council replied saying that he may be eligible for a grant of up to $8,000 based on 50% of the cost of heritage works.
On 27 March 2003, Professor Brine saw Ms Hastwell. He instructed her that he wished to give Ms Carter a life interest in his residence. There was a discussion about whether that residence might change in the future. Ms Hastwell decided to describe it in generic terms as “my principal residence in Australia at the date of my death”. There was no discussion about the meaning of that term. It is not clear whether Ms Carter was present on this occasion. Ms Hastwell prepared a will addressing Professor Brine’s principal residence in Australia and changing the remainder interest in the English apartment to leave it to Daniel. She added a clause leaving Professor Brine’s “1971 Mercedes” to Ms Carter.[22] The new will was otherwise substantially the same as the 1999 will.
[22] One of the Mercedes owned by Professor Brine situated in Adelaide was a 1971 Mercedes 300SEL. This was in addition to the pre-existing bequest to Ms Carter of any vehicle in England or France.
On 8 April 2003, Professor Brine and Ms Carter saw Ms Hastwell for Professor Brine to sign the new will (the 2003 will). The will was witnessed by Ms Hastwell and Ms Carter.
England
In October 2002, Professor Brine and Ms Carter opened a joint United Kingdom bank account with HSBC (the joint HSBC UK account).[23]
[23] Account number 61402277.
In 2003, Ms Carter and Professor Brine decided to let out the English apartment. They appointed the building owner’s managing agent, Countrywide, to find a tenant and manage the letting. The moved their belongings into storage, paying storage charges out of their joint HSBC UK account. A tenant was found who started renting the apartment in January 2004 for £950 per month. It continued to be tenanted until August 2008.
From January 2004 to August 2008, the tenants paid for water, electricity, gas, telephone, apartment insurance, maintenance and council tax. Countrywide deducted its fees, costs of maintenance not paid by the tenants and contributions to the sinking fund out of the rent and paid the balance into Professor Brine’s RBS bank account. The ground rent and building insurance were paid out of Professor Brine’s RBS account. The building management fees were paid out of the joint HSBC UK account.
Australia
In 2004, Professor Brine and Ms Carter decided to construct an extension at the rear of the Gilles Street house to create a mezzanine floor bedroom, kitchen, bathroom and lounge room. It would have the capacity to function as a semi-self-contained living space. In June 2004, Professor Brine drew plans for the extension. He applied for development approval in 2004, which was granted in June or July 2005.
Sometime between 2003 and 2005, the old timber paling fence on the boundary between the Gilles Street house and block was replaced with a new Colorbond fence. The timber paling return running into the Gilles Street block was removed. A new picket fence was constructed running a few metres into the Gilles Street block from the boundary where the new Colorbond fence met the stone wall approximately halfway along the side boundary. This was in the vicinity of an old cellar on the Gilles Street block.
Work on the extension commenced at the end of 2005 and was completed in mid-2007. The work was undertaken by subcontractors supervised by Professor Brine and to a lesser extent Ms Carter. In 2007, a one metre wide section of the stone wall on the rear part of the boundary between the Gilles Street house and block was removed and replaced by a gate giving access between the two properties.
In 2006, Ms Carter became an Australian citizen.
France
In September 2007, Professor Brine and Ms Carter saw Roslyn Innocent, a French avocat and English solicitor. Professor Brine instructed Ms Innocent that they wished to arrange matters so that the survivor could remain in occupation of the French townhouse without the other’s children demanding that it be sold. Ms Innocent advised that Professor Brine and Ms Carter could each make a will leaving a life interest in the French townhouse to the other and the reversionary interest to his or her children. The gift of the reversionary interest would be inheritance tax free. The gift of the life interest would be taxed at 60% of the value of the gift (with a tax-free exemption of the first €1,500). The value of the life interest would be deemed to be 30% of the whole value if the survivor were aged between 71 and 81 years and 20% if the survivor were aged between 81 and 91 years. Ms Innocent confirmed her advice by letter dated 14 September 2007, with which she enclosed draft French wills of Professor Brine and Ms Carter.
On 7 March 2008, Professor Brine saw Ms Hastwell, who was now at Norman Waterhouse. It was agreed that Ms Hastwell would remove any reference to the French townhouse from his Australian will. He gave to her a copy of his 2003 will containing handwritten annotations and changes.
On 12 March 2008, Professor Brine and Ms Carter saw Ms Hastwell for Professor Brine to sign the new will (the 2008 will). The will was witnessed by Ms Hastwell and Ms Carter. The new will was substantially the same as the 2003 will apart from removing any reference to the French townhouse.[24]
[24] It also added a model number of the 1971 Mercedes and removed the bequest of the European Mercedes.
On 20 May 2008, Professor Brine and Ms Carter each hand wrote and signed French wills as required by French law in terms of the typed draft wills provided to them by Ms Innocent (the French wills). Each will left a life interest in any French property to the other with the remainder left to the testator’s children.
England
In August 2008, the tenant at the English apartment vacated the apartment. Professor Brine and Ms Carter decided not to rent it for a while so that they could stay there themselves if they wished.
In late 2009, the English apartment was again let out. The rent was now £875. It continued to be tenanted until April 2014.
Australia
In 2008, Professor Brine and Ms Carter opened a joint Australian bank account with HSBC (the joint HSBC Australia account)[25] as they could now transfer money on the internet between HSBC Australian, United Kingdom and French accounts.
[25] Account number 29236118.
In about 2008, Professor Brine rented out the recently created back extension of the Gilles Street house to students for $300 per week.
In 2009, the Gilles Street house was rewired, the front porch was restored and a courtyard was created outside the dining room.
Gilles Street block
In 2010, Professor Brine and Ms Carter discussed building a low maintenance house on the Gilles Street block, moving into the new house and renting out the Gilles Street house.
In mid-2010, Professor Brine and Ms Carter saw agents in France about selling the French townhouse. Prices had been adversely affected by the global financial crisis and the agents advised waiting to see if they would recover.
In December 2010, Professor Brine drew plans for a proposed house on the Gilles Street block. He showed his name as architect and the plans as being drawn for himself and Ms Carter. It would appear from the street to be a single storey single house. In reality, it could function as a duplex comprising two independent halves with a second storey constructed within the roof together with a balcony. External architectural and engineering fees were incurred.
In December 2010, Professor Brine and Ms Carter produced a design report, obtained a heritage report from Flightpath and lodged an application with the Council for development approval.
In March 2011, the Council granted development plan consent for the construction of the duplex house. Building rules consent was also granted. Development approval was issued in April 2011. Council fees were incurred.
Professor Brine and Ms Carter estimated that the cost of construction of the duplex house would be between $600,000 and $700,000.
In April 2011, Professor Brine and Ms Carter put the French townhouse on the market for sale at €385,000. They intended to pay the net proceeds into their joint bank account and use them towards construction of the duplex house.
In February 2012, Professor Brine and Ms Carter obtained a soil investigation report.
In April 2012, construction of the duplex house commenced. The work was undertaken by subcontractors supervised by Professor Brine and to a lesser extent Ms Carter. A picket fence was constructed on the front boundary of the Gilles Street block extending approximately three metres eastwards from the side boundary with the Gilles Street house. Earthworks were undertaken and trenches were dug. Electrical and plumbing pipes and underfloor heating were installed in preparation for pouring the slab. Footings and the slab were poured in June 2012.
In May 2012, Professor Brine and Ms Carter took out contract works insurance with QBE for the construction.
In early 2012, Professor Brine developed symptoms of a heart problem. He saw a cardiologist in May 2012. He obtained clearance to fly to Europe in June 2012.
In 2012, Ms Carter elected to cease paying income tax in the United Kingdom and start paying income tax in Australia instead.
In June 2012 Professor Brine and Ms Carter travelled to Europe for several months. They reduced the asking price for the French townhouse to €300,000. They opened a new HSBC French joint bank account in which to deposit the proceeds of sale.
After their return from Europe, in November 2012 Professor Brine and Ms Carter applied to Westpac for a loan. Westpac granted an Equity Access Loan with a credit limit of $300,000 secured by a mortgage over the Warrandyte land. The purpose of the loan was to assist in funding completion of construction of the duplex house. The account was opened on 27 November 2012.
In November and December 2012, wall frames for the ground floor and some of the first floor were erected and steel beams and flooring for some of the first floor were installed.
The total costs incurred up to 14 December 2012 for the building project, including professional and council fees, were $157,528. $22,364 had not been paid as at the date of Professor Brine’s death and was ultimately paid by his estate. Invoices or other vouchers showing costs incurred were tendered in respect of the vast majority of the $135,164 paid before Professor Brine’s death. The balance of the costs was estimated by Ms Carter.
The costs were paid from one of three immediate sources. The first source was Professor Brine’s Westpac bank account or his credit cards. The second source was Ms Carter’s Westpac bank account. The third source was their joint HSBC Australian account. In some cases where the immediate source was Professor Brine’s bank account or the joint bank account, the funds had been transferred into that account by Ms Carter from one of her bank accounts.
Ms Carter prepared a spreadsheet for the purpose of the action showing the ultimate source of the total payments of $135,164. Where the ultimate source was not known, she assumed that the source was Professor Brine. The spreadsheet shows that Ms Carter was the source of payments totalling $61,678 (46%) and Professor Brine was the source of payments totalling $73,486 (54%).
December 2012

As at 13 December 2012, Professor Brine owned the following property (subject to Ms Carter’s equitable claims in this action) and had the following liabilities:

440 Gilles Street

$1,750,000

446 Gilles Street

$1,150,000

Warrandyte land

$720,000

Pakenham land

$294,000

McGrath Flat block

$85,000

French townhouse 50% interest

€150,000

$179,447

English apartment 40% interest

£80,000

$118,361

RBS bank account and credit card

£60,980[26]

$93,299

Barclays bank account

£12,898

$19,082

Westpac bank accounts

$1,818

Shares

$38,909

Vehicles and household goods

$74,239

Westpac credit cards

-$3,159

Construction invoices

-$11,182[27]

UniSuper Flexi Pension

$542,425[28]

HSBC Aust accounts joint 50% interest

$6,056[29]

HSBC French accounts joint 50% interest

€251[30]

$300

HSBC UK account joint 50% interest

£270[31]

$413

McGrath Flat land joint 20% interest

$50,000

Total

$5,094,008

[26] £60,933 plus £47 credit card balance.
[27] 50% of total of $22,364 shared with Ms Carter.
[28] Estimate based on value at 31 December 2011 of $486,273 and at 4 March 2013 of $556,463 by assuming 80% of the growth of $56,152 over the larger period had accrued by 14 December 2012.
[29] 50% of total of $12,112 owned jointly with Ms Carter.
[30] 50% of total of €505 owned jointly with Ms Carter.
[31] 50% of total of £569 owned jointly with Ms Carter.

As at the date of his death, Professor Brine was receiving monthly payments of his Indexed Pension of $3,192. He was receiving monthly payments of his Flexi Pension of $2,192. His combined net income was $64,608 per annum.
On 14 December 2012, Professor Brine suffered a heart attack while on site at the Gilles Street block. On learning of his death, Matthew and Daniel flew to Adelaide.
On 21 December 2012, Martin, Matthew and Daniel met with Ms Carter at the Gilles Street house to read through Professor Brine’s will. Ms Carter had obtained copies of the will from Ms Hastwell, who was now at Norman Waterhouse. The will was read through clause by clause. There was a discussion about engaging solicitors to act for the estate.
Events after December 2012
On 10 January 2013, Ms Carter telephoned UniSuper and spoke to Ann, a claims officer. Like all other conversations, UniSuper recorded the conversation. Ms Carter made notes but they were not tendered.[32]
[32] Ms Carter was not asked in evidence whether she made notes, but it is apparent from her statements to Ann on 24 January 2013 that she made notes of both her conversations with Ann.
Ms Carter told Ann that she was looking at all the documents that she had found and believed that Professor Brine had two separate accounts. Ms Carter said that one account paid $2,192 per month and the other paid $3,141 per month. These figures corresponded with the monthly payments that Professor Brine had been receiving as at June 2012. Ms Carter said that she had a statement for the Flexi Pension dated June 2012 on which Professor Brine had written the amount in that Flexi Pension as at 17 October 2012.
Ann told Ms Carter that there was a defined benefit Indexed Pension account number 112267 which did not have a residual value and upon death 62.5% of the original pension was payable to, and only to, a surviving spouse or dependent or disabled child. Ann said that there was also an account balance Flexi Pension account number 800112267 which could be paid to children – not necessarily dependent children – or the estate or a surviving spouse. Ann said that the Flexi Pension had a current balance right then and now.
On 16 January 2013 Treloar & Treloar were retained as solicitors for the estate. On or before 25 January 2013, Norman Waterhouse were retained by Ms Carter in her capacity as a beneficiary.
On 12 February 2013, Martin and Ms Carter met with Pam McEwin of Treloar & Treloar. They discussed each asset of the estate. Ms McEwin sent a letter to Martin and Ms Carter confirming the discussion. Ms McEwin sent an email to Matthew and Daniel suggesting that they reserve their rights to apply for probate later because they were overseas.
On and after 21 February 2013, Daniel and Matthew respectively agreed to reserve their rights to apply for probate later. Martin and Ms Carter were to sign irrevocable instructions to appoint them on request as co-trustees of assets in which they had a beneficial interest. Daniel confirmed his agreement to this.
On 27 February 2013, Ms Carter signed a Statement of Dependants form. She sent it to UniSuper, which received it on 7 March.
At the beginning of March 2013, Matthew travelled to Australia for work. On 4 March 2013, Matthew and Martin met with Ms Carter at a cafe in Hutt Street. Matthew said that they would like to go through the Gilles Street house and look at Professor Brine’s possessions. Ms Carter did not agree to this but permitted them to look in the shed.
On 4 March 2013, Matthew telephoned UniSuper and spoke to Kym, a claims officer. Kym confirmed that Professor Brine had two separate pensions. Kym said that the account balance of the Flexi Pension was $556,463. Kym said that Professor Brine had signed a non-binding preferred nomination in favour of his estate in relation to the Flexi Pension, but the trustee would exercise its own discretion and financial dependency took precedence. Kym said that the Indexed Pension was payable only to a surviving spouse and would probably go to Ms Carter.
On 4 March 2013, Matthew sent an email to Martin and Daniel. He summarised the information obtained from UniSuper and expressed concern that Ms Carter may not be disclosing all information, intentionally or not, and may not be disclosing other information about assets of the estate.
On 24 March 2013, Martin signed a Statement of Dependants form and on 30 March prepared a joint statement by his brothers and himself submitting that the Flexi Pension should be paid to the estate in accordance with Professor Brine’s preferred beneficiary nomination. He later lodged them with UniSuper.
On 9 April 2013, Ms McEwin sent an email to the executors attaching draft irrevocable instructions.
On 9 April 2013, Mr Murray told Ms McEwin that Ms Carter intended to contest the will on the basis that insufficient provision had been made for her. He had therefore advised her not to sign the irrevocable instructions.
On 9 April 2013, Ms McEwin sent an email to the Brine brothers copied to Ms Carter informing them of her telephone conversation with Mr Murray. She said that the issue now was whether Matthew and Daniel still agreed to reserve their rights as executors.
On 14 April 2013, Daniel sent an email to Ms McEwin and the other executors saying that in light of Ms Carter’s foreshadowed claim he now wished to join in the application for probate. Matthew took the same attitude. Daniel also asked into which account the rent from the English apartment was being paid.
On 17 April 2013, Ms Carter sent an email to the Brine brothers and Ms McEwin saying, amongst other things, that the rent for the Pick building was being paid into a joint account in the name of Professor Brine and Ms Carter. I infer that this was the HKSC joint UK account.[33] Ms Carter had in January 2013 changed the account receiving that rent from Professor Brine’s RBS account.
[33] If it was a joint account, the account would have vested solely in Ms Carter.
On 18 April 2013, Martin and Ms Carter swore an affidavit in support of an application for probate including the executors’ oath. An affidavit verifying the statement of assets and liabilities was also sworn. Ms McEwin recommended that she be instructed to contact the agents in relation to the English apartment and the French notaire Me Trémosa in relation to the French townhouse. Emails were exchanged between Ms McEwin, Ms Carter and Martin in relation to this. Ms Carter did not agree to Ms McEwin contacting the English or French agents. The affidavits were later sworn by Daniel on 16 May 2013 and Matthew on 26 June 2013.
In May 2013, Martin retained Mellor Olsson to act for him in his capacity as a beneficiary. On 23 May 2013, Mellor Olson wrote to Norman Waterhouse requesting details of Ms Carter’s assets and income, tax returns and details of any benefits received as a consequence of Professor Brine’s death such as superannuation or jointly owned assets.
In late June 2013, Ms Carter travelled to Europe for two months. She stayed at the French townhouse for approximately ten days and undertook some maintenance to keep it ready for a potential sale.
In July 2013, Ms Carter attempted to sell Professor Brine’s European Mercedes located in France. She received an offer of £1,000 from someone in the United Kingdom. She wrote to the other executors informing them of the offer. They responded saying that they were happy for her to sell the car but Martin queried whether it could be sold without the French will having been validated. Ms Carter responded saying that Me Trémosa advised that it could not be sold until probate was granted in South Australia. There were further emails about whether the sale could proceed given that probate had not been granted. A sale did not transpire.
On 6 August 2013, the Insurance Management Committee of UniSuper resolved that 100% of the Flexi Pension, then valued at $564,992, be paid to Ms Carter as de facto spouse and that the Indexed Pension be paid to Ms Carter.
On 9 September 2013, Norman Waterhouse wrote on behalf of Ms Carter pursuant to rule 33 of the Supreme Court Civil Rules 2006 (SA) giving notice of an intended claim against the estate under the Act. The letter was not tendered as it is protected by settlement privilege.
On 19 September 2013, Ms McEwin sent to UniSuper a notice of dispute on behalf of the Brine brothers as three of the executors of the estate with the fourth executor not objecting. The notice of dispute contended that the trustee should have exercised its discretion in favour of the estate in accordance with Professor Brine’s April 2001 preferred nomination.
On 2 October 2013, Ms Carter sent to UniSuper a submission in response to the notice of dispute. She said that it was Professor Brine’s intention that “after construction of 446 Gilles Street the property would be transferred into our joint names and be owned by us freehold”. She said that she had provided almost half the cash to fund the construction work. She said that all of the formal documentation for the property, other than the title deeds, showed both their names.
In the letter, Ms Carter said that she had contributed to the maintenance and improvement of the residence at 440 Gilles Street, had contributed an estimated 75% of the fitout costs of the Leicester apartment and had contributed an estimated 90% of the renovation costs of the French townhouse. She said that from around 2002 she became worried about her future and mentioned it to Professor Brine. She said that he would say “everything will be alright” and she would say “we must talk about it” but they never did.
In the letter, Ms Carter said that Professor Brine paid for the major part of their routine household expenses as well as her health insurance, her car and her fuel.
On 3 October 2013, Martin sent an email to Ms Carter asking for access to all of Professor Brine’s financial records. On 4 October, Ms Carter responded saying that she had asked Ms McEwin if she needed any more documents for probate, that Ms McEwin had advised her that no further documentation was required and as a result Ms Carter had confirmed with the solicitor that she was not obliged to give access to Martin. On 16 October, Martin sent an email reiterating his request.
On 9 November 2013, Ms Carter signed a letter addressed to Me Trémosa renouncing her life interest in the French townhouse.
On 15 November 2013, probate was granted in respect of Professor Brine’s will.
On 27 November 2013, Matthew lodged with the Superannuation Complaints Tribunal a registration of complaint form in respect of UniSuper’s decision to pay the Flexi Pension death benefit to Ms Carter.
On 3 February 2014, Me Trémosa sent an email to Daniel attaching Ms Carter’s 7 November 2013 renunciation.
Between 18 January and 23 February 2014, emails were exchanged between Ms Carter and Martin and Daniel about the costs incurred in respect of the French townhouse.
On 12 February 2014, the Insurance Committee of UniSuper reviewed and affirmed the decisions of the Insurance Management Committee to pay the Flexi Pension death benefit to Ms Carter.
On 25 March 2014, Ms Carter instituted this action.
On 19 May 2014, Ms McEwin sent an email to Ms Carter requesting that she provide to Ms McEwin all of Professor Brine’s financial records because she had received a request from Mellor Olsson saying that they needed them to prepare their defence.
On 20 May 2014, Ms Carter gave to Mr Murray statements of Professor Brine’s, her own, and joint bank accounts and some other documents. She left for Europe. She sent an email to Ms McEwin saying that she had given to Mr Murray all of Professor Brine’s financial records.
On 21 May 2014, Mr Murray sent an email to Mellor Olson, copied to Ms McEwin, saying that Ms Carter had given to him statements of Professor Brine’s, Ms Carter’s and joint bank accounts and some other documents and he would compile a list of documents by way of disclosure in the action in due course.
On 23 May 2014, Ms McEwin sent an email to Ms Carter requesting that she provide to Ms McEwin all of Professor Brine’s financial records.
In May-September 2014, Ms Carter was in Europe. She stayed at the English apartment for three months. She stayed at the French townhouse for approximately 10 days and undertook some maintenance to keep it ready for a potential sale.
On 4 July 2014, Mr Murray filed a list of documents. It included bank statements for the joint UK HSBC account from 2003 to 2012, banking records relating to the French property from 1989 to 2012 and bank statements for Professor Brine’s Westpac, Royal Bank of Scotland, HSBC France, Standard Life and Barclays accounts for various periods.
On 9 September 2014, Mellor Olson wrote to Norman Waterhouse requesting access to Professor Brine’s home for the Brine brothers to inspect Professor Brine’s documents and computer.
In September 2014, Ms Carter took Professor Brine’s European Mercedes from France to London and had work done to it. On 30 September, she sent an email to Daniel asking him to pick it up from her and take over selling it. Email communications passed between Ms Carter and Daniel. Ultimately, in December 2014 Daniel sold the car for £500 and transmitted the net proceeds to Ms McEwin.
In early October 2014, Ms Carter returned to Australia. On 15 October 2014, Norman Waterhouse wrote to Mellor Olson saying that Ms Carter did not have possession of any other bank account statements in the sole name of Professor Brine and, if the Brine brothers satisfied her that they had reasonable grounds to seek additional bank statements, she would join in a request to obtain them. Norman Waterhouse said that Ms Carter would provide to them documents relating to Professor Brine’s real estate properties for the purpose of discovery. However, it was not considered that other documents situated at the Gilles Street house were relevant for the purpose of discovery.
On 31 October 2014, Mellor Olson responded asserting that their clients were entitled in their capacity as executors to access to all documents and property of Professor Brine situated at the Gilles Street house.
On 5 November 2014, at a directions hearing before a Master, counsel for the Brine brothers argued that they needed to gain access to the Gilles Street house. The Master declined to make an order for access.
On 14 November 2014, Ms Carter sent an email to Ms McEwin, copied to the other executors, seeking reimbursement by the estate of expenses incurred in connection with the car totalling $2,187. On 1 February 2015, Ms McEwin sent an email to the executors seeking instructions. On 10 and 11 February 2015, Martin and Matthew agreed to the reimbursement.
On 23 January 2015, the Superannuation Complaints Tribunal dismissed Matthew’s Complaint. On 22 April 2015, UniSuper paid to Ms Carter the Flexi Pension death benefit of $630,299.
Ms Carter and the executors recently agreed to reduce the asking price for the French townhouse to €200,000.
The Pakenham land was recently sold for $250,000.
Evidence
Ms Carter gave evidence and called Rachel Pears (her daughter), Ms Hastwell and Ms McEwin as witnesses. Ms Carter called expert evidence from a valuer Bill Waterhouse, an actuary Peter Crump and an accountant Philip Camens.
Martin, Matthew and Daniel Brine gave evidence. The Brines called expert evidence from a quantity surveyor Kym Fuss and an accountant Hugh McPharlin.
Both parties tendered numerous documents.
Ms Carter and the Brine brothers were separately represented in their capacity as executors by Ms McEwin. In that capacity, they took no part in the trial and agreed to abide the event.
Ms Carter
Ms Carter’s credit is important because she gave evidence about her discussions with and dealings involving Professor Brine in respect of which there was no direct contradictor. She also gave evidence about expenditure by Professor Brine and herself in respect of which there was no objective evidence. She was cross-examined at length on issues relevant to her credit and detailed submissions were made by the Brines about her credit.
Ms Carter was not an objective witness. Her evidence was coloured, consciously or unconsciously, by her desire to advance her case. She feels a sense of entitlement and grievance that has come to affect her historical narrative and her assessment of the contributions made by Professor Brine and herself to their relationship and their assets.
Gilles Street property
Ms Carter’s case in relation to the Gilles Street house and block is that as a matter of practical reality, as opposed to legal form, they at all material times comprised a single property. On that premise, her case is that the contributions she says she made and the representations she says Professor Brine made related to a single property and give rise to a beneficial entitlement in that single property rather than relating to one or the other of the properties the subject of the legal titles. In addition, Ms Carter seeks construction of the phrase in Professor Brine’s will “my principal residence in Australia at the date of my death”. Her case is that this denotes the Gilles Street house and block and not just the Gilles Street house. It was in Ms Carter’s interests to give evidence that the house and block were always treated as a single property to advance her case.
Ms Carter was asked in evidence in chief about the ability to access the Gilles Street block from the Gilles Street house. She gave the following evidence:
Q.Prior to the installation of that gate one could walk out from the house and then how would one get to the land that we now are describing as 446.
A.You'd generally walk around the front.
Q.Go back towards the west and walk around.
A.Yes.
Q.So you wouldn't have been able to walk through -
A.No, you'd be able to do it from most of the common boundary but it's interrupted from the back by the old laundry, the bed-sit, which is actually on the boundary. But in the past the back, there were no windows there and there was a door which wasn't used, there were a couple of fruit trees, three or four fruit trees and grass and clothesline, so it wasn't a place that you went out there very much, at least not in my time in Gilles Street, so you wouldn't really have wanted to go that way.
Ultimately, Martin, Matthew and Daniel gave evidence by reference to a series of plans they prepared that until 1997 there was no access between the two properties other than at the front seven metres which access was rendered difficult by the shrubs planted in that vicinity and there was no access between the two properties at all after 1997 when the picket fence was returned to cover that front seven metres of the side boundary until the gate was inserted into the stone wall towards the rear in the mid-2000s. I accept their evidence in preference to Ms Carter’s evidence in chief.

The Brines pleaded in their defence the assets and liabilities of Martin, Matthew and Daniel. They included in the tender book documents evidencing their assets and liabilities and their values. They each gave evidence verifying the information in their defence. Their evidence was not challenged by Ms Carter and I accept that evidence.
Martin, Matthew and Daniel also gave evidence about their qualifications, life and employment history, family and intentions for the future. I accept that evidence.
Martin was born in November 1961. He qualified as an architect after completing Bachelor of Arts and Architecture degrees with Honours. He then worked as an architect in private practice followed by employment by a number of government departments in the heritage area. In mid-2011, he resigned from the government. He and his partner purchased land on which was situated two church halls in the name of their family company, Lever Brine Pty Ltd, for $605,000 and subdivided it. In May 2012, they commenced converting the first hall into a residence and had completed a one third of the conversion by December 2012 when Professor Brine died. At that date, the company had borrowed approximately $700,000 from the bank to fund the project and $85,000 from Martin. It was not clear whether the project would result in a profit or loss. Martin gave evidence, which was not challenged in cross-examination, that the shares in the company had no significant value as at December 2012. Since then, the first residence has been sold at a profit of approximately $100,000.
As at December 2012, Martin was 51 years old. He and his partner have two children. Lucy was 19 years old and had started an arts law degree. Gabriel was 18 years old, had just finished year 12 and was hoping to undertake an architecture degree. Both lived at home and were dependent on Martin and his partner. Martin was not earning any appreciable income. His taxable income in the 2013 year was approximately $13,000. His 50% share of family expenditure was approximately $48,000 per annum.
Details of Martin’s assets[227] and their value as at December 2012 are set out in the following table.
[227] I have ignored the shares in Lever Brine Pty Ltd, Martin's loan of $85,500 to Lever Brine and his liability under the guarantee of Lever Brine's loan of $707,800 on the basis that I accept his evidence that there was no significant value in the project as at December 2012. These assets and liabilities should be netted off.

Home in Beulah Road 50% joint interest

   $550,000

McGrath flat property 20% interest

     $50,000

Superannuation

   $565,000

Savings

   $112,000[228]

Total

$1,277,000

[228] Netting off a credit card liability of $8,000 against savings of $120,000.

Matthew was born in January 1964. He qualified as an accountant after completing a Bachelor of Economics degree. He worked for a large accounting firm for four and a half years. In 1990, he undertook a Master of Business Administration in Chicago. He worked in management roles for a pharmaceutical company in Indianapolis for four and a half years, a fish processing company in Seattle for one year until it went into bankruptcy and a healthcare informatics not for profit organisation in Seattle for three years. In 2000, he commenced employment in Seattle with a messaging and fax service provider as head of the international division. In October 2008, the company was taken over and he became responsible for the fax and document distribution group. In January 2012, a new Chief Executive Officer was appointed and after settling in he started restructuring the company. As at December 2012, Matthew felt insecure about his future given the ongoing restructuring and had mentioned this to his father.
Matthew and his wife have one son, Casey. As at December 2012, Casey was 13 years old. Matthew and his wife planned for him to go to college (university) and anticipated that he would need to go to an interstate college and they would incur fees and accommodation costs in the vicinity of US$60,000 per year. They had notionally earmarked US$280,000 of their savings for his tertiary education.
Not long before 2012, Matthew and his wife purchased a house in Florida for his wife’s relatives to live in. Her brother developed a psychiatric condition, was unemployed and move into the house. Her sister developed Crohn’s disease, was unemployed and lived with her mother. Her mother and stepfather were alcoholics. It was anticipated that Matthew’s wife’s mother and sister would also move into the house in Florida in due course. Matthew and his wife financially assisted his wife’s brother and subsidised house expenses.
As at December 2012, Matthew’s salary was US$220,000 per annum and he was receiving approximately US$130,000 per annum variable compensation. He also had approximately US$10,000 per annum interest income. Family expenditure was approximately US$216,000 per annum. His wife was not employed.
Since December 2012, Matthew was retrenched in April 2013 as part of the ongoing restructuring. He found employment by a software company but was retrenched again in March 2014. He found it hard to find employment and has been in receipt of unemployment benefits since then. Under the State unemployment benefits program, he founded with others a start-up electronic information exchange company in which he has a 46% shareholding. The company might ultimately be either very profitable or loss-making.
Details of Matthew’s assets and their value as at December 2012 are set out in the following table.

Home in Seattle 50% joint interest

US$285,000

$300,000

Superannuation 50% joint interest

US$219,550

$231,000

Shares 50% joint interest

US$155,746

$164,000

Savings 50% joint interest

US$150,382

$158,000

Car, furniture and effects 50% joint interest

US$12,500

$131,000

Florida house 50% joint interest

US$110,605

$116,000

Less mortgage loan 50% joint interest

-US$141,600

-$149,000

McGrath flat property 20% interest

$50,000

Total

$1,001,000

Daniel was born in March 1966. He qualified as an architect after completing Bachelor of Science and Bachelor of Architecture Honours degrees in Sydney. He did not work as an architect other than as an intern between the two degrees. He then undertook a Master of Arts Administration degree which was awarded in 1994. Since 1995, he has worked in arts administration.
Daniel moved to New York in 1996 and London in 1997. He returned to Sydney at the end of 2008 and returned to London at the end of 2011. Since returning to the United Kingdom at the end of 2011, he has been employed as Artistic Director at Cambridge Junction, a contemporary arts company. As at December 2012, his gross salary was £38,864 and his net salary after tax was £28,164. He was commuting from London to Cambridge for work at an annual cost of approximately £5,400. Annual living expenses of Daniel and his partner were £14,500 each.
As at December 2012, Daniel had been in a relationship with his partner since 2000. His partner was a composer whose average income since the global financial crisis was £5,000. Daniel was financially supporting his partner as at December 2012. In 2006 or 2007, they purchased a house in London for just under £500,000. As at December 2012, the house was valued at £1.1 million.
Details of Daniel’s assets and their value as at December 2012 are set out in the following table.

London house 50% interest

£550,000

$841,000

Superannuation

£18,000

   $28,000

Savings

£8,500

   $13,000

Vehicle, furniture and effects

£10,000

   $15,000

McGrath flat property 20% interest

   $50,000

Savings

     $3,000

Less loan

-$155,000

Total

$795,000

Relationship with Professor Brine

I have made or now make the following findings concerning the relationship between Professor Brine and Ms Carter and between Professor Brine and his sons.
Before 1989, Professor Brine had been in a relationship with Judith for 34 years and married for 31 years. They had three sons. The relationship between Professor Brine and his sons was always good. As at 1989, each of his sons had qualified for professional careers and Daniel and Martin had left home. By 1989, Professor Brine had acquired the properties that he still had when he died in 2012 apart from subsequent inheritances and the two European properties purchased with Ms Carter.
Before 1989, Ms Carter had been married to Norman for 15 years until 1973. They had two daughters who stayed with her after Norman’s departure. The relationship between Ms Carter and her daughters was always good. As at 1989, each of her daughters had qualified for professional careers and had left home.
Between 1989 and 1997, Professor Brine and Ms Carter were in an exclusive relationship. However, they were working, living and spending most of their time in different countries far apart. While Professor Brine spent a substantial proportion of his time in Europe, Ms Carter only visited Adelaide twice and they spent the majority of their time apart. Professor Brine did not fully emotionally commit to Ms Carter due to his feelings for Judith. Leaving aside the French townhouse and associated joint French bank accounts, the parties kept their properties, monies, other assets and incomes separate.
Between 1997 and 2012, Professor Brine and Ms Carter lived together in a full committed domestic relationship, initially until the early 2000s spending time in Adelaide, Leicester and to a lesser degree Castelnau-Montratier and thereafter principally in Adelaide. They did not generally pool their assets, monies or incomes. They received their own pension/superannuation, interest and investment income which they banked into their own bank accounts. They made their own expenditure out of their own bank accounts, although often the expenditure was for common purposes. They retained their own separate properties that they owned independently. They progressively opened joint bank accounts in England and Australia (in addition to the joint bank accounts in France) but only used them for limited purposes and primarily continued to use their own individual bank accounts. When they acquired the French townhouse and the English apartment, they made separate contributions to the purchase price from their own resources and were careful to acquire them as tenants in common and to divide the beneficial ownership in accordance with their respective contributions to the purchase price. Throughout the period from 1989 to 2012, their wills left their estates to their own children subject only to the life interests in the three properties left by Professor Brine to Ms Carter. I find that at least from 2003 onwards they were each aware of the other’s testamentary intentions in this regard.
Between 2010 and 2012, Professor Brine and Ms Carter agreed that they would together construct and finance the construction of a duplex house on the Gilles Street block and treat it as beneficially owned by them as tenants in common in equal shares. Ms Carter was aware that otherwise subject to the life interests in the Gilles Street house, English apartment and French townhouse, Professor Brine was leaving in his will his assets to his sons and grandchildren and raised no objection to this. Professor Brine was aware that Ms Carter was leaving her assets to her daughters and raised no objection to this.
As at 2012, Professor Brine and Ms Carter intended and expected to spend the rest of their lives together. As at 2012, Professor Brine was meeting the costs of the Gilles Street house and the major part of their routine household expenses, health insurance and vehicle expenses. Otherwise, Ms Carter was financially independent of Professor Brine on a day-to-day basis.
Professor Brine maintained a good relationship with his sons until his death in December 2012. He had regular communications with them although limited contact in person with Matthew and Daniel because they lived in different continents. His sons were not financially dependent on him but he was concerned to provide in his will for them and his grandchildren. As at December 2012, his sons were aged between 46 and 51 years old.
The estate
As at December 2012, the assets of the estate principally comprised real property. They were as follows:

440 Gilles Street

$1,750,000

446 Gilles Street 50% interest

$575,000

Warrandyte land

$720,000

Pakenham land

$294,000

McGrath Flat block

$85,000

French townhouse 50% interest

€150,000

$179,000

English apartment 40% interest

£80,000

$118,000

RBS bank account and credit card

£54,326[229]

$83,000

Barclays bank account

£12,898

19,000

Australian bank accounts

$2,000

Shares

39,000

Vehicles, household goods

$74,000

Westpac credit cards

-$3,000

Construction invoices

-$11,000[230]

Total

$3,924,000

[229] £60,933 less Ms Carter’s interest of £6,560 plus £47 credit card balance.
[230] 50% of total of $22,364 shared with Ms Carter.
Adequate provision for proper maintenance etc

I take into account the facts and circumstances referred to above and the findings I have made in these reasons for judgment.
The net value of the assets of the estate was $3,924,000. Professor Brine’s income immediately before his death was approximately $65,000 per annum.
The net value of Ms Carter’s assets immediately before Professor Brine’s death was approximately $1,490,000 and immediately after his death was approximately $2,046,000.[231] Ms Carter’s net income immediately after Professor Brine’s death was $65,000 per annum (excluding the Flexi Pension).
[231] This does not include the value of the life interests given to Ms Carter under Professor Brine’s will. I do not consider that the actuarial value of the life interest in the Gilles Street block is of assistance given that it has no present use in its existing state. I consider that the actuarial value of the life interest in the Gilles Street house is based on an annual income that exceeds its rental value and its market value would be substantially less than the value used by Mr Crump. No evidence was adduced as to the value of the life interest in the English apartment or the French townhouse.
Ms Carter made additional contributions to the renovation and holding costs of the French townhouse over and above her 50% beneficial interest. This is counterbalanced by the 50% beneficial interest she has received in the Gilles Street block.
As a result of receiving Professor Brine’s entitlement to the Indexed Pension payments and the Flexi Pension benefit, Ms Carter effectively “inherited” all of Professor Brine’s income and retained her own independent income. Ms Carter did not give evidence of her expenditure. I find that the reduction in the Indexed Pension payments of 37.5% is more than offset by the fact that the now combined income is no longer required to meet expenses of Professor Brine. In other words, Ms Carter has the benefit of at least the same income as she had before Professor Brine’s death and as she would have had if Professor Brine had not died.
Ms Carter is entitled to live for her lifetime in the Gilles Street house. If she chooses to do so, she has more than sufficient assets to meet the expenses a life tenant is required to meet and to live a comfortable life in the manner to which she became accustomed while living with Professor Brine. Although the majority of her assets are in real estate, including her 50% interest in the Gilles Street block and the French townhouse, those assets can be sold and she can invest the proceeds to earn additional income and/or meet expenditure. She can choose to retain the English apartment and rent it out to receive 60% of the income and/or use it occasionally herself or she can choose to join with the other executors in selling it and use its proceeds in the same manner as the proceeds of the other real property in which she has an interest.
As a result of a combination of Ms Carter’s own assets, the bequests of the life interests by Professor Brine’s will and her “inheriting” Professor Brine’s superannuation, Ms Carter is able to maintain her lifestyle out of her own resources.
There were competing demands on Professor Brine’s bounty by each of his sons. Martin and his partner owned a substantial property at Beulah Park worth $1.1 million between them and Martin owned assets with a total value in the order of $1.3 million as at December 2012. However, Martin had ceased his employment with the government and had no significant income.
Matthew and his wife owned a substantial property in Seattle worth US$570,000 between them and Matthew owned assets with a total value of $1 million. He was earning $350,000 per annum in his current employment as at December 2012. However, the continuity of his employment was in doubt given the ongoing restructuring and history of his previous employment showed that he did not have secure employment in the management field. He and his wife were providing the Florida house for the benefit of and were supporting and expecting in future to support her impecunious relatives. He and his wife were expecting to pay very substantial amounts for Casey’s tertiary education.
Daniel and his partner owned a substantial property in London worth £1,100,000 between them as at December 2012. However, Daniel had no other assets taking into account the borrowing from his mother. Daniel’s income was modest and he was financially supporting his partner.
While the Brines do not suggest that Martin, Matthew or Daniel could not maintain their lifestyles, it is appropriate to take into account their claims against Professor Brine’s bounty in the overall assessment whether Professor Brine made adequate provision for Ms Carter’s proper maintenance, education or advancement in life.
Taking into account all relevant facts and circumstances and exercising the overall evaluative judgement required by the section, I conclude that, by reason of Professor Brine’s testamentary dispositions, Ms Carter has not been left without adequate provision for her proper maintenance, education or advancement in life.
In some judgments, emphasis has been placed on considering the extent of the moral claim of the claimant on the testator and the moral duty on the testator to make provision for the claimant.[232] In other judgments, emphasis has been placed on the words of the section and the importance of not putting a gloss on those words.[233] In other judgments, moral considerations have been considered relevant but it has been emphasised that the ultimate test is prescribed by the words of the Inheritance Act.[234]
[232] SeeVigolo v Bostin (2005) 221 CLR 191 at [11]-[25] per Gleeson CJ and the cases cited therein.
[233] See Vigolo v Bostin (2005) 221 CLR 191 at [57]-[75] per Gummow and Hayne JJ and the cases cited therein.
[234] SeeVigolo v Bostin (2005) 221 CLR 191 at [112]-[122] per Callinan and Heydon JJ and the cases cited therein.
I have taken into account moral considerations in applying the test whether adequate provision has been made for the proper maintenance, education or advancement in life. If I analyse the question in terms of the moral claims of Ms Carter and the Brines and the corresponding moral duty of Professor Brine, I reach the same conclusion.
Conclusion
I will make a declaration that Ms Carter is entitled to a 50% beneficial interest in the Gilles Street block subject to her accounting to the estate for half of the costs incurred in partially constructing the duplex house unpaid at the date of Professor Brine’s death of $11,182. I will hear the parties as to what further orders should be made consequential on that declaration, including whether an order should be made for the sale of the Gilles Street block or for payment of a cash sum out of the estate in lieu of Ms Carter’s 50% beneficial interest in the Gilles Street block.

I will make a declaration that Ms Carter has a beneficial entitlement to £6,560 forming part of the balance of Professor Brine’s RBS bank account. I will hear the parties as to consequential orders.
I will otherwise dismiss Ms Carter’s equitable claims.
I will make a declaration under the Family Relationships Act 1975(SA) that Ms Carter and Professor Brine were on 14 December 2012 “domestic partners” within the meaning of that Act. I will dismiss Ms Carter’s claim under the Inheritance Act.
I will hear the parties as to the orders to be made for the disposition of the action.

440 Gilles Street	$1,750,000
446 Gilles Street	$1,150,000
Warrandyte land	$720,000
Pakenham land	$294,000
McGrath Flat block	$85,000
French townhouse 50% interest	€150,000	$179,447
English apartment 40% interest	£80,000	$118,361
RBS bank account and credit card	£60,980[26]	$93,299
Barclays bank account	£12,898	$19,082
Westpac bank accounts	$1,818
Shares	$38,909
Vehicles and household goods	$74,239
Westpac credit cards	-$3,159
Construction invoices	-$11,182[27]
UniSuper Flexi Pension	$542,425[28]
HSBC Aust accounts joint 50% interest	$6,056[29]
HSBC French accounts joint 50% interest	€251[30]	$300
HSBC UK account joint 50% interest	£270[31]	$413
McGrath Flat land joint 20% interest	$50,000
Total	$5,094,008

Home in Beulah Road 50% joint interest	$550,000
McGrath flat property 20% interest	$50,000
Superannuation	$565,000
Savings	$112,000[228]
Total	$1,277,000

Home in Seattle 50% joint interest	US$285,000	$300,000
Superannuation 50% joint interest	US$219,550	$231,000
Shares 50% joint interest	US$155,746	$164,000
Savings 50% joint interest	US$150,382	$158,000
Car, furniture and effects 50% joint interest	US$12,500	$131,000
Florida house 50% joint interest	US$110,605	$116,000
Less mortgage loan 50% joint interest	-US$141,600	-$149,000
McGrath flat property 20% interest	$50,000
Total	$1,001,000

London house 50% interest	£550,000	$841,000
Superannuation	£18,000	$28,000
Savings	£8,500	$13,000
Vehicle, furniture and effects	£10,000	$15,000
McGrath flat property 20% interest	$50,000
Savings	$3,000
Less loan	-$155,000
Total	$795,000

440 Gilles Street	$1,750,000
446 Gilles Street 50% interest	$575,000
Warrandyte land	$720,000
Pakenham land	$294,000
McGrath Flat block	$85,000
French townhouse 50% interest	€150,000	$179,000
English apartment 40% interest	£80,000	$118,000
RBS bank account and credit card	£54,326[229]	$83,000
Barclays bank account	£12,898	19,000
Australian bank accounts	$2,000
Shares	39,000
Vehicles, household goods	$74,000
Westpac credit cards	-$3,000
Construction invoices	-$11,000[230]
Total	$3,924,000