Chiarieri v Morphett

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CHIARIERI & ANOR v MORPHETT
[2025] SASC 162
Judgment of the Honourable Justice Stein
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - RESULTING TRUSTS - REBUTTAL OF IMPLICATION
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS - COMPENSATION FOR IMPROVEMENTS
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS - SALE IN LIEU OF PARTITION
The applicants, a husband and wife, who have since separated, each hold a one-tenth share in the wife’s family home, majority-owned by the wife’s mother, the respondent. The applicants seek a declaration that the respondent holds part of her registered an eight-tenths share in the family home on implied trust either as a constructive trust or a resulting trust.
The applicants assert a common intention that the applicants were to assist the respondent in obtaining finance to maintain the respondent’s ownership of the home following the settlement of the respondent’s divorce proceedings on which basis the applicants would be registered on the certificate of title in equal one-third interests along with the respondent. The respondent admitted she promised that the applicants would be registered on the title. However, the extent of this promise and its effect on the applicants and their interest in the family home were at issue during trial. The applicants, in the alternative, asserted the respondent holds part of her registered interest on a resulting trust in accordance with their financial contribution.
In addition to the declaratory relief, the applicants seek an increase to their interest in equity on the basis of the applicants’ contribution to improvements made to the family home during its joint occupation.
Held:
1.The presumptions of advancement and resulting trust are excluded by the facts as found;
2.The applicants are entitled to a declaration in their favour that the respondent holds a 21.5 percent share of the family home on trust for the applicants in equal shares of 10.75 percent in addition to the applicants’ pre-existing registered legal interest of one-tenth each;
3.The applicants are not entitled to a further increase to their proprietary interest on the basis of their contributions to improvements;
4.The true beneficial interests of the parties at law and in equity are 20.75 percent to each of the applicants and 58.5 percent to the respondent;
5.As the applicants’ joint interest is short of one moiety, they are not entitled to seek a sale under the Law of Property Act 1936 (SA) s 70. The Court will hear further from the parties in relation to the applicants’ application for sale instead of partition pursuant to the Law of Property Act 1936 (SA) s 69.

Law of Property Act 1936 (SA) ss 69, 70, referred to.
Baumgartner v Baumgartner (1987) 164 CLR 137; Giumelli v Giumelli (1999) 196 CLR 101; Soulos v Pagones (2023) 416 ALR 181, discussed.
Browne v Dunn (1893) 6 R 67; Brickwood v Young (1905) 2 CLR 387; Perman v Maloney [1939] VLR 376; Wirth v Wirth (1956) 98 CLR 228; Squire v Rogers (1979) 27 ALR 330; Calverley v Green (1984) 155 CLR 242; Muschinski v Dodds (1985) 160 CLR 583; Mitchell v Cullington [1997] ANZ ConvR 342; Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300; BM v AM [2003] IEHC 170; Francis v Francis [2009] SASC 363; Sidhu v Van Dyke (2014) 251 CLR 505; Bosanac v Commissioner of Taxation (2022) 275 CLR 37; King v Fister [2022] QCA 47; Galati v Deans [2023] NSWCA 13, considered.

CHIARIERI & ANOR v MORPHETT
[2025] SASC 162
Civil

STEIN J: In December 2017, pending the birth of their first child, the applicants, Mr Daniel Nino Chiarieri and Mrs Laura Jayne Chiarieri were staying with Laura’s mother, Ms Barbara Dianne Morphett, the respondent, at a property at 118 Brookman Road, Meadows (“the Property”).[1] At the time, Barbara was entangled in matrimonial property proceedings with her then husband. Daniel and Laura claim that, while they were staying with Barbara, Barbara told them she was afraid she may lose the Property, she would not be able to keep it without help and, if they helped her with finance to keep the Property, they would be registered on the Certificate of Title (“title”) in equal thirds with her. They claim Barbara also said they could live on the Property with her, rent out Daniel’s home in Murray Bridge and, if they assisted to make a granny flat on the Property habitable, when their family grew, Barbara would move out to the granny flat. Daniel and Laura assert that, as a consequence, they changed their plans, moved in with Barbara, provided finance for the Property by becoming co-mortgagors, paid expenses and performed works on the Property. In April 2019, Daniel and Laura were registered on the title as tenants in common with a 10 percent ownership interest each, with Barbara holding the remaining 80 percent interest. The relationship between Laura and Barbara irretrievably broke down in late 2021, after events which I describe below, and in early 2022 Daniel and Laura moved back to Murray Bridge.
[1] For ease of reference, without intending any disrespect, I will refer to the parties by their first names.
Daniel and Laura bring a claim against Barbara in relation to the Property. Daniel and Laura’s primary case is that Barbara holds, in equity, a one-third interest in the Property in her own right and holds the balance of her registered 80 percent interest on constructive trust for Daniel and Laura, each as to one-third. Daniel and Laura’s alternative case is based on Barbara holding a portion of her registered 80 percent interest in the Property on a resulting trust for them to the extent of their provision of purchase moneys by way of liability under a mortgage.
On either case, Daniel and Laura also allege that they are entitled to an increase in their equitable ownership of the Property to the extent of the value of their contributions and improvements made to the Property.
Daniel and Laura seek, by way of remedy, a declaration as to the equitable ownership interests in the Property. In the event this Court determines their interest is equivalent to a moiety or greater, they seek orders for a sale and distribution of proceeds in a manner that reflects the parties’ legal and equitable interests and contributions pursuant to s 70 of the Law of Property Act 1936 (SA) (the “LP Act”). If this Court determines Daniel and Laura’s ownership interest is less than a moiety, they ask the Court to make orders for a sale and distribution of proceeds in a manner that reflects the parties’ legal and equitable interests and contributions to the Property pursuant to s 69 of the LP Act in circumstances where a sale would be more beneficial to the parties than partition.
Barbara represented herself prior to, and during, the trial.
For the reasons below, I am satisfied on the balance of probabilities that:
·In late 2017, Barbara represented to Daniel and Laura that if they assisted her to retain the Property, they would be registered on the title, and in the future, she would move to the granny flat on the Property.
·Daniel and Laura agreed to assist Barbara to retain the Property in reliance on Barbara’s representations.
·In April 2018, Laura swore an affidavit deposing to willingness to assist Barbara which affidavit was filed in the Federal Circuit Court.
·Orders were made by the Federal Circuit Court which provided for Barbara to retain the Property on certain conditions which included discharging existing mortgages.
·In reliance on Barbara’s representations and to their detriment, among other things:
-Daniel rented out the property he owned in Murray Bridge (“Guerin Road property”);
-Daniel and Laura moved to the Property to live with Barbara;
-Daniel and Laura successfully applied with Barbara for finance and became liable as co-mortgagors in respect of the mortgage over the Property which secured the loan made to Barbara, Laura and Daniel;
-Daniel and Laura performed works on the Property, including to the granny flat, and incurred expenses.
·In 2019, a transfer was lodged as a consequence of which Daniel and Laura were registered on the title as to a one-tenth interest each and Barbara’s interest was registered as eight-tenths. Daniel and Laura only became aware of this fact in about July 2020.
·In late 2021, when expecting their third child, Daniel and Laura asked Barbara to move to the granny flat but Barbara refused. The relationship between Laura and Barbara then completely broke down and, in early 2022, Daniel and Laura moved away from the Property.
·While I am not persuaded on the balance of probabilities that Barbara promised a one-third interest or equal interests on the title to each of Daniel and Laura, I am satisfied that Barbara, Laura and Daniel shared a common intention that Daniel and Laura would be registered on the title.
·The conclusion which best gives effect to the parties’ intention at the time is that Daniel and Laura were to be registered on the title in shares representing their financial contribution to Barbara retaining the Property.
·Daniel and Laura’s financial contribution to Barbara retaining the Property is best represented by their financial liability under the mortgage agreement as a percentage of the value of the Property at the time of entry into the mortgage. Their financial liability was two-thirds of the AFG mortgage of $522,860. That represented 41.5 percent of the assessed value of the Property at the time of settlement, being $840,000. As Daniel and Laura are registered on the title in interests of only one-tenth, or 10 percent, each, Daniel and Laura are entitled to a declaration that Barbara holds 21.5 percent (10.75 percent each) of her registered interest in the Property on constructive trust for them.
·Such a declaration is to give effect to the intention that Daniel and Laura are entitled to registration of a 20.75 percent interest each and accordingly takes into account the fact that Daniel and Laura are already registered in interests of one-tenth or 10 percent each. Barbara thus holds 58.5 percent of the Property on her own account.
·Daniel and Laura are therefore entitled to a declaration that Barbara holds on constructive trust for each of Daniel and Laura a 10.75 percent interest, totalling 21.5 percent of her 80 percent registered interest in the Property.
For the reasons I set out below, I am not satisfied that Daniel and Laura should have their ownership interests increased on the basis of their asserted contribution to the increase in value the Property over the course of their joint occupation.
As Daniel’s and Laura’s interest in the Property is less than a moiety, I am required to consider the factors set out in s 69 of the LP Act in determining whether sale would be more beneficial than partition. I will hear from the parties before making any such orders.
Statement of claim
In order to assist in understanding the positions taken at trial, I set out below a high level summary of the pleadings.
In their statement of claim, Daniel and Laura pleaded matters I have referred to in the introduction above. In essence, in late 2017, while residing with Barbara prior to the birth of their first child, Barbara asked for assistance to retain the Property and said that if she was unable to do so, Barbara would suicide. Barbara represented that if Daniel and Laura provided finance to assist in retaining the Property as part of the matrimonial proceedings and then assisted in completing the then semi-completed granny flat on the Property, Barbara would allow Daniel and Laura to move into the Property and she would register Daniel and Laura as tenants in common on the title together with herself with each holding a one‑third interest. The statement of claim pleads that Barbara represented that, once completed, she would rent out the completed granny flat until Daniel and Laura’s family had grown such that space in the house became an issue at which point Barbara would relocate to the granny flat.
Daniel and Laura pleaded that they agreed to assist Barbara in reliance on the representations she made and, after moving into the Property in May 2018, Daniel and Laura paid various costs and expenses and performed work on the Property including to complete the granny flat.
Daniel and Laura plead that they first became aware that their registered interest in the Property was 10 percent each in July 2020 when Barbara revealed this to Laura during an argument.
In November 2021, in reliance on previous representations, Daniel and Laura asked Barbara to make arrangements to relocate to the granny flat as Laura was then pregnant with her third child. Daniel and Laura plead that Barbara became upset and alleged that Daniel and Laura were expanding their family to pressure Barbara to move out of the house.
Daniel and Laura plead that but for Barbara’s representations, in reliance on Barbara’s representations and to their detriment, they would not have:
1.assisted Barbara in the matrimonial proceedings through Laura deposing an affidavit in those proceedings;
2.undertaken works to make the Guerin Road property tenantable;
3.moved into the Property to support the mortgage application;
4.undertaken works and improvements to the Property;
5.entered into mortgages jointly with Barbara;
6.paid approximately $18,000 in mortgage repayments in addition to the non-mortgage related costs of the Property, including approximately $12,000 in council rates; and
7.requested that Barbara move to the granny flat in satisfaction of her prior promise and, when that request was refused, taken the necessary steps to relocate back to the Guerin Road property.
Daniel and Laura plead that they relied on Barbara’s representations and accordingly she should be estopped from resiling from her promises and therefore should be declared to hold a one-third interest in the Property on her own account and the balance on constructive trust for Daniel and Laura. Alternatively, Daniel and Laura sought a declaration that Barbara holds part of her share in the Property on resulting trust to correspond with their provision of purchase funding by way of liability under the mortgage.
In addition, Daniel and Laura plead that Barbara should be estopped from taking advantage of their contributions to the Property by payment of contributions to the mortgage and costs of the Property and improvements to the Property.
Daniel and Laura asked the Court to grant declaratory relief by way of a determination of the legal and equitable interests in the Property and further asked the Court to make orders for sale of the property and a distribution of proceeds according to the parties’ legal and equitable interests and contributions to the Property.
Filed defence
In her filed defence, Barbara admitted many of the background facts but denied the principal contentions regarding the representations made in December 2017 and Daniel and Laura’s reliance on those representations. Barbara denied that she threatened to take her life. Barbara pleaded that Laura agreed to financially assist her to retain the Property as part of the matrimonial proceedings without any conditions except for the ability to reside at the Property. Barbara pleaded that she told Laura she would register Daniel and Laura on the title, but specific percentages were never discussed.
Barbara pleaded that Daniel and Laura only paid around half of the council rates; did not contribute to the mortgage from April 2018 to February 2021; and most of the works conducted on the property by Daniel and Laura were completed without first consulting her and were not completed to an adequate standard and were defective.
Barbara pleaded that the Guerin Road property was not used as security for the mortgage applications.
Barbara believed Daniel and Laura were aware of their registered ownership interests in the Property.
Barbara admitted there was a vague plan that she would move out of the house years in the future but pleaded that she had never promised to move out of the house so soon after Daniel and Laura started living at the Property.
Barbara pleaded that Daniel and Laura’s contributions were less than asserted by them.
Barbara asked the Court to dismiss Daniel and Laura’s claim in its entirety, refuse to make the orders sought and grant declaratory relief by way of a determination that Barbara owns 100 percent of the Property.
Background
I commence by setting out in narrative form the matters which were not in contention.
The Property was purchased in 1993 by Barbara and her then husband, Bruce Morphett. Laura is the daughter of Barbara and Bruce and she resided at the Property until October 2015 when she moved out in consequence of issues with her father. Thereafter, Bruce and Barbara separated and Bruce moved out of the Property. In September 2016, after Bruce had departed, Laura returned to the Property.
Daniel and Laura commenced a relationship in December 2016 and subsequently started living together at the Guerin Road property which was purchased by Daniel in 2016. They married in December 2019 and together have three children born in January 2018, December 2020 and August 2022.
In December 2017, Daniel and Laura moved to the Property for a short time during the final stages of Laura’s first pregnancy and stayed there until February 2018 when they returned to the Guerin Road property.
An affidavit was sworn by Laura (“matrimonial proceedings affidavit”) and filed in matrimonial proceedings between Barbara and Bruce (“matrimonial proceedings”) in April 2018. That affidavit assumed some significance in the trial because it did not strictly reflect the claim made by Daniel and Laura in these proceedings. I return to address the matrimonial proceedings affidavit below.
On 19 April 2018, orders were made by the Federal Circuit Court of Australia. The effect of the orders was, among other things, that Bruce was to transfer to Barbara, at her expense, all of his interest in the Property. Barbara was obliged to discharge, at her sole cost, a joint Adelaide Bank home loan which was secured against the Property and to obtain from Bruce a complete release. Barbara also had to pay to Bruce the sum of $44,500. Barbara had to discharge other mortgages. Barbara retained for her sole use and benefit, free from any claim of Bruce, the Property and a 50 percent interest in another property in Currency Creek, together with personal property.
In May 2018, Daniel and Laura leased out the Guerin Road property and moved to the Property.
On 9 November 2018, Ms Burke, Barbara’s broker, sent to Australian Finance Group Home Loans (“AFG”) a loan application form with a covering memorandum which referred to the fact that Barbara was fully aware that “Daniel and Laura will be going on the Title”. The loan application form recorded as applicants for the loan each of Barbara, Laura and Daniel with the Property offered as security for the loan. The Guerin Road property was not included as security for the loan. The memorandum recorded a recent valuation verifying the value of the Property at $840,000.
In November 2018, Barbara, Laura and Daniel, together signed an application to AFG for finance in the amount of $522,860.

On 6 December 2018, First Mortgage Services Australia Pty Ltd sent to Ms Burke correspondence confirming approval by AFG of the loan amount of $522,860 in respect of the Property with the borrowers named as Barbara, Laura and Daniel. All three signed the documentation. The account from which loan payments were to be deducted was an account in Barbara’s name. The interest rate on the AFG loan was 5.24 percent per annum. The Property was valued at $840,000.
On 14 April 2019, Barbara and Laura signed a client authorisation to instruct a solicitor from SE Lawyers, Barbara’s solicitors, in relation to a conveyancing transaction. On the same day, each of Barbara, Laura and Daniel met with a Justice of the Peace to verify identity documents.
On 16 April 2019, a Lands Titles Registration Office transfer was lodged, pursuant to which, for stated consideration of $168,000, the Property was transferred from Barbara to Barbara as to an eight-tenths share and each of Daniel and Laura as to a one-tenth share as tenants in common. The documentation was signed on behalf of Barbara by the solicitor from SE Lawyers Pty Ltd. The transfer was registered on 16 April 2019.
On 25 November 2020, Herron Todd White South Australia Pty Ltd issued a valuation following an inspection on 19 November 2020 for the purposes of an application for a mortgage from the Commonwealth Bank of Australia (“Commonwealth Bank”). The market value of the Property was assessed at $900,000.
In December 2020, the parties refinanced the joint mortgage with the Commonwealth Bank providing finance in an amount of $516,700.
On 10 February 2021, each of Barbara, Laura and Daniel received from the Commonwealth Bank a letter informing them that their home loan was now finalised. The documents recorded the borrowers as Barbara, Laura and Daniel with a balance owing as at 10 February 2021 of $516,246.
In April 2022, Daniel, Laura and their children moved out of the Property and into the Guerin Road property.
The Property remains subject to the joint mortgage with the Commonwealth Bank.
Applicants’ lay evidence
Daniel Nino Chiarieri
Affidavit
Examination in chief was elicited by way of affidavit.[2]
[2] Affidavit dated 15 August 2024 was tendered as Exhibit A2.
Daniel is married to Laura, but they are now separated. In April 2016, Daniel purchased and commenced living at the Guerin Road property which is a five bedroom and two bathroom home. In December 2016, Daniel commenced a relationship with Laura.
Daniel deposed to being aware Laura was experiencing difficulties living at the Property following her parents’ separation particularly when her father would visit and cause conflicts.
Daniel described the Property as comprised of a large home and a very large farm shed with horse stables, a hay shed and a workshop, as well as a granny flat partitioned off from the rest of the shed building. The granny flat was set up with two bedrooms, a lounge, kitchen and a combined bathroom and laundry, it was semi complete with doors, skirting boards and some carpet.
In mid-December 2017, Daniel and Laura moved in with Barbara during the latter stages of Laura’s pregnancy so that Barbara could provide some support as they were new parents. Daniel said he helped around the Property including by chopping up wood for Barbara.
At some time after Christmas 2017, but before New Years Day 2018, during a lunch, Barbara talked of fear of losing the Property in the matrimonial proceedings and stated she would kill herself if that eventuated. Daniel said that Barbara told them she was unable to retain the Property without financial help as she was only able to borrow $300,000 but needed $500,000. He recalled that Barbara was crying and Laura appeared concerned. Daniel said he offered to help financially. Barbara appeared relieved and he heard both Laura and Barbara say it sounded like a good idea if he and Laura were to buy the Property with Barbara to own it equally. Daniel proposed that they rent out the Guerin Road property to better position the parties to obtain finance given Daniel’s existing mortgage on the Guerin Road property. Daniel said that he had always expected the Guerin Road property to be his “forever home” for his family, but he said to Barbara that he was willing to help and to move to the Property on the basis he would be buying the Property with Barbara and Laura as equal owners. Daniel said Laura agreed. Daniel stated that he would not have gone on the mortgage or invested in the Property without Barbara’s clear representation that he and Laura would be equal owners with Barbara.
Daniel said he heard Laura express concern about not having enough space if they were living in the same house if Daniel’s and Laura’s family grew. He heard Barbara say she would move into the granny flat if their family grew larger and the granny flat was completed, but he could not say when this was said. Daniel stated that this representation made him more confident with moving ahead with the agreement.
Daniel recalled that prior to Laura giving birth he spoke to a lender at BankSA. He said he went to see him with Laura and told him about the plan to buy the Property with Barbara. Daniel was told he would require a letter from a real estate agent and he then obtained a letter from Jack Freestone, a real estate agent, regarding leasing the Guerin Road property. Daniel was later told that the application for finance would not be accepted. Daniel then had discussions with Barbara who told him she had found a higher risk lender called AFG. Daniel told Barbara he was willing to consider AFG.
In February 2018, Daniel and Laura returned to the Guerin Road property with their daughter. Daniel deposed to the works which were required to make the Guerin Road property ready for lease including tidying up and attending to general maintenance. Laura completed internal painting over a few weeks. Daniel asked a labourer to create a stud wall for the stairs and Daniel completed gyprocking and fitted a handrail. In exchange for the work, Daniel resprayed the labourer’s car. At a later date, an electrician updated the downlights.
In May 2018, Daniel and Laura moved into the Property with their baby over the course of a few weeks. This included moving some furniture to the Property and getting rid of other furniture, such as the dining table, which was not required because Barbara had such furniture. Daniel was aware Laura completed much of the moving using a friend’s trailer.
On the day Daniel and Laura moved out, tenants moved into the Guerin Road property. After six months the tenants moved out and Daniel engaged a real estate agent to lease the Guerin Road property and shortly after a second tenant moved in.
Daniel deposed to spending the evenings and weekends for a month cleaning out the lounge room of the Property which was cluttered with Barabara’s mother’s belongings.
Daniel stated that sometimes Laura would tell him that bills needed to be paid, in which case he would ask Laura to ensure it was paid and to let her know whether to use cash or a bank account and, if so, which account. He would ask Laura to reimburse Barbara if she had paid the bill. Laura had access to Daniel’s bank accounts and a cash safe and would tell him when she used cash to pay bills and when she made electronic transfers. Daniel paid many of the bills in cash as he was often paid in cash and records were neither made nor kept. He never talked with Barbara about covering specific expenses.
By reference to discovered bank statements in Barbara’s name, Daniel deposed to six specific transfers from Daniel and Laura to Barbara on dates from November 2018 to September 2021 for items including council rates, paint, food shopping and an electricity bill. Daniel also deposed to contributions to council rates and costs of utilities at the Property while he lived by reference to his bank statements. He paid some expenses in cash but did not have records of those payments.
Daniel deposed to installing two 1.2 m gates bought for approximately $160 in addition to an existing 2.3 m gate as well as 200 mm² fencing bought for approximately $400. This was installed using the existing posts to create two enclosures in which to keep Daniel’s and Laura’s pets.
In about August 2018, Daniel and Laura performed works on the granny flat to make it ready to accommodate a friend’s brother. This work included moving out feral cats living in the flat, removing soiled carpet, installing new carpet and completing tiling works in the kitchen and dining room with tiles and grout purchased by Barbara. After a couple of months, the tenant moved out of the flat.
On 9 November 2018, Daniel signed an application to AFG for a joint mortgage together with Laura and Barbara. On 11 December 2018, Daniel went with Laura and Barbara to see a mortgage broker to sign a home loan agreement with AFG. The broker witnessed their signatures. Daniel recalled Barbara saying that she would pay the mortgage repayments and that he and Laura ought to pay for anything else.
In 2019, a friend of Laura’s needed accommodation on short notice and Laura allowed her to use the granny flat. Daniel was told by that tenant that she was paying a small rent payment to Barbara.
On 14 April 2019, Daniel went with Laura and Barbara to an appointment with Barbara’s solicitors to arrange the transfer of the Property into their names. Daniel said he signed a document and provided identification. He attended on the understanding the signing of the document would not interfere with the promised equal ownership stake and he did not see any document or sign anything that indicated he would receive less than a one-third ownership interest in the Property.
Daniel spoke of buying a letterbox for approximately $320 and installing it using a concrete footing and bolting the letter box at the front gate.
Daniel said that Barbara had committed to giving Daniel and Laura a cash gift to assist with funding their wedding but that did not eventuate, so Daniel and Laura extended the mortgage over the Guerin Road property in the amount of $20,000 with the Commonwealth Bank to assist with the wedding. Barbara did give him and Laura a cash gift of $20,000 a few days before the wedding which was on 15 December 2019.
After the previous tenant moved out of the granny flat, Daniel expressed a desire to Laura and Barbara to complete the granny flat so that it was self-contained accommodation. He said that Barbara was content for Daniel and friends to complete the work and she said she would provide any materials she already had and purchase any other necessary materials. Daniel was aware that Laura had purchased some materials for around $700. After Christmas 2019, Daniel said he worked to install a flat pack kitchen purchased by Barbara which included necessary work by a plumber employed by Barbara using the existing hot water system. On 8 April 2020, the next tenant moved into the flat and Daniel was aware that the tenant transferred $800 for a bond to Laura and paid the first rent of $200 to Barbara. Daniel also said he installed curtains and a fly screen door to the flat at the request of the tenant. In 2020, Daniel bought pavers and paved a small patio area at the rear of the flat.
Daniel deposed to speaking to Laura and Barbara about converting the existing shed into a workshop so that he and his brother could conduct a small business from the Property and Barbara said they were welcome to run a business out of the shed. Daniel and his brother began work to clear out the shed using skip bins and trailers. Some items were returned to Bruce. In early 2020, Daniel epoxy coated and painted the shed floor with his brother with materials he purchased for approximately $200. A floor pulling rack was bought with his brother for $800 and installed. Daniel bought a roller door for $250 which was installed by a friend. Other items including panel beating equipment, steel tubing, an extraction fan, a café blind, and brighter lighting was installed.
Despite initial reluctance from Barbara, Daniel recalled that Barbara said she would allow Laura to repaint the interior of the house on the Property in a neutral white colour. Laura told him that she had purchased approximately 36 litres of paint for around $600 but was not sure of the exact amounts. In around July 2020, Laura arranged for an electrician to rewire the downlights in the house after speaking with Barbara and Daniel. About a month later, Laura completed the painting and Daniel recalled Barbara thought the result was ok. After the painting was complete, Laura fixed the downlights in their positions with screws.
Daniel stated that all the investments and improvements done to the Property were done on the understanding that he and Laura were joint two-thirds owners of the Property and, without such understanding, he would not have undertaken such tasks.
Daniel said during one weekend he heard commotion outside and then saw Laura come inside, upset, at which time she told him that she had an argument with Barbara. Barbara had said that their interest on the title of the Property was only 10 percent each and not one-third each as they had agreed. He convinced Laura to stay at the Property despite her wanting to move out that night.
On 27 August 2020, Daniel and Laura met with a solicitor who told them that their interest on the title was jointly 20 percent. Daniel stated that the solicitor advised them to contribute to the mortgage costs to demonstrate their interest in the Property was more than 10 percent each. Despite Laura’s anger, Daniel and Laura agreed to follow the advice and to remain at the Property. Daniel attempted to smooth over things between Laura and Barbara when there were disagreements.
In December 2020, Daniel attended a meeting at the Commonwealth Bank with Laura and Barbara for the purposes of refinancing the joint mortgage. He was told by Laura that she was paying half of the mortgage repayments. By reference to Laura’s bank accounts, Daniel said amounts totalling $3,850 were made to mortgage repayments from Laura’s account between 15 February 2021 and 30 April 2021. In addition, amounts totalling $12,550 in contributions to the mortgage repayments were contributed from Daniel and Laura’s joint account between 13 May 2021 and 30 March 2022.
In 2021, Daniel discussed with Barbara building a deck at the rear of the house at the Property. He said Barbara was content for him to do so. Daniel stated he bought concrete blocks and some timber to complete the job but abandoned the project after Laura told him that Barbara was upset about not being included in decisions regarding the Property.
Around Christmas 2021, Daniel stated he sat down with Laura and Barbara to discuss Barbara moving into the granny flat as Laura was then pregnant with their third child and the current tenant was moving out. He said that Barbara became upset and refused saying “I didn’t expect your family to grow so quickly”. Daniel said Laura told him it had to happen otherwise they had to move out. Daniel said tensions between Barbara and Laura were obvious and the living situation had become uncomfortable.
Soon after this, Daniel said Laura told him she could not stay at the Property any longer. Preparations were made to vacate the Property and to move back into the Guerin Road property, including Laura writing a letter to Barbara and Laura notifying the tenants of the Guerin Road property that they would need to vacate. Daniel stated that he, Laura and their children moved back to the Guerin Road property in April 2022 and ceased contributing to the mortgage repayments and other costs of the Property. Around this time, due to financial stresses related to being out of work due to contracting COVID-19, Daniel sold some items to cover expenses to the value of about $2,500.
Daniel said that on or about 26 April 2022, Barbara attended at Daniel’s parents’ house and delivered papers for them to sign regarding the discharge of the mortgage and a declaration that he and Laura had agreed to give up their interest on the title to the Property. Daniel refused to sign the documents as he wanted to obtain legal advice. Laura agreed. Daniel said Laura wanted to end the joint mortgage but did not agree that they had no ownership interest in the Property.
Cross-examination
Barbara commenced cross-examination by asking Daniel questions about the discussion he had alleged to the effect that she may lose the Property, in which case she would kill herself, and that she could not keep the Property without financial help. Barbara did not ask Daniel any questions which directly or indirectly suggested that such a conversation did not occur. Cross-examination focused on Daniel’s statement that Barbara told them she had tried to secure finance from People’s Choice Credit Union. Barbara in effect put to Daniel that she had not done so at that point in time, and she only tried to source money after 19 April 2018. Daniel responded that he thought Barbara had said she had gone to People’s Choice Credit Union to secure $300,000 but accepted he could be wrong and it may not have been People’s Choice Credit Union.
Barbara cross-examined Daniel about the timeframe within which he asserted she contacted AFG. Barbara put to him that she only went to AFG in November 2018. Daniel said he thought Barbara went to AFG around the time she was trying to secure finance.
Barbara disputed Daniel’s claim that he did significant work on the family room, putting to him that there were only a few boxes in the lounge room. Barbara disputed the statement that it took a month to do the work and said she moved some of the boxes to the stable herself.
Barbara put to Daniel that she did not receive any rent from the first or second tenants. Daniel accepted he never saw any exchange of monies and could not say if rent was paid. Barbara put to Daniel that she had worked on the granny flat before the tenants moved in and progress did not continue because there were people living there. Daniel said that when the first tenant moved in there was not much in the granny flat at all and when the second tenant moved in, Barbara did some work to the shower to complete it and make it more comfortable. Barbara put to Daniel that she put together the flat pack kitchen and she did not receive any assistance apart from carrying the constructed items from the shed into the granny flat and putting them against the wall. Daniel disagreed that Barbara carried out 100 percent of that work.
Barbara disputed agreeing to construct decking. Daniel maintained he recalled a conversation about the deck, including in which direction timbers would be placed.
Barbara put to Daniel that, when asked to move into the granny flat, she did not state that she did not expect their family to grow as fast but rather said that there was a spare bedroom and the two older children could be roomed together. Daniel said he accepted she mentioned something about there being enough room, but said he and Laura wanted to raise their children with each having individual rooms.
In relation to the deposition that Daniel said he was willing to help and move into the Property on the basis he was buying it as equal owners, Barbara put to Daniel that she did not say anything about percentages. Daniel agreed that nothing was said about percentages, but that Barbara put it as “equal owners”. The following exchange then occurred:[3]
[3]    TT41.17-41.37.
Q.I didn’t mention anything about percentages or equals, all I said was the name would go on the title of the farm. Do you agree with that, Daniel.
A.Yeah, yeah, there was an agreeance that Laura and I and Barbara would all go on to this title together, yeah, I agree with that.
MR DOUGLAS:   Your Honour, I rise not out of technicality, but I think there was a compound question and the witness has only answered one part of it.
HER HONOUR:   Yes.
MR DOUGLAS:   That there would be nothing wrong with Barbara saying ‘I didn’t mention the word “equal”, do you agree?’
HER HONOUR:   Yes.
XXN
Q.I didn’t mention the word ‘equal’, do you agree.
A.Look, going back that amount of time it’s hard to say if the word ‘equal’ was actually said but I was under the impression, or Barbara led me to believe that it would be under equal ownership. So if that can answer the question, but –
Barbara then said she disagreed with the “equal” part and what she said at the time was that they would be on the title.

In relation to the discussions about the granny flat, Barbara put to Daniel that she said in a few years she may move to the granny flat and give them more room. Daniel responded that it was always said that if the family grew larger then Barbara would move out to the granny flat.
Barbara referred to the paperwork signed on 14 April 2019 (which resulted in the transfer of the Property) and asked Daniel whether he asked questions and looked at what he was signing. Daniel responded that he signed the documents but did not recall asking too many questions because he trusted Barbara.
Laura Jayne Chiarieri
Matrimonial proceedings affidavit
As set out above, on 12 April 2018, Laura swore an affidavit which was filed in the matrimonial proceedings. I return to address the evidence about the circumstances in which that affidavit was prepared and affirmed below.
The matrimonial proceedings affidavit stated that Laura and her partner, Daniel, were very keen to assist her mother to retain the property and in that respect had agreed to lease out their Murray Bridge North property and move to the property with their infant daughter. The affidavit continued as follows:[4]
I confirm that my partner Daniel and I are very keen to assist my mother to retain the Brookman Road, Meadows property. In that regard we have agreed to lease out our Murray Bridge North property and move to the Brookman Road, Meadows property with our infant daughter. We have applied to The Peoples [sic] Choice Credit Union to borrow Two Hundred Thousand Dollars ($200,000) to assist my mother to discharge the various matrimonial loans secured against the said Brookman Road, Meadows property.
It has been agreed between my mother, my partner and myself that in the event that my mother is permitted to retain the said property, then my partner and I will also be registered as tenants in common on the said Title, to be apportioned in accordance with our respective financial contributions.
[4] Exhibit A1 – Bundle of documents numbered 1-27, p 2.
In the affidavit Laura stated that she could recall that during her adolescence her father would consume beer. The typed version of the affidavit stated that he would consumer “a 30 bottle slab of beer every two days”. The copy of the affidavit tendered during trial had been amended with the word “bottle” crossed out and the word “can” had been handwritten above the deleted word. The handwritten amendment was not signed or dated.
The affidavit was affirmed before a Justice of the Peace in Murray Bridge on 12 April 2018.
Trial affidavits
Initially, one affidavit affirmed by Laura and dated 15 August 2024 was tendered.[5] After Barbara successfully applied to re-open in circumstances I address below, Laura deposed to further matters in a second affidavit dated 3 February 2025 which was tendered.[6]
[5] Exhibit A3.
[6] Exhibit A6.
I summarise first the evidence contained in Laura’s first affidavit before returning to address the second affidavit and subsequent oral evidence later in my reasons.
Laura grew up at the Property but moved out in 2015 due to conflict and violence in the home and her father’s alcoholism. Laura rented a room for a period in Mount Barker in 2016 before moving into another property owned by her parents. Later in 2016 when her father moved to that property, Laura moved back to the Property to live with her mother.
Laura commenced a relationship with Daniel in December 2016 and moved into the Guerin Road property in January 2017. She said she enjoyed the Guerin Road property as it was spacious and comfortable, she saw that Daniel had made improvements to it and Laura also made improvements while residing there.
In December 2017, Daniel and Laura spent three to four weeks at the Property with Barbara due to concerns their first child may be born early. Laura recalled Barbara stating that she wanted to keep the Property but would need financial assistance to do so. Barbara told Laura that she and Bruce were fighting over who would get which of the three properties they owned, which include the Property. Barbara told Laura she would not be able to keep the Property without help.
Laura recalled that one afternoon prior to the birth of her first child, Barbara came into the room where Daniel and Laura were sitting and said words or words to the effect “I’m in a position where if I lose this property to your dad, I am going to kill myself on this property because I can’t leave this property and that way my ashes can be spread over the property so I don’t ever leave”. Laura became emotional. She said she was in tears and really shocked by what her mother had said. Laura said she and Daniel stated that they would do what they could to assist in retaining the Property.
Laura said that Barbara stated that if Daniel and Laura would agree to help her with finance to keep the property then Daniel and Laura would be registered on the title in equal “thirds” with her and that Daniel and Laura could reside at the Property with her. Laura said her intention at the time was to move back to the Guerin Road property after the birth of her first child as their long term home. However, the offer to become equal owners of the Property meant that Laura was prepared to move her family to the Property and invest financially as well as emotionally and with time and labour and take on the liability of the mortgage.
During this conversation, Laura stated that she was concerned that if she and Daniel had more children, there would be a need for more space. Laura recalled that Barbara stated that in the event their family grew, she would relocate to the granny flat if Daniel and Laura could do the work to complete it.
In February 2018, Daniel and Laura moved back to the Guerin Road property and commenced work to prepare it to be rented, which included works to the staircase and repainting the house. Barbara occasionally visited to assist with minding her grandchild and with tasks including painting.
In April 2018, Laura recalled attending at a Justice of the Peace with Barbara. Barbara collected her and drove her to the appointment. Barbara brought an affidavit with her (the matrimonial proceedings affidavit) which Laura signed before the Justice of the Peace and then gave to Barbara. Laura did not retain a copy. Laura said that when reviewing the matrimonial proceedings affidavit in preparation for her evidence in this matter she realised that there was an error in that it stated Daniel and Laura had sought finance from People’s Choice Credit Union. Laura said that was wrong, and they had spoken to their usual mortgage broker about a possible loan using the equity in the Guerin Road property.
In May 2018, Laura together with Daniel and their baby daughter moved to the Property. Laura said on 9 November 2018, Barbara, Laura and Daniel attended at a mortgage broker to sign an application for finance with AFG. Laura recalled that on 11 December 2018, the parties attended again to sign a home loan agreement with AFG. They were made aware that the repayments could only come from one account. Laura said that Barbara told them that Daniel and Laura did not need to worry about making repayments but should be responsible for the council rates and utilities.
Laura deposed to paying expenses of the Property from May 2018. She stated that she spoke to Daniel and Barbara about paying council rates, utilities and other costs. These payments would be made from bank accounts in the name of Laura, Daniel or Daniel and Laura jointly, as well as with cash from their cash safe. Laura would occasionally reimburse Barbara with cash or via a bank transfer if Barbara had paid an invoice herself. Laura recalled consulting Daniel about certain bills and which accounts should be used to pay them or to reimburse Barbara. On reviewing her bank accounts, Laura accounted for $9,487.45 in contributions towards bills but noted that she recalled amounts in cash contributions were higher than that figure, but she could not quantify the amounts.
On 14 April 2019, Laura recalled going with Daniel and Barbara to see Barbara’s lawyer. At that meeting, Laura brought identification documents and signed and dated a form. She observed Barbara also sign the form.
Months prior to Laura’s wedding on 15 December 2019, Laura recalled Barbara telling her that she would help with costs of the wedding by giving them a cash gift of $20,000. On 30 October 2019, as Laura was yet to receive the promised gift, Daniel and Laura took out a joint mortgage with the Commonwealth Bank over the Guerin Road property with an additional drawing of $20,000 to account for wedding costs. On 9 December 2019, Laura recalled receiving the cash gift of $20,000 from Barbara and deposited it on the same day.
When she moved into the Property, Laura found that the lounge room full of her grandmother’s belongings. Laura recalled seeing Daniel clean up the clutter, doing most of the work. Barbara had put aside items that she wanted to keep or sell. Daniel moved the other items and told Laura he either disposed of, or donated, the items.
From about March 2020, Laura repainted the inside of the house using paint that she bought with cash. This took about five months. In July 2020, Laura contacted an electrician to install new down lights throughout the house and paid the invoice of $1,170 in cash.
Laura deposed to speaking to Barbara and Daniel about changing the existing fencing at the Property to keep their children safe and keep dogs out. In 2019, Laura saw Daniel hang two 1.2 m gates that he told her he had paid for in addition to a 2.3 m gate. Daniel also upgraded the horse fencing by adding more substantial sheep-type wire fencing Daniel said he purchased. Laura and Barbara both assisted a little with this work. Laura stated that the fencing was of good quality for the two years that she resided at the Property but may now need repair.
In 2019, Laura spoke to Daniel and Barbara about installing a letterbox and parcel box. The parties agreed to share the cost and Laura bought a letter/parcel box for about $420 in cash.
At the end of 2019, Laura recalled Daniel saying that he and his brother were planning to make a workshop in the large shed on the Property. Laura saw a new roller door had been installed, the floor had been coated and painted, an electrician had attended and installed brighter lighting and panel beating equipment and a spray booth had been installed.
Laura said she made changes to the Property on the understanding that she and Daniel were together two-thirds owners of the property and that, without that understanding, she would not have made those changes. Laura deposed to discussing proposed changes with Barbara and understanding that she had her consent. Afterwards, Barbara would say she had not agreed to changes which Laura found frustrating. Laura was trying to make changes to better suit the house for her family. Laura said she told Barbara that they wanted to build a timber deck, but she rejected the idea for fire-safety reasons.
Laura said she, Daniel and friends worked to complete the granny flat to be used as self-contained accommodation. The friends were paid through a labour exchange. Laura recalled purchasing a kitchen bench for $700 in cash and Daniel told her he had purchased patio pavers for $200 with cash. Laura assisted with friends to install a flat-pack kitchen and sink which Barbara said she had purchased. Daniel and Laura worked to complete the tiling in the bathroom, dining room and bathroom, and Laura observed Daniel installing the patio pavers and curtains.
On 8 April 2020, Laura received a bond payment for $800 from a tenant to the granny flat and transferred this amount to Barbara’s bank account. Laura was aware that the tenant was paying weekly rent to Barbara of $200 which totalled $20,800 for the period of 8 April 2020 to May 2022. Laura said the granny flat continues to be rented.
In July 2020 Laura was assisting with horses and said to Barbara that she was unhappy with the care of one of the horses and was unhappy generally with how things were going living at the Property and that it might be best to sell the Property and live separately. Laura said that Barbara responded by saying that Laura and Daniel would not be able to sell the Property as they only owned 20 percent of the Property jointly. Laura said that this was the first time she became aware of this. She was shocked and angry and threw the horse feed bucket she was carrying at Barbara and it hit her. Laura said that Barbara laughed and then Laura picked up the bucket again and threw it without making contact with Barbara.
In August 2020, Daniel and Laura saw a solicitor who confirmed that they were registered on the title of the Property as each owning 10 percent. The solicitor said it would assist to show they owned more if they contributed to the mortgage rather than just to the costs of the Property and maintenance and improvements.
Laura said she felt shocked and betrayed but as she and Daniel were about to have their second child, they did not want to make big changes and Daniel said he did not want to “rock the boat”. Daniel and Laura agreed to remain at the Property and to contribute towards the mortgage.
In December 2020, the parties attended at the Commonwealth Bank to sign an application to refinance the joint mortgage which was accepted on 10 February 2021. Laura deposed to contributing an amount of $12,550 towards the joint mortgage between 13 May 2021 and 30 March 2022.
In late December 2021, while pregnant with her third child, Laura said she asked Barbara to move to the granny flat to allow the family more room. Laura said Barbara told her she would not and that Daniel and Laura were having children in order to force her out of her house. After this conversation, Laura recalled feeling unhappy about the living arrangements and Barbara breaking her promises. Daniel also said he was unhappy. Accordingly, Daniel and Laura decided to move out of the Property. Laura said she did not want to remain on the mortgage and told Barbara via email.
Laura, Daniel and the children moved back to the Guerin Road property in April 2022 after the tenants had left and they ceased paying for any costs of the Property.
Laura said that on 26 April 2022, she and Daniel were visiting Daniel’s parents. Barbara unexpectedly arrived and provided forms for Daniel and Laura to sign which Laura understood to be mortgage discharge forms and a form for Daniel and Laura to declare they had no further interest in the Property. Daniel and Laura took the forms, but they refused to sign the forms without seeking advice.
Cross-examination
Barbara put to Laura that in December 2017, before her first daughter was born, Barbara had no idea where the matrimonial proceedings were going and what sort of finance she would need to raise. Laura said she could not remember.
Barbara said she had no recollection of mentioning a “third” and she then asked Laura when the conversation about equal “thirds” on the title took place. Laura said she could not recall a certain date or time, but it was after her daughter was born. Barbara put to Laura that she was disputing saying a “third”, or that she referred to any percentage or used the word “equal”. When asked whether there was any discussion over percentages, Laura said “no”. When asked whether “equal” shares on the title were ever mentioned, Laura said she recalled equal shares. Laura disagreed with the proposition that Barbara said they would be put on the title without mentioning shares.
Laura accepted that Barbara also worked on the granny flat.
Barbara stated that she did not recall bringing Laura an affidavit to sign and that she (Barbara) did not know anything about the content of the affidavit. Laura responded that Barbara collected her to take her to see the Justice of the Peace because she had a four month old baby and no driver’s licence. Laura said Barbara looked after her daughter while Laura went and got her affidavit signed.
Laura said they would have started paying council rates and utilities from May 2018 when they moved in.
Barbara asked Laura whether she read the paperwork for the transfer signed by Laura or asked questions in relation to the paperwork. Laura said she read the paperwork but did not ask any questions. She said she would have seen if 10 percent was written on the page, but she did not see that.
Barbara put to Laura that she disagreed with Laura’s evidence that she discussed painting the house and putting the downlights in with Barbara before the work was done. Laura maintained her position. Laura agreed the 2.3 m gate came from the shed, that is, it was not purchased.
In relation to the work performed in the granny flat, Laura said she tiled the kitchen and dining area and painted the doors. She accepted she paid only for the $700 kitchen bench and Daniel purchased patio pavers for $200. Laura did not accept that Barbara put together the flat pack kitchen on her weekends. Barbara put to Laura that the tiling was done in three nights, not six weeks. Laura responded that she was giving a time period over which tiling was done and it was not done in three consecutive nights.
Laura agreed that they refinanced the loan to get a lower interest rate. Laura agreed that after finding out in July 2020 they were each on the title for 10 percent, she and Daniel still went ahead in December 2020 with refinancing. Laura agreed that when Barbara made the statement about moving to the granny flat, she said maybe in a few years she may move to the granny flat to give them more room.
Laura accepted that she asked to be removed from the mortgage and the title of the Property but said she did not sign the paperwork because she and Daniel had invested in the Property.
Laura said she did not properly read the affidavit she signed in April 2018. She did not retain a copy of the affidavit to go back on it and reflect and she only had a short period of time to be able to read the affidavit whilst at the Justice of the Peace’s office. Laura said the handwritten change made on the second page of the affidavit (from “bottle” to “can”) was not her change.
Respondent’s lay evidence
Barbara Morphett
Affidavits
Barbara prepared a tender book which included two affidavits deposed by her.[7] Counsel for Daniel and Laura did not object to the admissibility of any aspects of Barbara’s affidavits or the documents she sought to tender, adopting a pragmatic and fair approach and largely limiting himself to submissions on the weight I should place on any of the evidence.
[7] Exhibit R5, documents 27 and 28.
Barbara stated in her first affidavit[8] that Daniel and Laura moved to the Property early December 2017 and moved back to the Guerin Road property in February 2018. They moved into the Property permanently in April 2018.
[8] Exhibit R5, document 27.
Barbara deposed to the AFG loan being for $522,860 and commencing on 16 April 2019 and stated she paid all repayments until 4 February 2021. The refinanced Commonwealth Bank loan was for $516,700 commencing on 31 December 2020. During the period from February 2021 and 30 March 2022 Daniel and Laura contributed to half of the mortgage, Daniel and Laura paid $15,900 and Barbara paid $15,300. The difference was because Daniel and Laura made extra payments.
Barbara said that the reason Daniel and Laura moved back to the Guerin Road property was because Barbara refused to move into the granny flat. She said initially Laura wanted their names removed from the mortgage and title, so in March 2022 Barbara arranged meetings at the Commonwealth Bank to refinance and gained approval. Around Easter 2022, Barbara attended at Daniel’s parents’ house to give her grandchildren easter eggs and to drop off the relevant documents to Daniel and Laura. Barbara stated Daniel and Laura refused to sign the documents and as a result the new refinanced loan and mortgage was not finalised.

Barbara referred to the matrimonial proceedings affidavit and stated that as there were no forthcoming funds from Daniel and Laura, they were given 10 percent each of the property as a gift.
Barbara stated that she assisted with preparing the Guerin Road property for lease including gyprocking, flushing, painting and babysitting.
Barbara deposed to contributing to bills for the Property in the amount of $34,639 in addition to electricity bills totalling $5,863.90, as well as contributing $20,000 to Daniel and Laura’s wedding.
Barbara stated that much of the work performed on the Property by Daniel and Laura was of a substandard quality. The works on the granny flat were not a part of the agreement and Barbara was in no rush to complete the granny flat. She stated that Daniel and Laura wanted it completed to allow friends to move in.
Barbara said that in July 2020, she was assaulted by Laura and Laura told her they would sell the Property and that Barbara needed to pack her things and leave. Barbara then informed Laura that she and Daniel each owned 10 percent. She stated that she never hid this fact and that questions were not asked. There had never been an agreement for equal ownership.
Daniel and Laura moved out of the property on 1 April 2022.
In her second affidavit[9] Barbara said the damage done to the Property by the improvements made by Daniel and Laura will cost significant amounts of money to remedy.
[9] Exhibit R5, document 27.
Barbara stated that for the period between 22 March 2018 and 4 March 2022, she paid a total of $7,404.35 in council rates and Daniel and Laura paid a total of $7,921.10. Barbara said she paid all the home insurance invoices from 3 April 2018 to 6 April 2022 for a total of $3,911.32. She also paid $600.50 in emergency services levy, $177 to the Department of Primary Industries and Regions, $4,358.71 in home phone and internet. Barbara said she contributed amounts towards the improvements and works on the house including $7,795.99 in repairs and maintenance, $1,146.25 towards fencing, $339.73 in gas bottles, $4,235.43 for finishing the granny flat for the period between 22 June 2019 and 5 March 2020 and 2,030.51 towards a solar unit for the period between 8 August 2021 and 19 April 2022. She referred to costs of feeding animals belonging to Daniel and Laura, to $20,000 given to Daniel and Laura for their wedding and to $3,150 given to Laura for bills.
Examination in chief
Barbara’s affidavit evidence was supplemented by sworn evidence.
Barbara said that when she first approached Daniel and Laura about coming on the mortgage, they told her they had already discussed it, and they were happy to do so. They tried several places for finance which they finally obtained through AFG in November. The settlement did not occur until April the following year because Barbara’s ex-husband had not received finance until then and all the settlements needed to occur contemporaneously.
Barbara said they initially were quite happy but then she would find Daniel and Laura had done things to the house about which she had not been approached and was not happy about. She gave as an example the installation of a roller door which Daniel said he was installing because Barbara had agreed they could put in a spray booth. Barbara said a lot of her things were being thrown out while she was away.
Daniel and Laura told Barbara they wanted her to move to the granny flat because they wanted all of the house. Barbara said she told them that the house has five bedrooms, Daniel and Laura had three bedrooms and a spare room, but Daniel and Laura said they wanted to keep it as a guest room. Barbara proposed the two children share a room. Barbara said she refused to move out to the granny flat and Daniel and Laura decided to move out of the Property.
Barbara said that she paid the entirety of the repayments required under the AFG mortgage agreement for about 18 months at a high interest rate.
Barbara explained that one of the properties (the subject of orders in the matrimonial proceedings) was sold and she described how she used her half of the proceeds, including giving $20,000 for Laura’s wedding. Meanwhile, the finance rate for AFG was high and interest rates had started dropping so Barbara approached the Commonwealth Bank and they agreed to refinance. The Commonwealth Bank refinanced the loan at an interest rate of 1.89 percent fixed rate for four years. At the time of the refinancing, Daniel and Laura commenced paying 50 percent of the mortgage.
Barbara said that she contributed to bills throughout. Because the power bills were so high, she installed a solar system which she was still paying off.
Barbara provided a list of bills she had paid, including power bills totalling in excess of $5,800. Barbara said she paid all of the household insurance, home, phone and internet, emergency services levy, payments for the solar system, property registration and mesh for a fence to keep the sheep and goats in. Barbara said she paid Laura money from time to time to help with household bills totalling $3,150 and council rates totalling $6,894. Barbara said that after Daniel and Laura moved in, she spent $4,235 on the granny flat and repairs and maintenance to the property of $7,795 during the time Daniel and Laura were living at the house.
By reference to emails and text messages contained in the tender bundle, Barbara said that Laura asked her to have Daniel and Laura’s names removed from the mortgage and the title. On 28 March, Barbara received approval for a home loan in her name for $500,000. Barbara then called Laura saying that she had the forms for them to sign. Daniel and Laura were at Daniel’s parents’ house so she drove to them and gave Daniel the papers. Daniel said he would go over the papers before they signed them and then told Barbara that the papers were with the lawyers.
When prompted about the conversation which occurred when Laura was heavily pregnant in about Christmas 2017, Barbara said she could vaguely remember that conversation. Barbara said she talked about the fact that she may need finance and she was not sure if she would be able to get it, depending on what she had to pay out. Barbara said Daniel and Laura said they would help her out and go on the mortgage. Barbara said she said that if they went on the mortgage they would be put on the title. Barbara said she told Daniel and Laura that “your names will go on the title if you help me out with the mortgage” and they were happy with that. Barbara said she did not say equal thirds or 10 percent or anything. She thought Daniel and Laura had said they would move in with her and rent out the Guerin Road property. Barbara said there was no discussion back then as to who would pay for what and that only came about at the time when they got the finance.
Barbara said that when they were doing the paperwork with the mortgage broker, the broker said the payments could only be taken from one bank account. The mortgage broker said she would take the payments from Barbara’s account because it was her house they were purchasing. Daniel and Laura then said they would pay the bills. Barbara agreed that, at that point, the arrangement was she would pay for the mortgage and they would pay some bills.
Barbara said that she did not give instructions to the lawyer for the preparation of Laura’s affidavit affirmed in support of the matrimonial proceedings.
Barbara said she had a valuation done in 2023 on the Property by Jackman and Treloar which valued the house at $1.17 million.
Barbara said there were inconsistencies in the amounts set out by Daniel and Laura concerning works on the granny flat cost, pointing to differences between Mr Smith’s valuation and Daniel’s affidavit.
Cross-examination
In cross-examination, Barbara accepted that she did not have a relationship with Laura anymore and that she did not have contact with either Laura or Daniel. Barbara agreed she remains one of the three registered proprietors on the title to the Property but confirmed it is her case that neither Daniel, nor Laura, have any interest in the Property. Barbara accepted that the title records at least a 10 percent interest to each of Daniel and Laura and accepted that she had not sought finance to pay out any interest in the Property held by Daniel or Laura. Barbara’s position was she did not owe them anything and she should be permitted to keep the Property as its sole owner without paying anything to Daniel or Laura. Barbara said she was prepared to pay Daniel and Laura a small amount as to what they had put in, but she did not agree that she should pay for a proportion of the Property and the “small amount” she had in mind was nothing like 10 percent.
Barbara accepted that by the end of 2017 she knew she was financially separating with Bruce and she knew that her name was on four mortgages with him. Barbara accepted that she knew something would have to be done about the mortgages to disentangle her financial interests with Bruce. She agreed that one of them needed to raise money to pay the other out. Barbara accepted that towards the end of 2017, she was aware it was highly unlikely that that Bruce was going to have the capacity to raise money to pay her out because he was suffering from alcohol abuse and was not in a position to raise finance.
Barbara accepted that there was a limit on how much finance she could raise with her name on four mortgages. Barbara said towards the end of 2017 she believed her son would retain two of the properties and only the main properties would be in the settlement. She had no idea how much funds she would require. She did not know how much she would need to borrow.
Barbara agreed that once the orders in the matrimonial proceedings were made, she needed to raise more than $500,000 to comply with the orders. It was put to Barbara that she could see as early as late 2017 that she would need to raise a significant sum of money to separate her affairs from those of her ex-husband. Barbara maintained she had no idea how much she would be looking at borrowing. However, Barbara agreed that towards the end of 2017 she knew she was not going to raise the amount of money she needed on her own.
Barbara agreed that Daniel and Laura came to stay with her at the Property in December 2017 so she could assist with the last part of Laura’s pregnancy and, at that time, she and Laura were close. Laura was then in her early 20s and Daniel was a couple of years older. Barbara agreed that when Daniel and Laura were living with her in December 2017, they had meals together, including at Christmas time, and they discussed matters including the financial separation and she shared with them her concerns about how she could raise the money to keep the Property. Barbara said the Property where they were living was the property she wanted to keep and her ex-husband was trying to remove her from the Property. Barbara wanted to keep the Property because she had designed and built it and that is where she had raised her children.
Barbara agreed she was distressed in December 2017 about the prospect of having to leave the Property and she made her desire to remain at the Property clear in things she said to Daniel and Laura at that time. When asked about her distress, she agreed she cried in front of Daniel and Laura and that on one occasion said words to the effect that if she had to leave the Property she would kill herself and her ashes could be scattered on the Property so she would never have to leave. Barbara agreed that when she said those things Daniel and Laura were distressed for her, and she thought when she mentioned taking her own life that it would have made Laura cry. Barbara accepted that Daniel and Laura said in late 2017 words to the effect that they wanted to help if they could, but Barbara did not agree that Barbara was the one who mentioned them helping her to raise finance. Barbara said when she asked them if they would come on the mortgage with her, they said they had already discussed it and they were willing to do that. Barbara then accepted that she was the one who raised with Daniel and Laura coming on to the mortgage but said it was not on the day Laura cried and was at a later date. She agreed that she would not have expected Laura to forget her mother threatening to take her life when they had that conversation. Barbara conceded that she suggested to Daniel and Laura that if they came onto the mortgage, they would also have their names on the title.
Barbara said when Daniel and Laura came to live with her before the baby was born, they were going to move in with her for a while to help protect her from her ex-husband, but she agreed that was a temporary arrangement. Barbara agreed that Daniel and Laura’s plans changed around the discussions about coming onto the mortgage and the title.
Barbara disputed the suggestion that when she raised the prospect of coming onto the mortgage, Daniel raised a concern about how much finance he could attract while he was still paying the mortgage on the Guerin Road property. She did not agree that is what led to discussions about Daniel renting the Guerin Road property as an investment property. Barbara said when she asked if they would come on the mortgage, Daniel and Laura told her they had already discussed that, they were happy to do that and they were going to rent out the Guerin Road property and move in with her. She disagreed that the purpose of renting out that property was to make the three of them more attractive to a lender. Barbara did not accept that having the Guerin Road property as an income earning asset would have made Daniel more attractive to a lender than if he was trying to service two mortgages himself.
Barbara agreed that Daniel and Laura moved back Murray Bridge after their baby was born to fix it up as a rental property and after that was done the financial arrangements were made and all three became owners of the Property with their names on the mortgage.
It was put to Barbara that the effect of what she said in the conversation in December 2017 was to promise Daniel and Laura they would become the owners of the Property as their family home if they helped her keep living in the Property. Barbara said she told them they would go on the title and that way if anything happened to her, they would keep the Property. Barbara said she did not know that if Daniel and Laura went on the Property as tenants in common it would not necessarily mean the Property would be theirs. When asked if she agreed that the effect of the discussions was to assure Daniel and Laura that they would ultimately be the owners of the property as their family home, Barbara said if it had continued and they stayed there, then when she was gone they would have the Property. When it was suggested that the effect of what Barbara conveyed to Daniel and Laura was that the Property would ultimately be their family home in exchange for their coming on to the mortgage and the title, Barbara responded that that was “our dream” of what would happen.
When it was put to Barbara that she did not remember the words she used when she spoke to Daniel and Laura in late December 2017, she said she knew she said that if they came on the mortgage then their names would go on the title. However, she accepted she did not remember the full details of the conversation. Barbara maintained she never said “equal owners” but rather said Daniel and Laura would be on the title. Despite accepting her memory was vague, Barbara maintained she was not mistaken about that at all. Barbara said she did not mention any amounts, including about being only 10 percent owners.
When it was put to Barbara that the words she used were directed to persuade Daniel and Laura that if they took on the mortgage liability and came on the title the Property would be their family home, Barbara said they would live there with her and as she got older she would move out to the granny flat and it would become their family home. Barbara accepted that moving out to the granny flat was her answer to a concern that Laura raised with Daniel that they wanted to expand their family. Barbara agreed Daniel and Laura expressed reservations about moving in with Barbara because Laura was concerned there might not be enough space. However, Barbara denied saying to them that if the granny flat was made into independent living accommodation she would be prepared to move out to the granny flat as their family expanded. Barbara said she said in a few years she might move out to the granny flat so they could have the whole house.
When it was put to Barbara that she said all of those things because of her significant distress at having to leave the Property, Barbara responded that she was not prepared to leave the Property. When it was put to her that by coming onto the mortgage Daniel and Laura were making a very significant financial commitment, Barbara responded that they did not make a financial commitment because they did not contribute anything other than signatures and she paid the mortgage. However, she was willing to accept that Daniel and Laura were accepting a very serious potential liability if anything happened to her. When it was put to Barbara that she wished to persuade them to take on the liability and that is why she made promises about being prepared to move to the granny flat and putting their names on the title, Barbara said she was not wishing to persuade them to do anything. Barbara denied that raising with Laura the potential that she would take her life was applying pressure to Daniel and Laura to entangle their finances with hers so she could stay at the Property. Barbara denied that, saying that she was in an upset frame of mind and was not doing anything to try and entangle them at all. Barbara denied being well aware that in making the decision to go on the mortgage with her, Daniel and Laura were acting on the understanding that they would have substantial ownership interest in the Property. However, she agreed they were upending their lives to make arrangements so she could stay at the Property. She agreed Laura had bad memories of her experiences at the Property and Daniel, who was not then married to Laura, was being asked to do a significant thing in relocating to live together with his soon-to-be mother-in-law. When asked whether she maintained her evidence that she did not understand they were relying on getting the Property as a basis of being prepared to make those significant changes, Barbara responded that they were moving in with her, they wished to change their life, the farm would be a great place to raise their daughter and they did not want to stay at the Guerin Road property because someone tried to break in and she believed they were not happy there as a result.
Barbara agreed the granny flat was not habitable in 2017 as it had no kitchen and would take work to make it liveable. Barbara said Daniel and Laura did very little work to make this happen. She maintained she did most of the work, not Daniel.
Barbara accepted that after Daniel and Laura made the Guerin Road property tenantable, they moved into the Property. She conceded they moved in at that time based on conversations towards the end of 2017 and thereafter, however, said she was unsure whether they were relying on things she said to them as their reason for moving in.
Barbara agreed that Daniel and Laura went on the mortgage and the initial mortgage involved borrowing funds of $522,860.
Barbara accepted that she could not have raised the money without Daniel and Laura on the mortgage and AFG was prepared to lend the money because all three names were on the mortgage.
Barbara said that she picked up Laura for the purposes of taking her to sign the matrimonial proceedings affidavit before a Justice of the Peace located in Murray Bridge. At the time, Laura was living in Murray Bridge. Counsel put to Barbara that Laura was not directly involved in the preparation of the affidavit. Barbara responded that she did not know who was involved in the preparation of it and she did not know who wrote the content. Barbara maintained she only picked Laura up and took her to get the affidavit signed and she did not know where it came from. She could not recall whether her lawyer suggested the affidavit be prepared and she did not know who wrote the document. She accepted that Laura was not legally trained. When it was put to Barbara that she knew in April 2018 that the affidavit was needed and that was why she was picking Laura up to take her to the Justice of the Peace, Barbara said the affidavit was not needed and the document would have done nothing for her settlement claim but was put in anyway. Barbara said she did not instruct her lawyers to do it. After it was signed by Laura, she thought she drove it to the lawyer’s office and the lawyer submitted it to the Court. She said she did not instruct anything. Barbara accepted she knew from her experience in dealing with lawyers that they needed her say so before taking a step on her behalf. The following exchange then occurred:[10]
[10] TT112.13-114.1.
Q.So, knowing that do you still continue to disagree with me that this affidavit was used in your family law case because you instructed your lawyers to use it.
A.It was used in my case, yes. I don’t believe I instructed my lawyer to do it, it may have been something that my lawyer had discussed with Laura, I’m unsure, I can’t recall.
Q.You brought this affidavit with you in an unsigned form when you picked Laura up to take her to the justice of the peace, didn’t you.
A.Did I? I can’t recall.
Q.‘I can’t recall’, you’re not saying I’m wrong about that, you’re just telling me ‘I don’t remember’.
A.That’s right.
Q.You didn’t provide Laura with a copy of this document before you arrived at the justice of the peace’s office, did you.
A.I didn’t even see that affidavit myself until after it was signed.
Q.When you arrived at the justice of the peace’s office that’s when Laura was given a copy of this affidavit.
A.I don’t know.
Q.You’re not saying I’m wrong, you’re just saying again you can’t recall.
A.That’s right.
Q.You were present during the meeting with the justice of the peace.
A.No, I was looking after Aviana, in the car.
Q.Before Laura went to see the justice of the peace you asked her to sign this affidavit, didn’t you.
A.No, I don’t recall, I don’t even know where the affidavit come from and how it - all I know is that I took Laura to get it signed.
Q.Do you remember it was a short meeting between Laura and the justice of the peace.
A.It was fairly short.
Q.Less than 10 minutes. Do you agree with that.
A.It may have been 15 minutes, I’m not sure.
Q.And the less you weren’t waiting with Aviana for a long time, were you.
A.Not too long, no.
Q.And based on your answers are you able to agree with me that Laura did not have a long time to read the document before signing it.
A.It’s not a very long document, she would have time to read that document before signing it.
Q.Did you see her read the document or not.
A.No.
Q.If you assume that she was given the document at the justice of the peace’s office, on your evidence she’s had less than 15 minutes with it. Is that correct.
A.I can’t recall where the affidavit came from.
Q.Laura gave you the affidavit once it was signed, correct.
A.Correct.
Q.She didn’t retain a copy, did she.
A.We didn’t have a photocopier, no.
Q.You took her home.
A.Yes.
Q.And you then took the original of the document to your family lawyers.
A.Yes.
Q.It was then used in your family law proceedings, wasn’t it.
A.Yes.

In Baumgartner, the parties had been in a de facto relationship in which they pooled their incomes. A house was acquired in the name of the man. The house purchase was funded in part by a mortgage in the man’s name and in part by the net proceeds of the sale of a property owned by the man. After the parties separated, the man asserted sole ownership of the property. The High Court concluded that the arrangement for pooling of earnings was designed to ensure the earnings would be spent for the joint benefit of the relationship.[75] The man’s assertion that the property, funded in part through pooled funds, was solely his, constituted unconscionable conduct attracting the imposition of a constructive trust.[76] In circumstances in which the parties had lived together for years and pooled their resources and efforts to create a home for them both, the starting point was equality of beneficial ownership. However, that was subject to adjustment to avoid injustice if no account were taken of the differences between the individual contributions made by them.[77] The majority referred to giving effect to practical equality, rather than pursuing complex factual inquiries which will result in relatively insignificant differences in contributions.[78] The majority considered that the appellant should receive from the proceeds of sale repayment of mortgage payments made by him after the relationship ended subject to any offset to account for the benefit enjoyed by him of the property. The appellant was also entitled to recovery of the net proceeds of the property which was used to fund part of the purchase price less payments of mortgage instalments made from the pooled earnings. The value of furniture taken by the woman on the cessation of the relationship was also to be paid from the proceeds. The adjustments were made to ensure the equity of the remedy.
[75] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 (Mason CJ, Wilson and Deane JJ, Toohey J agreeing at 152, Gaudron J agreeing at 155).
[76] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 (Mason CJ, Wilson and Deane JJ, Toohey J agreeing at 152, Gaudron J agreeing at 156).
[77] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149-150 (Mason CJ, Wilson and Deane JJ, Gaudron J agreeing at 157).
[78] Baumgartner v Baumgartner (1987) 164 CLR 137 at 150 (Mason CJ, Wilson and Deane JJ).
Baumgartner is a demonstration of a case in which adjustments based on contributions were taken into account by the Court in determining the appropriate remedy. It underscores the importance of ensuring the remedy granted by the Court avoids injustice.
Partition or sale
Section 69 of the LP Act provides that, on any application for partition, if it appears to the Court that by reason of the nature of the property, the number of interested parties, or any other circumstance, a sale of the property and distribution of proceeds would be more beneficial for the interested parties than a division of the property between them, the Court may, if it thinks fit, and notwithstanding dissent, direct a sale of the property and give any consequential directions.
Section 70 of the LP Act provides that on any application for partition, if the parties interested to the extent of one moiety (that is, 50 percent) or more in a property request the Court to direct a sale of the property and distribution of the proceeds instead of division of the property, the Court shall, unless it sees good reason to the contrary, direct a sale of the property.[79]
[79] Section 71, which provides for any party interested in the property to request the court to direct a sale instead of division of the property unless the other parties undertake to purchase the share of the party requesting the sale and gives the court power to direct a sale and make consequential directions, has been held to be a separate provision that does not restrict s 69 or s 70 and does not allow another party interested in the property, by undertaking to buy the plaintiff’s share, to defeat what may otherwise be the right to a sale: Perman v Maloney [1939] VLR 376; Mitchell v Cullington [1997] ANZ ConvR 342.
The power under s 69 is discretionary.[80] The onus lies on the party requesting the sale.[81] It is not simply the applicant who must be considered; all those interested in the property must be considered.[82] What is “beneficial” primarily focusses on economic benefit, but emotional and other considerations might be relevant to the exercise of the discretion.[83] In Francis v Francis,[84] in forming a view about partition or sale, Bleby J took into account evidence that there would be a significant increase in value to the parties if the land could be partitioned and subdivided rather than sold as a whole.[85] He also considered the fact that sale would mean ejecting the defendants from their home of 20 years, concluding that if possible they ought to be allowed to remain in their home and the property they had developed until ready to leave.[86] The fact that the plaintiff had a house and that a sale would leave the defendant without a home was a relevant consideration both in Francis v Francis and in BM v AM.[87]
Consideration
[80] BM v AM [2003] IEHC 170.
[81] Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300 at [97] citing Mitchell v Cullington [1997] ANZ ConvR 342, 343; Perman v Maloney [1939] VLR 376 at 380-381.
[82] BM v AM [2003] IEHC 170.
[83] Justice Roberts-Smith concluded that a court’s need to consider non-economic benefits will turn on the construction of the relevant statute: Nevin v Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300 at [98]-[104] citing Pannizutti v Trask (1987) 10 NSWLR 531 at 540 (Kirby P, McHugh JA agreeing at 541, Needham AJA dissenting on this point at 541); Pembertonv Barnes (1871) LR 6 Ch App 685, 693.
[84] [2009] SASC 363.
[85] [2009] SASC 363 at [73].
[86] [2009] SASC 363 at [75].
[87] [2003] IEHC 170. While the decision was made pursuant to the equivalent of s 70, Peart J concluded that even if the appropriate section were the equivalent of s 69(2), the Court ought not to order a sale.
Constructive trust
In Laura’s and Daniel’s written opening, they expressed their asserted constructive trust as founded on Barbara, Laura and Daniel having formed a common intention they would share ownership of the Property equally based on Barbara’s representation. It was submitted that Daniel and Laura acted to their detriment in reliance on the common intention and it would be a fraud for Barbara now to claim they do not have a beneficial interest in the Property.
In light of Galati v Deans[88] and the authorities referred to in it, I proceed on the basis that a constructive trust founded on common intention remains a distinct species of constructive trust. In any event, if there were any doubt, I conclude further below that the evidence establishes the basis for a constructive trust based on proprietary estoppel.
[88] [2023] NSWCA 13.
I accept that the common intention of Barbara, Laura and Daniel was that Daniel and Laura would be registered on the title with Barbara. However, in light of the findings I have made, I cannot find on the balance of probabilities that there was a common intention between all three of them to register Daniel and Laura as to one-third interest each. I also cannot find on the balance of probabilities that the common intention of all three was that Daniel and Laura would be registered as “equal” owners on the title to Barbara.
The authorities to which I have referred do not treat the absence of a common intention about the specific share of property as precluding a common intention constructive trust from arising. It follows that the intention that Daniel and Laura were to have a share of the Property in excess of their registered legal interest is sufficient.
Where the parties have a common intention to create proprietary interests in property, without specifying the precise share, the conclusion which best gives effect to the parties’ intentions will be favoured.[89] That intention can be inferred from the parties’ conduct at the time. On the basis of the facts I have found and the inferences which arise from them, including the common ground between the parties, I consider the conclusion which best gives effect to the parties’ intention at the time of the promises, and the reliance upon them, was that Daniel and Laura were to be registered on the title in shares representing their financial contribution to the scheme that enabled Barbara’s retention of the Property.
[89] Galati v Deans [2023] NSWCA 13 at [54] (White JA) quoting from Shepherd v Doolan [2005] NSWSC 42 at [41] (White J).
The question of what represented Daniel’s and Laura’s financial contribution is not as straightforward as it would be if Barbara, Laura and Daniel had purchased a property in an arm’s length transaction on the open market from an independent vendor.
The consideration stated on the transfer document was $168,000. There was no evidence adduced regarding that figure. It appears by inference to have merely represented a calculation of 20 percent of the value of the Property derived from the valuation obtained for the purposes of the AFG mortgage, which valued the Property at $840,000, given the transfer resulted in Daniel and Laura being recorded on the title as each having a 10 percent interest.
Barbara’s affidavit evidence stated that Barbara had paid mortgage repayments on the Property while still married to Bruce. There was no evidence about the extent of any redemptive equity in the Property at the time the orders in the matrimonial proceedings were made. There was no evidence about the nature of Bruce’s interest in the Property nor was there evidence about all of the transfers which took place to give effect to the orders made in the matrimonial proceedings.
The moneys loaned by AFG via mortgage totalled $522,860 and were used by Barbara, Laura and Daniel to fund the discharge of pre-existing Adelaide Bank mortgages and their related loans and therefore did not reflect a true arm’s length purchase price of the Property. This was implicitly acknowledged by Daniel and Laura insofar as their calculations of the extent of their contributions to the purchase price of the Property (on their alternative case of resulting trust) were based on the proportion of their joint and several liability under the AFG mortgage, being two-thirds of $522,860 (equal to $348,573.30) as a proportion of the value of the Property, assessed at the time of the AFG mortgage application, being $840,000. Daniel’s and Laura’s submissions thus implicitly proceeded on the basis that the mortgage liability constituted part of the “purchase price” for the Property, with that price best represented as a proportion of the value of the Property at the time.
The position was further complicated by the effect of all of the orders made in the matrimonial proceedings. Bruce had to transfer all of his right, title and interest in the Property to Barbara on the basis, among other things, that Barbara at her sole cost had to discharge the joint Adelaide Bank home loan secured against the Property. The orders also required Barbara to transfer her interest in another property in Meadows to Bruce and Bruce was required to discharge at his sole cost the joint home loan secured against that property in Meadows. Barbara retained a 50 percent interest in a property at Currency Creek as tenants in common with Bruce and Barbara was required to discharge, at her sole cost, two joint Adelaide Bank mortgages. The orders do not record whether the latter two loans were secured against the Currency Creek property or any other property. There was no evidence about the outstanding liabilities on each of the separate mortgages and home loans which Barbara was required to discharge and no evidence about which were secured over the Property.
The memorandum from Ms Burke to AFG dated 9 November 2018 referred to the court order requiring Barbara to refinance a loan secured by mortgage against an investment property as a condition to keep her home.[90] The memorandum stated that the debt was to be “transferred/secured” against Barbara’s owner occupied home and the existing mortgage secured against her existing home was to be extinguished, with the debt being swapped from one security to another. The loan application form, under a section called “assets and liabilities statement” included the property at Currency Creek to be “consolidated/refinanced”.
[90] Exhibit A1 tab 15.
The authority to discharge addressed to the Adelaide Bank contained in the bundle of documents attached to the AFG loan approval[91] referred to three separate Adelaide Bank account numbers and a mortgage number. The special conditions of settlement were recorded as including a transfer of the Property from Barbara to Barbara, Laura and Daniel and that three Adelaide Bank home loans were to be prepaid in full and discharged at settlement.
[91] Exhibit A1; tab 3.
In her evidence, Barbara said that she had to discharge the Property mortgage and the Currency Creek mortgage in relation to the land on which her son was conducting his business. She said she had to pay out her son’s business loan. Barbara said the Currency Creek property was sold and she described how she used her share of 50 percent of the proceeds, which included paying lawyer’s fees, a deposit for her son’s house, Daniel’s and Laura’s wedding gift and repaying money she had borrowed from her mother.
The inference which arises from the documents and Barbara’s evidence is that the loan amount of $522,860 contributed to the discharge of the Currency Creek property mortgage(s). The loans may not have been secured by the Property. If so, it would follow that the amount of $522,860 did not represent the balance owing on the loan secured over the Property, nor give rise to any inference about the value of any redemptive equity in the Property at the time.
In my view, despite the uncertainties to which I have referred above, the most reliable and fairest representation of Daniel’s and Laura’s financial contribution remains their liability as co-mortgagors relative to the value of the Property at the time of entry into the AFG mortgage. The time-of-entry value is most accurately reflected by the value accepted by AFG at the time of application, being $840,000.[92] Barbara made representations to Daniel and Laura which were aimed at obtaining assistance for her to retain the Property and those representations resulted in Daniel and Laura becoming co-mortgagors, initially on the AFG mortgage. Thus, the remedy should best reflect Daniel’s and Laura’s liability as co-mortgagors as a share of the value of the Property at the time of entry into the AFG mortgage. Two-thirds of $522,860 constitutes close to 41.5 percent of the Property value of $840,000. That equates to an interest of 20.75 percent to each of Daniel and Laura. Currently each of Daniel and Laura are recorded as having a 10 percent interest in the Property. It follows that Barbara holds part of her 80 percent registered interest in the Property on constructive trust for each of Daniel and Laura to recognise their entitlement to a 20.75 percent interest each.
[92] Such a value is further supported by the $168,000 consideration recorded on the title, at the time of settlement, as being provided for Daniel’s and Laura’s two-tenths share of the property.
Barbara complained that Daniel’s and Laura’s actual out of pocket expenditure did not match hers, both in relation to mortgage repayments and other expenses. While it is understandable that Barbara would consider it unfair for Daniel and Laura to receive a share of the Property based on their liability under the mortgage in circumstances in which their out of pocket expenditure was significantly less than hers, the authorities to which I have referred are clear that financial contribution is reflected by liability under the mortgage and that repayments of a mortgage loan merely constitute repayment of debt as opposed to the purchase of a proprietary interest by instalments.
If it is necessary for Daniel and Laura to establish equitable fraud as an element of a common intention constructive trust, it is made out in the circumstances I have found. This includes Barbara’s representations causing Laura to assist in the form of the matrimonial proceedings affidavit which was filed in the matrimonial proceedings and Daniel and Laura becoming jointly and severally liable as co-mortgagors on the Property. The fact the matrimonial proceedings affidavit was filed in support of Barbara’s position in the matrimonial proceedings renders resiling from it unconscionable.
If I am wrong in my conclusion above that it is sufficient there was a common intention that Daniel and Laura would receive a proprietary interest in the Property absent a common intention about the respective shares, I consider the evidence establishes the basis for a constructive trust based on proprietary estoppel in accordance with the principles set out in Giumelli v Giumelli.[93] Barbara made representations which Daniel and Laura relied on to their detriment. Having obtained their assistance in the ways described above, in reliance on her representations, to ensure she could retain the Property in the settlement of the matrimonial proceedings, it would be unconscionable for Barbara now to resile from those representations.[94]
[93] (1999) 196 CLR 101.
[94] The statement of claim seeks a remedy in the form of a constructive trust without specifying the source of that constructive trust. As drafted, it encompasses constructive trust based on proprietary estoppel.
It follows that Daniel and Laura have established the basis for a declaration that Barbara holds 58.5 percent of her registered interest in the Property on her own account and the balance, being 21.5 percent of her registered 80 percent interest in the Property, as constructive trustee for Daniel and Laura.
Resulting trust
On their alternative case, based on a presumption of a resulting trust, Daniel and Laura contended they provided equally as joint mortgagors with Barbara in the sum of $522,860 by their joint mortgage but title was transferred in unequal proportions, being only 10 percent to each of Daniel and Laura and 80 percent to Barbara. Daniel and Laura pleaded the presumption of advancement did not apply in this case.
Evidence of actual intention to grant a proprietary interest proportionate to the relative financial contribution renders resort to the presumptions of advancement, and of resulting trust, otiose as those presumptions will give way to intention based on inference drawn from all of the evidence.[95] The findings I have made that Daniel and Laura intended to assist Barbara to enable her to retain the Property by becoming co-mortgagors on the basis they would receive registered interests in the Property as promised by Barbara and subsequently that such interest would be proportionate to their liability under the mortgage is sufficient to exclude any presumptions of resulting trust and advancement, if such presumptions could have applied. Despite this, the outcome remains the same as that sought by Daniel and Laura on their alternative case.
[95] Calverley v Green (1984) 155 CLR 242 at 251 (Gibbs CJ), 270 (Deane J) citing Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365; Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [13], [15] (Kiefel CJ and Gleeson J) citing Muschinski v Dodds (1985) 160 CLR 583 at 612, [64] (Gageler J), [111] (Gordon and Edelman JJ).
Equity of contributions
Daniel and Laura sought a determination that they are entitled to an increase in their ownership interest to the extent of the improvements they made, valued at $35,000 in accordance with Mr Smith’s report, and a portion corresponding to their ownership interest of the value of the rental income received by Barbara.

Recognising the information is incomplete, Daniel and Laura estimated that as against Laura’s and Daniel’s expenditure of $35,008, Barbara expended $101,091. However, Barbara received $25,441 in rent, which Daniel and Laura extrapolated out to $80,251 against Daniel and Laura’s receipt of no income from the rental relating to the Property. Daniel and Laura thus contended that they made a greater contribution once one allows for the fact they did not receive any income from the Property and accordingly Barbara would not have a substantive equity of contribution claim as against them. They submitted that the evidence was insufficient to allow a safe conclusion on the balance of probabilities as to the relative financial contribution of each of the parties. On that basis, Daniel and Laura contended that the valuation of Mr Smith represented their entitlement as to the degree to which they facilitated improvements to the Property. They therefore sought an increase in their share of ownership interests representing the increase in value of the improvements as valued at $35,000 by Mr Smith.
Even if the valuation of Mr Smith represented the extent to which Daniel and Laura contributed to improvements, it would not necessarily follow that the appropriate remedy would be an increase in their ownership interests. The equity of contribution authorities to which I have referred above support the position that if a co-owner would otherwise unfairly benefit, the person incurring the expenditure is entitled to an allowance for the expenditure to the extent it results in enhancement of the value of the land or price on sale.
There have been significant increases in the overall value of the Property by reason of market forces since 2019, as demonstrated by the valuations obtained over time. In 2019, the Property was valued at $840,000. In April 2024, the Property was valued by Mr Smith at $1,275,000 including all of the improvements. This represents an increase in value in just over four years of approximately $435,000.
Mr Smith’s $35,000 figure was a global assessment of the increase in value of the Property generally as attributable to the improvements made by Daniel and Laura during the period of joint occupation. Based on Mr Smith’s opinion, it would appear that the increase in value would mostly derive from painting the main residence and the habitability of the granny flat. However, as set out above, Barbara also contributed to the improvements to the granny flat, both in terms of expenditure and unquantified labour but the evidence does not allow me to conclude with certainty the exact contributions to the improvements both in terms of percentages of labour and monetary expenditure.
Taking into account:
·the absence of any certainty as to the relative contributions to the improvement of the Property which resulted in the estimate of $35,000 increase in value;
·the increase in value estimated by Mr Smith would only ever be realised upon sale;
·in the event of sale, each of the registered proprietors would benefit proportionally from the increase in value;
·the fact the $35,000 increase in value, as quantified by Mr Smith, constitutes a relatively small proportion of the increase in value of the Property attributable to market forces since 2019;
·the remedy should avoid injustice, represent a just measure of relief and give effect to practical equality;[96]
the parties should benefit from any such increase as tenants in common in proportion to their ownership interests at law and in equity. Put differently, in light of the matters to which I have referred, awarding Daniel and Laura an additional allowance would not represent a just measure of relief in the circumstances.
[96] Giumelli v Giumelli (1999) 196 CLR 101 at [50] (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J agreeing at [64]-[65]); Baumgartner v Baumgartner (1987) 164 CLR at 149-150 (Mason CJ, Wilson and Deane JJ, Gaudron J agreeing at 157).
While such a conclusion does not address the rent Barbara received for leasing the granny flat, which flowed in part as a benefit from the detriment suffered by Daniel and Laura in the form of their labour and monetary expenditure, Barbara also incurred expense and contributed labour to the improvements which made the granny flat tenantable.
Similarly, the rent received by Barbara and her personal benefit from sole use of the Property after Daniel and Laura left is offset, to a degree I cannot quantify, by expenses incurred by her that were not proportionally borne by Daniel and Laura, such as loan repayments under the AFG mortgage agreement, and all expenses following the breakdown of the relationship between the parties in 2022.
Taking all these matters into account, I consider the maxim equality is equity[97] would not be reflected in a further allowance to Daniel and Laura on account of the works to which they contributed, but for which they were not solely responsible. As the evidence cannot firmly establish, firstly, that Barbara is unjustly benefitting, and secondly, that the $35,000 increase in value attributable to the improvements is the result of disproportionate expenditure and labour of Daniel and Laura, it satisfies equity to treat as equal the contributions of all parties to the Property’s improvements, which, in the circumstances, justifies no additional allowance to Daniel and Laura.
[97] Originally ‘aequitas est quasi aequalitas’: Co Litt 24b.
I therefore do not award to Daniel and Laura any increase in their ownership interest or any monetary allowance on account of the extent of any improvement made to the Property during their co-occupation of the Property, or otherwise.
Partition or sale
Given my findings, Daniel’s and Laura’s interest in the Property did not equal or exceed one moiety and accordingly s 70 does not apply.
Daniel and Laura contended that Barbara did not put forward evidence in support of partition, neither party sought partition and the contest was only between the status quo and whether the Property is to be sold. However, Barbara was not represented and conducted her case on the basis that Daniel and Laura should be awarded no share of the Property at all. Further, Daniel and Laura bore the onus of proof and I must be satisfied that sale of the Property and division of the proceeds would be “more beneficial than partition” for any one or more of the factors referred to in s 69.
In this case, the report of Mr Smith describes the Property as a triangular shaped allotment with a south easterly aspect to Brookman Road, comprising about 9.67 ha, with a frontage of 505.3 m and depth of 637/385 m. An aerial image shows the buildings located on the eastern side of the Property close to the north-eastern border with a long driveway joining Brookman Road close to the border of the Property to the north-east. No evidence was called about whether there were any factors which may impact on the possibility of dividing the Property into lots, the likely costs of doing so, or the likely relative economic benefits including whether the sale of the Property as a whole would result in a price greater than the combination of sales of separate lots. In all the circumstances in which Daniel and Laura seek to disentangle their financial arrangements with Barbara, having since separated, it may be that either or both portions of the Property which would be vested in them upon an order for partition and subdivision would have to be sold regardless. If so, the costs associated with partition and subsequent sale of individual lots may favour sale of the Property as a whole.
While the primary focus remains upon economic issues, other issues are relevant. Other secondary considerations include the animosity between Laura and Barbara, the fact that sale would result in Barbara losing her family home, Barbara’s considerable attachment to the Property, her length of residence in the Property and her considerable personal and financial contributions to the Property during the time she has lived at the Property.
Given the relevant factors, I must take into account under s 69 of the LP Act, my inability to form a view on the economic consequences of a partition relative to sale, the state of the relationships between the parties and Barbara’s considerable attachment to the Property as her family home, I have concluded that before making any orders to give effect to my reasons, I should hear further from the parties. I have determined that any orders I may make should allow Barbara time to make enquiries to determine whether she is in a position to raise funds to purchase Daniel and Laura’s share of the Property. I will hear from the parties before making any further order regarding disposition of the Property.
Conclusion and orders
Daniel and Laura are entitled to a declaration in their favour that Barbara holds 10.75 percent of her 80 percent registered interest in the Property on constructive trust for each of them. They are not entitled to any further increase to their interest. Accordingly, I declare that the respondent holds on constructive trust 10.75 percent for each of the applicants, totalling 21.5 percent of her 80 percent registered interest in the Property.
I will hear the parties in relation to further orders to give effect to my reasons.

[2025] SASC 162

26 September 2025