D'Souza v Auguste
[2001] WASC 310
D'SOUZA -v- AUGUSTE & ANOR [2001] WASC 310
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 310 | |
| Case No: | CIV:1943/2000 | 15-17 OCTOBER 2001 | |
| Coram: | PULLIN J | 16/11/01 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER LLOYD D'SOUZA PATRICIA MARIE FLORISE AUGUSTE REGISTRAR OF TITLES |
Catchwords: | Trusts and trustees Constructive trust Claim that express agreement or common intention to share winnings from Lotto ticket |
Legislation: | Nil |
Case References: | Allen v Snyder [1977] 2 NSWLR 685 Green v Green (1989) 17 NSWLR 343 Smith v McDonnell, unreported; SCt of NSW (Hodgson J); 30 March 1995 Stowe v Stowe (1995) 15 WAR 363 Van Rassel v Kroon (1953) 87 CLR 298 Voulis v Kozary (1975) 180 CLR 177 Brease v Brease (1997) 138 FLR 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : D'SOUZA -v- AUGUSTE & ANOR [2001] WASC 310 CORAM : PULLIN J HEARD : 15-17 OCTOBER 2001 DELIVERED : 16 NOVEMBER 2001 FILE NO/S : CIV 1943 of 2000
- CIV 1427 of 2000
Consolidated by Order dated 18 July 2000
- Plaintiff
AND
PATRICIA MARIE FLORISE AUGUSTE
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Trusts and trustees - Constructive trust - Claim that express agreement or common intention to share winnings from Lotto ticket
Legislation:
Nil
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Result:
Claim dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J R Birman
First Defendant : Mr M J Hawkins
Second Defendant : No appearance
Solicitors:
Plaintiff : Birman & Ride
First Defendant : Naveen Pillay
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Allen v Snyder [1977] 2 NSWLR 685
Green v Green (1989) 17 NSWLR 343
Smith v McDonnell, unreported; SCt of NSW (Hodgson J); 30 March 1995
Stowe v Stowe (1995) 15 WAR 363
Van Rassel v Kroon (1953) 87 CLR 298
Voulis v Kozary (1975) 180 CLR 177
Case(s) also cited:
Brease v Brease (1997) 138 FLR 404
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1 PULLIN J: On Saturday, 22 November 1997, the first defendant, Ms Auguste, was in possession of a Lotto ticket which won a first division prize of $489,175.38. Ms Auguste says that she is the owner of the ticket and the proceeds. The plaintiff, Mr D'Souza, says that Ms Auguste held the ticket in trust for the two of them, and Mr D'Souza sues, seeking a declaration to that effect. He claims that there was an agreement between them to share the proceeds of the winnings. Alternatively, Mr D'Souza claims that there was a common intention to share the proceeds.
Undisputed Facts
2 Mr D'Souza and Ms Auguste met in 1993 and began living together as man and wife in 1996.
3 On 19 January 1996, Mr D'Souza and Ms Auguste rented a house at 42 Cassia Way, Morley. They both signed the rental agreement. On 14 January 1997, they shifted to 12 Niagra Place, Morley and, again, they both signed the rental agreement in relation to these premises.
4 Ms Auguste had regular full-time employment as the secretary to the catering manager at the St John of God Hospital in Subiaco. Mr D'Souza did not have regular full-time employment. Mr D'Souza had previously been bankrupt. He was discharged from bankruptcy on 10 January 1995. He did not have any bank account in his name before the Lotto win.
5 On Saturday, 22 November 1997, Mr D'Souza, Ms Auguste and her mother, and Ms Auguste's young son, Joshua, went to the Galleria shopping centre in Morley. On that day, Ms Auguste purchased a Lotto ticket from a kiosk in the Galleria near the Kmart store. Ms Auguste had three other tickets in her possession which she had purchased and which were for the draw on Saturday, 22 November 1997. One she had purchased at the kiosk near the Target store in the Galleria, the other at Subiaco and one from another outlet, the location of which she could not remember.
6 That evening at their home at Niagra Place, Morley, Mr D'Souza watched the Lotto draw on television. He recorded the numbers. A little time later, Ms Auguste checked the numbers against the Lotto tickets in her possession and realised that one of the tickets had won a first division prize. Evidence from Mr Bibrlik from the Lotteries Commission established that the winning ticket was from the kiosk near the Kmart at Galleria.
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7 There is a dispute about what was said by the parties to each other immediately after the draw. Ms Auguste rang and spoke to Mr D'Souza's sister Joyce. Mr D'Souza rang his mother. During the call he asked Ms Auguste whether he could give his mother $5,000, and she agreed. Mr D'Souza also rang and spoke to his sister-in-law Donna and his sister Christine.
8 At some stage during the evening, Ms Auguste wrote her name and address on the back of the winning Lotto ticket.
9 On Monday, 24 November 1997, Mr D'Souza drove Ms Auguste to work at St John of God Hospital in Subiaco, and after work on that day he picked Ms Auguste up and they drove to the Lotteries Commission office in Osborne Park, where they met an employee of the Lotteries Commission. The employee took down Ms Auguste's details, gave Ms Auguste a receipt for the Lotto ticket and advised that a cheque would be available for collection in two weeks' time. Mr D'Souza was present when Ms Auguste gave the employee her details so that the cheque could be written out in favour of Ms Auguste.
10 On 8 December 1997, the two of them returned to the Lotteries Commission, collected the cheque for $489,175.38 made out to Ms Auguste and went to Challenge Westpac Bank at Galleria, where the cheque was deposited into an investment account in Ms Auguste's name. Ms Auguste paid income tax on the interest earned in this account. Mr D'Souza did not, at that time, have an account in his name. He opened an account on that day at that branch and, before they left, Ms Auguste instructed the bank to transfer $40,000 into Mr D'Souza's account.
11 Out of the $40,000 Mr D'Souza, paid out his car loan of $10,000, paid $8,000 for a holiday for he and his daughter to go to Daydream Island in Queensland, repaid his brother $5,000 which he owed, bought a diamond engagement ring for $2,000 and purchased a diamond cross necklace for Ms Auguste at a cost of $2,500.
12 For her part, Ms Auguste entered into a contract in her own name to purchase a house at 7 Delmore Glades, Kiara. The offer by Ms Auguste was accepted by the vendors on 26 December 1997. The purchase price was $147,000, and this was paid by Ms Auguste out of the Lotto winnings.
13 Although Mr D'Souza and Ms Auguste were in love, they argued frequently. One such argument took place just before Christmas of 1997. The parties went for several days without talking to each other, and soon
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- after this Mr D'Souza went to Daydream Island on the holiday with his daughter. When he returned, he found out about Ms Auguste's purchase of 7 Delmore Glades. They shifted into the Delmore Glades property and soon after had another argument over some incident, as a result of which Mr D'Souza went back to live at Niagra Place. He was there for a few days in January 1998 before the lease on those premises expired.
14 While he was staying at Niagra Place, Mr D'Souza wrote a letter to Ms Auguste, asking for her understanding.
15 The letter contained the following passages:
"I hope you will understand why I had to leave you. I am in a terrible financial situation with Shane as they are demanding the $3,000 he gave me for the partnership and they want me to pay the $16,000 to the printers for breaching the contract we had.
I did not want to talk to you about the situation because I felt very bad and did not want you to get involved with it or give me any money.
I was in a terrible mess and I wanted to get out of it on my own without the easy way out of you giving me any money. I hope you will understand how I felt.
Ever since I was supposed to meet Shane and his lawyer on the day that I didn't, it was eating away inside me. Unfortunately this is when things were getting to me and I was getting anxious and edgy as the deadline came for me to find the money to pay Shane and the printers.
The real crunch came when you said to me that 'its better you leave if you are going to carry on like that'. This hit me real hard because all of a sudden I felt so insecure as I realised I had nothing in my life. No home, no furniture, no money, nothing.
I felt there and then that I had to do something about this horrible numb feeling that I had. I spent a whole two hours sitting outside thinking about it and my heart was totally against leaving you. But it was the only way to solve this big problem I have. I hope you will understand."
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16 Ms Auguste rang Mr D'Souza in response, the parties then reconciled, and Mr D'Souza shifted back into the Delmore Glades property. He lived there until March of 1999.
17 On 20 March 1998, Ms Auguste wrote out a cheque for $12,000 and gave it to Mr D'Souza.
18 In July 1998, Ms Auguste bought a Lotto ticket that won a prize of $2,400. She gave the ticket to Mr D'Souza, who went to the Lotteries Commission, cashed the cheque and gave $1,000 to Ms Auguste. Mr D'Souza kept $1,000. The sum of $400 was paid as a deposit on a planned holiday. Both parties agreed in evidence that this ticket was jointly owned.
19 In July 1998, the parties announced their engagement and there was an engagement party at the Delmore Glades property.
20 On 9 October 1998, Ms Auguste wrote out a cheque for $4,700 and gave it to Mr D'Souza, along with $300 in cash.
21 In November 1988, the parties went on a holiday to Mauritius. Ms Auguste and Mr D'Souza had an argument before they went on this holiday, and while they were on holidays. As a result of each argument, they did not speak to each other for some time.
22 Towards the end of February 1999, after one of their arguments, Ms Auguste decided to put the Delmore Glades property on the market. She retained an agent who put up a "For Sale" sign at the front of the house. When Mr D'Souza saw the sign, he reacted by taking down the sign and smashing the frame containing a photograph of Ms Auguste. He wrote a letter to the agent. The letter stated that the agent was to cease any further attempts to sell the property until the "dispute concerning the property is resolved".
23 On 13 March 1999, Mr D'Souza was served with an interim restraining order, which had been obtained ex parte on the application of Ms Auguste. He then left the Delmore Glades house and did not resume permanent residence there again, although there was a reconciliation and they did resume their relationship for a period of time commencing on 11 June 1999.
24 During this latter period of reconciliation, the couple inspected a house at 1329 Ponte Vecchio Boulevard, Ellenbrook. The plaintiff made an offer on the Ellenbrook property, and the two of them applied for joint
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- finance from the Bank of New Zealand Australia. On 29 September 1999, Mr D'Souza went to Singapore for a holiday and returned on 5 October 1999. He discovered that, in that time, the contract he had entered into had been terminated and that Ms Auguste had purchased the Ellenbrook property in her own name.
25 On 9 November 1999, Mr D'Souza lodged a caveat claiming an undivided half share in relation to the Delmore Glades property and the Ponte Vecchio property. Later in the year 2000, notice was given by Ms Auguste to Mr D'Souza, requiring him to commence proceedings to extend the caveat. Those proceedings were commenced by Mr D'Souza on 17 April 200 and, in due course, on 18 April 2000, the caveat was withdrawn insofar as it related to the Delmore Glades property and extended in relation to the Ponte Vecchio property until the resolution of these proceedings.
The Disputed Evidence
Mr D'Souza's evidence
26 Mr D'Souza said that, in general terms, they shared the expenses of living. Mr D'Souza said that it was he who used to attend to pay the rent when they were in rented accommodation. For one fortnight he would provide the funds, and for the next rental period Ms Auguste would provide the funds. Mr D'Souza says that, on five or six occasions when he was due to provide the funds, he was not able to do so and that Ms Auguste then provided them. He said he was employed with a security system company for about eight months in 1997.
27 Mr D'Souza said that he did all of the cooking and cleaning. He said that he was the "house husband" until they broke up. He said that he was involved in seeing that Joshua was taken to school each day, and he met the teachers and was treated as "dad". As to groceries, they would share the cost, but generally Mr D'Souza said that he would pay for the groceries because he was generally free in the day. He said that he paid the phone bill. He said that Ms Auguste paid the electricity bill.
28 Mr D'Souza and his daughter, Jessica, were included on Ms Auguste's HBF membership until March of 1999.
29 From time to time they would go to the Burswood Casino and bet on different games. On one occasion, they won $100 at Keno and the
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- proceeds were split. On another occasion, Mr D'Souza says that he won $1,000 in the poker machines and the proceeds were split fifty-fifty.
30 He says that they had a common interest in Lotto. He said that they invested in the Tuesday, Thursday and Saturday Lotto and that he would usually buy the Lotto tickets for the weekday Lotto draws. He said that Ms Auguste would ring him each week, without fail, to discuss the buying of the mid-week tickets. Occasionally, she would ring to say not to buy the ticket because she had done so. Whoever bought the ticket would keep the ticket.
31 On Saturdays, they would usually buy their Lotto ticket from Sunil Karia's kiosk near the Target store in the Galleria, but sometimes they would purchase the ticket from the Kmart kiosk and sometimes, although rarely, from the kiosk underneath the cinema at the Galleria.
32 Mr D'Souza says that they used to often have friendly arguments as to who would pay for Lotto tickets, both offering to do so. He says that, at one stage, Ms Auguste said that it made no difference who paid because they would split the proceeds of any win fifty-fifty. He says that, at Sunil Karia's kiosk, he remembers shaking hands with her after such a conversation. He says that they shook hands on more than one occasion after such a discussion.
33 Mr D'Souza says that on Saturday, 15 November 1997, he had a dream that Ms Auguste and he had won the first division Lotto prize. He says that at a family gathering at his sister's house, he told his family that he was going to win Lotto.
34 He says that on Saturday, 22 November 1997, he, Ms Auguste, her mother and Ms Auguste's son Joshua went to Galleria. Ms Auguste left the group for a time and when she came back, Mr D'Souza asked if she had a Lotto ticket. She said that she had, and Mr D'Souza then asked where she bought it. She said it was from the kiosk opposite the Kmart store, and Mr D'Souza said she should go and buy one from Sunil's kiosk near the Target store because he believed his dream required the winning ticket to be bought from Sunil's kiosk. He says that she went away and came back saying that she had bought one from Sunil's kiosk.
35 That evening, Mr D'Souza said that he watched the Lotto results and noted the numbers. He handed the numbers on a slip to Ms Auguste. She checked the ticket and grabbed him by the arm and said, "We won. We won." Mr D'Souza checked this and says that he rang his mother. His mother was 82 years old. It is not in dispute that Mr D'Souza asked
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- Ms Auguste if it would be in order to give his mother $5,000, and she approved. He then rang his sister, Christine. He then says that Ms Auguste rang Mr D'Souza's sister, Joyce, because they worked together. Mr D'Souza said he heard her say, "We won; we won first division in the Lotto. Chris and I won Lotto." He says that Ms Auguste then rang her son and daughter, and they were not home.
36 Mr D'Souza says that he asked how they were going to split the moneys when they received the cheque. Ms Auguste said that she would put her name on the ticket and she would give him his share as and when it was needed. He says that Ms Auguste said that if she gave him his share, he would leave her and that she was also concerned that Mr D'Souza's ex-wife may end up with some of the money. Mr D'Souza said that, as a result of this, he agreed that the money should be put into Ms Auguste's account. He said that he was having ongoing property disputes with his ex-wife and that Ms Auguste was adamant about controlling the money.
37 He said that they then worried about the security of the ticket, and he said to Ms Auguste that she should write her name and address on the back of the ticket, which she did at between about 8.30 and 9.30 on that evening.
38 As to the letter that he wrote in January 1998 and which I referred to above, he says he wrote it in that form because he wished to persuade Ms Auguste to reconcile with him.
Ms Auguste's evidence
39 Ms Auguste says that when they rented premises, she paid the rent and that Mr D'Souza gave her money to pay the rent only twice. She said that she paid the bond and that, generally speaking, Mr D'Souza had no money. She said Mr D'Souza's car was registered in his brother Gordon's name, who had taken out a loan to purchase the vehicle, and Mr D'Souza had to reimburse him. Mr D'Souza, she said, was behind with the payments. At one stage, she gave him $1,500 to help pay the loan. Ms Auguste says that she gave Mr D'Souza $1,500 to purchase stationery and business cards in relation to the publication of his book "Bon Appetite".
40 Ms Auguste says that she paid for the groceries and that she paid via credit cards, the accounts for which she produced in court. She says that she also paid the electricity, water and telephone bills.
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41 Ms Auguste says that she asked Mr D'Souza to contribute to rent and food for the family, but he said that when he had the money he would pay her back.
42 Ms Auguste said that she had bought Lotto tickets every week, first on the Saturday Lotto and then, when Oz Lotto and Powerball were introduced, during the week, she would buy tickets in those as well.
43 She said that Mr D'Souza denigrated her for buying Lotto tickets and said to her that she was wasting her money. She said that Mr D'Souza never bought Lotto tickets himself.
44 Ms Auguste denies that she ever shook hands with Mr D'Souza when buying a Lotto ticket, and she says she never telephoned him asking him to buy Lotto tickets. She says that they never discussed what would happen if she won Lotto.
45 She said that in the week ending 22 November 1997, she bought three Lotto tickets, one of which she bought on Saturday, 22 November. She said that she was with Mr D'Souza and her mother and she had shopping which she had to take to the car. She says that on the way back from taking the shopping to the car, she bought a Lotto ticket from the kiosk in front of the Target store at the Galleria.
46 Ms Auguste denies that there was any discussion with Mr D'Souza on the Saturday afternoon about the Lotto ticket.
47 On the evening of Saturday, 22 November 1997, Ms Auguste says that she was cooking in the kitchen and Mr D'Souza was watching the news. She asked him to write the numbers down from the Lotto results and, after he had done this, she came in, took the tickets out of her purse and checked them. She then realised that one of the tickets was a winning ticket. She says that she said to Mr D'Souza, "I won. I won. I won the first division". He expressed disbelief, and she repeated that she had won.
48 Mr D'Souza then rang Channel Seven to try and find out how much the first division winnings were, but that information was not available. Ms Auguste then says that she rang her mother, her son and her daughter. She says that Mr D'Souza rang his mother and said that Ms Auguste had "won the first division". She gave evidence that Mr D'Souza rang and spoke to his sister-in-law, Donna D'Souza. Ms Auguste said that she heard Mr D'Souza say on the telephone that "Patricia won first division".
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49 Ms Auguste said that she telephoned Joyce D'Souza (Mr D'Souza's sister) and told her that she had won first division. Ms Auguste says that she wrote her name and address on the back of the ticket because she had four tickets.
50 On Monday, 24 November 1997, after visiting the Lotto office, there was discussion about the money. Ms Auguste said that she would give Mr D'Souza $40,000 to pay for the debt on the car, pay tax and some other amounts. She said that she would also give her children $40,000 each. There was an argument about this.
51 As to the $12,000 which was given to Mr D'Souza, Ms Auguste said that she agreed to lend that money to him to enable him to repay a debt.
52 She also gave Mr D'Souza $2,800, or thereabouts, to pay a solicitor's account. On another occasion, Mr D'Souza threatened to leave Ms Auguste and, after the argument concerning this, she agreed to give him $5,000 if he did not leave her. This resulted in a cheque for $4,700 and $300 in cash.
53 Ms Auguste said that Mr D'Souza never claimed that the house that she purchased at Delmore Glades was his house, but said to her, about the time of the incident when Mr D'Souza took down the "For Sale" sign and smashed the photo frame, that it was his house because they lived together in a de facto relationship.
54 As to the house at Ellenbrook, Ms Auguste said that she and Mr D'Souza agreed that they would purchase the house together, that they would apply for a loan of $180,000 and that the balance of $15,000, plus stamp duty, would be a cost to be borne by the two of them. She said that Mr D'Souza promised his half share of that money on two occasions but never produced the money, and, eventually, she decided to purchase the house in her own name, which she did.
Other witnesses called by the plaintiff
55 Mr Sunil Karia owned the Lotto kiosk in the front of Target at Morley Galleria between 1994 and December 1999. He gave evidence that he knew both Mr D'Souza and Ms Auguste as customers. He did not know their names. He saw them over some years. He said that mostly they came individually to buy Lotto tickets, but sometimes they came together. In his evidence-in-chief Mr Karia was asked, "How long would you say you recognised them as customers?" and his answer was, "I'm
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- estimating because they would have come up today and then they would have come after 3 years – I don't know. I would estimate that I would have known them for about 2 years, probably. Probably." In cross-examination there was this exchange:
"Mr Karia, you sold the Lotto kiosk in November or December 1999?---1999, end of November, December.
And you can remember – you estimate that you saw Mr D'Souza and Mrs Auguste from time to time in the 2 years before that period?---Yes, and this is an estimated time."
"You told my friend you sold the premises in 1999?---Yes.
And you also said that you hadn't seen these people for about 3 years. Is that right?---Haven't seen them for?
What I'm getting at is, you said that you saw them buy tickets for a certain period. Can you say approximately what year they started coming to your kiosk?---I wouldn't know."
57 He was then referred to a statement that he signed before the trial which contained a statement that Mr D'Souza and Ms Auguste purchased Lotto tickets from his kiosk for a period of about two to three years from 1996 but this was qualified by Mr Karia saying:
"Again I'm telling you – you should understand this – we have close to 10,000 customers. If they would have come in 1996, I would have not known them, or 1995. It's difficult to remember 10,000 people coming to your kiosk who buy what they buy."
58 In my view, the overall effect of this evidence is that Mr Karia is uncertain when he first saw Mr D'Souza and Ms Auguste together at his kiosk.
59 Patrisha Elizabeth Phipps is the daughter of Joyce D'Souza. Joyce D'Souza is the sister of Mr D'Souza.
60 Mrs Phipps said that on the evening of Saturday, 22 November 1997, she received a call from Ms Auguste. She said that Ms Auguste said, "We have won Lotto". When asked who had won, she said "Me and your uncle". Ms Auguste then asked to be put on to Joyce D'Souza to speak to her. Mrs Phipps said that she only found out on the Friday before she
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- gave evidence that she was to do so and that she had not been asked to recall the conversation before then.
61 Donna D'Souza is married to Mr D'Souza's brother, Reggie, and in November 1997 she remembers receiving a call from Mr D'Souza who reported that "We've just won Lotto." Mrs Donna D'Souza said that she was asked on the Saturday before the hearing to give evidence by Mr D'Souza. She said that Mr D'Souza had asked her if she recalled whether he said, "I won" or "We won". In cross-examination, Mrs D'Souza was asked the following question and gave the following answer:
"What did he say when he said to you, 'Did I say this or did I say this'?---He said, 'Did I say I won Lotto or we won Lotto?' or something to that effect and I said to him – I think he said, 'We won Lotto. We won Lotto.'
That's what you think he said?---On Saturday, yes."
62 Mrs D'Souza also said:
"We knew he was entitled – we felt he was entitled to whatever the winnings were so we just assumed that this is what he was coming to court for."
63 Joyce D'Souza is a sister of Mr D'Souza. She worked at the St John of God Hospital as a menu assistant and she knew Ms Auguste. They were on very friendly terms. It was Joyce D'Souza who introduced Ms Auguste to Mr D'Souza. She said that Mr D'Souza gave Lotto tickets as gifts. She said that she remembered the family party before 22 November when Mr D'Souza said that he was "going to win Lotto".
64 She also gave evidence that on Saturday, 22 November 1997, Ms Auguste rang and she said, "Chris and I won Lotto". On the following Monday, Joyce D'Souza saw Ms Auguste when she came into work. She said that Ms Auguste had a piece of paper showing a house that Mr D'Souza had drawn which they were going to build together. Joyce D'Souza said that Ms Auguste said that the first thing "we" are going to do is buy a house together. Joyce D'Souza said that she held some shares in a company called WinFocus Pty Ltd for Mr D'Souza at the time when he was bankrupt (although she said she did not then know he was bankrupt). She knew that Mr D'Souza was separated from his wife.
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Other witnesses called by Ms Auguste
65 Mr Bibrlik, who is an employee of the Lotteries Commission, was called. His evidence made it clear that the winning Lotto ticket was purchased from the kiosk near the Kmart mall, not from Mr Karia's kiosk near the Target store.
66 Five witnesses who were friends of Ms Auguste through work at St John of God Hospital, namely Marlene Arlt, William Bahn, Patricia Charters, Krystyna Godzic and Enid Thomas, all gave evidence that Joyce D'Souza had reported to them that Ms Auguste had won Lotto. That is, Joyce D'Souza said nothing which indicated that Mr D'Souza and Ms Auguste had together won Lotto.
Evidence reflecting on the credit of the plaintiff and defendant
Mr D'Souza:
(a) Mr D'Souza said that, when he and Ms Auguste rented their houses at 42 Cassia Way, Morley and 12 Niagra Place, Morley between January 1996 and January 1998, rent was paid fortnightly in cash. He said that he was the person who usually took the cash to the estate agent and that he would pay the rent one fortnight and Ms Auguste the next. He said that he paid his share of the rent, save on perhaps five or six occasions. That was proved not to be true. In cross-examination, Mr D'Souza was presented with the evidence that between 28 January 1997 and 19 December 1997, Ms Auguste had paid the fortnightly rent on 24 occasions during that year by cheque.
In re-examination he admitted this was correct. He said that when he had said (in examination-in-chief) that he had paid cash for the rent, that he "was really meaning" that rent was paid in cash for "Cassia Way". Further, in re-examination, Mr D'Souza said he paid the rent for Cassia Way between 19 January 1996 and 6 January 1997, and he produced the receipts.
However, a transcript of some evidence he gave in the Family Court on 13 May 1996 was tendered by counsel for Ms Auguste. This revealed that Mr D'Souza gave evidence on oath that Ms Auguste paid the rent. So, it can be seen that in the Family Court he gave evidence to demonstrate that he had no money and he was unable to pay rent, whereas in this case Mr D'Souza was at pains to try
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- and show that he was paying his share of rent and thereby contributing to the household.
- In an application that Mr D'Souza filed in the Family Court in September 1996 seeking the remission of fees, he said that he did not pay board because of an arrangement that he would look after Ms Auguste's young child.
(b) Similarly, in his evidence in this case, Mr D'Souza claimed that he "generally" paid for groceries. In the Family Court, in his application for remission of fees, he said that he did not pay for food against answer 10 in that application. He also said that his commitments to food and clothing were "Nil" per week.
(c) Again, in this case, Mr D'Souza gave evidence that when Ms Auguste bought 7 Delmore Glades, Kiara, he sold some furniture. He said he had purchased it in 1995 and that he sold it for $5,000. He said it was used in the houses that he lived in with Ms Auguste. Ms Auguste confirmed that. However, in the Family Court, he gave evidence on 13 May 1996 (see pages 57, 58 and 66 of the transcript) and he claimed that he did not have any furniture. He said that he had sold it all because he needed the money.
(d) At a time when Mr D'Souza was an undischarged bankrupt, he had an interest in WinFocus Pty Ltd, the shares in which he said were owned by his brother and sister but beneficially owned by him. WinFocus Pty Ltd had a bank account which Mr D'Souza used. He also received the moneys from the sale of the business of Citystar Holdings Pty Ltd in June or July 1995. His brother Gordon had held 60 per cent of the shares in that company on Mr D'Souza's behalf. Mr D'Souza kept the proceeds in cash in a cupboard. He had a car, but the vehicle was registered in his brother's name, although it belonged to him. It was submitted that he conducted himself in these ways to keep knowledge of his assets away from his trustee in bankruptcy (or perhaps from his wife). The suspicion is that this is the explanation, but I make no such finding because he was not tested enough in cross-examination as to the reasons why he conducted his affairs in this way.
Ms Auguste:
67 Ms Auguste said that after the Lotto win on 22 November 1997, Mr D'Souza said that thereafter they should purchase tickets jointly and
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- share the proceeds. Some time later, $2,400 was won as a prize and this was a prize won on a ticket which they owned jointly.
68 On 16 May 2000, Ms Auguste swore an affidavit in relation to the application which had been made by Mr D'Souza to maintain the caveats that he had lodged. In that affidavit, she said:
"Some four months after my first division win, I won $2,500.00 with the ticket that I had bought on my own account. Notwithstanding that, I shared the proceeds with him because it was a small sum." (par 7.10 of the affidavit)
69 At par 7.25 of the affidavit she said:
"I say that the lotto ticket that won fourth division giving me a pay-out of $2,400.00 was bought in my name only. However I shared the proceeds with the Plaintiff because it was a small sum."
70 Ms Auguste admitted that those passages in the affidavit were untrue.
71 It was submitted by counsel for Mr D'Souza that Mr Sunil Karia's evidence contradicted Ms Auguste's evidence that Mr D'Souza never bought Lotto tickets. Mr Karia said that he saw Mr D'Souza buying Lotto tickets. However, it was quite clear that Mr Karia remembers nothing of the detail about when he saw Mr D'Souza and Ms Auguste. There is no doubt that after the big Lotto win, Mr D'Souza and Ms Auguste did buy Lotto tickets and, so, Mr Karia's memory, which dates from 1999 back for a number of years, may be a recollection of the time after 22 November 1997.
Discussion about my approach to resolution of the disputed facts
72 On a number of points, the parties disagreed about what happened. I will not attempt to decide all such disputes because many are quite peripheral to the main issues.
73 One of the points in dispute was about what was said immediately after it was realised that the prize had been won.
74 Although it is relevant to know what was said immediately after it was realised the Lotto ticket had won a big prize, it would be hardly satisfactory to decide the case merely on the basis of what witnesses say
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- Ms Auguste said on the evening of 22 November 1997. This applies, in particular, to the evidence of those who spoke to Ms Auguste on the telephone on that evening. One only has to utter the phrases "I won" and "We won" to see that there was scope for misunderstanding, particularly when the news was announced with great excitement. Some witnesses claimed to remember and to distinguish between those two phrases, four years after the event. Mrs Donna D'Souza is one such witness. She is Mr D'Souza's sister-in-law. She was asked by Mr D'Souza shortly before the trial what was said, and he offered her alternatives; that is, whether Ms Auguste said, "I won" or "We won". Mrs Donna D'Souza said that she "thought" that Ms Auguste said, "We won". She also added that she thought that Mr D'Souza was entitled to share in the winnings. That kind of motivation could easily affect her recollection of events, as could the passage of time.
75 Mr D'Souza's sister, Joyce, gave evidence that Ms Auguste had said to her words to the effect that the two of them had won. Ms Auguste disputes that. I do not consider that I am helped in the resolution of that dispute by the evidence of the five workmates called on behalf of Ms Auguste to say that during the days after the Lotto win, Joyce D'Souza said at work only that Ms Auguste had won Lotto. They would all be interested in their workmate, and the fact that Joyce D'Souza referred at work only to Ms Auguste winning (as I find she did) does not diminish the evidence she gave about what Ms Auguste said on the telephone on 22 November 1997.
76 I will make a finding below about what was said immediately after the results were announced, but I should say that I do not see that, in this case, it much matters whether Ms Auguste said, "I won" or "We won". The rest of the evidence shows that Ms Auguste was willing to provide financial benefits to Mr D'Souza, and in the particular circumstances of this case I do not see that, even if Ms Auguste did say, "We won", that this amounts to an admission of joint ownership of, or even of a common intention to share equally, any winnings. In my view, it would be no more than an indication that Ms Auguste was willing to give Mr D'Souza some of the proceeds, just as she bought most of the food and shared or gave some of it to him.
77 I will first make my findings and then explain why some of the findings have been made.
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Findings of fact
78 These findings, in some cases, add to and supplement the facts which are not in dispute and which appeared under the heading "Undisputed facts" above. Sometimes below, I repeat facts which appear under the heading "Undisputed facts".
79 Ms Auguste bought the winning Lotto ticket and kept the ticket in her purse.
80 Ms Auguste wrote her name on the ticket.
81 On the evening of 22 November 1997, Mr D'Souza noted the Lotto numbers while he was watching television. Afterwards, Ms Auguste checked the numbers against the ticket, which she retrieved from her purse. She then said, "I won the first division". Ms Auguste did not say to Mr D'Souza that if she gave him his share, he would leave her. Ms Auguste did not say that she was concerned that Mr D'Souza's ex-wife may end up with some of the money.
82 Mr D'Souza rang his mother and told her that Ms Auguste had won the first division. During the telephone conversation he asked Ms Auguste whether he could give $5,000 to his mother, and Ms Auguste agreed. Mr D'Souza asked whether he could give $1,000 to his relations, and Ms Auguste said that he could not.
83 Ms Auguste rang Joyce D'Souza and told her that Mr D'Souza and she (Ms Auguste) had won Lotto. In other words, I accept Joyce D'Souza's account of the conversation. Ms Auguste also said words to similar effect to Mrs Phipps.
84 On the other hand, Mr D'Souza telephoned Donna D'Souza and told her that Ms Auguste had won the first division. Mr D'Souza also rang his sister Christine and told her that Ms Auguste had won Lotto. So in relation to the last two telephone calls, I accept Ms Auguste's evidence about what she heard Mr D'Souza say.
85 Mr D'Souza and Ms Auguste went to the Lotteries Commission on Monday, 24 November 1997. Mr D'Souza was present when details were taken for the cheque to be made out in favour of Ms Auguste. I accept Ms Auguste's account of what happened during this meeting.
86 On 8 December 1997, Mr D'Souza and Ms Auguste went to the Lotteries Commission and collected the winning cheque. The cheque was made out in favour of Ms Auguste.
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87 Ms Auguste deposited the moneys into an account at the Challenge Bank at Morley Galleria. The account was in Ms Auguste's name.
88 Ms Auguste declared the interest earned on the investment account in her income tax returns.
89 Ms Auguste gave instructions for $40,000 to be paid into an account for Mr D'Souza. Mr D'Souza opened an account at the Challenge branch so that the moneys could be transferred to him.
90 Mr D'Souza never asserted that he was the owner of the ticket, or of the money, during 1997 or 1998.
91 Before 22 November 1997, there was no agreement between the parties that they would share the proceeds of Lotto tickets. Before 22 November 1997, Mr D'Souza disapproved of Ms Auguste spending money on the purchase of Lotto tickets.
92 After 22 November 1997, the parties did buy Lotto tickets under an agreement to share the proceeds.
93 On 22 November 1997 and throughout his relationship with Ms Auguste, Mr D'Souza was short of money.
94 Mr D'Souza did not pay half of the rent when the parties lived in rented accommodation. Ms Auguste paid rent by cheque throughout 1997, in accordance with the schedule of payments that she produced in court, which revealed that she paid the fortnightly rent on 24 occasions during 1997.
95 Ms Auguste paid the utility bills for the houses they lived in, and Ms Auguste paid for most of the groceries purchased throughout the time they lived together. Mr D'Souza paid the telephone bill. He largely used the telephone for his own business purposes.
96 Mr D'Souza made very little financial contribution to the household. He sometimes cooked meals, although he did not do all the cooking, as he claimed. I accept Ms Auguste's evidence that she also cooked meals.
97 I will deal with the issue about whether any common intention was formed to share the proceeds of the Lotto tickets later on in these reasons.
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Reasons for the findings set out above
98 Some of the findings I have made above are drawn from the undisputed facts. As to the pleaded agreement to share the proceeds of the Lotto tickets, I do not consider that any such agreement was reached, because I accept Ms Auguste's evidence that Mr D'Souza disapproved of Ms Auguste spending money on Lotto tickets and that he denigrated her for doing so. I do not accept that, before 22 November 1997, the parties purchased Lotto tickets and tussled over who would pay for them . The purchase of Lotto tickets was entirely Ms Auguste's affair, and Mr D'Souza's attitude to her purchasing Lotto tickets makes it extremely unlikely that he would have shaken hands and agreed to share the proceeds.
99 Mr D'Souza was keen to bolster his claim that there was a common intention to share the proceeds on the basis that they shared everything else. In fact, the evidence which goes to Mr D'Souza's credit, and which I have set out above, supports me in my conclusion that he contributed very little, financially, to the relationship. Mr D'Souza is a person who is influenced in his evidence by the issue at hand. This is not to say that he is dishonest. It is simply that his memory is affected by the objective he seeks to achieve by giving his evidence. He also speaks without being careful about details. His evidence about who provided funds for the rent is an example. This makes it very difficult to accept the accuracy of Mr D'Souza's evidence. Where I am forced to make a choice between the evidence of the two parties, in the absence of any corroborative evidence one way or another, I prefer the evidence of Ms Auguste. This is so even though Ms Auguste herself has been shown on one occasion to have given a wrong account of events in an affidavit.
100 There is then the positive evidence suggesting that Mr D'Souza did not have any interest in the ticket or the moneys. Why else would he have written the letter to Ms Auguste which I have quoted from above? In it he said that he had "no home, no furniture, no money, nothing". He complained of his inability to pay debts, which he referred to in the letter. He claims that he wrote this letter because he was seeking reconciliation with Ms Auguste after an argument. That provides no motive at all for writing the letter suggesting that he had no money. He could easily have written a conciliatory letter without making the statements which appear in that letter concerning his financial position. The letter provides strong evidence against Mr D'Souza's claim that he had a half share in the ticket and the winnings.
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101 In addition, he stood by and allowed the cheque for the winnings to be paid to Ms Auguste and banked by her into an account in her own name. Mr D'Souza would have me accept that he let this happen so that moneys would be concealed from his former wife. I have no doubt that Mr D'Souza would try to hide the fact that he had money, from his wife. The transcript of evidence in the Family Court suggests this. However, to have taken no steps at all to record his interest in the money, or to gain some acknowledgment in written form from Ms Auguste about his interest in the money, is most significant. He had written two books, and when he was unhappy with the real estate agent's attempts to sell Delmore Glades, he quickly put pen to paper. The lack of any contemporary documentary evidence that Mr D'Souza had an interest in the money, and the existence of documentary evidence pointing the other way, strongly corroborates Ms Auguste's testimony that Mr D'Souza had no interest in the money.
102 The fact that Ms Auguste gave $40,000 to Mr D'Souza as soon as she banked the money and then gave him other moneys ($12,000 on one occasion and $5,000 on another), was simply a continuation of the one-sided financial relationship in which Ms Auguste supported Mr D'Souza. He was in difficult financial circumstances, and the $40,000 that he was given by Ms Auguste was immediately used to pay off some debts, including debts in relation to his car and in relation to the Commissioner for Taxation. The $12,000 was also needed to pay a pressing debt, and, once again, Ms Auguste gave him the money. I find that these payments were entirely voluntary payments, paid by Ms Auguste in a spirit of generosity. They were not payments in discharge of any entitlement Mr D'Souza had to the money.
The law
103 The decisions of Van Rassel v Kroon (1953) 87 CLR 298 and Voulis v Kozary (1975) 180 CLR 177 make it clear that Ms Auguste, having obtained the Lotto ticket, obtained the legal title to what is a chose in action. The issue in this case is whether it should be decreed that Ms Auguste held the legal title in trust for Mr D'Souza and herself in equal shares.
104 The claim is mounted, first, on the basis that there was an express agreement between the parties to share the proceeds of any Lotto tickets purchased. I have made findings which mean that such claim cannot succeed.
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105 In the alternative, the plaintiff claims that there was a "common intention" as to the ownership of the ticket and the application of any winnings. The plaintiff relies on Smith v McDonnell, unreported; SCt of NSW (Hodgson J); 30 March 1995.
106 A constructive trust of property may be based on the common intention of the parties; Stowe v Stowe (1995) 15 WAR 363.
107 Two matters must be demonstrated when a party seeks to establish a constructive trust based on actual intention; first, that there was a common intention that both should have a beneficial interest, and, secondly, that the claimant acted to his or her detriment on the basis of that common intention; Green v Green (1989) 17 NSWLR 343 per Gleeson CJ and Stowe v Stowe (supra) page 367 - 8.
108 A common intention may be inferred from the conduct of the parties Allen v Snyder [1977] 2 NSWLR 685 at 690 per Glass ACJ and Stowe v Stowe (supra) page 368.
109 The mere existence of a de facto relationship combined with expressed or implied understandings to provide support and accommodation, will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the house occupied by the parties, is created. Green v Green (supra) 353 and Stowe v Stowe (supra) at 369.
110 In my opinion, the fact that parties impliedly or expressly agree to share accommodation and living expenses, will not form a sufficient basis for concluding that a constructive trust will arise in relation to other assets acquired by one only of the parties using that party's own money.
111 In Smith v McDonnell (supra), Hodgson J found that a common intention did exist in relation to the ownership of a Lotto ticket which won a prize. Several reasons were given by Hodgson J for that conclusion. There was a practice of sharing expenses. There was a lack of clarity in the evidence in that case about who paid for the tickets, but his Honour concluded that the probability was that there was contribution towards the tickets from both parties. There was also a ruse adopted by the defendant in that case, in which he told the plaintiff that he was tearing up the winning ticket and then tore up another ticket. This suggested a consciousness in his mind that the plaintiff did have a claim to a share of the winnings. Added to that, was the statement by the defendant immediately after the result in terms, "We've won". Thus, it can be seen
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- that the common intention was drawn from the particular circumstances in that case.
112 In this case, there was some sharing of general expenses, but the greater share was met by Ms Auguste. Expenses were certainly not shared equally. Ms Auguste showed great generosity to Mr D'Souza by supporting him financially. More importantly, I have found that there was no sharing of expenses in relation to the purchase of Lotto tickets before 22 November 1997.
113 Statements indicating an intention to share an asset with another will not alone result in the Court imposing a constructive trust. As Mahoney JA said in Green v Green (1989) 17 NSWLR 343, at 367C:
"There have been many cases in which a person has been told that property, or particular property, will be his or hers, or that he or she will be provided for by a person out of his property, but a constructive trust has not been seen as available."
Common intention
114 Mr D'Souza did make financial contributions to the relationship, where possible. He did occasionally pay some of the rent when the couple lived in rented accommodation. He paid the telephone bill, and he did pay for, or provide via his business, dinners at restaurants from time to time. I have no doubt that from time to time he also purchased groceries. He did occasionally cook meals, and he did take Ms Auguste's son to school or day care. In the main, however, because of his financial circumstances, he was living at the expense of Ms Auguste. She was the person with a regular source of income.
115 Ms Auguste did not resent paying most of the expenses. As she said in cross-examination, she loved Mr D'Souza, she planned to marry him, and she was prepared to share her life and her financial resources with him.
116 I find, however, that as at 22 November 1997, there had been no common intention formed by the parties that they would jointly own Lotto tickets purchased by Ms Auguste or that they would share the proceeds. It is true that Ms Auguste did, in fact, share some of the proceeds. Mr D'Souza was given $57,000 in three cheques. He gained the benefit of holidays overseas. He lived in the house which Ms Auguste purchased
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- with the Lotto moneys, which meant that he had no rental expenses to meet while he was living with her in that house.
117 In my view, however, Ms Auguste's willingness to share the proceeds by giving moneys to Mr D'Souza, reveals nothing more than an intention on Ms Auguste's part to gift money to Mr D'Souza. However, such an intention will not be sufficient to support Mr D'Souza's claim that Ms Auguste held the proceeds of the Lotto win on a constructive trust for the two of them in equal shares.
118 I repeat that the plaintiff has not established the existence of any agreement to share the proceeds, and has not established any common intention to share the proceeds. As a result, I dismiss the plaintiff's claim.
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