Dawson v The State of Western Australia - [2014] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DAWSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 113

CORAM: SIMMONDS J

HEARD: 29 OCTOBER 2013

DELIVERED : 2 APRIL 2014

FILE NO/S: CPCA 64 of 2011

BETWEEN: JOHN FRANCIS DAWSON
First Plaintiff
LEONIE JOY FEATHERSTON
Second Plaintiff
FREEDOM ENTERPRISES (WA)
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Trusts - Constructive trusts - De facto relationship - Whether joint endeavour of required character - Whether valuable contributions - Whether increment in wealth the result of the joint endeavour - Whether constructive trust should be imposed

Criminal property confiscation - Real and personal property - Objection to freezing notice in respect of that property - Land acquired by objector's de facto before the relationship commenced - Business established after that commencement - Objector made financial and nonfinancial contributions to land and nonfinancial contributions to business - Claim of equitable proprietary interest in virtue of constructive trust

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 7, s 8, s 30, s 34, s 79, s 82, s 83, s 102
Misuse of Drugs Act 1981 (WA), s 7, s 32A

Result:

Objection dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr D N Ryan
Second Plaintiff            :     Mr D N Ryan
Third Plaintiff               :     Mr D N Ryan
Defendant:     Mr M Seaman

Solicitors:

First Plaintiff                :     Chelmsford Legal
Second Plaintiff            :     Chelmsford Legal
Third Plaintiff               :     Chelmsford Legal
Defendant:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463
Director of Public Prosecutions (WA) v Mansfield [2003] WASC 173
Green v Green (1989) 17 NSWLR 343
Lloyd v Tedesco [2001] WASC 99
Lloyd v Tedesco [2002] WACA 63; (2002) 25 WAR 360
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Stowe v Stowe (1995) 15 WAR 363
Willis v The State of Western Australia [No 3] [2010] WASCA 56

SIMMONDS J:

Introduction

This is a determination on a summons (the summons) for an order to dismiss an objection to confiscation.
The objection to confiscation is by notice of objection by the first, second and third plaintiffs (the objection) by which they object to the confiscation of property frozen under a freezing notice (the freezing notice). The first plaintiff is the person whose property is the subject of the freezing notice.
The matter for this court to decide is whether or not the freezing notice should be set aside as to all or any part of the property frozen under the freezing notice on the basis that the court finds that it is more likely than not that that property is not owned or effectively controlled by the first plaintiff. That matter is to be decided on the basis of whether or not the second plaintiff has an equitable proprietary interest, in virtue of the imposition of a constructive trust, in that property.
At the hearing before me it was common ground between the parties that the property in question includes most notably certain land (the land) registered in the name of the first plaintiff.
However, it was also common ground that there is other property the subject of the freezing notice. That other property is of two kinds.
One is property denoted by the general description in the freezing notice '[a]ll or any property that is owned and/or effectively controlled by the [first plaintiff] (other than property referred to in Schedule 4)'. It was common ground that that property not so excluded includes the interest of the first plaintiff in the Antman business conducted by him through the third plaintiff and trading as Antman Antennas (the Antman business).
The other kind of property the subject of the freezing notice which it was common ground was not excluded is the other property (apart from the land) specified in the freezing notice. It is a Ford Ranger motor vehicle registered in the name of the third plaintiff (the Ford Ranger).
The second plaintiff's case is that she has a one half undivided equitable interest in all the property frozen by the freezing notice, including the land, the Antman business and (treating it separately) the Ford Ranger. That interest is by way of constructive trust.
My reasons are organised in this way:
(a)first, I set out the factual background;
(b)next, I describe the context to the hearing and the hearing itself, including the evidence before me;
(c)then I describe the case for the second plaintiff in more detail and the law applicable to that case;
(d)then I apply that law;
(e)the final section of these reasons describes my conclusion overall and call for orders.
I turn then to the factual background.

Factual background

The following factual background is not in contest.
In or around February 2004 the first plaintiff acquired the land. The land is lot 60 on plan 11453 being the whole of the land comprised in certificate of title vol 1430 folio 135. The first plaintiff at all material times has been shown as the sole registered proprietor of the land. At all material times there has been a house on the land (the house).
On 31 March 2006 a mortgage was registered on the land in favour of the ANZ bank (the first mortgage). It appears not to have been in contest that the first mortgage was to secure the loan obtained by the first plaintiff to enable him to purchase the land.
In March 2007 the second plaintiff met the first plaintiff.
In or around early June 2007 the second plaintiff moved into the house.
From the time the second plaintiff moved into the house she began to contribute financially with the first plaintiff to matters to do with the house, as well as to the living expenses of herself and the first plaintiff.
From that time also the second plaintiff contributed her labour to renovations of the house.
In December 2007 the first plaintiff set up a discretionary trust in relation to the third plaintiff under which the first plaintiff and the second plaintiff were the general beneficiaries (the discretionary trust). The third plaintiff had been set up sometime before the first plaintiff met the second plaintiff. The two used the third plaintiff to establish a Foxtel/antenna installation business together. That business became the Antman business. Both the first plaintiff and the second plaintiff worked in the Antman business.
In January 2008 the first plaintiff secured a loan from the ANZ bank with which to commence the Antman business (the January 2008 loan).
Using that business loan the first plaintiff bought the Ford Ranger as a company car as well as other equipment needed for the Antman business.
On 1 February 2008 a second mortgage over the land was registered in favour of the ANZ bank. It appears not to have been in contest that the second mortgage was to secure the January 2008 loan.
In or about February 2009 second plaintiff underwent IVF treatment. She stopped working in the Antman business at that point, although she secured a part‑time job with another company and continued to do the books for the Antman business.
In February 2009 the second plaintiff became pregnant with the son of the first plaintiff and the second plaintiff.
In September 2009 the second plaintiff stopped working.
The son of the first plaintiff and the second plaintiff was born in November 2009 and for the ensuing 12 months the second plaintiff was a full‑time mother while the first plaintiff was the sole provider running the Antman business, although the second plaintiff continued to do the books for the Antman business.
In September 2010 the ANZ bank made the offer of loan to the first plaintiff and the second plaintiff (the new loan) which it was common ground was accepted. In the document of offer of the new loan the first plaintiff and the second plaintiff were shown as to be jointly liable in respect of the debt under the new loan.
In November 2010, the second plaintiff returned to part-time work, for another company, for which she worked until February 2013.
As at 20 August 2013, the second plaintiff looked after the son and did some work for the Antman business by way of checking call enquiries, making appointments and bookkeeping.
On 1 August 2011 the freezing notice was filed in the Supreme Court. The freezing notice was numbered WAPFN 110102 and included as property frozen under the freezing notice all or any property that was owned and/or effectively controlled by the first plaintiff who was named as a person who could be declared to be a drug trafficker under Misuse of Drugs Act 1981 (WA) s 32A(1). The freezing notice also included two particular items of property as property of such a person, the land and the Ford Ranger.
The freezing notice was issued under Criminal Property Confiscation Act 2000 (WA) (CPC Act) s 34. It is not in contest it was duly served as provided for in the section.
Since 1 August 2011 there have been a number of cancellations of specific items of property from the freezing notice none of which included the land or the Ford Ranger or the interest of the first plaintiff in the third plaintiff.
On 19 August 2011 a notice of objection dated 18 August 2011 to the confiscation of property frozen under the freezing notice (the notice of objection) was filed for the first, second and third plaintiffs.
It is not in contest that the notice of objection was duly filed under CPC Act s 79.
On the same date a notice of originating summons, dated 18 August 2013, in respect of that objection (the originating summons) was filed.
On 22 November 2012 the first plaintiff was convicted of an offence contrary to Misuse of Drugs Act s 7(1)(a) of cultivating a prohibited drug, namely, cannabis with intent to sell or supply it and was declared to be a drug trafficker pursuant to s 32A(1).
On 18 January 2013 the summons was filed at the court.

Other background to the hearing before me

On 25 July 2013 I made orders for the present hearing (the directions).
In particular, by order 1 of the directions within 21 days of 25 July 2013 the second plaintiff was to file and serve such further affidavits as she intended to reply upon at the hearing of the originating summons.
By order 2 of the directions within 21 days after such filing and service the defendant was to file and serve such further affidavits as it intended to rely upon at the hearing of the originating summons.
In the event prior to the hearing before me the following affidavits and other documents were filed for the purposes of the hearing so ordered:
•On 20 August 2013 an affidavit styled a 'supplementary affidavit' of the second plaintiff (the Featherston affidavit of 20 August 2013 or exhibit 1) was sworn and filed in the court: it may be noted that the Featherston affidavit of 20 August 2013 was filed 26 days after 25 July 2013, and thus outside the time provided for in order 1 of the directions; however, it was not objected to on that account; and it was not in contest the Featherston affidavit of 20 August 2013 was intended to replace an earlier affidavit of Ms Featherston sworn 8 March 2013 and filed in these proceedings;
•On 22 October 2013 an affidavit was filed in the court for the defendant (the O'Hara affidavit): it may be noted the O'Hara affidavit played no role in the hearing, and is confined to matters of service;
•On or about 24 October 2013 written submissions for the defendant dated that date (the defendant's written submissions) were provided to the court: it may be noted that the defendant's written submissions included notice of objections to a number of paragraphs in the Featherston affidavit of 20 August 2013 on the basis that they were hearsay and irrelevant - for the reasons I gave at the hearing I dismissed those objections;
•On 28 October 2013 written submissions for the second plaintiff dated that date (the second plaintiff's written submissions) were provided to the court; and
•On the same date an affidavit sworn that date by the first plaintiff was provided to the court (the first plaintiff's affidavit of 28 October 2013): it may be noted that the first plaintiff's affidavit of 28 October 2013 was provided 95 days after 25 July 2013; at the hearing it was not pressed on me the affidavit should be received into evidence, and I therefore leave the first plaintiff's affidavit of 28 October 2013 aside.
At the hearing the second plaintiff was called and the Featherston affidavit of 20 August 2013, as her examination‑in‑chief, became exhibit 1. She was cross‑examined and re‑examined on her evidence.
No other witness was called.
By consent the affidavit of Marie Claire Normoyle, sworn 17 December 2012 in these proceedings was made exhibit 2 (the Normoyle affidavit of 17 December 2012 or exhibit 2). Ms Normoyle in the Normoyle affidavit of 17 December 2012 deposes she is a paralegal. The Normoyle affidavit of 17 December 2012 is shown as sworn in support of the summons by the state for an order that the plaintiffs' objection be dismissed and for a declaration pursuant to CPC Act s 30 that property has been confiscated under s 8(1) or s 7(1). I note it was common ground that I am not asked by this decision to determine the matter of the making of that declaration.
No other exhibits than exhibit 1 and exhibit 2 were received into evidence.
After the second plaintiff had given her evidence the parties presented closing oral submissions.
Although counsel appeared for the first plaintiff, second plaintiff and the third plaintiff, I understood the case put by them was the case of the second plaintiff that she had the interest by way of constructive trust I have referred to. No separate submissions, in writing or orally, for the first plaintiff and the third plaintiff were presented.

Applicable principles

It was common ground that the basis for the second plaintiff's case is that described for the making of a declaration of constructive trust in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, in the judgment of Deane J, referred to in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 147 ‑ 148 (Mason CJ, Wilson & Deane JJ). That basis was considered and applied in Lloyd v Tedesco [2002] WACA 63; (2002) 25 WAR 360. The parties before me both extensively referred to Lloyd and neither took issue with its statements of principle.
I should indicate that the second plaintiff did not seek to make a case for relief under CPC Act s 82(3).
I note from Lloyd the following short statement of that basis from Muschinski [6] ‑ [8] (Murray J, Hasluck J agreeing), see also [50] ‑ [51] (Pullin J):
The concept of a constructive trust in the remedial sense is much broader. It may be imposed upon a defendant as a remedy affecting his or her legal and beneficial ownership of particular property in any case where circumstances and the conduct of the parties are such as to make it unconscionable not to impose the trust. In that regard the inquiry will not be for the actual or presumed agreement or intention of the parties and, indeed, the remedy may be imposed contrary to that intention: Kais v Turvey (1994) 11 WAR 357.
The elucidation of the law in this regard owes much, in my respectful opinion, to the judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 and particularly at 613‑5. It is important, however, not to confuse the remedy with the cause of action by way of a claim for relief based upon the application of equitable principle. The equitable principle with which the Court is concerned is not to be found in what Deane J in Muschinski at 615 described as 'the indulgence of idiosyncratic notions of fairness and justice', although, as his Honour recognised, notions of fairness and justice would necessarily be involved in the application of principle. The particular principle of equity identified in Muschinski was that which may simply be described as 'unconscionability': Parij v Parij (1997) 72 SASR 153 per Debelle J at 161.
What then does the principle of unconscionability involve? The answer, I think, will depend upon the multitudinous circumstances of different cases and I do not think there can be any exhaustively defined list of circumstances which will constitute unconscionable conduct of a kind which will prompt the intervention of a court of equity, but for present purposes it is sufficient, in my opinion, to return to the judgment of Deane J in Muschinski at 620 where his Honour described particular circumstances which would constitute unconscionable conduct in the following way:
'Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.'
Of course that statement of principle was made having regard to the particular circumstances of the case and the claim for a beneficial interest in particular property.
I note the passage just quoted from Muschinski appears also for the most part in Baumgartner (148).
It is the case that before imposing a constructive trust the court should decide whether based on the questions in issue between the parties there is an appropriate equitable remedy falling short of the imposition of a trust. See Willis v The State of Western Australia [No 3] [2010] WASCA 56 [55] (Buss JA, McLure P & Owen JA agreeing).
Indeed, as I will explain, just such a remedy had been sought in the proceedings the decision in which was the subject of the appeal in Lloyd.
However, I understood that the second plaintiff's case, resting on Muschinski, was that the appropriate equitable remedy was one of the imposition of a constructive trust, and not in any respect for an equitable remedy falling short of the imposition of a constructive trust. Such a remedy might be a personal remedy against the first plaintiff, perhaps secured by an equitable charge or otherwise on his assets. See Willis [68], [78].
It may be noted that the form of relief sought in the proceedings in Lloyd v Tedesco [2001] WASC 99 (Miller J) (Lloyd WASC), the decision that was the subject of the appeal in Lloyd, was a declaration that the joint endeavour in that case was at an end and the plaintiff was entitled to be compensated for her contributions as well as a declaration that shares the defendant held in certain named companies and in such other companies as were found upon discovery to hold assets which had improved in value during the relationship between the parties were subject to an equitable charge to secure the compensation due to her: see [7].
However, before me it appeared not to be in contest that the principles in Lloyd were the minimum conditions for the imposition of the constructive trust the second plaintiff sought. In any event, I consider that those principles are a correct statement of the law in that respect.
It was common ground that, to the extent of that constructive trust, if imposed, the objection should be upheld and the freezing notice set aside accordingly. See CPC Act s 79(1) read with s 83(1).
It cannot be contested that to make out that case the second plaintiff had the burden of proof, to be discharged in accordance with the civil standard of balance or probabilities, in proceedings to which the rules of evidence in civil proceedings applied. See Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 [89] (McLure JA, Buss JA agreeing); Director of Public Prosecutions (WA) v Mansfield [2003] WASC 173 [3] (Wheeler J); and CPC Act s 102.

I took it as not in contest that to make out her case the second plaintiff had to satisfy me on the evidence in accordance with that burden and standard of proof at least that the principles described by Miller J in Lloyd WASC [9] ‑ [10] which were reproduced in Lloyd [27], with approval but subject to a correction as I will note, were met. Those principles as set out in Lloyd [27] are as follows:
Miller J expressed his conclusions about these matters as follows:
'9.It is clearly accepted by the plaintiff that the mere existence of a de facto relationship cannot of itself establish a joint endeavour of the type contended for by the plaintiff in this case. Upon the cessation of such a relationship the mere fact that a woman has performed household chores and acted as caregiver will not entitle her to seek relief by way of compensation. What is essential is that the plaintiff prove an actual intention to pool the resources of herself and the defendant for the purposes of the alleged joint endeavour. If she is able to do this she will recoup by way of compensation such contributions as she made to that joint endeavour. The joint endeavour must, however, be established as a matter of fact. Likewise, if established as a matter of fact, any contributions to it must also be established as a matter of fact.
10.Consistent with the authorities to which I have referred, the plaintiff in this case is therefore required to prove the following:
(1)The existence of a joint endeavour between herself and the defendant for the object or purpose of providing permanent financial security and benefits.
(2)Valuable contributions by the plaintiff to the joint endeavour.
(3)An increment in wealth having accrued to the defendant as a result of the joint endeavour.
(4)The unconscionability of the retention of that wealth by the defendant to the exclusion of the plaintiff.
I stress that proof of the joint endeavour requires proof of an actual intention to pool resources for the purpose of that endeavour. Such intention need not, of course, be proven by direct evidence of the declaration by both parties of such an intention. It can, in an appropriate case, be inferred from all the facts and circumstances of the case. That is the situation urged by the plaintiff in this case.'
In Lloyd [29] Murray J said this about this statement of principle:
I have expressed my views about the law in the discussion of relevant authorities in which I have engaged. It follows, in my opinion, that although there may be a quibble about some of the terminology adopted by the trial Judge, in my respectful opinion, his Honour's statement of the relevant legal principles was correct.
It appears that that 'quibble' was that described by Murray J at [32] as follows:
Ground 4 complains of an error of law in the decision of the trial Judge that what was required was a joint endeavour, the purpose of which was the provision of permanent as opposed to mutual or future financial security and benefits. I think the proposition advanced is that there is no requirement of law that the benefits to be acquired should have been intended to be of a permanent nature. I am not sure that I understand what the word 'permanent' adds in this connection but I should say that I can see nothing in the decided cases to suggest that there is any such legal requirement to establish unconscionability. It follows that the view so expressed was, in my respectful opinion, in error, but nothing turns on it. The case was not decided upon that basis but upon the basis of his Honour's conclusion that the appellant failed to establish a joint endeavour of the requisite kind to give her a right to the equitable compensation she claimed. (original emphasis)
With that correction, I also take the passages from Lloyd WASC [9] ‑ [10] as quoted in Lloyd [27] as stating the relevant legal principles in this case for determining the application of the basis for the plaintiff's case from Muschinski.
For the purposes of this decision, I should add the following with respect to the propositions numbered (1) to (4) in Lloyd WASC [10].
As to (1), the matter of joint endeavour, and (2), valuable contributions to the joint endeavour by the party seeking the imposition of a constructive trust to the joint endeavour, I note the following from Lloyd [30] ‑ [31]:
The guiding principle is unconscionability. In this, as in every such case of a failed de facto relationship, there must be more than simply the performance by the plaintiff of the valuable role of the provision of love, care and support. The provision of such a contribution will be sufficient only if it is related in some factual way to the generation of wealth as part of a joint effort or endeavour to provide for the parties' mutual material welfare and security. That need not, of course, be the only purpose of the provision of such assistance to the defendant, but it must be one of the material purposes because it is that which marks out the character of the joint endeavour as being one which will generate a claim, upon the failure of the relationship, without the fault of the plaintiff, to a share in the property created, acquired, maintained and improved during the course of the relationship, where the endeavour can be seen to be related to particular items of property, or will generate a claim for compensation representing the value of the contribution made by the claimant to the increase in the material wealth which was intended to be enjoyed by the parties jointly.
A joint endeavour of this character is one which has the aim of adding to the parties' material wealth for their mutual benefit rather than being one where the plaintiff simply provides loving care and support to the defendant as a normal incident of a de facto relationship. In that sense it is right to say that the joint endeavour must be one intentionally or deliberately entered into for the purpose of advancing the parties' mutual material wealth. Only if it bears that character will it be unconscionable to allow the defendant to retain the entirety of the beneficial interest in that wealth. To hold otherwise, and in particular to hold that it would be sufficient if in fact the efforts of the plaintiff advanced the defendant's capacity to acquire wealth, would, in my opinion, be to commit the error to which Deane J adverted in Muschinski of giving undue rein to the court's idiosyncratic notions of fairness and justice. (emphasis added)
As to (2), I note that a contribution to a joint endeavour of that character may be financial or non-financial, direct or indirect, as explained in Lloyd [12], [15] ‑ [16], referring to Stowe v Stowe (1995) 15 WAR 363 and Green v Green (1989) 17 NSWLR 343, as follows:
Therefore it seems to me that there is no doubt that the remedy of a constructive trust may be employed in various circumstances establishing unconscionability. In a case such as this where a joint relationship or endeavour of a particular kind is relied upon, if there is found to have been a 'pooling' of resources, at least in the sense of a mutual commitment of resources, both financial and otherwise, directed towards the acquisition of or otherwise related to an asset, the Court will be more inclined to hold it to be unconscionable for one party to retain the entirety of the legal and beneficial ownership of that asset. The pooling of resources of which the courts have spoken has not been confined to financial resources. The courts do not draw artificial distinctions between the situation of a plaintiff who makes a direct financial contribution to an asset, one who makes a financial contribution which enables his or her partner to expend more of that person's money upon the asset, or one who contributes time and effort directed towards an asset rather than simply towards the maintenance of the relationship itself.
…
The important consideration where a claim for equitable relief is based upon unconscionability said to arise in the context of non‑material contributions by one de facto spouse is that such contributions be related, where a declaration of trust is sought, to the particular items of property over which it is said the trust should be declared. It may be that one party to a relationship makes an important contribution to the relationship by performing a role of support, a role as caregiver, homemaker and the like. No doubt contributions of that kind will be referable to the mutual affection and concern for each other which the parties have.
But unless the purposes of the provision of a contribution of that kind go further and the court concludes that it is intended to enhance the material wellbeing of both parties, or to provide the contributing party with an interest in specific property, or that it is made upon the basis that that party would have an interest in such property, then it seems to me that equity will not hold to be unconscionable the retention of property in the beneficial ownership of the other party who has directly contributed to the acquisition, maintenance and enhancement of that material wealth or property: see Stowe at 373-4; Green … [at] 353 where Gleeson CJ with whom Priestley JA agreed said:
'It is clear that the mere existence of a matrimonial or de facto relationship, combined with express or implied undertakings 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 home occupied by the parties is created … . In a legal system which does not include concepts of family or community property, and where an obligation on the part of a husband to house and provide for his wife is commonly regarded as an incident of the matrimonial relationship, an undertaking of the kind referred to cannot of itself confer upon a wife a legal or equitable interest in the matrimonial home. … The acceptance of an obligation on the part of the husband to house his wife would not normally be regarded as an undertaking to give her a proprietary interest in the home in which they live, and wives usually have reasons for living with their husbands other than an expectation that they will increase their assets.'
Of course, the same observations will apply to de facto spouses and, I think, to a case where equitable relief is sought in a form other than a declaration of trust in respect of particular property. As will be seen, this I think is such a case. (emphasis added)
While the first and second emphasised passages might be read to indicate that only where a non‑financial contribution is directly related to an asset of the joint endeavour will that contribution be seen as relevant to (2), it seems to me that reading would be inconsistent with third and fourth emphasised passages.
It was put to me by counsel for the defendant that the contribution needed to be related, directly or indirectly, to a particular asset. However, the terms of (2) do not so require. It is only necessary to show that the contribution was to a joint endeavour of which the acquisition, improvement or maintenance of the property sought to be made a subject of the constructive trust formed a material part.
However, I consider it is necessary to determine the nature and relative significance of the parties' respective contributions to the joint endeavour, at least for the purpose of determining the form of relief that equity will allow. Lack of proof of the contribution of the party seeking the imposition of a constructive trust relative to the contribution of the other party may be fatal to the claim for the imposition of a constructive trust, particularly where the claim rests solely on financial contributions, but not limited to such a case. However, such a deficiency may not be fatal to another form of equitable relief, although perhaps one falling short of an equitable proprietary interest. See Willis [73] ‑ [74], [78].
As to (3), increment in wealth having accrued to the other party as a result of the joint endeavour, it seems to me that 'increment' is to be understood in the sense of greater value than would have applied had there been no joint endeavour. See the reference to property 'created, acquired, maintained and improved' during the course of the relationship in Lloyd [30] (emphasis added); see also Willis [72].
It was put to me by counsel for the defendant that the increment in wealth had to be quantifiable, which I understood to be a requirement that resulted from the need to measure the 'benefit' for the purposes of determining the matter of unconscionable retention. On that determination, see (4), below. However, I did not understand the authorities, including Muschinski, Baumgartner and Willis to stipulate for such quantification. At the same time, it seems to me that the evidence must be sufficient to show that there has been an increment, understood as I have indicated, having accrued to the other party, in this case, an increment in the sum of the value of the land, the Antman business and (separately considered) the Ford Ranger, as a result of the joint endeavour. This is what I take was meant by the 'benefit' in Muschinski (620).
However, it seems that the extent of the increment may go to the form of the relief that equity will allow. An increment of relatively modest size may indicate it is not unconscionable that the other party not share the property as a whole, as opposed perhaps to the increment itself: cf Lloyd [33] and Willis [70].
I accept the submission for the defendant that the requirement for an increment to be a result of the joint endeavour means evidence of mere capital appreciation where the asset was not acquired as a result of the joint endeavour would not without more be enough. This might be expected to be of importance in relation to land brought into a joint endeavour.
I turn now to apply these principles, in the order (1) to (4).

(1) was there a joint endeavour of the required character including an actual intention to pool resources for its purposes?

I consider that there was a joint endeavour to provide a material benefit to the parties extending to the land, the Antman business of the third plaintiff and (considered as an asset of the Antman business) the Ford Ranger. I consider also there was an actual intention by both parties to pool their resources for the purposes of that venture, which in the case of the first plaintiff I find largely by inference.
My reasons are these.
It will be noted from those reasons that many of them relate to the contributions which I find were made by the first plaintiff and the second plaintiff for the purposes of the joint endeavour. Those contributions are also relevant to the next item after this one, concerning valuable contributions to the joint endeavour, and to the item following that one, increment in wealth having accrued to the first plaintiff as a result of the joint endeavour.
In that regard, it seems to me that evidence of contributions, non‑financial and financial, are of significance in relation to the present item both to show (relying on inference) whether there was an intention by both parties to contribute to a joint venture for their mutual material benefit and (in the same way) to show an intention to pool resources, on an ongoing as well as an initial basis.
I consider there was a joint endeavour to provide a material benefit to the parties extending to the land for the purpose of which both parties intended to pool their resources, on the following evidence.
I particularly note the evidence in exhibit 1 [42] that when the second plaintiff moved into the house on the land, in June 2007 (see [30]), the first plaintiff said to her that he wanted her 'to renovate and redecorate together our House with him, to make it really 'ours''.
In the cross‑examination and re‑examination of the second plaintiff there was a significant focus on [42] in that respect.
In her cross‑examination there was the following (29 October 2013, ts 53):
SEAMAN, MR: If I can take you to paragraph 42 of your affidavit?‑‑Yes.
And you say there - you talk about renovating/redecorating in 2007?‑‑Yes. Yes.
First six months that you were living with Mr Dawson?‑‑Yes.
Two years before you had had a child?‑‑Yes.
And you say that he told you he wanted you to renovate and redecorate with him to make 'really ours'?‑‑Yes.
He knew it was rough and it needed a feminine touch. Did you truly understand him to mean that that statement 'ours' meant he agreed to you having a half interest in the property?‑‑Well, yes. I took it like he meant it, it was my home and his home. It was our home.
Yes. I understand that. But did you take it from that that he was expressing his - he was telling you what he understood your interests to be. That is, that you owned, effectively, half of the house. Did you understand him to be saying that when he said, 'To make it really ours, let's decorate it'?‑‑I never thought of it that way back then.
You didn't think of it that way back then?‑‑No.
You didn't think that that was him giving you half the house back then?‑‑Not really. I'm not really
No. That's fine. That's all I need to know. Thank you?‑‑Okay.
In her re‑examination there was the following exchange (29 October 2013, ts 54):
RYAN, MR:   Ms Featherston, I will just pick up on that last question that you were asked. You were asked with respect to paragraph 42 whether you understood 'ours' to mean that you had half ownership of the house. Now, you've given the answer you never thought of it back then, but what was your understanding of your position so far as who had ownership of the house at that time?‑‑John technically owned it, but it was our home. Our house. It's hard to determine.
So what was your belief as to your ownership of the house?‑‑I don't quite know what you mean.
I will give you - was it solely John's? Solely yours? 50/50? 25/70? How did you see the ownership of the house at that time?‑‑For a while I still saw it at John's house, but the more time progressed I felt of it as my home, my house, my ownership as well as his. But, I mean, I didn't move in and then the day after say, well, half of this is my house, because that's - but I knew we were growing towards that. And eventually we actually wanted to sell it and get a new place together and that sort of thing.
SIMMONDS J:   Sorry. Again, you faded away?‑‑Sorry. Eventually we did want to sell that house and get a new house together, so it was viewed as both ours financially, but not the day after I moved in as such. But I was working on it with him.
RYAN, MR:   Yes. And when you say you were working on it, are you referring to the things that you mentioned in your affidavit?‑‑Yes. Like, landscaping it and those sort of things, and painting, etcetera. Yes.
In exhibit 1 [44] the second plaintiff refers to work she and the first plaintiff had undertaken together where she had 'contributed equally to the labour in undertaking each of these various tasks', while 'we paid the various costs using our pooled income'. That work was described for each of the kitchen, office, son's room, bedroom, lounge room, front yard, garage and backyard. Annexed to the affidavit were photographs both of sections of the house and garden that had been renovated (see LJF 20) and of parts of the house that had not been renovated (see LJF 19).
The comparison of the photographs, so far as it goes, would appear to indicate that the condition of the renovated portion of the house is significantly better than that of the portion of the house that had not been renovated.
However, lacking is an indication of the extent to which this work contributed to the value of the house and the land more generally.
I return to that matter below, in connection both with the requirement for a valuable contribution to the joint endeavour and the requirement for an increment resulting from the joint venture.

However, I consider the evidence just reviewed strongly supports a joint venture including the house on the land more generally, to the improvement of the value of which the first plaintiff and the second plaintiff had applied their efforts, pooling those efforts for that purpose.
Counsel for the defendant put particular emphasis on the second plaintiff's acknowledgement that at the time of the commencement of those efforts she did not view herself as having an interest in the land. However, I do not consider that the authorities require such a view to be had at the commencement of the joint endeavour, provided that the joint endeavour is of the required character described in Lloyd [30].
In exhibit 1 the second plaintiff deposes that from the time she moved into the house she 'began to contribute equally to the renovations and maintenance of our House, bills and our living expenses' [30]. To the extent these financial contributions went beyond the renovation related matters just described, to refer to other financial contributions, I have noted the uncontested evidence in the reference in [33] to contributions to the house and relationship from 'my savings and income' with further specifications in that paragraph of exhibit 1 and subsequently in the affidavit.
For 'some of the outgoings' on the house there is a summary in the form of a spreadsheet LJF 8 [33], although one that did not identify what the entries were for. She accepted in cross‑examination that some of those entries might not have been outgoings on the house but other items such as clothing, while adding that was 'doubtful' (see 29 October 2013, ts 46).
There were also lists of items 'by way of example' and as 'examples' of expenses incurred on the second plaintiff's credit card relating to the house, and items paid for from the second plaintiff's savings and income, in [34] ‑ [35]. These items are not identified other than by date and payee entity except for payments to particular entities for home and contents insurance [34.4] and LJF 2; furniture [34.8] and LJF 11; wiring and switches for the house and shed [34.9] and LJF 12; an air‑conditioner [35.1] and LJF 13; a cooker [35.2] and LJF 14; and other wiring [35.3] and LJF 15.
It was put to me by counsel for the defendant that I should ignore most of these matters as they appeared to be for chattels of a kind that could be removed from the house if necessary. However, I do not consider that to be true for all of the items, such as the wiring; furthermore, it is not apparent to me from the authorities that contributions of such property items are not capable of being contributions to the joint endeavour of the kind contended for here.
However, it seems to me that their character as removable chattels, if that is what they are, means that they fall to be separately dealt with from the land for the purposes of the application of the principles from Muschinski. There is no indication that any such chattels were intended to be a gift from the second plaintiff to the first plaintiff apart from the joint endeavour. On the end of that joint endeavour, as I consider the declaration of drug trafficker stated should be seen as marking, they would it seems to me be assets for return to the second plaintiff. However, I consider I am not called upon finally so to determine here.
However, again, I note there is no indication of what value was contributed to the joint endeavour by those expenditures, except such as might be inferred from the amounts paid. I return to this matter below under the heading of increment resulting from contributions to the joint endeavour.
I should note that the second plaintiff in exhibit 1 does not clearly indicate that she made indirect contributions, whether financial or non‑financial, to the joint endeavour. The closest the second plaintiff appears to come, in my view, is in [47] where she says she and the first plaintiff:
[I]nitially maintained our House together, however, since approximately 2011, [the first plaintiff] has worked up north, so I am now the one that mainly takes care and maintains our House and the garden.
However, in my view that does not sufficiently clearly state that the 'care' taken was to permit the first plaintiff to acquire financial resources he would not otherwise have been able to acquire for the purposes of the joint endeavour.
The matter is even less clear in respect of that section of exhibit 1 [21] ‑ [29], referring to the family life together of the first plaintiff and the second plaintiff. There is no indication from that account that the second plaintiff's contributions in those respects were for the purpose, at least in material part, of enabling the first plaintiff to acquire financial resources he would not otherwise have been able to acquire for the purposes of the joint endeavour.
I should note, as counsel for the defendant reminded me, that I have no evidence as to the state of the mortgage as at the commencement of the joint endeavour, which I would put on the evidence I have described as having occurred on or about June 2007, the date on which the second plaintiff moved into the house on the land. Nor do I have any evidence as to the payment of the instalments on the mortgage, or whether default was at any point avoided by reason of funds drawn from the parties' pooled resources, although I need to return to an argument for the second plaintiff in that respect. Finally, I have no evidence as to the state of the mortgage as at the last date as at which to determine matter of the constructive trust contended for. That date, on Willis [67], is the date of the declaration of the first plaintiff as a drug trafficker, namely, 22 November 2012. The position I find myself in is the same as that described in Willis [74](c) ‑ (d).
I have noted the argument for the second plaintiff that I do have evidence from which to infer contribution from the joint account of the first plaintiff and the second plaintiff, to which I will shortly return, to the first plaintiff for the purposes of paying the debt secured by the first mortgage, the debt secured by the second mortgage, or the debts secured by both. That evidence is in the form of what appears to be four entries per month of payments each in the amount of $250 to the first plaintiff over the period 4 May 2009 to 31 August 2010 and in the amounts of $300 each over the period 6 October 2010 to 29 June 2011. See LJF 9.
However, there is no further detail for those payments than that and no other relevant evidence to which my attention was drawn. I am unable to infer from that what for the second plaintiff it is argued I should infer.
At the same time, I note the uncontradicted evidence as to the new loan of September 2010 as follows.
Both the first plaintiff and the second plaintiff were made liable in respect of it, as I have noted. In the letter of offer from the ANZ (see LJF 16) the purpose of the loan is described as 'Refinance ANZ loan/payout Cc:'. It was common ground that the reference to 'Cc' was to the credit card debt of the second plaintiff. It was also not in contest that the credit card of the second plaintiff had been used as she deposes in exhibit 1 to pay 'expenses that we had incurred on our House and the day‑to‑day living costs' [36]. The security for the loan was referred to as 'Registered Mortgage' on the house on the land.
As counsel for the defendant pointed out to me it is not clear whether the 'mortgage' referred to was either or both of the first mortgage and the second mortgage. Further, I took him to be submitting it was not clear whether the refinancing was of the debt the former secured, the debt the latter secured or both debts.
However, I note from exhibit 1 the second plaintiff's reference to the refinancing being secured on the first mortgage; and the loan offer document refers to the product as 'ANZ Simplicity Plus Home Loan'. I consider, then, that I should conclude the refinancing was of the debt secured by the first mortgage.
To this point I have not dealt with the question of any initial pooling of resources for a joint endeavour in respect of the land. I turn to that matter now.
The evidence I have of that initial pooling is that the first plaintiff contributed the land and the second plaintiff contributed 'substantial savings', the 'bulk' of which were from the sale of a property she had previously owned in rural Victoria, and amounting to a sum as at 24 April 2006 of $103,873.34. See exhibit 1 [42] and [31] respectively.
I note that I do not have any evidence as to be value of the land as at the date of the commencement of the joint endeavour, which as I have indicated I have placed as June 2007. As I will note below, I do have some evidence as to the value of the land as at the date of the issue of the freezing notice. The closest I have to evidence of the value of land as at the earlier date is the price the first plaintiff paid for it, in or around February 2004, of $122,500. See exhibit 1 [39]. However, not only is that the price paid as at a date over 3 years before the commencement of the joint endeavour, but there is also evidence of work the first plaintiff undertook from the date he moved into the house on the land, in late 2006, listed in [41].
Also, as counsel for the defendant reminded me, the account of the second plaintiff into which the sum of $103,873.34 was paid as described in exhibit 1 [31] indicated a balance as at 1 June 2007 of $1,029: see LJF 9. In her cross‑examination on 30 June 2007, although some of her testimony was not altogether clear, she testified there was 'another account' (29 October 2013, ts 39) which in re‑examination she indicated was in the nature of a term deposit account which had not been referred to in account statements annexed to her affidavit exhibit 1. She also indicated 'some of the money has gone' in spending on a car and a holiday 'and that sort of thing' (ts 55). I note there is nothing to indicate how that spending was related to the joint endeavour, as an indirect contribution or otherwise.
I conclude then that there is evidence of pooling for the purposes of a joint endeavour of the required kind in respect of the land. However, the evidence is insufficient to enable me to determine the relative contributions of the first plaintiff and the second plaintiff initially. Thus, while I accept that the contributions of the parties, both financial and non‑financial, subsequently were on the basis of equality, it is not possible to determine the relativities between those subsequent contributions and the initial contributions.
To this point I have not dealt with the matter of a joint endeavour in relation to the Antman business. I turn to that now.
I consider there was a joint endeavour to provide a material benefit to the parties extending to the Antman business also, for the purpose of which both parties intended to pool their resources.
Further, I consider it was part of the same joint endeavour that extended to the land.
The following evidence has led me to those views.
I particularly note the evidence of the establishment of the discretionary trust in December 2007 (exhibit 1 [16] and LJF 1) and the work done by both the first plaintiff and the second plaintiff in establishing and thereafter continuing the Antman business (see [20], [27], [29]).
I note that, on exhibit 1 [17], the land was used for the second mortgage to secure the January 2008 loan. However, on my findings as to the new loan, there is no evidence before me that the second plaintiff undertook any liability on the January 2008 loan, which is the only loan for or indication of financial investment in the Antman business of which I have evidence (see LJF 2). There is no evidence of an initial or later commitment by the second plaintiff of financial resources to, including undertaking financial liability for, the Antman business.
However, I accept that the undertaking of liability on the January 2008 loan by the first plaintiff and the non-financial contribution represented by the work done by the first plaintiff and the second plaintiff in establishing and thereafter continuing the Antman business to which I have referred enable me to infer the establishment of a joint endeavour in respect of which there was an actual intention by both parties to pool their resources for the purpose of that joint endeavour. The uncontradicted evidence in exhibit 1 [14] is that the first plaintiff and the second plaintiff discussed the starting of what became the Antman business in September or October 2007 in which both of them would work. This time is about the time of the commencement of the joint endeavour in respect of the land, on my finding in that regard.
Counsel for the defendant put to me that any such joint endeavour was distinct from the matter of the land. I took this to be a submission that any joint endeavour in relation to the Antman business could not be dealt with as evidence of a joint endeavour that included the land.
I disagree. The second plaintiff's evidence in exhibit 1 [11] is that she had decided with the first plaintiff at the outset of the parties' relationship to 'pool all of our resources into building our future, so from the outset, we shared everything: our finances, careers and family'. I accept that that evidence derives significant support from the other evidence of a joint endeavour of the required character (see Lloyd [30]) in relation to the land and in relation to the Antman business. That evidence indicates no distinction between the two objects save in respect of the particular resources the parties contributed to them.
However, that distinction makes it impossible for me to determine the relative contributions of the parties to the joint endeavour in relation to the Antman business. In particular, I have no evidence as to the state of the indebtedness under the January 2008 loan as at any other time than the time it was made, when that 'facility' was $55,000 (see LJF 2). Nor do I have any evidence as to the payments in respect of that indebtedness including any that avoided default.
Further, I have no evidence as to the value of the Antman business or any of its assets, including the Ford Ranger, as at or about the time of the commencement of the Antman business and as at 22 November 2012.
It is for those reasons that I conclude there was a joint endeavour to provide a material benefit to the parties extending to the land, the Antman business and (considered separately) the Ford Ranger. I consider also there was an actual intention by both parties to pool their resources for the purposes of that joint endeavour.
I turn now to the matter of the parties' valuable contributions. My analysis of the evidence for the purposes of this section (1) of my reasons makes it possible for me to be very brief in respect of section (2).

(2) valuable contributions by the second plaintiff to the joint endeavour?

My analysis of the evidence for the purposes of section (1) above has indicated that the second plaintiff made valuable contributions to the joint endeavour.
However, her valuable contributions were different in relation to the land from those in relation to the Antman business.
Further, I do not have sufficient evidence to determine the relative contributions of the second plaintiff and the first plaintiff except to the (limited) extent I have already described, in respect of land, as to the relative contributions of the parties after their initial ones.
I turn now to the matter of an increment in wealth having accrued to the first plaintiff as a result of the joint endeavour.

(3) increment in wealth having accrued to the first plaintiff as a result of the joint endeavour?

I have already noted, in my analysis in section (1), that I have no evidence as to the value of the land as at the commencement of the joint endeavour, in September 2007.
I have already noted in that analysis that I have no evidence as to the value of the Antman business as at the commencement of that business or as at 22 November 2007.
Counsel for the second plaintiff drew to my attention that I had evidence which might be relied upon for the valuation of the land as at a later date than September 2007. That evidence was the entry in the freezing notice as the 'estimated value of property' for the land of $450,000. However, I note that the date to which that estimate speaks is not altogether clear. I accept, however, arguendo at that date is the date of the freezing notice, 22 July 2011.
It will be noted that that date is some 16 months prior to 22 November 2012.
Further, as counsel for the defendant reminded me, it is not clear from whom that estimate proceeds, and in particular whether its author is a person with the relevant expertise to provide a valuation.
In addition, and of still greater significance in my view, is the fact I have no evidence as to the contribution to that value made by the joint endeavour.
I am prepared to accept that there has been an increment in the value of the land from the joint endeavour and an increment in the value of the Antman business from the same source. I refer again to my understanding as to 'increment'.
However, I am unable to determine whether there was an increment of significance. This inability is by reason of the evidentiary shortfalls to which I have referred.

(4) unconscionability of the retention of that wealth to the exclusion of the second plaintiff?

Notwithstanding my conclusion for the purposes of section (1) above, my conclusions for the purposes of sections (2) and (3) mean that, in my view, a remedy for any unconscionability that follows must be short of the imposition of the constructive trust the second plaintiff seeks to have imposed. In my view my conclusions in those last two respects distinguish this case both from Muschinski and from Baumgartner.
I refer again to Willis [70], [74] and [78], particularly [78]. The evidentiary shortfalls I have identified, which are of the same kinds as are referred to in Willis, lead me to conclude, in terms following closely those of [78], that any equitable relief to which the second plaintiff may be entitled as against the first plaintiff, and thus as against the Director of Public Prosecutions, should be confined to an equitable personal remedy, perhaps secured by a charge on the land, and would not extend to an equitable proprietary interest in the property the subject of the freezing notice.

Conclusion overall and orders

It follows from my conclusions just described that I should dismiss the objection of the first plaintiff, the second plaintiff and the third plaintiff based upon a constructive trust for the benefit of the second plaintiff. As there is no other basis for that objection it should be dismissed altogether.
I will hear from the parties as to the orders I should make on that overall conclusion.