Deveraux v Cash (No 2) - [2021] NTSC 53

CITATION: Deveraux v Cash (No 2) [2021] NTSC 53
PARTIES: DEVERAUX, Kymberly

v
CASH, Jason

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:125 of 2019 (21943014)
DELIVERED:  16 July 2021
HEARING DATES:  17 & 18 September 2020
JUDGMENT OF:  Grant CJ
CATCHWORDS:

ESTOPPEL – Promissory estoppel – Detrimental reliance – Relief
Promise made to induce assumption or expectation must be clear, unequivocal and intended to be acted upon – Defendant did not induce plaintiff to adopt that assumption – Defendant did not know or intend that plaintiff executed transfer of property in reliance on assumption or expectation that he would transfer it back to her – Claim in promissory estoppel dismissed.

Hohol v Hohol [1981] VR 221, Kirton v Nethery (1996) 7 BPR 14,954, Marine Steel Ltd v The Steel Navigator [1992] 1 NZLR 77, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, referred to.

EQUITY – Trusts and trustees – Resulting trusts –Remedial
Presumption of equitable obligation on part of transferee will only arise where transferee provides no consideration for transfer – Consideration for transfer expressly agreed – Even where consideration is agreed but not paid, the consequence is not a resulting trust unless shown that expression of the consideration was false – Resulting trust will not be presumed on a voluntary transfer of real property without consideration unless transferor evinces intention that transferee is not to take the property beneficially – Claim for resulting trust dismissed.
Calverley v Green (1984) 155 CLR 242, Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, House v Caffyn [1922] VLR 67, Wirth v Wirth (1956) 98 CLR 228, referred to.
Law of Property Act 2000 (NT), s 6(3)

EQUITY – Trusts and trustees – Constructive trusts –Remedial
Equity will impose a constructive trust to make a person accountable in circumstances where it would be otherwise inequitable for that person to escape accountability – No unconscionable conduct by failing to recognise that plaintiff has an equitable interest in the property – Claim for constructive trust dismissed.
Bate v Moran [1984] FLC 91-561, Baumgartner v Baumgartner (1987) 164 CLR 137, Green v Green (1989) 17 NSWLR 343, Lipman v Lipman (1989) 13 Fam LR 1, Miller v Sutherland (1990) 14 Fam LR 416, Muschinski v Dodds (1985) 160 CLR 583, referred to.
612-616.
REPRESENTATION:
Counsel:
Plaintiff:Self-represented
Defendant:D McConnel
Solicitors:
Plaintiff:Self-represented
Defendant:Hunt & Hunt
Judgment category classification:              B
Judgment ID Number:  GRA2110
Number of pages:  42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Deveraux v Cash (No 2) [2021] NTSC 53

No. 125 of 2019 (21943014)
BETWEEN:

KYMBERLY DEVERAUX
Plaintiff

AND:

JASON CASH
Defendant

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 16 July 2021)
THE COURT:

This proceeding involves a claim by the plaintiff on the net proceeds of the sale of the property at 185 Ewart Road, Lambells Lagoon in the Northern Territory of Australia (the property).
Procedural history
In or about August 2019 it came to the plaintiff’s attention that the defendant had advertised the property for sale through a firm of real estate agents. The property had previously been registered in the plaintiff’s name, but it was transferred to the defendant by an instrument of transfer which was registered at the Land Title Office on 22 October 2013. The plaintiff contended that the transfer arrangement was always subject to the express agreement and understanding that the defendant would transfer the property back into her name at a particular point in the future. The plaintiff contended that, on that basis, she was the beneficiary under a constructive or resulting trust over the property, and/or that the defendant was estopped from resiling from his agreement to transfer the property back to her.
As a consequence, the plaintiff commenced proceedings seeking leave to lodge a caveat over the property pursuant to s 145 of the Land Title Act 2000 (NT) (the caveat proceedings).[1] The purpose for which the caveat proceedings were commenced was to preclude the defendant from selling the property. The plaintiff required leave to lodge a caveat because she had previously lodged a caveat over the property which had lapsed on 22 June 2016. Although the Originating Motion in the caveat proceedings named the defendant as a party, the application for leave was heard ex parte on 20 August 2019 without notice to the defendant.
The Court granted leave on that day subject to the usual undertaking as to damages, and subject to the requirement that the orders, together with the Originating Motion, Summons and Affidavit of the plaintiff made on 19 August 2019, be served on the defendant by close of business on 22 August 2019. The defendant was also given liberty to apply on short notice to set aside the orders.
The defendant subsequently made application in the caveat proceedings by summons filed on 24 September 2019 to set aside the order granting leave to lodge the caveat. However, by that time the caveat had already been lodged and the relief sought was amended to an order that the caveat lodged by the plaintiff over the property be removed pursuant to s 143 of the Land Title Act 2000. By decision delivered on 15 October 2019, this Court found that the plaintiff had established that there was at least a serious issue to be tried, and that the balance of convenience favoured leaving the caveat in place until resolution of the substantive issues.[2] The defendant’s application to remove the caveat was dismissed.
Section 142 of the Land Title Act 2000 provided that the caveat would automatically lapse three months after lodgement or 14 days after the caveatee served notice requiring the caveator to commence a proceeding to establish the interest claimed under the caveat, whichever was earlier. Accordingly, in order to avert automatic lapse and removal of the caveat, the plaintiff was required to commence an “appropriate proceeding”. On 21 November 2019, the plaintiff commenced these proceedings in satisfaction of that requirement (the appropriate proceedings).
By summons filed on 5 February 2020 in the caveat proceedings, the defendant made application for the removal of the caveat over the property and for the net proceeds of the sale of the property to be paid into court until further order. The basis for that application was that the balance of convenience had altered since the defendant’s previous application for the removal of the caveat had been dismissed. In particular, the defendant was suffering severe financial hardship, the mortgage payments on the property were four months in arrears, he was unable to meet the monthly obligation under the mortgage, and the lending bank had advised its intention to exercise its rights under the mortgage arrangement to take possession of the property and sell it. In those circumstances, the defendant had received an offer to purchase the property for the sum of $600,000, but was unable to do so by reason of the caveat. The defendant was concerned that if the property was sold by the mortgagee exercising the power of sale the price realised would be substantially less than the offer of $600,000.
In response to that application, the plaintiff’s then solicitors issued subpoenas to various financial institutions and insurance companies for the production of documents relating to the defendant’s claim of financial hardship. The plaintiff’s solicitors briefed a barrister to advise and appear for the plaintiff in the application for the removal of the caveat. On 18 March 2020, this Court made orders with the consent of the parties for the removal of the caveat to allow completion of the sale of the property, and for the balance of the proceeds of the sale of the property to be paid into court after satisfaction of the mortgage liability over the property, rates outstanding to the Litchfield Council and the costs of the sale. At the time those orders were made by consent, counsel for the plaintiff advised that the plaintiff no longer wished to prosecute her substantive claim in the appropriate proceedings and the proceeds of sale could be paid to the defendant. However, on 23 March 2020 the plaintiff’s solicitors filed a Notice of Ceasing to Act.
On or about 15 April 2020, the Supreme Court received payment into court in the amount of $98,543.85, being the balance of the purchase price of the property after satisfaction of liabilities. At that stage, both the caveat proceedings and the appropriate proceedings remained on foot. The caveat proceedings had concluded except to the extent that either party sought to make an application for costs. At that point in time, no steps had been taken in the appropriate proceedings beyond the filing of the Writ. A directions hearing was listed for 13 May 2020 to determine whether either party sought a costs order in the caveat proceedings, and whether the plaintiff intended to pursue the relief claimed in the appropriate proceedings.
On 20 April 2020, a Consent Order was filed in the caveat proceedings. That Order had been executed by the plaintiff on 4 April 2020 and then by the defendant’s solicitor on 20 April 2020. That Order purported to provide for the monies which had been paid into court to be disbursed to the defendant despite the fact that no discontinuance had been filed in the appropriate proceedings, and the central issue in those proceedings concern the beneficial entitlement to the property. The Court registry advised that the Consent Order would not be made until such time as a Notice of Discontinuance had been filed in the appropriate proceedings, and that the directions hearing listed for 13 May 2020 would proceed.
During the course of the directions hearing on 13 May 2020, the plaintiff advised she was waiting on legal advice from a different firm of solicitors. The matter was adjourned to 17 June 2020. At the resumption of the directions hearing, the plaintiff advised that she intended to prosecute the appropriate proceedings, and orders were subsequently made for the filing and service of pleadings and the matter was listed for hearing. The plaintiff was self-represented at that time, and continued to represent herself up to the conclusion of the trial. For reasons described further below, the plaintiff has been incarcerated in the Darwin Correctional Centre since May 2013.

The pleadings

The plaintiff filed a Statement of Claim on 10 July 2020. Many of the facts pleaded in that document are either contextual only and/or uncontentious. The crucial allegations of fact are:
(a)on 25 September 2013, the plaintiff and the defendant each executed a memorandum of transfer of the registered title in the property from the plaintiff to the defendant in compliance with s 61 of the Land Title Act 2000;
(b)the memorandum of transfer was executed while the plaintiff was incarcerated at the Darwin Correctional Centre;
(c)the consideration recorded in the memorandum of transfer was $625,000;
(d)in the weeks prior to the execution of the document, the plaintiff and the defendant had agreed to the transfer of the property on the basis that it would be transferred back to the plaintiff on her release from prison, and that the purpose of the transfer was to allow the defendant to refinance an existing $30,000 credit card debt and pay for the legal costs of the plaintiff’s defence of criminal charges which had been brought against her;
(e)at the time the memorandum of transfer was executed, the plaintiff had not received legal advice in relation to the matter, had assumed the memorandum of transfer was consistent with the agreement, and felt under pressure of time and circumstance; and
(f)consistently with the agreement that had been reached, following the transfer the defendant applied a total of $144,800 to the plaintiff’s legal costs of defending the criminal proceedings and proceedings before the Mental Health Review Tribunal.
On the basis of those pleadings of fact, the Statement of Claim asserts the following causes of action:
(a)that the plaintiff and the defendant formed the common intention that the plaintiff would retain the beneficial ownership of the property, that the plaintiff acted to her detriment (presumably in reliance on the agreement pleaded or some representation which had been made by the defendant), that it was a fraud for the defendant to assert that the plaintiff had no beneficial interest in the property[3], and that by reason of those matters there was a constructive trust under which the plaintiff held the beneficial interest in the property; and, or in the alternative
(b)as a result of the agreement between the parties, there was an implied or resulting trust under which the plaintiff held the beneficial interest in the property; and, or in the alternative
(c)as the plaintiff had received only $406,497.96 of the consideration fixed in the memorandum of transfer, there has been a failure of consideration for the transfer of any estate or interest in the property.
Although it is not expressly pleaded in the Statement of Claim, during the course of submissions the plaintiff also asserted that the defendant was precluded by promissory estoppel from, presumably, refusing to transfer title to the property back to the plaintiff, selling the property and/or denying the plaintiff’s beneficial ownership of it. Counsel for the defendant did not take issue with the failure to plead that additional cause of action.
The defendant filed a Notice of Defence on 21 August 2020. The crucial allegations of fact made by the defendant are:
(a)the consideration of $625,000 referred to in the memorandum was an approximation of the value of the property, and there was no agreement that the defendant would pay the plaintiff the sum of $625,000;[4]
(b)at the time of the transfer the defendant already had an equitable interest in the property by reason of the financial and non-financial contribution he had made since 2009;
(c)the purpose of the transfer of the property from the plaintiff to the defendant was to allow the plaintiff to access the equity in the property to meet her ongoing legal costs in defending a criminal prosecution which had been brought against her;
(d)under that arrangement, the plaintiff agreed to accept as payment for the property whatever amount the defendant was able to obtain by way of finance for the purchase;
(e)the defendant was able to borrow $475,887.96 for the purchase of the property, of which he paid $406,497.96 to or on behalf of the plaintiff, $30,937.50 in stamp duty on the purchase, $2200 to the plaintiff’s prison account, and $10,000 by way of repayment to the plaintiff’s family and friends who had provided financial assistance in the criminal proceedings; and
(f)there was no agreement that the defendant would transfer the property back to the plaintiff after she was released from prison.
The defendant denies that in the circumstances there was any constructive or resulting trust in favour of the plaintiff, and denies any failure of consideration. In particular, the defendant says that the arrangement allowed the plaintiff to obtain monies to pay legal costs in defence of the criminal prosecution she would not otherwise able to obtain, and that was a matter of paramount importance to the plaintiff at the time.
Factual findings
I find that the acts, facts, matters and circumstances relevant to the plaintiff’s claim are as follow.
The plaintiff purchased the property with her former de facto partner on 16 November 2001 for the price of $235,000. That relationship broke down in or about 2005, and title was transferred to the plaintiff as sole owner by Deed of Settlement on 13 September 2005.
The plaintiff and the defendant commenced a relationship in late 2008 or early 2009. The defendant was at that time renting a property at Howard Springs, and the plaintiff and her young son stayed most nights at the defendant’s property in the early stages of the relationship.
At that time the plaintiff was in full-time employment at a rehabilitation facility. Although there is some dispute between the parties as to whether the plaintiff “lost” that job or resigned for reasons to do with childcare and travel, it is common ground that the employment finished in or about April 2009. Apart from a number of short periods of casual employment, the plaintiff was thereafter in receipt of Centrelink benefits. The plaintiff deposed that she also received child support from her former partner and some unspecified income from a family business, but no further detail was given in relation to the quantum or frequency of those payments.
In or about September 2009, the lease on the property the defendant was renting at Howard Springs expired and the defendant commenced living with the plaintiff and her young son at the property. That arrangement was the product of the natural evolution of the relationship between the plaintiff and the defendant, and the fact that the plaintiff was having difficulty meeting the mortgage payments on the property due to her straitened financial circumstances. From the time he moved into the property, the defendant paid the plaintiff $500 per week in the form of rent, which he understood the plaintiff was putting towards payments for the mortgage and other bills. The defendant also assisted in undertaking repair and maintenance work on the property.
The plaintiff and the defendant experienced some difficulties in their relationship during the course of 2010 which led to the defendant moving out of the property for a period of time before moving back in towards the end of that year. However, during that period living apart he continued making the same contribution to expenses. The plaintiff fell pregnant during the course of 2010 and gave birth to their son in January 2011.
Throughout her relationship with the defendant the plaintiff had been engaged in long-running family law proceedings with her former de facto partner over custody of the child of that relationship. In or about June 2011, the plaintiff asked the defendant to guarantee a loan against the property in order to fund those proceedings. The defendant agreed to do so. At that time, the mortgage liability over the property was approximately $190,000. Although the initial agreement was that the defendant would be a personal guarantor for a further loan against the property, for reasons which were not explained in evidence, the plaintiff and the defendant took out a new loan jointly in the amount of $270,000 which was secured against the property.
The loan amount was drawn down on 3 August 2011. The home loan statement from that time recorded both the plaintiff and defendant as borrowers. After the payment of the existing mortgage debt and legal and associated fees, the plaintiff received $70,000 under that loan arrangement and remained the sole registered owner of the property. The plaintiff applied approximately $5,000 of that amount to the maintenance and improvement of the property and the balance was applied to her legal expenses in the family law proceedings.
From 3 August 2011 to the time he subsequently acquired legal title to the property on 22 October 2013, the defendant made every fortnightly payment in satisfaction of the liability under the loan. The defendant’s direct contribution to the mortgage liability over that period of time was $46,846.36. The plaintiff made no financial contribution to the repayment of the mortgage liability specifically, or to the property generally, from 3 August 2011. During the course of the evidence, the plaintiff maintained that although the defendant made all the payments under the mortgage, she would pay everything else. She said that she contributed cash. I am unable to accept or find that the plaintiff made any substantial financial contribution to the property, either directly or indirectly, after August 2011. Her income from that time, and in fact since April 2009, was limited to social security and child support payments, and small annual payments from her parents’ cattle business.

On 7 May 2013, the plaintiff was involved in a shooting incident with her former partner, his mother and another person. The plaintiff was charged with a range of offences relating to that incident, and the court recorded a finding that she was unfit to stand trial within the meaning of the Criminal Code 1983 (NT). During the conduct of a special hearing a jury found that the plaintiff had committed various offences and she was made subject to a custodial supervision order under the provisions of Part IIA of the Criminal Code. She remains subject to that order.[5]
Approximately four months after her arrest in relation to that incident, the plaintiff transferred the property to the defendant. The purpose for which that transfer was made, the circumstances which led to that transfer, and the arrangements between the plaintiff and the defendant in that respect constitute the principal factual dispute in this matter. The objective contemporaneous documents disclose the following matters:
(a)The instrument of transfer recorded the value of the interest transferred and consideration as $625,000.
(b)That instrument was executed by the plaintiff and the defendant on 25 September 2013 and was registered at the Land Titles Office on 22 October 2013.
(c)At that time the mortgage debt stood at $261,697.96. On the basis of the bank’s valuation of the property, the bank was only prepared to lend the defendant a further $214,190.
(d)That amount, together with fees for the release of the plaintiff as a borrower, the bank valuation and the loan increase, increased the defendant’s total liability secured by the mortgage over the property to $476,697.96.
(e)Thereafter, the defendant became the sole registered proprietor of the property and the sole borrower on the home loan account, and continued making the sole contribution to the liability under the mortgage debt.
(f)Of the $214,190 which the defendant was able to borrow on the property, he received $182,155.30 into his account after the amount of $30,937.50 was deducted to pay the stamp duty liability, and the deduction of amounts for miscellaneous lodgement and registration fees.
Once those monies were received, the defendant immediately paid $30,000 to the trust account of the solicitor acting for the plaintiff in the criminal proceedings, paid off a credit card debt of $4937.59 and paid a flexible loan debt of $13,619.70. The defendant made a number of other payments in the amount of approximately $16,000, but does not now recall precisely to whom those monies were paid. However, the defendant’s contention, which I accept, is that they were, one way or another, payments made to discharge loans, contributions and liabilities that had arisen either directly or indirectly from the plaintiff’s criminal proceedings. By way of examples he gave, the defendant had borrowed $7000 to pay to the plaintiff’s solicitor when she was first engaged to represent the plaintiff; the defendant was required to hire a car after the plaintiff’s arrest because their car (in which the plaintiff was driving at the time of the offending) was impounded by police; and the defendant was required to purchase various items such as fans and hot water systems in order to put the property into tenantable condition (see further below).
The defendant then transferred the balance of $115,000 to an E-Saver account. Over the following four months the defendant made a number of payments from that account, including $70,000 to the trust account of the solicitor acting for the plaintiff in the criminal proceedings, $6000 to the plaintiff’s father and uncle in repayment of moneys they had paid to fund the plaintiff’s bail proceedings, transfers to the credit card and savings account, and a number of payments for now unknown purposes in smaller amounts. Again, the defendant’s contention, which I accept, is that those other payments were related either directly or indirectly to the plaintiff’s criminal proceedings, or made to fund the mortgage payments on the property because of the financial hardship the defendant was experiencing, in large part due to the plaintiff’s incarceration and his assumption of sole responsibility for the care of their son. Those payments included approximately $2000 for clothes for the plaintiff to wear to court, approximately $10,000 into the plaintiff’s prison account, and further amounts to pay debts which had been accumulated in the course of the plaintiff’s criminal proceedings.
In February 2015, the defendant took out a Flexi Loan in the amount of $16,900. Then, in May 2015, the defendant drew down an additional $33,305 from the home loan. He used $17,000 of that amount to pay out the Flexi Loan, and applied the balance to the plaintiff’s legal expenses. The purpose of both the Flexi Loan and the drawdown was to pay legal fees associated with the plaintiff’s proceedings before the Mental Health Review Tribunal. Although the plaintiff said she required further money to pay legal fees in addition to the loan and the drawdown, the defendant had entirely exhausted his financial resources by that point in time.
In August 2015, the defendant suffered a back injury at work and went into receipt of workers compensation payments. That caused further financial hardship, and required the defendant to redraw the Flexi Loan and to make interest only payments on the mortgage liability in relation to the property.
In 2017, the defendant received an inheritance of $212,605.80. He applied a significant proportion of that inheritance to improving the property, including fitting a new kitchen, renovating the bathroom, erecting fencing, installing air-conditioning and a car hoist, and purchasing items for the maintenance of the property. His evidence, which I accept, was that the new kitchen cost $35,000, the fencing cost $16,160, the installation of new air-conditioners cost $10,600, and a termite treatment cost $2200. Additional monies were also spent on renovating the bathroom.
In April 2018, the defendant recommenced making repayments of both principal and interest on the loan over the property. He achieved that in part by selling personal chattels to fund the mortgage repayments. They included the sale of a toilet block for $16,000, a trailer for $6000, a ride-on lawnmower for $8000, a tractor for $8000, a quad bike for $13,000, a Chevrolet truck for $35,000 and a demountable building for $10,000.
I turn then to the opposing accounts of the dealings which led to the transfer of the property.
The defendant says that it was the plaintiff who suggested that she transfer title in the property to him. When they initially started discussing the matter it was in terms of doing a “title swap”, which presumably involved both releasing equity and transferring the title into the defendant’s name without payment of any consideration. When the defendant explored the possibility with the financial institution, he was told that the only way the transaction could be structured to allow the drawdown of further monies against the equity in the property was by way of purchase of the property by the defendant from the plaintiff. That was because of a concern on the part of the financial institution, at least as expressed to the defendant, that the property might become the subject of some criminal compensation claim. It is also reasonable to infer that a financial institution which was being asked to lend further money against the property would require it to be in the name of the mortgagor as a purchaser for value.
The defendant says that despite that change in the proposed structure of the arrangement, the plaintiff wanted to proceed with the purchase and transfer transaction for a number of reasons. The first reason was that the plaintiff’s legal representatives required payment of outstanding fees and monies on trust before they did any further work in defence of the criminal charges brought against her. By purchasing the property from the plaintiff, the defendant would be able to release the plaintiff’s equity for the payment of her legal expenses. The second reason was that the plaintiff was resigned to the fact that she would be held in custody for a long period, and in those circumstances she wanted the defendant and their son to have the property. The third reason was that if the defendant purchased the property from the plaintiff it could not be seized by police for the purpose of meeting any liability under criminal property forfeiture legislation (or perhaps criminal compensation legislation).
The defendant says the plaintiff was at all times aware that the transaction was in the form of a purchase of the property by him; that at no time was there any discussion, arrangement or understanding that the property would be transferred back to the plaintiff when she was released from custody; and that at the time the instrument of transfer was signed in the presence of a justice of the peace the plaintiff read the documents carefully and understood the effect of the transaction.
The defendant said further that the purchase of the property caused him financial stress and great inconvenience. In order to meet the mortgage repayments he had to bring the property to tenantable condition, and then rent out the main house and live in an industrial shed on the property. Even with the rent payments he received from the tenancy, he was struggling financially. In addition, the plaintiff’s arrest made it difficult for the defendant in terms of meeting her needs and requirements in prison, and providing care for their young son. As a result, his work hours decreased and his earnings dropped from approximately $1300 per week to approximately $500 per week.
The plaintiff does not dispute that it was she who suggested the transfer of the property to the defendant, but says it was only intended to be a “title swap”. She says that she made that suggestion for three reasons, although she does not prioritise the reasons in this order. First, she needed money for her legal defence, and the refinancing of the mortgage would release her equity in the property for that purpose. Secondly, she was of the view that the defendant could get “a better mortgage deal” if he refinanced the mortgage. Thirdly, the defendant had a credit card debt of $30,000, and refinancing would allow him to pay that debt. During the course of cross-examination of the plaintiff also agreed that part of the purpose of releasing equity from the property was so that the defendant and their son would be “looked after”. However, she denied any knowledge at the time that the transaction involved the defendant taking out a further loan of $215,000 against the property, or that the total loan liability against the property would be in the order of $478,000.
The plaintiff says that the arrangement was always subject to the express agreement and understanding that on her release from prison the defendant would transfer the property back into her name, and there was no discussion of him purchasing the property from her. The plaintiff says further that at the time she signed the documents she did not look through them properly. She says that although she had lawyers acting for her at the time, and she asked for legal advice in relation to the transfer proposal, she did not receive any legal advice. It may be noted in that respect that the same firm of solicitors acted for both the plaintiff and the defendant in the conveyancing transaction. The plaintiff says that at the time she signed the documents she thought their effect was simply to transfer the title to the defendant’s name to hold on her behalf, rather than a sale of the property to him. However, no claim has ever been made by the plaintiff to avoid the contract on the basis of mistake or non est factum.
The plaintiff also says that she felt under pressure to sign the transfer documentation. While that may be so, that pressure was not the result of any undue influence or unconscionable conduct on the part of the defendant, and nor does the plaintiff allege that to be the case. It was the result of the predicament in which she found herself at the time. She was facing criminal charges and wanted to access her equity in the property to pay for legal representation, and an arrangement with the defendant by which he borrowed more money and took title to the property was a means by which to achieve that.
In the plaintiff’s submission, her account of the dealings is supported by her mother’s evidence and a text message which the defendant is said to have sent to the plaintiff’s mother in 2016.
The salient parts of the evidence given by the plaintiff’s mother may be summarised broadly as follows. First, on an occasion when she visited the plaintiff following her incarceration at the Darwin Correctional Centre in or about 2014, the plaintiff advised she had transferred the property to the defendant. When the plaintiff’s mother asked why she had done that, the plaintiff said that “[the defendant] will sign it back to her when she gets out of prison”. Secondly, the defendant sent the plaintiff’s mother a text message in February 2016 which said, amongst other things, “I will hold the fort as always”; “she trusted me before she will just have to continue doing so”; and “I’m not out to con as you could see by me quite willing to hand it all back and walk away with nothing [sic]”. Thirdly, the plaintiff’s mother made one of the mortgage payments for the property on 8 February 2016 on the understanding that it would be returned to the plaintiff when she was released from prison.
That evidence falls well short of establishing an express arrangement of the type asserted by the plaintiff. As the plaintiff herself accepts, the fact that she told her mother in 2014 that the defendant would transfer the property back to her when she got out of prison is not proof of an arrangement to that effect. It is proof only of a belief or expectation on the part of the plaintiff at that time. The plaintiff relies on her mother’s evidence in that respect only for the purpose of illustrating that her belief or expectation has been consistent over time. Similar observations may be made about the mother’s conduct in making one of the mortgage payments on the property in February 2016. Her understanding that the property would be returned to the plaintiff when she was released from prison was based on the plaintiff’s representation to her to that effect. It rises no higher than the plaintiff’s expression of belief or expectation.
The text message which the defendant sent to the plaintiff’s mother in February 2016 also does not establish an express arrangement of the type asserted by the plaintiff. It is important to put the exchange in context. The circumstances had substantially changed by then. The plaintiff had been incarcerated for almost three years at that point in time. The defendant had formed a new relationship in or about late 2015, with the consequence that his relationship with the plaintiff had come to an end, in the spousal sense at least. The defendant was in severe financial stress at the time. He had suffered a back injury in August 2015 with the consequence that his earnings were significantly reduced. As a consequence, he was unable to meet the loan repayments and in April 2016 was forced to restructure them as interest only payments.
The text message obviously forms part of a continuing conversation, but the earlier part of the conversation to which it is responding was not put into evidence by the plaintiff or the plaintiff’s mother. The references to “holding the fort” and “trust” are quite conceivably referable to the number of matters, including the defendant’s ongoing care and custody of their child. The defendant’s expressed willingness to “hand it all back and walk away with nothing” is as or more likely to be a reference to a possible division of property on the breakdown of the relationship, than it is to be a reference to some arrangement made back in 2013.
It is also instructive to consider the action taken by the plaintiff and her mother in the first half of 2016 in response to the breakdown of the relationship and an indication by the defendant at or about that time that he was going to sell the property. The plaintiff sought to engage the firm of solicitors, Ward Keller, which had acted on the transfer of the property in 2013 and which had acted for her in the Mental Health Review Tribunal proceedings in 2015. Ward Keller advised it had a conflict because it had acted on the defendant’s behalf as well in the transfer of the property. Ward Keller arranged for the file to be referred to another firm of solicitors, Withnalls, to provide advice to the plaintiff. On 22 March 2016, that firm lodged a caveat over the property on behalf of the plaintiff.
By letter dated 11 May 2016, Withnalls advised the plaintiff that the caveat would expire on 14 June 2016 unless the plaintiff commenced proceedings to establish an interest in what was described as the “former matrimonial home”. That letter advised further that if the property was sold, the net proceeds would be in the order of approximately $175,000; the date on which the plaintiff would eventually be released from prison was not known; it was likely that the Court would order an adjustment in the distribution of the proceeds of any sale in the defendant’s favour on the basis that he was the child’s primary carer; and that proceedings had been commenced against the plaintiff under the crimes compensation legislation.
The plaintiff consulted a barrister about the matter, and on 18 May 2016 advised Withnalls that she did not wish to commence legal proceedings against the defendant with respect to the property. It was put to the plaintiff in cross-examination that she determined not to proceed because she realised that in the circumstances she would not receive any proceeds, or at least any substantial share, from the sale of the property. The plaintiff denied that, and said that she determined not to commence proceedings because the defendant had agreed not to sell the house and move interstate. The evidence given by the plaintiff’s mother in that respect is that she recalled speaking to a lawyer in 2016 about the lodgement of a caveat over the property. Although she initially could not remember whether that lawyer had asked her whether she would be able to buy the property, she later conceded that she would have had to borrow money in order to purchase the property and she was not willing to do so at that time. There is nothing in the correspondence or dealings with Withnalls to suggest that the plaintiff instructed them that there was a promise on the part of the defendant to transfer the property back to her.
I have no doubt that the plaintiff genuinely believed, and believes still, that she was entitled to have the property transferred back to her upon her release from prison. However, I do not accept or find that there was an express agreement between the plaintiff and the defendant that the property would be transferred back to her upon her release from prison, or that it was simply to be a “title swap” rather than a transaction which involved a legal purchase of the property by the defendant. Rather, I accept the defendant’s evidence in relation to the dealings and find as follows:
(a)the plaintiff wanted the property transferred into the defendant’s name as a means of releasing equity to pay for her legal representation in defence of the criminal charges which had been brought against her, to alleviate the financial stress which was being suffered by the defendant and their son as a result of expenditure occasioned by her offending conduct and subsequent arrest, and to protect the property against any claims for criminal compensation or any application for criminal forfeiture;
(b)the plaintiff and the defendant were in a long-term spousal relationship at that time, the defendant was supportive of the plaintiff, and the defendant was prepared to take whatever steps were necessary to provide for her legal representation;
(c)when the matter was first discussed between them, it was a common assumption that title to the property could simply be transferred into the defendant’s name, and that he would be able to refinance the mortgage and release equity in the property on that basis;
(d)when the defendant sought to put that arrangement in place, he was told by the financial institution that the transfer would need to proceed as a purchase by him in order to permit refinancing and the provision of further loan moneys to him;
(e)the defendant advised the plaintiff what he had been told by the financial institution, and her position was such that she was prepared to enter into whatever transaction was necessary to release equity to pay for her legal expenses;
(f)during the course of those dealings between the plaintiff and the defendant there was no discussion of their respective shares or entitlements in the property, and no discussion as to how the balance of the purchase price was to be applied beyond the payment of monies to her lawyers for her representation and the payment of related debts;
(g)at no time throughout those dealings was there any express discussion or agreement between the plaintiff and the defendant that the property would be transferred back to her upon her release from prison;
(h)at all times throughout those dealings the plaintiff assumed that the defendant recognised that the property belonged to her;
(i)at all times throughout those dealings the defendant assumed that the plaintiff would be released from prison in the near future (either because she had a valid defence to the charges or because her conduct was due to a mental impairment of short duration which would not necessitate a continuing incarceration), that they would resume their relationship caring jointly for their son, and that they would, in the defendant’s words, “live happily ever after”;
(j)in that context, the defendant did not turn his mind to the legal or equitable ownership of or title to the property going into the future, because he assumed they would resume living in the property together, and continue to do so;
(k)although the defendant did not turn his mind to the matter at the time, had the plaintiff been released from prison within the timeframe he had been led to believe she would, he would have transferred title to the property back to her had she asked him to do so (as he frankly admitted during the course of cross-examination); and
(l)the defendant’s attitude to the matter changed over time as the plaintiff’s release from prison did not eventuate as he had been told and anticipated it would, as the relationship between the plaintiff and the defendant broke down and the defendant entered into a new relationship, and as the defendant continued making the sole financial and non-financial contributions to the property and continued in sole care and custody of their son.

It should be noted that there is also some dispute about the value of the property at the time it was transferred to the defendant. The plaintiff pleads expressly that although the consideration recorded in the memorandum of transfer is $625,000, the property had a value in the order of $750,000 in or about 2012 (and, by extension, in 2013). The plaintiff claims that valuation was made when she was considering selling the property in late 2012 or early 2013. She says she had the property appraised for sale and received an offer of $750,000 at that time. There is no documentary or other objective evidence in relation to that appraisal or offer. However, even if that evidence from the plaintiff was to be accepted, I am unable to find that the value of the property at the time of transfer in October 2013 was $750,000. I make that finding principally on the basis of a written appraisal from a firm of rural real estate agents dated 24 September 2013 which was annexed to an affidavit filed on behalf of the plaintiff.[6] That appraisal puts the value of the property at that time at somewhere between $600,000 and $630,000.
In addition to that direct and contemporaneous evidence, there is indirect and contextual evidence which tells against the plaintiff’s assertion concerning the value of the property. First, it would appear that the purchase price of $625,000 was based on a bank valuation conducted at the time. Secondly, the plaintiff and her former partner bought the property in November 2001 for $235,000. The Building Advisory Service information on the Search Certificate indicates that there were no significant improvements made to the property between 2001 and the date of transfer on 22 October 2013. The unimproved capital value of the property for ratings purposes was recorded as $375,000 on 1 July 2012. That had dropped to $345,000 on 1 July 2015, and further to $295,000 on 1 July 2018. Thirdly, the defendant first advertised the property for sale for $720,000 in April 2019. It did not sell at that price. The price was then reduced to $650,000 and again did not sell at that price. As set out in the procedural history, it ultimately sold on the open market for $600,000.
Having regard to that direct and indirect evidence, I am unable to accept that the consideration of $625,000 recorded in the memorandum of transfer was an undervaluation or anything other than market value. If anything, it was at the top of the range of market value which had been assessed by Elders Real Estate in September 2013.
I turn then to consider whether the facts as I have found them to be sustain the plaintiff’s contentions that the dealings created a constructive or resulting trust at the time of the transfer, gave rise to a promissory estoppel, or resulted in a failure of consideration.

Promissory estoppel

In order establish a promissory estoppel it is necessary for a plaintiff to prove that:[7]
(a)the plaintiff assumed that a particular legal relationship then existed between her and the defendant, or expected that a particular legal relationship would exist between them, and that the defendant would not be free to withdraw from the legal relationship;
(b)the defendant induced the plaintiff to adopt that assumption or expectation;
(c)the plaintiff acted or abstained from acting in reliance on the assumption or expectation;
(d)the defendant knew or intended the plaintiff to do so;
(e)the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
(f)the defendant has failed to avoid that detriment by fulfilling the assumption or expectation, or otherwise averting that loss or detriment.
The promise made by the defendant to induce the assumption or expectation must be clear, unequivocal and intended to be acted upon by the plaintiff.[8] On the findings of fact I have made, while the plaintiff assumed that the defendant would transfer the property back to her on her release from prison, and that she executed the transfer in reliance on that assumption, the defendant did not induce the plaintiff to adopt that assumption. I am also unable to find in the circumstances that the defendant knew or intended that the plaintiff executed the transfer of the property to him in reliance on some assumption or expectation that he would transfer it back to her. For these reasons, the claim in promissory estoppel must be dismissed.
Resulting trust
This is not a case in which a resulting trust is said to arise because the plaintiff provided monies for the purchase of the property but was not registered as an owner. The plaintiff asserts a resulting trust on the basis of the presumption at law that, subject to any contrary intention, a person who voluntarily transfers property to another does not intend the transferee to hold the property beneficially, but rather on resulting trust for the transferor.[9] However, the presumption of equitable obligation on the part of the transferee will only arise where the transferee provides no consideration for the transfer. The consideration for the transfer of the property in this case was expressly agreed in the amount of $625,000, and a very substantial portion of the equity released from the property was applied for the plaintiff’s benefit and in accordance with her directions. In addition, the defendant’s assumption of liability under the loan constituted a direct contribution to the purchase price[10], and it was solely his obligation rather than one in which he and the plaintiff were jointly and severally liable for its repayment. Even were that not so, where consideration is agreed but not paid, the consequence is not a resulting trust unless it is shown that the expression of the consideration was false and the transfer was intended to be without consideration.[11] On proper characterisation of the arrangement, that was not the case here.
Moreover, under statute in this jurisdiction, a resulting trust for the transferor is not to be implied from a voluntary conveyance only because the property is not expressed to be conveyed for the use or benefit of the transferee.[12] What this means is that a resulting trust will not be presumed on a voluntary transfer of real property without consideration unless the transferor evinces an intention that the transferee is not to take the property beneficially. On the findings I have made, there was no contemporaneous indication of intention by the plaintiff that the defendant did not take beneficial title as well. Quite the opposite is the case here having regard to the transfer documentation; and in circumstances where from the plaintiff’s perspective one purpose of the transfer was to quarantine the property from any claim for criminal compensation, and another purpose of the transfer was to ensure that the defendant and their son were “looked after”.
For these reasons, the claim that the property was subject to a resulting trust in favour of the plaintiff must be dismissed.
Constructive trust
Equity will impose a constructive trust in circumstances where it would be otherwise inequitable for that person to escape accountability. Those circumstances require, on the part of the person sought to be brought to account, a want of probity, conduct amounting to equitable fraud or conduct which is unconscionable. Unlike a resulting trust, a constructive trust may be imposed irrespective of the intention of the parties.[13]Where, as in this case, the unconscionable conduct is said to be a failure to recognise an equitable interest in property, a trust will be imposed to ensure that the legal owner is not permitted to use those legal rights to abuse or subvert the intention which underlay the acquisition and possession of those rights. Ordinarily, the obligation will attach to the property and require the holder of the legal title to surrender the property or part thereof. In this case, the property has already been sold. The defendant’s constructive trust liability, if any, is a personal liability to disgorge any gains or make good any losses incurred as a result of unconscionable conduct.
It may be accepted that the plaintiff’s residual equity in the property at the time of the transfer in October 2013 constituted a contribution to the acquisition of the property in the hands of the defendant. However, the operative questions are whether the defendant’s application of the loan moneys drawn against that equity, and his subsequent dealings with the property in context, constituted an unconscionable denial of the plaintiff’s interest in the property as a contributing party; and whether equity requires the defendant to account or to pay equitable compensation from the proceeds of sale for any gain he has derived from that denial.
The doctrine of constructive trust recognises both direct financial contributions to property and non-financial contributions by such matters as improvement and restoration of the property and as contributions as home maker and parent.[14] Contributions of that nature which a party has made to a joint endeavour will be restored to that party if that endeavour fails and the contributions were made in circumstances in which it was not intended that the other party should enjoy them.[15] The onus of establishing that equity should intervene lies on the plaintiff in this case. The relative substantiality of the contributions made by her and the defendant to the property as at the time of its sale in April 2020 is a factor which informs whether there is any unconscionability in this case.[16] As was stated in Muschinski v Dodds:
In circumstances where the parties neither foresaw nor attempted to provide for the double contingency of the premature collapse of both their personal relationship and their commercial venture, it is simply not to the point to say that the parties had framed that overall arrangement without attaching any condition or providing any safeguard specifically to meet the occurrence of that double contingency.
….
It follows that equity requires that the rights and obligations of the parties be adjusted to compensate for the disproportion between their contributions to the purchase and improvement of the … property. In the absence of any suggestion of direct payment … that adjustment requires, at the least, that the parties be proportionately repaid their respective contributions to the extent allowed by the proceeds of any sale. It becomes necessary to consider their entitlement in equity to share in any surplus after the discharge of any debts incurred in their joint undertaking and the repayment to them of their respective contributions. As has been seen, the extent to which the relevant principle of equity operates to qualify legal entitlement is only that to which it positively appears that it would be unconscionable for one party to assert or retain the benefit of property contributed by the other party. There could well be circumstances in which equity and good conscience would require that the party who has made the major contribution to a failed joint endeavour should obtain a correspondingly greater share of any surplus remaining after repayment of the respective contributions.[17]
The determination of whether a refusal to acknowledge an equitable interest is properly characterised as unconscionable takes into account not only events occurring at the time of acquisition of the property, but also events occurring subsequently.[18] In assessing respective contributions for this purpose, the courts have commonly applied guidelines similar to those established for the assessment of contributions under family law and de facto relationships legislation.[19] In that sense, the plaintiff finds herself in these proceedings in a position similar to that which presented in early 2016 when she sought and received advice concerning her interest in the property. The following matters assume particular relevance in that assessment:
(a)From September 2009 to August 2011, the defendant’s payments to the plaintiff in the form of “rent” were the principal, if not sole, means by which the plaintiff was able to make payments in order to meet her liability under the mortgage. The plaintiff was not in paid employment for the majority, if not all, of that period.
(b)In August 2011, the defendant and the plaintiff took out a new loan jointly in the amount of $270,000 which was secured against the property. Immediately prior to that point in time the mortgage liability was $190,000. The sole purpose of that arrangement was to allow the plaintiff to apply $70,000 in the prosecution of family law proceedings against her former partner. By that transaction and for that purpose the plaintiff effectively reduced her equity in the property by $80,000.
(c)Between August 2011 and October 2013, the defendant was the sole financial contributor to payments made to meet the joint liability under the mortgage. Over that period, he paid approximately $50,000 in satisfaction of that liability. Over that period, the plaintiff was not in paid employment and made no direct financial contribution to the property.
(d)The outstanding mortgage liability at the time of transfer of the property to the defendant in October 2013 was $261,697.96. The defendant was only able to obtain a further $214,190 from the bank on refinancing. That amount was applied in its entirety to stamp duty on the transfer, the plaintiff’s legal fees, debts and related matters, maintenance and improvements on the property, and the maintenance, care and welfare of the defendant and their son.
(e)In May 2015 the defendant drew down an additional $33,305 from the equity in the property which was applied principally, if not entirely, to legal fees for the plaintiff’s prosecution of proceedings before the Mental Health Review Tribunal.
(f)The inheritance received by the defendant in 2018 in an amount in excess of $200,000 was applied, either directly or indirectly, to the conservation and improvement of the property, to meeting the mortgage liability over the property, and to the maintenance, care and welfare of their son. Much of the financial contribution to the property was made by direct expenditure on improvements to the property. Although another part of the contribution was inefficient in a financial sense, in that it took the form of the purchase of chattels, and the subsequent sale of those chattels at a loss to meet the mortgage liability, it was a contribution nonetheless. Similarly, although the plaintiff contends that she did not request the defendant to make those improvements, they were reflected in the eventual sale price and the proceeds of sale.
(g)On 7 May 2013, the plaintiff was involved in a shooting incident involving three victims which led to her being arrested and charged with eight offences. She was subsequently found not guilty of those offences by reason of mental impairment, and a custodial supervision order was made. She has been held in custody since that time, and will be held in custody for an indefinite period going into the future. The plaintiff and defendant’s son was two years and four months of age at the time of the shooting incident.
(h)Since May 2013, the defendant has been the source of every financial and non-financial contribution made directly or indirectly to the mortgage liability, conservation and improvement of the property.
(i)Since May 2013, the plaintiff has made no financial or non-financial contribution to the property, whether directly or indirectly.
(j)Since May 2013, the defendant has had sole care and responsibility for the child of the relationship, and for all practical purposes has been the sole contributor to the welfare of the family in the capacity of home maker and parent.
In those circumstances, it cannot be said that the defendant has engaged in unconscionable conduct by failing to recognise that the plaintiff has an equitable interest in the property. The defendant has not made any gain from the property at the plaintiff’s expense. Although the matter is not amenable to, and does not require, precise mathematical calculation, since 2009 the defendant has applied a factor of many times more to the property in terms of direct financial contribution than the net proceeds realised on the sale of the property. On the other hand, over the same period the plaintiff has made no direct contribution to the property at all, and, by reason of circumstance, little or no indirect contribution and very little by way of contribution to the welfare of the family. Over that same time, she has substantially reduced or defrayed any residual equity which she may have had in the property in application to legal expenses incurred in the family law proceedings against her former partner, in the defence of the criminal prosecution against her, and in prosecution of the proceedings in the Mental Health Review Tribunal. The plaintiff has failed to establish that it would be unconscionable conduct on the part of the defendant to assert and retain the proceeds of sale of the property to which both his legal entitlement and the course of dealings described in these Reasons otherwise entitles him.
Failure of consideration
For the reasons already canvassed in the discussion of the equitable claims, there was no failure of consideration for the transfer of the estate or interest in the property.
Disposition
in accordance with these reasons, I make the following orders:
1.The plaintiff’s claim brought by Writ filed on 21 November 2019 is dismissed.
2.The net proceeds of the sale of the property at 185 Ewart Road, Lambells Lagoon in the Northern Territory of Australia paid into court in April 2020 are to be disbursed to the defendant.
I will hear the parties in relation to costs if need be.

____________________________

[1]Proceedings No 88 of 2019 (21931241).

[2]Deveraux v Cash [2019] NTSC 78.

[3]Although the Statement of Claim pleads this cause of action as fraud, that is a reference to the third element of a constructive trust as identified by the court in Hohol v Hohol [1981] VR 221, 225.

[4]The import of this pleading is that the monies released on the transfer of the property were to be applied to the plaintiff's purposes rather than paid directly to the plaintiff.

[5]See The Queen v KMD & Ors (No 4) [2021] NTSC 27.

[6]See affidavit of Lauren Tattersall made on 11 February 2020, annexure "LT6", letter from Elders Real Estate dated 24 September 2013.

[7]Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-429.

[8]Marine Steel Ltd v The Steel Navigator [1992] 1 NZLR 77, 83; Kirton v Nethery (1996) 7 BPR 14,954.

[9]DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, 463-464; Calverley v Green (1984) 155 CLR 242, 266; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 364.

[10]Calverley v Green (1984) 155 CLR 242, 251, 257-258, 267-268.

[11]House v Caffyn [1922] VLR 67, 79-81; Wirth v Wirth (1956) 98 CLR 228, 236-237.

[12]Law of Property Act 2000 (NT), s 6(3).

[13]Muschinski v Dodds (1985) 160 CLR 583, 612-616.

[14]See Baumgartner v Baumgartner (1987) 164 CLR 137, 155-156; Bate v Moran [1984] FLC 91-561; Miller v Sutherland (1990) 14 Fam LR 416.

[15]Muschinski v Dodds (1985) 160 CLR 583, 620; Baumgartner v Baumgartner (1987) 164 CLR 137, 147-148.

[16]See, for example, Lipman v Lipman (1989) 13 Fam LR 1.

[17]Muschinski v Dodds (1985) 160 CLR 583, 622-633.

[18]Green v Green (1989) 17 NSWLR 343, 353, 355.

[19]Parij v Parij (1997) 72 SASR 153, 166; Brown v George (1998) 147 FLR 1, 10.