Friar and Friar and Anor
[2013] FamCA 121
FAMILY COURT OF AUSTRALIA
| FRIAR & FRIAR AND ANOR | [2013] FamCA 121 |
| FAMILY LAW – PROPERTY – where the wife seeks a declaration that she and the husband are the sole owners of a property which was registered in the names of the husband and his sister as tenants in common – where the property has been sold – where the wife claims that there was a joint endeavour between she, the husband and his sister the effect of which was that she and the husband were the owners of the property – where the wife alternatively claims that she was induced by statements of the husband and his sister to believe that she would have a beneficial interest in the property and acted to her detriment in reliance on those statements – whether a declaration should be made as sought by the wife – where the evidence does not reveal a joint endeavour or common intention – where the statements alleged by the wife to have induced her to act to her detriment are unclear and ambiguous – where the wife’s claim for declaration dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Baumgartner v Baumgartner (1987) 164 CLR 137 |
| APPLICANT: | Ms R Friar |
| FIRST RESPONDENT: | Mr C Friar |
| SECOND RESPONDENT: | Ms W Friar |
| FILE NUMBER: | SYC | 6808 | of | 2007 |
| DATE DELIVERED: | 1 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | Sydney: 1 March 2012 Sydney: 2-4 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pentalow |
| SOLICITOR FOR THE APPLICANT: | Friend & Co Lawyers |
| THE FIRST RESPONDENT: | In person |
COUNSEL FOR THE SECOND RESPONDENT: | Mr Windsor SC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Hamish Cumming Family Lawyers |
Orders
IT IS ORDERED THAT
The wife’s claim for declaration pursuant to s 78 of the Family Law Act 1975 (Cth) (“the Act”) contained at paragraph 1 of the Amended Application filed
25 August 2011 be dismissed.Any claim for equitable relief by the wife contained within the Points of Claim filed 26 August 2008 be dismissed.
IT IS DIRECTED THAT
The wife’s claim seeking relief pursuant to s 79 of the Act be listed for mention before Justice Murphy via videolink on a date and time to be advised consequent upon the parties, within 28 days of the date of these Orders, complying with the succeeding paragraphs (4) and (5) of these Orders.
The parties shall confer and seek to agree upon the making of all such further directions as might be necessary to give effect to:
a.The parties each making any and all such further submissions as each might seek to make emanating from the decision of the High Court in Stanfordv Stanford (2012) 293 ALR 70; and,
b.The parties each making any and all such further submissions as each might seek to make in respect of the requirements of s 79 of the Act, including: the existing legal and equitable interests of the parties to the marriage and their derivation; the facts and circumstances upon which each relies in support of the exercise of the discretion within s 79(2) of the Act; the contributions made by each of the parties to the marriage within the meaning of s 79(4) of the Act; the facts and circumstances contended to be relevant to s 79(4)(e) of the Act; the facts and circumstances said to pertain to the justice and equity of the orders contended for; and,
c.Any party making an application to re-open the proceedings so as to provide evidence confined to the matters referred to in paragraphs 4(a) and 4(b) hereof.
The parties shall, within 28 days of the date of these Orders, forward the agreed directions contemplated by paragraph 4 via joint e-mail to …@familycourt.gov.au.
In the event that the parties are unable to reach agreement in the manner contemplated by the preceding paragraphs of these directions, the matter be listed for mention before Murphy J upon the earlier of 28 days from the date of these Orders, or the parties advising via joint e-mail that agreement cannot or otherwise will not be reached.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Friar & Friar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC6808 of 2007
| Ms R Friar |
Applicant
And
| Mr C Friar |
First Respondent
And
| Ms W Friar |
Second Respondent
REASONS FOR JUDGMENT
Central to proceedings instituted by the wife in which she seeks relief pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) is her additional claim, said to be based in constructive trust, in respect of a property the legal and equitable interests in which, prior to its sale in early 2012, vested in the husband and the second respondent (“Ms W Friar”) who is his sister.[1]
[1] It will be necessary to refer to the parents of the husband and Ms W Friar in these Reasons. They will be referred to collectively as “the parents”; the mother will be referred to as “Ms Friar Snr” and the father as “Mr Friar Snr”.
The wife has no existing legal interests in real property. Her legal interest in other property that might be the subject of a potential claim pursuant to s 79 is confined to the ownership of shares of very modest value and a negligible amount of funds in a bank account.
The husband has a 25 per cent interest as a tenant in common with Ms W Friar in real property situated at 103 H Street in a suburb of Sydney (“103”). He had a 50 per cent interest as tenant in common with Ms W Friar in real property situated opposite 103, at 102 H Street (“102”). That property was sold early in 2012. Some of the net proceeds were paid to Ms W Friar; the remainder sit in a solicitor’s trust account. The husband and Ms W Friar also each have a one-third interest as tenants in common with their other sister, Ms SR, in a property at Town U.
Failure by the wife on her “trust claim”, and in respect of other contentions she makes in respect of liabilities, would see a very modest amount of property potentially amendable to orders pursuant to s 79 of the Act, if the Court considers that it is just and equitable to alter existing legal and equitable interests.[2]
[2] See s 79(2) of the Act and Stanford v Stanford (2012) 293 ALR 70.
The wife contends that she was the victim of family violence at the hands of the husband. As will be seen, this issue (together with many other issues) is not addressed by the husband. I consider the wife to be an essentially truthful witness. Her evidence in respect of violence is detailed and, I think, compelling. I accept that she was the victim of regular, serious acts of family violence at the husband’s hands. Important to her feelings of injustice, which I find understandable, is, I think, not only the disrespect inherent in that repugnant conduct, but also, as I find, a further pervasive disrespect toward her at the husband’s hands. Those matters might be seen to be important to forms of relief that have unconscionable conduct or justice and equity at their heart. Yet, existing legal interests in real property cannot be treated as “…not much more than provisional…”[3]; if equitable interests are to defeat or impact upon legal title, it will be because a plaintiff can establish not “…idiosyncratic notions of fairness…”,[4] but, rather, an existing category of equitable relief.
[3] An expression used by Macrossan CJ in Turner v Dunne [1996] QCA 272, to which reference will later be made.
[4] Cf Muschinski v Dodds (1985) 160 CLR 583 at 615, per Deane J.
In a similar vein, the existing legal interests of parties to a marriage are not to be presumed to be the subject of orders for their alteration upon the breakdown of the marriage. In that instance, it must be just and equitable to make an order[5] and, if so, the order must itself also be just and equitable.
[5] Sections 79(2) the Act and Stanford.
By reference to the relevant legal principles, the claim by the wife for equitable relief, as pleaded and argued, faces considerable difficulties. Consideration of those difficulties and the findings to be made will be better understood by first tracing the evolution of the existing legal interests in property and placing within that timeframe conversations alleged by the wife and asserted by her to be central to her claim.
Before doing so, however, it is necessary to refer to the husband’s position with respect to these proceedings.
The Husband’s Position
The husband represented himself in these proceedings. When they commenced there was a suggestion that he was debilitated as the result of a stroke or similar condition. He initially did not appear and the possibility of the appointment of a case guardian was canvassed in his absence. It transpired that he was living with, or near to, his adult son on the New South Wales north coast. Ultimately, the husband appeared on a date to which the proceedings had been adjourned and satisfied me that he had capacity and was able to represent himself.
The husband has been afforded the opportunity to obtain representation. He has also been afforded the opportunity to prepare and present evidence. His filed material consists of a Response and a Financial Statement each filed in March 2008. The former seeks an Order that “The wife’s application … be dismissed” and, in response to the document’s invitation to respond to facts in the wife’s Application, states:
I own a half share of the property with my sister.
There is significant debt and I have insufficient equity to pay out the mortgage and debt to my sister from my sister.
There is no money to divide.
The husband’s participation during the trial was similarly very limited.
When the evidence concluded, I adjourned submissions to allow all parties the opportunity to provide written submissions. Each of the wife and Ms W Friar did so; the husband did not. I further provided each party the opportunity to supplement those written submissions at an oral hearing. Again, the husband’s contribution was extremely brief and, with no disrespect to him, directed to matters largely irrelevant to the issues to be determined.
In terms, then, of both the husband’s material and his participation in the trial, his position in respect of what I will call the wife’s “trust claim” can be seen to be, in essence, consistent with that advocated on behalf of Ms W Friar.
Overview of the Wife’s “Trust Claim”
The proceedings instituted by the wife were the subject of a successful application to strike them out before Fowler J in April 2009. The wife successfully appealed with the Full Court delivering its judgment on 5 April 2011. The proceedings before me occur as a consequence of the success of that appeal.
Fowler J had, prior to the application to strike out, ordered pleadings by the wife. That pleading (entitled “Points of Claim”), filed some four years prior to the final hearing, has never been amended. No application to amend was made during the course of the hearing. An imprecise articulation of the wife’s case pertained for the whole of the hearing, and defied attempts to clarify and particularise it. Senior Counsel for Ms W Friar opened his oral submissions by saying that he “found it difficult to engage with the submissions” made on behalf of the wife and, with all due respect, I well understand the difficulty.
The Terms of the Wife’s Application
The wife’s Initiating Application – as distinct from her Points of Claim – was amended on 25 August 2011. The Amended Application seeks a declaration pursuant to s 78 of the Act that “the … Husband and the … Wife be declared the sole owners of 102 … (“the matrimonial home”) …”. No declaration is sought in respect of the existing legal interests in 103. An order pursuant to s 79 is sought consequentially in that document and is repeated in the Case Summary document filed by the wife ahead of the commencement of the trial. That order is as follows:
Pursuant to s 79 by way of alternation (sic) of property interests the husband sell his interests in the properties known as 102 and 103 [H] Street by public auction and the proceeds divided as follows:
2.1 Agent’s commission, advertising and legal expenses;
2.2 40% to the husband and 60% to the wife;
2.3The net balance to be divided by payment to the wife of an amount equal to at least 60% of the unencumbered market value of 102 [H] Street, [Suburb B], any balance to the husband;
2.4As an alternative to the proceeding (sic) orders 2.2 and 2.3, the husband pay to the wife the equivalent of his interest declared by this court in 102 … and 103 ….
The wife’s Case Summary document seeks, relevantly, a further alternative order as follows:
3.As an alternative to the proceeding (sic) orders … the husband and or the second respondent pay the wife a sum being at least 60% of the unencumbered market value of the whole of the property being 102 [H] Street [Suburb B].
The Wife’s Pleading – “Points of Claim”
Paragraph 23 of the Points of Claim is as follows:
23.After the death of [Mr Friar Snr], the [wife] and [the husband and Ms W Friar] entered into an arrangement or understanding that the [wife] and [the husband] would be the beneficial owners of 102 and [Ms W Friar] either by herself or with [her de facto] would be the beneficial owner of 103.
PARTICULARS
(1)The [wife] and [the] husband occupied and maintained 102 and paid rates, mortgage installments (sic) and other expenses in respect of the property.
(2)[Ms W Friar] and [her de facto] occupied and maintained 103 and paid rates, mortgage installments (sic) and other expenses in respect of the property.
(3)In 1989 the [wife] won $71,000 from a poker machine jackpot. $10,000 of the proceeds were used to pay for a customized kitchen for 102...
4.The [wife] paid mortgage instalments, solicitors (sic) fees and other expenses in respect of loans taken out on the security of 102…
The preceding paragraph asserts:
24.[Ms Friar Snr] … and the respondents represented to the [wife] that she and [the] husband were the beneficial owners of 102….
PARTICULARS
(a) During the early 1980s [Ms Friar Snr] … told the [wife] that she and the [husband] should sell the property and move away as it was an evil place.
(b)During the 1980s [Ms W Friar] told the [wife] that she and [the] husband should not sell 102 as it was an asset and would be worth more in the years to come.
(c)During the 1980s [Ms W Friar] told the [wife] that she did not have to worry because if anything happened to [the] husband she would still be the owner of 102 even though her name was not on the title deeds to the property.
The wife goes on to plead, at paragraph 26 of the Points of Claim:
26.From about 1984, loans that benefited [Ms W Friar] and [her de facto] were obtained and secured against the title to 103…with the consent of [Ms Friar Snr]…and/or the [husband].
PARTICULARS
(1)In 1984 an unknown amount was borrowed from the Westpac bank using 103 as security for the loan (“the Westpac loan”) – see mortgage dated 4/7/84. [Ms W Friar] and [her de facto] were described on the mortgage as “the debtors”.
(2)In September 2001 the amount of $240,000.00 was borrowed from the ANZ bank using 103 as security for the loan (“the ANZ loan”) – see mortgage dated 11/9/01. [Ms W Friar] and [her de facto] who (sic) were described on the mortgage as “the debtors”.
(3)In September 2002 a further $20,000.00 was borrowed from the ANZ bank using 103 as security for the loan (“the second ANZ loan” – see mortgage dated 16/9/02.
(Underline in original).
In the second of the two paragraphs numbered 26 in the Points of Claim, the wife pleads:
26.From about 2001, loans that benefitted the [husband] and or his son [Mr G Friar] were obtained and secured against the title to 103 …with the consent of [Ms W Friar].
The wife asserts that the “arrangement” or “understanding”, together with alleged representations and her reliance upon them, found the relief she seeks:
33.In accordance with the abovementioned arrangement or understanding and/or induced by and encouraged by [the husband’s and Ms W Friar’s] representations and in reliance on them the [wife] did not insist on her beneficial interest being recorded on the title to the land, continued living with the [husband] and made direct and indirect contributions towards the acquisition, maintenance and improvement of the land.
In the prayer for relief, a declaration is sought that “… the respondents hold … 102 … on trust for the applicant.” No such declaration is sought in respect of the existing legal interests in 103. Paragraphs 35 and 36 of the pleading which precede it assert, respectively, unconscionable conduct by the “the respondents” and an estoppel in respect of “the land”. The latter expression is not defined or otherwise identified.
The Wife’s Submissions
Concerns about the lack of clarity and precision in the wife’s case can be seen exemplified in aspects of the case as pleaded when compared with the case ultimately argued in final submissions on behalf of the wife. At paragraphs 99 and 100 of the written submissions advanced on the wife’s behalf it is argued:
99.The wife alleges that there was an arrangement or understanding (“common intention”) between herself and the respondents to the effect that she and the husband would be the beneficial owners of the matrimonial home [i.e. 102] and the sister (either by herself or with her partner) would be the beneficial owner of 103. She claims she acted to her detriment on the basis of the common intention and in reliance on representations and encouragement from the respondents to the effect that she had or would have a beneficial interest in the land. She asserts that the respondents have acted unconscionably towards her by insisting on their legal title in order to defeat her promised interest in the land including by mortgaging the land to third parties without her consent and without notifying them of her beneficial interest.
100.Further or in the alternative the wife claims she made contributions to the improvement, acquisition and maintenance of the property of a joint relationship or endeavour which has failed and it would be unconscionable for the respondents to retain the benefits of her contributions. The wife relies on the following “equitable causes of action”,
(i) Common intention constructive trust
(ii) Proprietary estoppel
(iii) Unconscionable retention of benefit.
(Italics added).
At paragraph 108 of those same written submissions it is contended that:
… [A]s early as 1975 when 102 was transferred into the names of the respondents there was a common intention that the wife had or would obtain a beneficial interest in the property and that this can be inferred from the (sic) her contributions to the purchase and improvement of the property during the 5 year period that the 1975 credit union loan was secured against 102. In 1975 the husband told the wife that he had borrowed money from the credit union in order to purchase the property from his parents and that he had borrowed more than [Ms W Friar]. Before the loan was discharged in late 1980 the husband paid mortgage instalments in respect of the loan and the wife made direct and indirect contributions to the purchase and improvement of the property by paying expenses, by caring for the children and carrying out repairs and renovations to the property. However the wife’s name was not recorded on the title to 102 which was registered in the names of the respondents as tenants in common in equal shares. In making the contributions to the purchase price the wife acted to her detriment as she could not be expected to have made such contributions unless she had an interest in the house …
(Italics added. References omitted).
The parts of those submissions highlighted in italics seek to emphasise considerations that will be seen to be important to the wife’s trust claim. They will be referred to in more detail below.
Existing Legal Interests and Their Derivation
The husband and wife were in a relationship for about 35 years (7 March 1981 until 24 September 2004), including a marriage of about 23 years as at the date of final separation. There are two children of the relationship: Mr N Friar (born in 1969) and Mr G Friar (born in 1972). The wife has a child of a previous relationship (Ms K Friar, born in 1967).
The parents became registered as proprietors of 102 in 1958. They remained as the registered proprietors of that property until transactions in 1975. In the meantime, in 1967, Mr Friar Snr became registered, in his sole name, as the proprietor of 103.
The parents were the registered proprietors of, and resided at, 102 for some 11 years until, in 1969, the husband and wife commenced a de facto relationship and commenced residing in 102. (Ms W Friar asserts that the wife was but a regular visitor at this time, sleeping on the couch. I prefer the account of the wife to that of Ms W Friar who, I note, was 12 at this time.)
The legal interests in 102 remained unchanged for 17 years between 1958 and 1975. The parents lived together at 102 during those 17 years sharing with the husband and wife for the last six years.
The parents transferred their legal interests in 102 to the husband and Ms W Friar. That is contended to have occurred in 1976, but reference to documentary evidence would seem to make it clear it was transferred on 31 October 1975. The husband and Ms W Friar each became registered as proprietors of a one-half interest as tenants in common. At about the same time, the parents acquired a property at Town U; they became its registered proprietors as joint tenants. Ms W Friar and the husband borrowed money on the security of 102 to assist their parents in that purchase. In light of the assertion in at least one part of the wife’s case that a joint plan or endeavour came about “as early as 1975”, it might be observed that the transfer presented an opportunity to effect that which the wife asserts was part of the joint plan.
At the time of the transfer of 102, the husband and wife had been residing there for about six years (including with their children). Ms W Friar had moved out some time earlier, but, at about the time of the transfer, Ms W Friar returned to live at 102 as the transfer prefaced changes in residence by each of Ms Friar Snr and Mr Friar Snr. I accept the evidence of Ms W Friar that Ms Friar Snr moved to Town U alone and that the respondents’ great-grandmother (“Ms E Friar”) lived at 103 with Mr Friar Snr, the latter dividing his time between there and Town U.
In early 1979, Ms E Friar died. About eight months later, Mr Friar Snr died. Ms Friar Snr became registered as the sole proprietor of Town U by survivorship from Mr Friar Snr. Mr Friar Snr devised 103 to Ms Friar Snr and his three children (the husband, Ms W Friar and Ms SR) equally as tenants in common. The wife deposes that, upon the death of Mr Friar Snr, Ms W Friar commenced residing in 103 and, as a result, the husband, wife and their children became the sole occupants of 102. In 1984, Ms SR sold her one-quarter interest in 103 to Ms W Friar.
As a result of the devises and transfers just described, by 1984 the legal interests in the relevant real property were held as follows and continued to be so held until 2002:
102:Ms W Friar and husband a half interest as tenants in common.
103:Husband (one-quarter interest); Ms Friar Snr (one-quarter interest); and, Ms W Friar (one-half interest) as tenants in common.
Town U: Ms Friar Snr sole registered proprietor.
In June 2002 Ms Friar Snr transferred her one-quarter interest in 103 to Ms W Friar in exchange, it seems, for a payment of $175,000. The effect of that transaction is that Ms W Friar became the registered proprietor of a three-quarter interest in 103 as tenants in common with the husband who has a one-quarter interest.
In May 2007 Ms Friar Snr died. By the date of her death she had, as referred to above, transferred her interest in 103 to Ms W Friar. However, she retained her interest as sole registered proprietor of the Town U property. That property was left equally to each of the three children (Ms SR, the husband and Ms W Friar). Accordingly, the husband and Ms W Friar each retain a one-third interest in the Town U property.
The husband, at least according to the deposition of Ms W Friar, “…moved to live permanently in [Town F]…with his son, [Mr G Friar], and travelled there on 21 February 2012.” The property at 102 was sold early in 2012 at a price of $1.5 million. From the sale proceeds, $589,743.57 remains in a solicitor’s trust account in the names of the wife, the husband and Ms W Friar. As a result of that sale, many of the orders sought by the wife are otiose.
Statements Alleged by the Wife to be Relevant to the “Trust Claim”
The wife deposes that, “in 1975”, the husband “…said words to the following effect to me”:
My parents will sign over 102…to me and [Ms W Friar]…I have borrowed money from the credit union, I borrowed more than [Ms W Friar].
(Italics in original).[6]
[6] Unless otherwise specified, italics are contained in the original.
Again it might be noted that what the wife there deposes is not consistent with an allegation of a joint plan “as early as 1975” that would see the wife and the husband on the title to 102. Within the same paragraph of her affidavit (at [28]), the wife deposes “[a]fter I got married [the husband] said words to the effect to me”:
I own 102 with [Ms W Friar].
I got a loan and borrowed more than [Ms W Friar].
However, that statement occurred some six years after the statement quoted in [38] (the parties married in 1981). Neither statement does any more, relevantly, than, respectively, indicate (accurately) what was going to occur and what did occur. No statement on either date pertaining to 103 is there deposed to.
The wife deposes to a number of other statements, predominantly but not exclusively made by Ms W Friar after the statements by the husband quoted at [38] and [39] above. As will be seen, particularisation of the dates and times of those statements is absent save for them being posited within a period of years or in a particular year. As will also be seen, the quoted statement by the husband is one of the few attributed to him and those that resonate with a determination to not recognise any interest by the wife in the property.
The wife attributes a statement to “[Ms Friar Snr] and [Ms W Friar]” and says it occurred “[a]fter [Mr Friar Snr] died…”. His death occurred in 1979, but the wife asserts that she did not become aware of that until 1981. She says that Ms Friar Snr and Ms W Friar “…said words to the following effect to [her]” (at [33] of her affidavit):
[Ms Friar Snr]: “The four of us are on the deed to 103”.
[Ms W Friar]: “[Ms SR] wanted to sell. She wanted the money.”
The wife goes on to depose in the same paragraph that:
I knew that 103 had been left to [Ms Friar Snr] and her children and about [Ms SR] selling her share to [Ms W Friar]. However, I did not know about the loan from the Westpac Bank.
The wife deposes to a discussion between she and the husband of a proposal to buy a property at Town J when it came up for sale in 1985 so as to allow the husband to pursue an interest in racing. She alleges (at [34] of her affidavit) that the husband said:
I spoke to [Ms W Friar] and asked her to sell her place at 103 and together with our place at 102 we would have money to buy [Town J].
[Ms W Friar] would do it but she won’t because of [the attitude of Ms W Friar’s de facto partner].
The wife deposes (at [35]) to the husband “…refer[ring] to 102…as being ‘our house’ when we were with other people” but also deposes that, “…on a number of occasions…” after she had won about $70,000 on a poker machine in 1989, she said “…words to the following effect…”:
[The wife]: “Can I put my name on the deeds to the house”.
[The husband]: “No, why?”
In paragraph 36 of her affidavit of evidence-in-chief, the wife deposes that, on an occasion that she does not particularise even by reference to a year, “…[Ms W Friar]… said words to the following effect to me…”:
If anything ever happened to [the husband], you don’t need to worry because everyone knows that the house is yours.
In that same paragraph, the wife deposes to Ms W Friar and her having “…many conversations about 102…”, again without particularising any specific occasion or occasions including as to any year. She says that the conversations used words to the following effect:
[The wife]: “I want to sell 102 and move”.
[Ms W Friar]: “Why don’t you wait. It would be worth more in years to come”.
[The wife]: “I want to sell”.
[Ms W Friar]: “Wait a few years. It is an asset”.
[The wife]: “What about the house? Your name is on the deed”.
[Ms W Friar]: “102 will be yours and 103 will be mine”.
[The wife]:“What if anything happens to [the husband]. Your name is on the house”.
[Ms W Friar]: “Naturally it will be yours. I got 103. [The husband] always said 102 was his house”.
[The wife]:“102 is ours and 103 is yours”.
[Ms W Friar]: “Whatever”.
In the succeeding paragraph of her affidavit, the wife deposes to an occasion at which her now deceased sister was present. The date and time are not particularised, but she says it occurred at a hotel in Suburb B. She says that her sister said “[w]hy doesn’t [the wife] have her name on the deed to the house?” She attributes Ms W Friar as saying “[d]on’t worry about that, she doesn’t need to because it’s her home anyway and it’s [the husband’s] home and the kid’s home.” In the subsequent paragraph of her affidavit she deposes to a conversation to similar effect. Again it is not particularised as to time, nor, on this occasion, place. It is said that the conversation occurred “often”. The substance of the conversation is said to be:
[Wife’s sister]: “Why isn’t [the wife’s] name on the deed?”
[Ms W Friar] would always reply words to the effect of: “Everything will be alright”. [The husband] would always tell [the wife’s sister] to “mind your own fucking business”.
In the early 2000s, the wife had separated from the husband and was living at Suburb L. She deposes that after about four months, she returned to live with the husband but did so after a conversation occurred which, she deposes (at [45] of her affidavit) was as follows:
“I will come back and live with you but on condition that we either sell the house (referring to 102) or we renovate it”. [The husband] replied: “Ok we will look at some places, yes”.
That conversation (although, again, not particularised as to date, time or place) would seem, by reference to the broader context of what is deposed to in the affidavit, to have occurred in 2002. The wife deposes that she and Ms W Friar “…used to talk outside her place and my place…” and:
…in about 2002 we said words to the following effect:
[Ms W Friar]: “We have to do something about the money [Ms T] left mum. We have to put it somewhere because it will affect mum’s pension. [Ms SR] also wants her share of the money.”
[The wife]:“[Ms Friar Snr’s] not dead yet”.
At [46] of her affidavit, the wife deposes that, in 2002, “[d]uring the week that I moved back into 102…” she was standing at the front of that house when a conversation “…over the fence…” occurred with Ms W Friar. The wife says that words to the following effect were used:
[The wife]:“I have talked to [the husband] and told him that I want to sell the house”.
[Ms W Friar]: “But it’s an asset [the wife’s name]. Why do you want to sell it?”
[The wife]:“I can’t stand living here any longer”.
Also at that time Ms Friar Snr’s sister (Ms T) died and, it seems, a sum of about $165,000 was left to Ms Friar Snr as a result. Conversations are deposed to in respect of this event by the wife. Again, the date and occasion upon which the conversations occurred are not deposed to. A conversation (occurring inferentially in 2002), is deposed to as follows (at [40]):
[The husband]: “[Ms T] left mum $165,000. We will have to put the money somewhere so that it will not interfere with the pension when she goes into the home”.
Borrowings and Conversations about Borrowings
The wife pleads (Points of Claim, [16], [17] and [18]) – and it seems uncontroversial – that, after Mr Friar Snr’s death, 102 was unencumbered. The timeframe and the fact that the property was mortgage-free at that time have ramifications for the claim by the wife both as to the claimed equitable interest and to her claim in respect of the responsibility for current liabilities.
The borrowings the subject of [26] of the pleading earlier quoted (deposed to at [50] of the wife’s affidavit) are asserted to have been used so that “…[Ms W Friar] and [her de facto] could buy a business…”
Separate borrowings, all apparently secured against 102, are deposed to by the wife. (It seems plain that the reference in the second [26] of the pleading to “103” is an error and ought in fact be a reference to “102”). These loans, all secured against (it is assumed) 102, were for the benefit of the parties’ son Mr G Friar. Given the wife’s case in respect of responsibility for the current liabilities, it is I think important, to quote her affidavit evidence on this issue at some length. The wife deposes:
44.I first learnt that money had been borrowed for [Mr G Friar] in about 2002 when I was living [independently of 102 and marriage] …
…
47.In 2002, I had returned from [Suburb L] to live at 102. [The husband], [Mr G Friar] and myself and a man whom I understood to be the owner of the restaurant that [Mr G Friar] wanted to buy were at 102. Words to the following effect were said:-
[The husband] to [Mr G Friar]: “Whether you get the loan is up to your mother”.
[The wife]:“I want to see the books and receipts of how much the restaurant is bringing in before I make a decision”. “I want to see more proof”.
[Mr G Friar]: “Yes, Yes, I’ll give them to you”. [“]I’ll have a solicitor come and look at it”.
48.The meeting ended with nothing being decided and Mr G Friar leaving 102 in a huff. However, Mr G Friar went behind my back. Without telling me he asked Ms W Friar to sign for the loan. About the next day Ms W Friar sent one of her daughters over to tell [the husband] that the loan person was over at her place to sign papers for the loan. Ms W Friar’s daughter came over to 102 and said words to the following effect:
“Mum said to tell [the husband] that the loan person is here to sign the papers”.
“[Ms W Friar] is signing papers for the loan”.
49.I went over to [Ms W Friar’s] and words to the following words (sic) were said: -
[The wife] (to [Ms W Friar]):“Do you know what you’re doing?” “Why are you signing for the loan?”
[Ms W Friar]: “[The husband] has signed for my loan so I am doing the same for him”.
…
52.[The husband] and I argued a lot about [Mr G Friar’s] restaurant and words to the following effect were said:-
[The wife]:“I don’t trust [Mr G Friar]. There’s something going on. Why so much money for the restaurant?”
[The husband] was going up to the club saying words to the following effect:-
[The husband]: “I am a partner in the restaurant”.
[The wife]: “You are not a partner”.
[The husband]: “Mind your own business. You are nothing but a Lowes dummy” (Meaning Lowes being a cheap shop, indicating that I was cheap and dumb)
[The husband] did not want to hear a word against [Mr G Friar]. He thought [Mr G Friar] did no wrong because he was a [sportsman].
A Recognised Category of Equitable Relief?
I accept the evidence of the wife as to a range of direct and indirect contributions made by her to the marriage and, specifically to 102. Those contributions give rise to an unease as to whether justice or fairness attends the wife’s position when compared to the existing legal interests. Yet, “…idiosyncratic notions of fairness…” do not provide a basis for the construction of a trust interest or other equitable intervention (Muschinski v Dodds (1985) 160 CLR 583 at 615 per Deane J and Baumgartner v Baumgartner (1987) 164 CLR 137 at 148 per Mason CJ, Wilson and Deane JJ). Rather, it is necessary for the wife to prove, through admissible evidence, that a recognised category of equitable relief is established.
A cautionary note in respect of what equity requires – important in my view, in the circumstances of this case – is sounded by Macrossan CJ in Turner v Dunne [1996] QCA 272:
While it is true that “general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct” (Baumgartner at 148), “unconscionability” is not a description automatically attracted whenever there is detected by a judge some departure from what he sees as a broad principle of fairness: cf the dismissive reference to “idiosyncratic notions of what is just and fair” in Baumgartner (supra) at 148. If it were otherwise, it might have to be concluded that ordinary categories of legal ownership could be not much more than provisional in all domestic relationships … The relevant unconscionability which has been referred to must always be found as a basis for the Court’s intervention if the parties’ separate legal titles are to be modified.
In Waterhouse v Power [2003] QCA 155, Williams JA held (at [23]):
In the passage from Muschinski at 620 quoted in Baumgartner at 148 the principle is said to operate “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 specifically provided that the other party should so enjoy it.” That clearly suggests that though the court may impose a constructive trust regardless of the actual intention of the parties, the intention of the parties is not an irrelevant consideration. On my reading of the passages in Muschinski and Baumgartner referred to, the court should, in the first instance, consider the position in law and equity given the actual intention of the parties. The conclusion so derived may then be set aside to the extent that enforcing ownership of the property in that way “would be contrary to equitable principle.” That must mean that the position as to ownership reached by considering the relevant conduct, including the agreement between the parties, was a result evidencing “unconscionable conduct” according to general principles of equity …
If existing legal title is to be displaced by reference to a recognised class of equitable relief based on the unconscionable retention of benefit resulting from the failure of a common intention or joint endeavour, what must first be established is that there was, indeed, a commonality of intention or joint endeavour between those holding the existing benefit and the claiming party who does not. Here, as the written submissions on behalf of the wife spell out, the relevant commonality or intention or joint endeavour is to be inferred from the evidence as a whole. (See [108] of the written submissions quoted above).
Although by no means articulated with precision, it seems the wife also contends that the statements earlier set out can and should be used to not only infer the requisite commonality of intention or joint purpose, but also to found an alternative claim based on those statements.
Plainly, equity can intervene where there is an unconscionable retention of benefit by reason of a person relying on another’s statements to their detriment. Where a person has conducted themselves such that it would be inequitable or unconscionable to deny to another a beneficial interest in the land acquired, a trust may be construed so as to prevent inequity.
At the centre of the remedy is a consideration of the inducement created by one in the other and the other’s acting to his or her detriment in reliance upon the inducement. Importantly, if an equitable interest in land is to be construed, the expectation created is the receipt of a beneficial interest in the property and it must be unconscionable to deny that interest. The High Court said in Giumelli v Giumelli (1999) 196 CLR 101 at 112:
In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of very active steps by the defendant.
Earlier, Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429 set out the elements of this form of estoppel:
1.[T]he plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
2.[T]he defendant has induced the plaintiff to adopt that assumption or expectation;
3.[T]he plaintiff acts or abstains from acting in reliance on the assumption or expectation;
4. [T]he defendant knew or intended him to do so;
5.[T]he plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
6.[T]he defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs…
It is important to note in the context of this aspect of the wife’s claim, that the representations relied upon to found such a claim must be “clear” and “unequivocal” or “unambiguous”; a statement phrased tentatively or in a non-committal manner will be unlikely to constitute a representation sufficient for the purposes of establishing an estoppel (see, for example, Legione v Hateley (1983) 152 CLR 406 and Mobil Oil Australia Ltd v Wellcome International Pty Ltd & Ors (1998) 81 FCR 475 at 513-516).
Furthermore, the relevant detriment must be occasioned by a reliance on a promise and “…does not consist in a loss attributable merely to non-fulfilment of the promise” (see, Commonwealth v Verwayen (1990) 170 CLR 394 at 429, per Brennan J). Also, in the context of the allegations made in this case, it is important to observe what is required for the relevant unconscionability to be established on the part of the husband and Ms W Friar. In Verwayen Brennan J held (at 445):
Ultimately … the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick, but by reference to all of the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain acting upon the assumption if departure from the assumed state of affairs were permitted.
Again, the importance of there being a discernible connection between the creation of a specific expectation by reasonable reliance upon what was said or done is to be contrasted with an assessment that an existing state of affairs ought be remedied because an idiosyncratic assessment judges it to be “not fair”.
Discussion and Findings – The Trust Claim
A Joint Plan or Endeavour or an “Arrangement or Understanding?
If the requisite unconscionability is to be established, a starting point, relevant to this aspect of the wife’s claim, is the establishment of contributions to a joint plan or endeavour (as distinct from, for example, contributions made to, and because of, the marriage). Importantly, the relevant intention or joint endeavour must be common to the husband and wife and those who had the authority to create the expectation, namely the holders of the relevant legal title(s).
Anomalies exist in respect of the wife’s claim as pleaded and argued.
As submitted, a common intention is said to exist from “…as early as 1975…” and the “arrangement or understanding” at that time is said to found the ultimate representation. Yet, as pleaded precisely the same “…arrangement or understanding…” is said to have been “entered into” “[a]fter the death of [Mr Friar Snr]”. (Pleaded at [23] of the Points of Claim, quoted above). Mr Friar Snr died in 1979. I cannot see how the two contentions can, without more, sit together.
Leaving aside that issue, the earlier of the two “arrangements or understandings” is said to arise “as early as 1975 when 102 was transferred into the names of the respondents…” The pleading alleges this occurred in 1976; the documentary evidence reveals it occurred on 31 October 1975. The latter (i.e. pleaded) arrangement is said to arise about four years after the transfer of the property. The time of crystallisation of the joint endeavour alleged to arise in 1975 is not otherwise particularised. Moreover, as earlier observed, if the joint plan or endeavour existed at that time, the failure to record the husband and the wife on the title to 102 when a transfer of it was effected, remains unexplained.
In respect of the “1975 arrangement”, it is not pleaded who the parties to that arrangement or understanding were nor does the evidence (or submissions) illuminate that issue. Similarly, neither the pleading nor the evidence or submissions illuminate how and in what manner the asserted arrangement or understanding arose and when it crystallised. The same is equally true of the “post-death arrangement or understanding”.
This is important. If the wife is to establish her case, there must be a demarcation between, on the one hand, such contributions as she made, and actions she took, in the period between 1969 and either 1975 or 1979 and, on the other hand, those which are asserted to have been made or undertaken in pursuit of the joint plan or undertaking.
Those issues are also important because relief of the type sought by the wife must be related to a joint plan or intention which is identifiable; that is, its content and shape must be clear. Relevantly, if the wife’s claim on this basis is to be sustained, it is because the Court is persuaded to the required degree of satisfaction of a plan or endeavour whose nature and scope was to facilitate ownership of 102 to her and the husband and the ownership of 103 to Ms W Friar and her partner. In that respect, it might be observed that an “arrangement or understanding” pertaining to 103 must take account of the fact that the husband holds a one-quarter legal interest in that property. Yet, no declaration is asserted as to any equitable interest in 103 affecting the husband’s legal interest.
The submission contained at [108] earlier quoted recognises that the common intention or joint plan or endeavour must be inferred. I consider that no such inference is open. Indeed, much of the evidence points against it, including the wife’s own evidence. The pleas of the wife (and her sister) about being placed on the title does not point to a joint plan or endeavour; it points to the wife being aware that her interests were not protected by reference to any existing legal interests in the property.
Contrary to the inference sought to be drawn, I consider that the transactions engaged in by the family were conducted in a manner redolent of little regard being paid to the interests of those outside of the immediate family. Indeed, I consider that the evidence is redolent of a pervasive disrespect for the wife and a disregard of her interests. That is true, as a general proposition, of dealings instigated by Mr Friar Snr and /or Ms Friar Snr and I consider it is also true of each of the husband and Ms W Friar and of them jointly.
I cannot see that there is any evidence at all to suggest that the transfer of 102 from the mother and father to the husband and Ms W Friar was part of any plan or joint endeavour involving the wife. Indeed, all of the evidence is to the contrary; by a series of transactions including borrowings, the parents were permitted to retain a property in which Mr Friar Snr and Ms E Friar could reside, Ms Friar Snr could also reside (often separately from Mr Friar Snr) and by which two of their children could live. The evidence is redolent of intra-familial planning and/or financial arrangements from which the wife was excluded.
There is no evidence that the wife was party to any conversation about the transactions prior to or at the time of their occurrence. She was not involved in any financial planning or any financial transactions themselves. No conversations or representations are alleged by her before or proximate to any transfers, or planning for any transfers, from which it might be held or inferred that there was any interest which might accrue to the wife (or indeed any involvement by her). Indeed, to the contrary; to the extent that there was any common intention or joint plan or endeavour, the evidence is redolent of a plan or joint endeavour which included only the family members and not those not connected by blood.
A telling piece of evidence comes from the wife herself. She deposes that on more than one occasion she requested that she be granted a legal interest in 102 and, on each occasion, the husband said “no”. Not only did he say “no”, however, but according to the wife, he answered “No, why?” That seems to me to be the answer of someone who not only did not include the wife in any plan but could see no reason why she would be, or should be on the title. Indeed, the wife’s evidence is that when the topic was raised with the husband by her sister she was told to “mind your own fucking business” (see, the conversation quoted at [48] of these Reasons).
Statements, Representations and Reliance?
Reference has earlier been made to what has been said by the High Court which pertains to the apparently alternative claim made by the wife.
The question which must be asked initially here is: what statements were made indicative of (or which might be construed as) a representation that the wife would obtain an interest in 102 (or, perhaps, 103) upon which she relied to her detriment and which equity would now redress by the creation of an equitable interest?
It is in that context, that the earlier references to imprecision in the pleading and, later, the articulation of the wife’s claim, again become particularly important.
Reference to [33] of the Points of Claim earlier quoted reveals that the wife claims that she was “…induced by and encouraged by…” what are pleaded as “the respondents (sic) representations...” She also pleads in the same paragraph that she “…continued [to live] with the [husband] and [to make] direct and indirect contributions towards the acquisition, maintenance and improvement of the land” in reliance upon those representations and “…did not insist on her beneficial interest being recorded on the title to the land…”
Some initial observations can immediately be made:
§ The pleading that the wife “…did not insist…” on her beneficial interest “…being recorded…” is plainly contrary to the wife’s own evidence. She swears that she did insist, and on multiple occasions. Her alleged interest was not recorded – as she herself swears – because the husband refused to do so and, implicitly, refused to recognise any such interest;
§ As earlier mentioned, the expression “the land” is not otherwise used or defined elsewhere in the pleading. It is an issue that has some potential significance by reason of the manner in which the case is pleaded and by reference to the point earlier made that no declaration is sought in respect of the husband’s legal interest in 103, despite the nature of the relief otherwise claimed;
§ The majority of the statements upon which the wife relies emanate from Ms W Friar. Ms W Friar and the husband both have legal interests in 102. Nothing in the pleading contends that Ms W Friar had the authority to, nor was purporting to have the authority to, make statements on behalf of the husband;
§ A pleaded representation (at [24] of the Points of Claim) emanates from Ms Friar Snr at a time long after she had relinquished any legal or equitable interest in 102. The statements of someone who had no legal interest in property about what the legal owners of property should or might do does not assist the wife. Moreover, of course, Ms Friar Snr’s statement as recorded by the wife does not involve Ms W Friar in any way, yet no sale of 102 could take place without the concurrence of Ms W Friar.
No statements deposed to by the wife contain any direct representation as to future conduct by the legal owners indicative of the wife obtaining a future interest in 102 (or 103). Indeed, many statements deposed to by the wife are irrelevant to any such assertion. Examples include the (factually correct) statements by the husband and Ms W Friar as to current and prospective actions and circumstances (see [38] and [39] of these Reasons) or statements that are not at all in the nature of representations connected to the wife obtaining an interest (see, the conversations at [49], [50] and [52] of these Reasons).
So, too, many of the alleged statements face the difficulty earlier referred to: there is no evidence that Ms W Friar had authority to bind the husband, or him her, and nor is there evidence that statements made by one were made with the knowledge of the other or could be inferred to be so. An example can be seen at [49] of these Reasons – if as the wife alleges, it can be inferred that the husband was interested in selling, there is nothing to suggest his co-owner would agree.
Leaving aside these considerable difficulties, no specific representation clearly indicative of the wife obtaining an equitable interest in 102 (or 103) is, in any event, pleaded or deposed to. Indeed, it seems to be accepted in the submissions made on behalf of the wife that the relevant representation should be inferred from either individual statements or their totality. As a general proposition, “the representations upon which [promissory estoppel] is founded must be clear and unambiguous” (Galaxidis v Galaxidis [2004] NSWCA 111 at [84], per Tobias AJ. See, also, Legione at 435 – 436). Some amelioration of what might otherwise be a strict interpretation of such a requirement can be seen in the suggestion that the context in which statements are made can be relevant and that clarity and lack of ambiguity may be present “… if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely” (Galaxidis at [93]).
Here, even allowing for the less formal context of intra-familial discussions and transactions, and even allowing for the fact that the requisite representation(s) may be discerned from a series of statements (see, Galaxidas at [95]), I cannot discern a promise identified by the wife to which she can attach the ultimate representation for which she contends.
In a similar vein, I cannot discern a promise upon which the wife can be said to rely in the requisite sense. The significant contributions which the wife asserts she made to the acquisition, conservation and improvement to the property are central to her claim pursuant to s 79 of the Act. I cannot discern any evidence persuasive of contributions which the wife made in reliance upon what she says is the central representation which were not otherwise being made to the marriage and, in particular, to creating a home for the children.
The “high-water mark” for the wife’s case arises from the conversations deposed to in which it is contended that Ms W Friar refers to 102 being an “asset” and the like (see, for example, the conversations quoted at [47] and [51] of these Reasons) and, in particular the alleged statements that “everyone knows that the house is yours” (see [46] of these Reasons) and “102 will be yours and 103 will be mine” (see [47]). I do not consider that sufficient precision or clarity attaches to these statements such that it can be contended that the wife acted by reference to them. Indeed, as an example of the difficulty in finding to the contrary, it will be seen that the latter of those alleged statements is followed by Ms W Friar allegedly saying that “[the husband] always said 102 was his house” (emphasis added). That statement also highlights the issue raised earlier about the absence of evidence as to the authority which Ms W Friar had to speak for both holders of the relevant legal title.
Finally, I do not consider that the conversations deposed to by the wife relating to borrowings assists her in establishing the interest contended for. They occurred many years after contributions were allegedly made relying upon representations. Indeed, I think they point against the interest contended for: when push came to shove, Mr G Friar approached the legal owners of the property whose authorisation and consent would be needed to secure the loan. The wife was not a legal owner.
Conclusion as to The Wife’s Trust Claim
The wife has not established her claim to equitable relief and to that extent her application should be dismissed.
The Claim to Section 79 Relief
I am profoundly conscious of, and embarrassed by, the delay in the delivery of these Reasons. I could offer the parties reasons – as distinct from excuses. I am aware, however, that however much I might consider the reasons valid, they are of cold comfort to the parties who have had to wait for these Reasons.
I was strongly desirous of giving a final decision in this case without further raising a matter foreshadowed with counsel for the wife when taking oral submissions. I remarked then that, understandably perhaps, each of the initial written submissions and the written submissions in reply on behalf of the wife focussed exclusively on the issues relevant to what I have called “the wife’s trust claim”. While reference was made in the wife’s written submissions to Kennon & Kennon (1997) FLC 92-757, there were no submissions made in respect of any of the issues which this Court must consider by reference to s 79.
Senior Counsel for Ms W Friar helpfully sought to deal with that issue by referring to some matters that might pertain to the “s 79 issues” despite the fact that some, at least, may not directly affect his client. Despite foreshadowing further directions to allow counsel for the wife to, as it were, address the lacuna in what had been put before the Court, I was hopeful that, by reading and re-reading the transcript and re-reading the affidavit evidence relied upon, I would be able to pull together for myself, and in Reasons address, all of the issues which s 79 demands be addressed.
That hope was based, obviously enough, in attempting to save the parties money and inconvenience in needing to address those matters. Despite these best intentions, I have unfortunately come to the decision that there remain lacunae in respect of what s 79 requires; a position exacerbated by the decision of the High Court in Stanford v Stanford (2012) 293 ALR 70 which was handed down late last year.
As it is the applicant who seeks to establish s 79 relief, the absence of evidence and submissions from her directly relevant to the questions required by s 79 causes me grave concerns as to whether I can do justice as between the parties without the further directions to which I alluded at the time. The parties should have the opportunity to address that which the section requires:
§ In light of the decision in respect of “the wife’s trust claim” what does the evidence before the Court reveal as the existing legal and equitable interests of the parties and how did they derive;
§ Should the Court exercise the discretion contained within s 79(2) of the Act and why by reference to the circumstances of this particular marriage and the “… express and implicit assumptions that underpinned the existing property arrangements that have been brought to an end by the voluntary severance of the mutuality of the marriage relationship” (Stanford at [42]);
§ If so, what is the evidence about the matters required to be considered pursuant to s 79(4) and what submissions are made in relation thereto;
§ What is the evidence about the matters required to be considered pursuant to s 79(4)(e) – i.e. the so-called “s 75(2) factors”;
§ What orders reflect justice and equity by reference to the result arrived at by reference to the matters which s 79(4) requires to be taken into account.
No specific submissions were made by the wife in respect of what might be seen as an important issue relevant to the s 79 claim, namely the treatment of the liabilities of the parties and, in particular, the issue of the loan secured against property used to finance the unsuccessful business activities of the parties’ son, Mr G Friar. Written submissions on behalf of Ms W Friar consider that issue, but it may be that they require further consideration in light of the decision in Stanford.
Bearing all of those matters in mind, I consider that justice requires the parties to be further heard consequent upon the delivery of these Reasons. I make it clear that I will make orders the effect of which will be that the wife’s “trust claim” be dismissed for the reasons earlier given, but will make directions in respect of the parties being further heard as to the matters I have just raised. I will give the parties the opportunity to agree to those directions guided by what I have said in these Reasons. Again, the intention is to reduce cost and inconvenience. I am aware the parties have not had the opportunity to be heard in respect of those directions and I will provide, therefore, a mechanism for that to occur should agreement not be possible.
I will order accordingly.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 March 2013.
Associate:
Date: 1 March 2013
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