Gazzola & Anor v Gazzola

[1989] HCATrans 190

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al9 of 1989

B e t w e e n -

GINO GAZZOLA and VERONICA

GAZZOLA

Applicants

and

GINESTA GAZZOLA and ROMANO

SEBASTIANO GAZZOLA and NIVES

GAZZOLA

Respondents

Application for special
leave to appeal

MASON CJ DAWSON J GAUDRON J

Gazzola

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 12.52 PM

Copyright in the High Court of Australia

AlT8/l/JH 1 23/8/89

MR R.W. EVANS: If the Court pleases, I appear with my

learned friend, MR G.D. EDMONDS-WILSON, for

the applicants. (instructed by Baker O'Loughlin)

MR B.T. LANDER, QC:  May it please the Court, I appear with

my learned friend, MR S.J. LIPMAN, for the

respondents. (instructed by Thomson Simmons & Co)

MASON CJ: Yes, Mr Evans.

MR EVANS:  If the Court pleases, I have prepared an outline

of my submission which I trust will be of some

assistance to Your Honours and wish to hand that up.

MASON CJ:	Thank you.
MR EVANS:	It is our submission that this application offers

an extended set of facts in the interests of the

further development of the doctrine of the

constructive trust. And, it is of interest that

this was the first occasion where a court has
declined to impose a~constructive trust by reason

of the conduct of the non-legal party, the non-legal

owner, compared with the conduct of the legal owner.

The equities arose, in our submission, out of the relationship and conduct of the parties. It is

our case that the starting point should have been

the assessment of the conduct of the legal owner, that is the first respondent, rather than the approach that the lower courts took which was to embark on an

assessment of the conduct of the non-legal owner, that

is the first applicant.

GAUDRON J: 

Now, could I ask this? Are you saying that in

the context of a constructive trust based on common
intention?

MR EVANS: 

And also in the wider context, if Your Honour

pleases.	The effect of the courts' decision, both
the primary judge and on appeal, was that on an

examination of the conduct of the non-legal owner,

the first applicant, the result of that precluded the imposition of a constructive trus~ whether by

reason - - -

GAUDRON J:  Or the enforcement.

MR EVANS:  - - - or the enforcement, by reason of the

unconscionable conduct in seeking to assert one side

of a bargain without accepting the responsibility

to fulfil his obligations. That was the ratio of the case at first instance and that was upheld on appeal. What, in our submissiot\ is unusual in the approach

that the lower courts took in the event and

inconsistent with the approaches of the judges in

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other cases on similar facts is that the conduct

of the non-legal owner was quarantine

and the court did not proceed at any time to

seriously evaluate the conduct of the legal owner,
the first respondent, the mother. It is our

submission that the equities here depend on the

relationship and also on the conduct or, if you like,

the juxtaposition of the conduct of the parties

who are in that relationship and merely an

examination of the non-legal owner's conduct gets

the matters off on the wrong foot because
theoretically the unconscionable conduct of the

legal owner may transcend any blame on the part of

the non-legal owner. But, it is a relative

evaluation of the respective conduct of the parties

that may give rise to a constructive trust both in

relation to a common intention but, more particularly,

in relation to the wider aspects of the constructive

trust in terms of restitution. The remedies, of

course, are different as to whether the party setting

out the beneficial interest is to be no more than

compensated by way 0£ restitution in terms of his

contributions both of money and labour or whether he

is entitled to have his bargain fulfilled. And, in

our submission, they are two distinct and separate

considerations, that what might be unconscionable

conduct in the context of enforcing a bargain

pursuant to a common intention may not be

unconscionable conduct in the context of seeking

restitution - not enforcing a bargain but merely

seeking restitution - in terms of reimbursement

relative to one's efforts of introduction of capital

and offering one's labour.

In other words, it is our submission, that the Full Court only made half a meal of the facts.

GAUDRON J:  Well, is there, however, perhaps a problem about

the facts, although it may be that I am reading

something into your draft grounds of appeal that you

do not wish me to.	Do you rely, or do you assert
that the relevant conduct consisted only of the

mother, if I can call her that - refer to the party

in that way - asserting her legal right? Is that

the only conduct that you say amounts to

unconscionable conduct?

MR EVANS:  That is so, if Your Honour pleases, and with

respect, that is the talisman in this type of case;

that is the time-honoured conduct.

GAUDRON J:  Yes, so that is to be read into your ground 2(f)

is it, in your draft grounds of appeal? '

MR EVANS:  Yes, that is so. We put it in two ways; firstly,

that having regard to everything that we know in

relation to the common intention in the sense that

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Gino, if I can refer to the first applicant in that

way, worked for 20 years. Admittedly, there was

a premature failure of the relationship on the

findings of the lower court~ the relationship was

to go until death, until the last of the surviving

parents die~ but he had progressed in that

relationship for 20 years or so and it is our

primary submission that having regard to the level

of his contributions, both of money and labour,

that it was unconscionable for the mother, Ginesta,

to deny that he had any beneficial interest.

GAUDRON J:  And, did the facts disclose when she asserted

the legal title?

MR EVANS:  Certainly, at the time of the dissolution of

partnership, which was in 1984.

GAUDRON J:	Not prior to it?
MR EVANS:	There was some other evidence that in 1980 she

changed her will and-at that time there was a
conversation between her and the applicant, Gino,

in relation to her decision to change her will and

she asserted then that she did not regard that her

legal interests were in any way restricted by any

beneficial interests that Gino or, for that matter,

the other son, Ray, may or may not have acquired.

MASON CJ: 

Was that prior to the plaintiff taking steps to dissolve the partnership?

MR EVANS: 

Yes, steps were not taken until that year, 1984.

MASON CJ: 

Yes, and was there any finding by the trial judge

as to what motivated the move to dissolve the
partnership?

MR EVANS: 

Yes, I can refer Your Honours to that passage

at page 57 of the application book at about line 27.

There are several references to what might have

motivated the applicant in dissolving the

partnership and I pause to say that the partnership

was dissolved accord~ng to its terms on notice.

But, at the bottom of that page, the learned

trial judge says:

What can, I think, be said with complete

and utter confidence is that, given the

character of the personalities involved in
the partnership, their incapacity for

objectivity, their lack of skill in

compromise and negotiation, by August or

September 1984, they were at a point where it

was quite impossible for Gino/Veronica to

work together with Mrs Gazzola and/or Ray

and/or Nives -

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who is the daughter. And, we say that that factual

situation is very similar to the cases of

MUSCHINSKI V DODDS and BAUMGARTNER V BAUMGARTNER

which, of course, were both de facto

relationships. The decisions in those cases

turned on the principle espoused initially in

MUSCHINSKI V DODDS by His Honour Justice Deane and,

with rP.soect, I think, Your Honour the Chief Justice

concurred .that where there was a break down

or an early collapse of a joint relationship and

there was a rider without attributable blame, then

their equity is established and that the legal

owner who just fortutitously happened to be in

legal ownership at the time of the premature

collapse held his or her interests as trustee to the

extent of the other party's contributions.

So, we say that we have a two-pronged

submission; firstly, because Gino had effectively

discharged his obligations pursuant to the

corrnnon intention it was unconscionable for Ginesta

to insist on forfei~ure on the principle of the

case of STERN V McARTHUR. And, we have the further

submission that looking at equities at large

the conduct was unconscionable in the face of

Gino's contributions.

MASON CJ:  Mr Evans, it may be convenient to adjourn now.

We will resume at 2.00 prn.

AT 1.06 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

MASON CJ:  Yes, Mr Evans.

MR EVANS:  If the Court pleases, I was developing the

submission that the lower courts only considered

equities arising under the corrnnon intention as

found. It is our contention that corrnnon

intention or no corrnnon intention, wherever there is

a premature collapse of a relationship such as

this which leaves one party the legal owner of

property which was jointly contributed, a

constructive trust will arise to the extent that

that party is unjustly enriched; or, in another way,

still on the principles of restitution, where that

other party has unconscionably retained a legal

interest. That takes me to paragraphs 4 and 5 of

the outline of the submissions.

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MASON CJ:  Mr Evans, could I ask you a question about the

ground of appeal (i) set out on page 130, I

think it is, of the application book. That

ground of appeal does not raise any of the

questions of law to which you have referred in

your outline of submissions and it depends, does

it not, on inferences drawn from the facts?

MR EVANS:  That is so. The grounds of appeal cover all

the issues that, on our understanding, arise out

of the decisions.

MASON CJ:	Yes, well, normally the Court would not grant special leave to appeal in relation to a ground
such as (i).
MR EVANS:	No, perhaps I can explain to Your Honour that I

am focusing my submissions in relation to this

application on those matters that would attract the

general interest of - - -

MASON CJ: Yes, well, I think we ought to approach it on

the footing that if you were to obtain special

leave, ground (i) would be excluded from the grant.

MR EVANS:	Yes.
MASON CJ:	Now, could I ask you also about ground (g).

Was a case based on estoppel put to the trial

judge?

MR EVANS:	Yes,and also on appeal, if the Court pleases~ both at first instance and on appeal estoppel
was canvassed and, indeed, that was the
alternative limb of the applicant's case.
MASON CJ:	Now, the difficulty about that seems to be that, as I read the judgments, there do not appear to be appropriate specific findings in relation to
estoppel.

MR EVANS:  Well, the primary judge came to the view that the

same conduct which gave rise to a common intention

was relevant to the question of estoppel but, again,

in a pre-emptive way dismissed that claim because

of the perceived conduct of the male applicant. issues of estoppel.

MASON CJ:  Well, that is the difficulty in the way of this

Court treating the case as a suitable vehicle for

discussing questions of estoppel so that you may be

faced with difficulty in relation to ground (g) and,

I suppose, in relation to the argument~

proprietary estoppe~ which is set out in

paragraph 7 of your outline.

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Gazzola

MR EVANS:  Yes, well, in our submission, proprietary

estoppel depends on the same principles as the
constructive trust; in other words, once there is
unconscionability or an unjust enrichmen½ that

bears on proprietary estoppel which is a

restitutionary aid rather than the fulfilment

of a bargain.

MASON CJ:  Yes. Mr Evans, it may be more profitable if,

at this stage, we call on the respondent,

Mr Lander, to hear his case for not granting special

leave.

MR EVANS:	If Your Honour pleases.
MASON CJ:	Yes, Mr Lander?

MR LANDER:  May it please the Court. The first point that

my learned friend made this morning was that there

had been no assessment by the trial judge or by

the Full Court of the legal owner's conduct. That

is simply not so. I.f I could take Your Honours to

the appeal book at page 63, His Honour the trial

judge there sets out the various pleadings,

particularly . the statement of claim. At the

bottom of page 63, he sets out paragraph 24 which

was relied on by the applicants as being the

unconscionable conduct on the part of the mother.

His Honour discusses paragraph 24 at page 66 and

at line 12 finds:

For reasons that I have already given, I am clearly of

the opinion that ne~ther the defendants as a whole or

any one of them was guilty of obstructive conduct as

referred to in paragraph 24A.

He further deals with the matter at page 93 at

line 30:

As to paragraph (b) of the Particulars alleging that the proceedings for

partition were a breach of the Family

Agreement, this is reallv a case of the

pot calling the kettle black.

He goes on at page 94 to deny that that amounted to

unconscionable conduct. The learned trial judge,

therefore, examined the matters complained of

as said to be the unconscionable conduct on the

part of the mother and found, as he does at line 5:

that the allegation ..... completely fails.

So, it is not right to put to this Court, as has been put, that the respondent's conduct was not

examined.

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The second matter that was put to

Your Honours was that the will that was executed by Mrs Gazzola in 1982 was a denial of the

applicant's title and that was said to be

unconscionable conduct on her part. That was

dealt with by the trial judge as well and found

not to be unconscionable conduct at page 95,

line 4:

The first point about this -

that is referring to the will -

is that Gino claims not to have known

until long after 1984 that Mrs Gazzola

had ever made such a new will, and

accordingly, that cannot justify his

conduct in 1984. Secondly, I would not

regard that as a fundamental breach of
the connnon agr_eement in any event.

Thirdly, Gino did have knowledge of the

fact that his mother was speaking of

altering her will in that way. According

to the defendants he specifically

acknowledged his mother's right to do so.

He denies that. I am not sufficiently

convinced one way or the other to make a

finding on that. But her certainly

raised no objection to his mother's
right so to do.

Accordingly, the claims fails

insofar as it seeks a declaration of

constructive trusts.

That was said hers to be the third matter that amounted to unconscio!iable conduct on the part of the female respondent.

The fourth matter that was said to be the

unconscionable conduct was in answer to a question

from Your Honour Justice Gaudron when Your Honour
asked my learned friend, "Was there a finding as

to why Gino did what he did?". My learned friend

directed the Court to page 57 of the appeal book
but in so doing he overlooked advising the court of
the findings that connnence at page 51. Before

discussing those findings in detail I ought to

remind this Court that the circumstances in

July 1984 were these: the family owned a number of

properties which ?ere registered in different

names but of which all of the parties were.the

legal owners of parts of the properties. In 1984

the applicant sought to buy a property on his own
behalf outside the wishes of the family; he wanted

to buy a property at Port Wakefield and he wanted

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the family to fund him to do that.	The family
refused, his brother refused, and, as
His Honour says at page 51, line 26:

That led to a blazing row.

So, there was an argument had between himself and

his brother just prior to July 1984.

Next, there was a disagreement at that time

in relation to the purchase of agricultural

equipment. His Honour found that that played no

part in the circumstances that followed and he made

that finding at page 52, line 20. Then, he makes

the next finding:

Within a very few days of Ray -

that is one of the respondents, the brother indicating that he would not join in a

mortgage of Ink.ermans -

which is a family property -

Gino and Veronica -

which are the two applicants -

consulted ..... a solicitor then practising

in the area.

What followed then is shown at page 53 of the appeal

book and at line 7 in the letter from Mr Trzeciak,

written on behalf of the applicant, Mr Trzeciak

writes:

The most significant difference of

opinion has occurred in relation to certain

land that our client presently wishes to

purchase but that apparently you and your

mother Gisenta (sic) Gazzola (who is also	a partner under the terms of the
agreement) do not consent to.

So, the position was at the 31 July the applicant wished to branch out by himself, do his own thing

on his own land at Port Wakefield. Ray and his

mother did not agree to it; the letter followed.

Page 54, which encapsulates further a letter, shows

at line 18, Mr Trzeciak still writing:

We understand from our client that he has informed you of his intention to retire from

the partnership. It has been indicated to

our client that you do not wish to see a

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change in the present standing of the

partnership. We advise that our client

is entitled to retire from the

partnership and in so doing is entitled

to realise his interest therein.

Now, from there His Honour went to page 55 and at

line 18 he says:

Gino -

that is the applicant -

must take the overwhelming preponderance

of the blame for having taken this

precipitate ill considered action.

It will be seen that the letter places

in the forefront of Gino's complaint, the

question of Port Wakefield (not named as

such but everybody knew and understood that

that was what was being referred to). That

venture was a purely personal one on the

part of Gino (and Veronica) and had nothing

whatever to do with the partnership. Gino

attempted to resile from the terms of the

letter -

and then His Honour goes on to make a finding in

relation to that.

Then, at page 56, line 4, His Honour

determined, speaking of Gino:

I find that he did not have reasonable

grounds -

for terminating the partnership. Then, at line 13

in answer to a submission:

It was said that by reason of the failure

of Mr Gazzola and Ray to agree -

that should be Mrs Gazzola -

or to co-operate the partnership was at a

stand-still. This is absolute nonsense.

That is rejected. At page 57, line 9,
His Honour finds this:

With a single blow -

Gino -

brought down what had been built up by the

work of his parents and to a not inconsiderable

extent by the labours of Ray and himself.

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Now, they were the reasons for the finding that

His Honour later made that Gino had been guilty

of unconscionable conduct. He has made two clear

findings in which the Full Court agreed, that the

applicant had been guilty of unconscionable

conduct, which included that conduct and other

conducts which followed, as His Honour refers to

at page 57, including violence between the parties

and a number of very serious disagreements.

He has made a specific finding that the

applicant has been guilty of unconscionable

conduct and the respondent has not. And, it is

the fact that the respondent did not at any time

deny Gino's beneficial entitlement to the land prior

to the issue of these proceedings. It was never

denied prior to Gino doing what he did or bringing these proceedings and, indeed, as I am reminded,

it was never asserted prior to bringing these

proceedings that Gino had a beneficial interest in

the property.

So, the trial judge was faced with those facts,

that is unconscionable conduct on the part of the

party claiming the beneficial ownership and no

unconscionable conduct on the part of the party

holding an illegal ownership. It is put to this

Court that His Honour and the Full Court then erred

in failing to consider a question of unjust

enrichment. Unjust enrichment was never pleaded,

was never argued before the trial judge and was never

argued before the Full Court. The first time it has

been raised is in this Court, it is our submission,

and the submission, in raising it now, lacks a

discussion in either of the courts below and as to

T8	the facts of it. It was a matter never addressed on the facts by either party as to whether or not
Mrs Gazzola had been unjustly enriched or whether,
in fact, the applicant had been unjustly enriched.
But, it is clear, if this Court is to consider an
application based upon unjust enrichment, that the
respondent has not been unjustly enriched; the facts
demonstrate that quite clearly.
Indeed, the evidence would show that the applicant,who contributed something probably more
than $10,000 to the acquisition of these lands and
something less than $20,000 at the time he left
the partnership, left the partnership with lands
valued in excess of $1,000,000 and he complains
that his mother has been ·unjustly enriched. Those
assets had increased and had come about for two reasons: one, by reason of the fact that his mother and father had virtually given hil'!l a quarter interest in
two properties, Long Plains and rhe Dairy, which
properties increased in value from something like

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$160,000 to in excess of $1,000,000, and by

reason of the fact that his father had left him
his lands, the lands to which he was entitled,
together with all his partnership assets and the

residue of his estate - in fact, Mr Gazzola

on his death in December of 1978 had left the

properties that way to the disadvantage of the

respondent; she took nothing under his will - so

that, in 1979 the applicant inherited something

in the-lands which came to be worth something

greater than half a million dollars.

His Honour considered, without using the expression "unjust enrichment", whether there

ought to be an equitable accounting having regard

to that which had gone past and he discussed that

at the bottom of page 95 at line 28:

I have given thought to the question of

whether, since at the time when the

contributions were made it was

contemplated tttat Gino would acquire an
interest but not by way of resulting

trust, there should be an equitable

accounting in his favour. In the

circumstances of the case, I think not.

It would be unfair and to the disadvantage

of Mrs Gazzola to do so, without taking

into account contributions made by

Mrs Gazzola, directly or indirectly,

relating to Gino's interest in lands

($11,000 for succession duty, payment of

which was of course a pre-condition to the

executor dealing with Mr Gazzola's interest

in the land; $3,000 paid by Mrs Gazzola

towards the purchase of Section 193; $500

paid by her towards the deposit on

Inkermans) .

So, the question o·f an equitable accounting occurred

to His Honour but he thought having regard to the

circumstances, having regard to that which had been
given by the respondent to the applicant, an

equitable accounting was not appropriate.

The history of the matter shows that - as I

have already said - the applicant contributed

something in the order of $10,000 - somewhere between

$10,000 and $20,000 for the purchase of these lands.

It shows also that he was admitted to a partnership

on 1 January 1974, as was his brother, and that the

partners, his mother, his father, his brother and

himself, thereafter shared a quarter, a quarter,

a quarter. Not only was he, therefore, given a quarter

of the proceeds ever after January 1974 - a quarter

of the proceeds off the land - he was allowed by the

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other three partners to remain at work full time

until March of 1976. So, he received a quarter

of the full profits of the partnership during

a time when he was not contributing to the labour

on the property. He thereafter, up until the

death of his father, received a quarter of the
proceeds off the properties and then, after the

death of his father, one-third of the proceeds.

The findings clearly show that the partnership

was operating certainly at least before his

father's death and probably after,and was allowing

him to take a quarter share off lands of which he

probably had less than one-tenth interest

without the partnership paying any rent in

respect of the property.

There was simply no evidence before His Honour

to show that the female respondent had been

unjustly enriched or that there had been a

corresponding loss to the applicant. The

applicant had assumed an obligation to carry out

the obligations that' His Honour referred to

at page 92 over the properties; at line 15

His Honour makes this finding:

My own view is that there is a good

argument that the obligation was as

follows: to work the properties to their

best advantage and to pay to the parents

out of the net proceeds of the working
of the properties an amount agreed between

the parties or in default of agreement, not

less than a share of the profits corresponding

to the share of the parent in the legal

ownership of the land.

He assumed that obligation at least as early as 1974, carried it out till his father's - at the time of his father's death,

then obtained from his father, his father's lands -

his father having relied on that - his mother made

no claim on the father's estate acting in

reliance upon that, that is that he would continue

the obligation, and he ceased to carry out the

obligation in 1984 because he wished to carry on his

own business at that time. He, therefore,

disentitled himself, in our submission, from a

claim to have imposed a constructive trust in

relation to those other properties.	And, as
His Honour says at page 91 at line 13:

In my view, on the facts of this case, it

is simply impossible to conceive one

side of the equation without the other -

that is as to land and as to work -

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The defendants' approach was to deny

the existence of both sides of the

equation. That is a possible point of

view, although I have come to the

but, in effect, rejects the other. That

conclusion that it is the wrong view.

is an impossible point of view.

Now, in our submission, that finding, with which

the Full Court concurred, brings the applicant's

claim as it was framed to an end. Now, in our

submission, there is nothing shown in the notice

of appeal which would warrant the grant of special

leave. The matters complained of, apart from the

matters that Your Honour the Chief Justice directed
my learned friend's attention to, relate to
findings of fact and at page 129 in the notice of

appeal, paragraph (a) of the appeal is directed to

asking this Court to hold that the trial judge and:

the Full Court was wrong in -

finding that -

appellant acted fundamentally in breach

of ..... the cormnon intention -

which requires an examination of the facts for the

purpose of the determination of the question posed.

Secondly, in (b) it is asked that this Court

reverse the finding that the conduct:

amounted to unconscionable conduct.

And, all of the matters, without dealing with them

individually or at length, in our submission, raise

questions of facts which is inappropriate in the

circumstances for the giving of special leave.

There is nothing in the case on the facts as found

and on the way the case was framed and argued which
would warrant the grant of special leave.	They are
our submissions, if Your Honour pleases.

MASON CJ:	Yes, thank you, Mr Lander. Yes, Mr Evans?
MR EVANS:	If I could reply in this way, if the Court pleases,

that the fundamental complaint that the applicant

has is that the primary judge and, more particularly,

the Full Court merged two unrelated equities. And

to illustrate that I refer to page 114 from the

judgment of the Full Court delivered by Justice Prior,

where he says:

Once Gino's actions attracted the label of

unconscionable conduct, they spelt the

end of equity's aid to the enforcement thereof.

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Now, the label of nunconscionable conduct" was

given, of course, by the learned trial judge who

categorized it as seeking to enforce one side of

the bargain without fulfilling his obligations

under the other side of the bargam. ,.And, that is how

the proceedings are miscarried, in our submission,

that there are, in our respectful submission, two

distinct equities. They are t.mrelated to each other.

MASON CJ:  That is not the way the trial judge dealt with

it though, is it? The trial judge dealt with it

on the footing that there was an overall

obligation which had, in effect, two parts to it.

MR EVANS:	Yes.
MASON CJ:	And, he was not prepared to find that the overall

obligation was sufficiently certain to give rise

to the constructive trust in favour of your client.

But, alternatively, he held that even if it was,

the two parts constituted one overall overarching_ obligation and that your client was in fundamental

breach of the second part of the obligation.

MR EVANS:	With respect, Your Honour, we say that is not the appropriate categorization of His Honour's findings.
What His Honour did was to say that "there was an
understanding'- to use a neutral expression -
between the various family members and the
understanding was that the sons would work the
properties until the death of their parents and
successively inherit their parents' interest.
But, what happened was, that after some 20 years and, in our submission, it was due to no more than
personal differences, the joint venture or relationship
failed and we submit that there is an overarching principle of law; that where there has been a relationship of this kind, previously adverted
to in je facto spar situations, but nevertheless applicable to this type of family relationship
which includes an element of commercialism, that
where that relationship fails after such a long time
that equity looks to see what the party in legal
ownership has acquired and the means by which he or she has acquired it. And, where the acquisition has
sprung from joint contributions it is inequitable in
terms of unjust enrichment and the equivalent
doctrme of unconscionable retention for that party
to insist on the legal ownership.

Now, that went completely past the learned

trial judge and the Full Court on appeal. It is a

doctrine that has evolved through a number of
cases that have recently been decided by this Court;

the same doctrines are evolving in the United Kingdom and

for a longer period have been evolving in the United

States and Canada. It is our submission that all

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that my learned friend has addressed to the Court

deals with only the one set of equities hinged

on a corrn:non intention and conduct in relation

to in and about that corrn:non intention.

I happened to be reading a foreword of

Your Honour the Chief Justice to Professor Bourke's

book on the Law of Restitution recently.

MASON CJ:	That seems far removed from this, though, Mr Evans.
MR EVANS:	Well, Your Honour corrn:nents that Professor Bourke

identifies two distinct equities, one related to

the right given to a party to expect obligations to

be fulfilled and the other arising independently

of that situation which is mor	in the nature of contract
or quasi contract where there	an unconscionable

retention of property which has been acquired through

a corrn:non pool and, the two are distinct and

separate and operate in different ways and in

different circumstances. And, what I say at page 114

is that the judgment-of the Full Court has merged the

two principles and made them one and has utilized the

so-called unconscionable conduct of the male applicant
purely in circumstances where he was enforcing
or seeking to enforce a corrn:non intention in the

overarching situation. In other·words, our

submission relies on the proposition that even if

one has a corrn:non intention and one has not

fulfilled one's obligations that is by the by and

is of no relevance to the other question where it is

established that there is a pooling of resources

and the unreasonable retention by the fortuitous

legal owner at the time of the break dm1n of the

relationship; and that MUSCHINSKI and BAUMGARTNER

equally apply to this factual situation and these

facts, in effect, are an extension of the facts that

were before the Court in those two cases and equally

deserve the same application of equitable remedy.

One can bandy the facts around for several days;

they are very complex and voluminous and, with

respect, I do not think that that would be profitable.

But, what we submit is that there is the genesis

here for the male applicant's case to be made out on

the understood principles of restitution whether it

be on an unjust enrichment or unconscionable

retention of property to which he has contributed.

It is for those reasons that we submit that

the application should be allowed.

MASON CJ:  Yes, thank you, Mr Evans. Now, Mr Evans, apart

from drawing your attention	to the ground that
appears at the foot of page	130, I should perhaps
indicate to you that it may	well be that if we

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grant special leave it would be necessary to

indicate that the Court might be minded on further

consideration of the appeal to revoke the grant of

special leave to appeal as far as it includes

ground (g) there might be a corresponding difficulty

in your presenting the argument based on proprietary

estoppel outlined in ground 7 of your outline of

submissions and, of course, there may likewise be

a difficulty in raising the argument dealt with

under the heading of "Unjust Enrichment" in

paragraph 6. Now, they are not matters that the

Court could rule upon at this stage. It would

require, I think, a more comprehensive review of the

history of the matter and of the judgments before
the Court could come to a conclusion as to whether

or not those arguments are proper to be dealt with

by this Court.

MR EVANS:  If Your Honour pleases, there are other materials

that could be put before yo~ but perhaps that

could wait for another day, such as the notice

for appeal to the Full Court and the transcript of

the submissions to the Full Court.

MASON CJ:  Yes, I am not suggesting that the Court should

deal with those matters now but I am forewarning you
in advance that the Court can see the possibility
of some difficulty from your point of view in
relation to those matters if special leave is to be

granted.

MR EVANS:	If Your Honour pleases.
MASON CJ:	In the circumstances the Court will grant special

leave to appeal in this matter. There will be

excluded from the grant of special leave to appeal

the ground lettered (i) on page 130 of the

application book, that being one of the grounds of

appeal in the draft notice of appeal, and the
Court indicates that it is possible that the Court

might revoke the grant of special leave to appeal in	so far as it includes ground (g) on the same page of
the application book. The remarks I have already made
relating to the arguments based on proprietary
estoppel and unjust enrichment will be noted.

AT 2.38 PM THE MATTER WAS ADJOURNED SINE DIE

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