Joudo v Joudo

[2024] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation:

Joudo v Joudo [2024] NSWSC 232

Hearing dates:

12, 13 and 14 February 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Equity

Before:

Pike J

Decision:

(1)   Adjourn the proceedings to 9.30 am on 26 March 2024 or such other time as may be arranged with my Associate.

(2)   Direct the parties to confer and to seek to agree on the occupation rent to be paid by the cross-claimants and orders otherwise to give effect to this judgment and to deal with costs.

(3)   No later than 24 hours before the adjourned hearing, submit proposed orders for the purpose above in Order (2).

Catchwords:

EQUITY – alleged oral rental agreement – whether property was purchased as an investment or as part of joint endeavour with family members – purchase financed with a loan in the name of the plaintiff – cross claimants paid for completion, contributed some mortgage payments and paid some outgoings

EQUITY – remedies – failed joint endeavour – division of proceeds of sale – division of surplus – return of contributions – indexation – occupation for a period following the failure of a joint endeavour

Legislation Cited:

Nil

Cases Cited:

Allied Pastoral Holdings Pty Ltd v FCT [1983] NSWLR 1

Baumgartner v Baumgartner (1987) 164 CLR 137

Director Office of Fair Work Building Industry Inspectorate v CFMEU [2013] FCAFC 8, 231 IR 278

ET-China.com International Holdings Limited and Anor v Cheung and Others (2021) 150 ACSR 461

John Holland Pty Ltd v Kellogg Brown & Root [2015] NSWSC 451

Makaritis v Makaritis (No 2) [2022] NSWSC 1690

Makaritis v Markaritis (No 3) [2023] NSWSC 409

Muschinski v Dodds (1985) 160 CLR 583

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Payne v Parker [1976] 1 NSWLR 191

Sckaff v Sckaff [2023] NSWSC 1582

Walsh v Lonsdale (1882) 21 ChD 9

Watson v Foxman (1995) 49 NSWLR 315

Woods v MacKinlay (No 2) [2021] NSWSC 1510

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Ravina Joudo (Plaintiff/Cross Defendant)
Maria Joudo (Defendant/First Cross Claimant)
Ronnie Joudo (Second Cross Claimant)

Representation:

Counsel:
FFF Salama and B Flaherty (Plaintiff/Cross Defendant)
M Thompson (Defendant/Cross Claimants)

Solicitors:
Ashley, Francina, Leonard & Associates (Plaintiff/Cross Defendant)
David Legal (Defendant/Cross Claimants)

File Number(s):

2022/00290628

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings concern a dispute between certain members of the Joudo family in relation to the property known as 25 Robey Avenue, Middleton Grange in New South Wales (Property).

2. Given the common surnames of the principal players in the proceedings, I propose to refer to each of them in these reasons by their given names. I mean no disrespect in so doing.

3. The nub of the dispute concerns the nature of an agreement or arrangement reached in relation to the occupation of the Property. By her statement of claim filed 27 September 2022, the plaintiff (Ravina) contends that an oral agreement was entered into between her and the defendant/first cross claimant ((Marie) – being the name by which she was known although her legal name is Maria), on or about November or December 2011 whereby Ravina agreed to lease the Property to Maree and her children only for the sum of $600 weekly in arrears. Ravina claims $181,800 from Marie for unpaid rent (being the unpaid rent for the 6 years prior to the commencement of the proceedings it being accepted that the claim for earlier rent sought in the statement of claim is statute barred).

4. By amended cross-claim filed pursuant to leave granted on 7 February 2024, the cross-claimants, being Marie and her husband (Ronnie – Ravina’s brother) contend that the agreement or arrangement that was reached was one whereby, in or about February 2010, Ravina offered to build a house for Marie and her family to live in for life, on the condition that Marie and Ronnie would assist in completing the construction of the home, pay utilities and maintain the home and the Property. Ronnie and Marie contend that thereafter, they gave effect to the agreement or arrangement as part of a joint endeavour with Ravina. A life tenancy was originally sought but in circumstances where the Property has now been sold, that is no longer pressed and the primary relief now sought is a declaration that at the time of sale, Ravina held the Property on constructive trust for Ronnie and Marie and the proceeds should be distributed to the parties in repayment of their contributions with any surplus to be split equally. In the alternative, equitable compensation is sought.

5. These proceedings were heard on 12, 13 and 14 February 2024. Mr FFF Salama and Ms B Flaherty appeared for Ravina and Mr M Thompson appeared for Ronnie and Marie.

6. Ravina relied on four affidavits sworn by her, three sworn by Ronnie and Marie’s daughter, Halanie Joudo (Halanie), and one each from Rita Joudo (Rita) and Romina Joudo (Romina). Each of Ravina, Rita, Romina and Halanie were cross-examined.

7. Ronnie and Marie relied on two affidavits sworn by Marie, and one sworn by Ronnie. Each of Ronnie and Marie was cross-examined.

8. For the reasons set out below, Ravina’s claim should be dismissed, and Ronnie and Marie’s claim upheld. I will make directions for the parties to seek to agree final orders to give effect to these reasons.

Approach to fact finding

9. Before setting out the factual narrative, I make some general observations as to my approach to fact finding in this case, and then make some general observations about the witnesses that gave evidence before me and their credibility.

10. In circumstances where each party seeks to rely upon an oral agreement or arrangement and the alleged conversations forming that agreement or arrangement occurred many years ago, I keep firmly in mind the well-known observations of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, and in particular, the remarks of Hammerschlag J, as the Chief Judge then was, in John Holland Pty Ltd v Kellogg Brown & Root [2015] NSWSC 451 at [94]-[95]. I am mindful of the need to feel an actual persuasion of the occurrence of the conversations relied upon and that reliable contemporaneous records, such as they exist, are likely to provide the most reliable evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited and Anor v Cheung and Others (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing).

11. As will appear below, the effluxion of time since the primary events in question has resulted in some records no longer being available. There is, however, sufficient objective material available against which to judge the evidence of witnesses and to make the necessary findings.

General observations on witnesses

12. It was not in dispute that the Joudo family were once very close but there has now been a catastrophic fallout in the relationship between Ravina and Ronnie which has divided their respective families, in that Romina and Rita have also had a falling out with Ronnie and Marie. A rift between Ronnie and Marie on the one hand and their eldest daughter Halanie on the other has also emerged.

13. Halanie moved from the Property to live with her auntie Ravina in a three-bedroom property located at 4 Hinchinbrook Drive, Hinchinbrook (Hinchinbrook Property) in 2021 and has remained there ever since, living with Ravina, Romina and Rita.

14. Each of Ravina, Romina, Rita and Halanie gave evidence in support of Ravina’s case and in her defence of the cross-claim being prosecuted by Marie and Ronnie. Each also attended court after they had completed giving their evidence to observe the evidence of Ronnie and Marie.

15. The thrust of part of the cross-examination of Ravina was that these proceedings were primarily motivated by wanting to get back at Ronnie. It was also suggested to each of Romina, Rita and Halanie that they swore their respective affidavits after they had fallen out with Ronnie and thus were giving evidence to assist Ravina.

16. The principal witness in Ravina’s case was Ravina herself. I formed the distinct impression during the course of her evidence that Ravina obviously had extremely strong feelings of animosity towards Ronnie and, perhaps to a lesser extent, Marie. She was often combative with the cross-examiner. She also frequently gave nonresponsive answers and often refused to accept basic propositions put to her. It also became apparent in cross-examination that the approach that she had taken in preparing her affidavits was to categorically deny certain matters because, at the time that she prepared her affidavits, Ronnie and Marie had not provided documentary proof in support of the position advanced. After some material had been produced supporting Ronnie and Marie’s position, Ravina was prepared to make concessions. One example is the payment of rates in relation to the Property.

17. These matters, even putting to one side the effluxion of time since the principal conversation relied upon by Ravina, give me considerable concern in relying on the evidence of Ravina unless it was against her interest or corroborated by contemporaneous material. When one adds the effluxion of time, I am left in the position of relying on the contemporaneous material and the inherent possibilities and otherwise not accepting her evidence unless it was against her interest.

18. Romina and Rita gave evidence very briefly before me. Each admitted that they had had a falling out with Ronnie. I formed the view that they were motivated to support their sister Ravina in her claim against Marie, and more particularly against Ronnie.

19. Romina’s principal relevance in supporting Ravina was on the alleged rental conversation in November or December of 2011. Giving evidence in the witness box, Romina also appeared to have difficulty understanding a number of questions put to her, particularly simple questions put in chief. These matters – particularly the acrimony that now obviously exists with Ronnie – causes me to exercise extreme caution in accepting any of her evidence unless it is consistent with the objective material and inherent probabilities, which it is not.

20. Rita’s involvement was very tangential, giving limited evidence in relation to the relationship between Ronnie and Marie, undisputed evidence in relation to the payment of the deposit for the purchase of the Property and attempts to mediate in 2020. Given this tangential involvement it is not necessary to make any findings as to Rita’s credibility.

21. Halanie also gave evidence quite briefly before me. It was obviously traumatic for her to give evidence against her parents, and, at least in part, to have to relive the traumatic events that caused her, save for returning only to collect her belongings, to forever leave the Property and become estranged from her parents. I formed the impression that Halanie has obviously had a serious falling out with her parents, particularly Ronnie, and was now closely aligned with Ravina, Rita and Romina.

22. The main significance of Halanie’s evidence relates to the alleged conversation at the McDonald’s Restaurant at Carnes Hills at about 5.30pm on 12 November 2020 (McDonald’s conversation), where Marie is alleged to have made admissions as to the oral lease agreement.

23. I deal with this issue later in these reasons. As I am unable to accept that there ever was an oral lease agreement as contended for by Ravina – because it is unsupported by any contemporaneous documents, is inconsistent with what objective material exists and the inherent likelihoods that flow from that material – I am unable to accept Halanie’s account of the McDonald’s conversation.

24. Because of the obvious acrimony between Ronnie on the one hand and Ravina, Romina, Rita and Halanie on the other, and the fact that the latter group all reside with each other, I do not regard any of their oral evidence as corroborative of the other. The safer course is to rely on the objective material and the inherent likelihoods and probabilities which arise from that material and related conduct. This all supports the case advanced by Ronnie and Marie.

25. Ronnie presented as quite a combative witness, although this may have been in some respects in response to the robust manner in which the cross-examination proceeded and also that the four persons who gave evidence in Ravina’s case and thus contrary to Ronnie’s – being Ravina, Romina, Rita and Halanie - were present in Court throughout his cross-examination. I gained the impression, having observed each of Ravina, Romina, Rita and Ronnie, that each was quite combative by nature. Ronnie’s answers were often evasive, lengthy and often non-responsive. He appeared to me to be a more reliable historian than Ravina, the principal witness against him, but I have hesitation in relying on his evidence where it is unsupported by any contemporaneous material.

26. Marie presented as a level-headed, calm witness, seeking to do her best to assist the Court. She gave her evidence in a clear manner and repeatedly refuted the central planks of Ravina’s case, including that she and Ronnie were on the verge of separation in late 2011, the alleged rental conversation in November or December 2011 and the alleged admission during the McDonald’s conversation in November 2020. She was also clear in cross-examination in her recollection of the conversation the cross-claimants rely on in about February 2010 and was able to give clear evidence as to what occurred thereafter, particularly driving around in a Mitsubishi Magna looking for properties to purchase. I have more confidence in accepting her evidence, although given the effluxion of time, the safest and most reliable material is the objective material and the probabilities that arise from this material and related conduct.

Witnesses not called

27. Counsel for Ravina contended that I should draw a Jones v Dunkel inference against Ronnie and Marie for failing to call the following persons:

1. Alf from AJL Excavation who arranged for the dirt removal.

2. Angelo from Lily Homes who was responsible for the construction of the house.

3. Wissam Riman (Wissam), the builder who carried out the landscaping works and construction of the driveway.

28. I reject this contention. There is no basis to conclude that any of the witnesses are in the camp of Ronnie and Marie. They are each independent contractors. In the case of Alf and Angelo, there is no suggestion they have had any contact with Ronnie and Marie since the work was carried out over ten years ago. Whilst Ronnie gave oral evidence that Wissam purchased Zacron from Ronnie in 2019, this falls well short of providing a basis to conclude that he is in Ronnie and Marie’s camp: see Payne v Parker [1976] 1 NSWLR 191 at 201; Director Office of Fair Work Building Industry Inspectorate v CFMEU [2013] FCAFC 8, 231 IR 278 at [100]-[102].

Failure to challenge witnesses

29. Counsel for Ravina advanced a submission in closing address that witnesses called by Ravina, particularly Ravina and Halanie, were not challenged on certain key matters in cross-examination by counsel for Ronnie and Marie, and as such, the Court was required to accept their evidence on these matters. The submission was based on an alleged breach of the rule in Browne v Dunn.

30. I do not accept this submission. The witnesses were, in my view, properly challenged in cross-examination and, in any event, those witnesses were clearly on notice of the evidence that was to be relied on to contradict their own evidence. Each of Ravina and Halanie had filed reply affidavits in response to the evidence of Ronnie and Marie: see Allied Pastoral Holdings Pty Ltd v FCT [1983] NSWLR 1 at 16ff; Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [42] per Meagher JA.

Factual Narrative

31. I set out below the factual narrative. Where there was a dispute as to certain facts, I identify the dispute and the competing versions. I set out my findings in relation to these disputed events later in these reasons.

32. This factual narrative is necessarily detailed. The detail – particularly as to the events after the alleged conversations – is necessary as it assists in the resolution of the key factual dispute, namely the nature of the agreement or arrangement as to the occupation of the Property.

The general background leading up to the purchase of the Property

33. Ravina and Ronnie are two of eight siblings, the others being Roger, Rosa, Rita, Romina, Richard and Robert. Ronnie is the youngest of the siblings, being born in about 1969. Ravina was born in 1960.

34. The family moved to Australia in 1970. They lived at a three-bedroom property at Greystanes. Ravina and Ronnie’s father, Zaia, passed away in 1972.

35. The family are from the Assyrian culture, which is a Christian, family-oriented culture. Ronnie met Marie in around 1987 when Ronnie was residing with his mother, Sonia (referred to in these reasons as Sonia Senior to avoid any confusion with one of Marie and Ronnies’ children) and his adult siblings at a farmhouse at Kemps Creek. Marie commenced living at this property in around 1990 after she and Ronnie became engaged.

36. The Kemps Creek property was a two-bedroom house. At the time Marie moved in, there were five adults living in the property. The legal title to the Kemps Creek property was in the name of Richard, his wife Norah and Robert.

37. Ravina gave evidence that, although she was not on the legal title of the Kemps Creek property, she understood that she had an interest in it along with her brothers and sisters and that she paid the mortgage.

38. Ronnie and Marie married in 1991. Ronnie is apparently a builder by trade although he now works as a country music artist.

39. In 1992, Sonia Senior and some of her children moved to the Hinchinbrook Property. Living in that house at the time was Rita, Romina, Ravina, Sonia Senior, Ronnie and Marie. Robert would also come and go.

40. The legal title to the Hinchinbrook Property is held by Ravina, Rita, Romina and Robert. Expenses in relation to the Hinchinbrook Property were apparently shared – Ravina paid for the house to be renovated, Romina paid for the utilities and Rita paid for the groceries. Ronnie, and whilst she lived there, Marie apparently did not contribute financially to the Hinchinbrook Property.

41. In 1994, Ronnie and Marie moved out to their own property which they had purchased at Green Valley (Green Valley Property), the suburb next to Hinchinbrook.

42. In 2000, Ronnie and Marie had their first daughter Halanie, and their second child, Sonia, was born in 2002. In 2004, a son, Jamison was born. He was born with Down Syndrome. Whilst it was not in dispute that each of Ravina, Romina, Rita and Sonia Senior had a very close relationship with each of the children, it would appear that Ravina had a particularly close relationship with Jamison. She agreed in oral evidence that he was the “apple of her eye”.

43. Marie, Ronnie and their children continued to live in the Green Valley Property until 2008, when they sold the Green Valley Property and moved back into the Hinchinbrook Property.

44. It would appear to be common ground that it was in or about 2010 when certain events occurred that were the genesis for the ultimate purchase of the Property and the entry into of an agreement or arrangement in relation to that Property, whereby at least Marie and her children would live in it.

45. The parties gave significantly different accounts as to what led up to the purchase of the Property and the agreement or arrangement in relation to it. I set out below the competing versions that were given in relation to these important events. I set out my findings as to what occurred later in these reasons.

46. Chronologically, Ravina’s version has two aspects. First, her decision to buy an investment property, which began in 2010. Second, the alleged oral lease agreement which Ravina contends occurred in November or December 2011, at a time when the house on the Property was nearly complete. I intersperse between these two separate events other aspects of the chronology, including Ronnie and Marie’s version of the agreement or arrangement which necessarily occurred much earlier, in 2010, and the events relating to the purchase of the Property and the construction of the house on it.

Ravina’s evidence regarding the purchase of the Property

47. Ravina gave evidence that, at the time that Ronnie and Marie returned to live at the Hinchinbrook Property, it was her understanding that they would only return for six months so they could save money to build a bigger house than the Green Valley Property. It became very difficult with all of the family living at the Hinchinbrook Property, as there were ten people living in a three-bedroom house. As at 2010, the relationship between Ronnie and Marie was, according to Ravina, strained, as Ronnie was not working and it appeared that Ronnie and Marie had no plans to move out of the Hinchinbrook Property.

48. In 2010, as a result of Ronnie and Marie making no attempts to move out, Ravina says that she spoke to Sonia Senior, Romina and Rita about her intention to purchase an investment property that Ronnie and Marie would move into as tenants and act as a solution to Ronnie and Marie’s family living at the Hinchinbrook Property, which burdened the other family members living with them and appeared to impact Ronnie and Marie’s relationship. It would appear that this intention, at least on Ravina’s version, was not communicated to Marie or Ronnie, as there is no suggestion in Ravina’s evidence that she had any discussions with Marie about renting the Property at this early stage. That did not occur, on Ravina’s version, until late 2011.

49. Around 2010, Ravina said she obtained approval from the St George Bank at Ingleburn to finance the purchase of an investment property and then located the property at Middleton Grange, which was close to the Assyrian Church that the family attended.

50. According to Ravina, she identified the block she wished to purchase, was asked to place a $2,000 holding deposit on the block, and then arranged for her sister, Rita, to attend the offices of the company selling the Property to pay that deposit in cash. Ravina says that it was also she that picked the builder, Lily Homes, when she was at the sales centre identifying the Property and that this was done at the request of “the lady” at the sales centre. Her evidence was that Ronnie and Marie were not involved in the selection of the Property or the builder, although Marie had some involvement later in relation to the selection of the interior colours and other inclusions for the house.

Marie and Ronnie’s version regarding purchase of the Property

51. Marie and Ronnie give a markedly different version. In particular, there is no suggestion in their evidence of difficulties in their relationship or difficulties arising from ten people living in the Hinchinbrook Property.

52. The precursor to the discussion leading to the agreement, according to Ronnie and Marie, was that in or around January 2010, Ronnie and Marie had identified some acreage in the area called “Twin Creeks” in New South Wales, upon which they wished to construct a house. Ronnie and Marie put a holding deposit on a block of land. Halanie also gave evidence of recalling a plan for the family to move to Twin Creeks, although she was approximately 10 years of age at the time.

53. On Marie’s evidence, after the family returned from the Twin Creeks property which they had put a holding deposit on, to the Hinchinbrook Property, Ronnie and Marie had a discussion with Ravina to the following effect:

Ronnie:	Sis, we put a deposit down on some acreage in Twins Creek. You should see this place its beautiful.
Me:	Yes Rav, it’s amazing, it has a golf course right around the corner as well, it is beautiful.
Ravina:	Twins Creek, how far is that.
Ronnie:	It is about 40 minutes away from here, it is just Badgerys Creek.
Me:	It might sound far but it really isn’t, and the drive is beautiful.
Ravina:	Why would you want to go so far away, you know how much Mum and us love you guys being here, especially with the children.
Ronnie:	It’s ok sis, we will always come back and visit.
Me:	Yeah Rav, you know we are aways thankful for what you guys have done for us, we will always come and visit you guys.
Ravina:	You know no one is going to be happy with the decision for you guys to go so far out.

(In cross-examination, Ravina said that she had no recollection of such a discussion).

54. Shortly thereafter, in or around February 2010, according to Marie, a conversation occurred with Ravina, which formed the foundation for the agreement or arrangement relied upon by Marie and Ronnie. Marie’s affidavit evidence was to the following effect:

Ravina:	Marie, you know your children mean the world to me, especially Jamison. You know how much Jamison means to the entire family. I have had discussions with the family, especially Mum, and I want to build a house for you and your family but especially for Jamison so that he will always have somewhere to live that is next to mum and us. We don’t want you living so far away, you know your kids are the only grandkids in Sydney for mum and she loves spending time with them.
Me:	I mean, I don’t really know what to say, I am shocked to be honest.
Ravina:	Well, mum and us really want to have the kids close to us, Twin Creeks is too far away. I will pay for the land and for the construction of the house and we can discuss how the other payments can be made later on.
Me:	Again, I am shocked, but I will need to talk to Ronnie first and then we can come back and talk to you. But I mean I don’t know how I can ever be thankful.
Ravina:	It is ok, we are family and Jamison is like my son, I will do anything to look after you and your family.

55. There was then a further discussion later that evening between Ronnie and Ravina in the presence of Marie, Halanie, Sonia and Jamison where words to the following effect were said:

Ronnie:	Sis, what is happening, did you win the lotto or something. Marie told me about you spoke to her about this afternoon.
Ravina:	Ronnie, you know how much I love you guys, especially Jamison. Mum and I were talking, and we thought why don’t I build a house for you and your family so that you guys are close to us. I told Marie, I will buy the land and build the house, but standard build.
Ronnie:	That’s amazing sis, but you know how we are looking to build a house for our family, what is the house going to be for us, is it going to be our house? What about the mortgage?
Ravina:	I will pay the mortgage and the land rates. The house will be yours; it is so Jamison will always have somewhere to live, but that is not going to happen, the house is for you and your family to take care of Jamison for life. You know since Jamison was born, we told you we will always be there for you guys.
Ronnie:	Marie and I are stunned, we obviously need to talk about it and get back to you, but regardless of what we decide we are so thankful for the generosity. Love you sis.
Ravina:	Love you guys.

56. Marie and Ronnie then had a separate discussion together upstairs, in which they decided to accept Ravina’s proposal. They then went downstairs, and Marie said to Ronnie, Romina and Sonia Senior, “Ravina, Ronnie and I have spoken, and we want to accept your proposal, we are so thankful for what you are doing for us.”

57. Ronnie’s version of these conversations set out in his affidavit is materially the same as that of Marie. In cross-examination, some answers given by Ronnie suggested that in the initial discussion in about February 2010, there was talk of finishing the initial project (being the purchase and completion of what became the Property), gaining equity and completing further projects together. Ronnie agreed that there was nothing to this effect in his affidavit setting out the February 2010 discussion. He subsequently referred to text messages with Ravina in 2012 and later as evidence of them discussing further projects. When pressed further on the topic, Ronnie answered that the discussions about other projects could have been later, after Ronnie, Marie and the children moved into the Property. This add on, or additional part of the arrangement, assumed some significance in Ravina’s closing submissions and I deal with it later in these reasons.

Evidence in relation to identifying the Property and building the house

58. I set out first Marie and Ronnie’s version of events.

59. In or around late February 2010, following the discussions set out above, Ravina offered to buy a home for Ronnie, Marie and their family to live in. Marie, Ravina, Sonia Senior, Sonia and Jamison subsequently began looking for land and house packages. The first sale centre they attended was at Middleton Grange where they inspected a vacant lot and decided to purchase it with a deposit being paid on that day. Marie’s evidence, denied by Ravina, is that there were various statements made by Ravina at this time to the effect that she was purchasing the Property for Marie, Ronnie and their children. In oral evidence Marie also recalled considerable detail about the search for the Property, including the car – a Mitsubishi Magna – in which they travelled.

60. A conversation then took place between Ronnie, Ravina and Marie, where Ronnie was told about the purchase and told by Marie that “we” need to choose between one of three builders with Ronnie choosing Lily Homes, Ravina indicating that she would leave “those things” to Ronnie.

61. There was then a visit to the Lily Homes display centre where, Ravina told Marie she could choose whichever house she liked as it was “going to be your home”, with Marie then choosing the “Daisy”. During this visit Ravina stated to the “sales lady” that her brother was a builder, and she did not need Lily Homes to complete any exterior works, as these would be done by Ronnie.

62. Marie then gave detailed evidence as to her and Ronnie’s involvement in the construction of the home on the Property. This included:

1. In or around April 2010, Ronnie and Marie attended the head offices of Lily Homes to discuss the construction of the Property.

2. In or around early 2011, Ravina approached Ronnie and Marie regarding the landscaping and design of the Property and asked for Ronnie to arrange for a landscaping design to be carried out, which Ronnie and Marie arranged to be carried out by Ray Fuggle & Associates.

3. In or around late 2010, Ravina approached Marie and Ravina informed Marie that, as she was unable to finish the house due to insufficient funds, Ronnie and Marie would have to complete the remaining jobs to complete construction. Ravina indicated that at least the driveway and landscaping would not be completed.

4. In or around March 2011, Ravina contacted Marie to request that Marie call Lily Homes and organise a time for Marie to select the inclusions for the house. Marie then contacted Lily Homes and made an appointment for her and Ronnie to make the selections for the Property. After having made the selections, Ronnie and Marie provided Ravina with a copy of the signed selection sheet for the inclusions.

5. In or around April 2011, Ronnie and Marie attended the Marvel Tiles Supplier Factory at Prestons and made selections in relation to the tiles to be laid at the Property, which was conveyed to Ravina upon their return to the Hinchinbrook Property. A similar process occurred in relation to the selection of the face bricks and roof tiles.

6. On or around 23 June 2011, Ravina raised with Ronnie the need to remove an excess of dirt at the Property at an estimated cost of $18,000. In response, Ronnie indicated that he would arrange for the dirt to be removed, by organising “Alf” from AJL Excavation to remove the dirt at a cost of $12,500. This work was apparently carried out on or around 2 July 2001, and Ronnie paid Alf $12,500 in cash on or around 25 July 2001.

7. In or around August 2011, Marie had a conversation with Ravina regarding the installation of air conditioning at the house, with Ravina approving the installation on the condition that Marie “and Ronnie [were] happy with the costs of covering it”. A quote was obtained on or around 28 September 2011 by Ronnie and Marie from Bluestar Air Conditioning. Air conditioning was not installed at the time, until much later in or about October 2013 through another company known as Frost Air Conditioning.

63. A final inspection of the Property took place in early December 2011, attended by Ronnie and Marie. Ravina was asked by Marie and Ronnie if she wished to attend the final inspection, but apparently, she declined, saying “this is your house, so you and Ronnie go and make sure everything is okay. You guys can sign off on the final inspection.”

64. Ronnie signed the handover documents, and it was indicated by Lily Homes that an interim certificate would be issued as the house was not yet complete, including completion of the driveway and the landscaping.

65. Ravina apparently contacted Marie on or around 12 December 2011 to tell her that the keys were ready for Ronnie and Marie to pick up for the Property. Ronnie apparently picked up the keys and later that evening Ronnie, Marie and the children visited the Property, after which they went back to the Hinchinbrook Property and celebrated with Sonia Senior, Rita, Romina and Ravina.

66. Marie’s evidence is that the following statements were made at this time:

Ravina:	I would just like to congratulate Ronnie and his family on the new home, we are all very excited to see Ronnie and the family, especially Hoobie grow up in the house.
Rita:	I would also like to congratulate Ronnie and his family: you know how much you and your family means to us and we cannot wait to see your children grow up in the house.
Ronnie:	Thank you so much Rav for everything you have done, it means the world to us and the family, I know how much this family means to you, especially the children and they will always be grateful for everything you have done. We cannot wait to show everyone the house.

67. Ravina denies that any of the above events occurred. Her evidence was to the effect that she had identified the Property herself, chose Lily Homes as the builder and that, apart from Marie choosing the interior colours, neither she nor Ronnie had any involvement in the building. Ravina’s evidence was also to the effect that it was she who collected the keys from Lily Homes.

Purchase of the Property and Ravina’s financial position at the time

68. It is not in dispute that Ravina entered into two loan agreements with St George bank totalling approximately $424,700, one for purchase of the land and the other for construction of the house. These loans were entered into in early 2011. It is also not in dispute that the loans were highly geared. Ravina agreed in cross-examination that she contributed approximately $18,000 from her own funds toward the purchase in relation to the first loan (for the land) and $9,588 for the second loan (for the construction of the home).

69. The loan application documentation discloses that at the time of the application – early January 2011 – Ravina’s annual income was $62,400. Her liabilities included a personal loan of $9738 and a credit card liability of $9,543. She had $10,609 in savings.

70. The second loan application – for the construction of the house – dated March 2011 – also disclosed a second source of income, namely rent from the Property in the sum of $24,960. Ravina gave evidence in cross-examination that this figure was an estimation by St George Bank as to the amount Ravina would be getting for rent, because it was an investment loan. At the time of the construction loan Ravina had $5,859 in savings.

71. Ravina’s financial position at this time, as well as the estimate of St George Bank as to the likely rental rate, assumed some significance on the issue of whether the agreement was a joint endeavour agreement – as contended for by Ronnie and Marie – or an oral lease agreement as contended for by Ravina. I deal with this below.

Ravina’s version of the oral lease agreement

72. Ravina contends that the agreement leading to, at least Marie and her children being permitted to live in the Property, arose in late 2011, at a time when the house on the Property was completed, but prior to possession being granted to Ravina. Her affidavit evidence was that Marie approached her about renting the new home for herself and her children. A conversation occurred to the following effect:

Marie: I’ll move into the house with the kids, and Ronnie will not be coming with me, there has been no relationship between the two of us for a long, long time, I am able to afford to pay you $600.00 a week. This is what I can pay.

73. Marie then said in words to the following effect:

There is a single woman that I know from school where the kids go, and she lives in the same area, and she is paying $800.00 dollars rent per week.

74. Ravina then said to her the following words:

I agree. $600.00 dollars per week rent is fine with me. You can move in and pay rent starting in January.

75. Romina gave evidence in virtually identical terms as to the words used.

76. In oral evidence, Ravina introduced some further words into the conversation, to the effect that Marie said she would be receiving support from the government.

Moving in and events thereafter

77. On or around 30 December 2011, Marie and the children began to move into the Property. Ronnie moved in at the same time. Ravina says that she became aware at this time that Ronnie had also moved in, but that she did not consider that this changed the agreement with Marie.

78. At the time that the family moved in, it was not in dispute that the house was not complete, particularly certain external works. Lily Homes confirmed that the following works were not carried out by Lily Homes but were carried out by Ronnie and Marie after handover:

1. Concrete driveways and paths.

2. Perimeter fencing.

3. Landscaping.

4. Interior and exterior lighting.

79. In or around mid-December 2011, Marie and Ronnie arranged for a company known as X Electrical to attend the Property and provide a quote for installation of down lights, a doorbell and security cameras. This work was completed in February 2012. Ronnie and Marie tendered an invoice for the work for the sum of $10,560, which was paid. Ravina accepted that this work was done after Marie, Ronnie and the children moved in but without her consent.

80. After moving in, Ronnie and Marie continued to carry out or arrange to be carried out, work in relation to the Property, including:

1. On or around January 2012, Stancon Plumbing attended the Property and performed works required to remove the flooding in the backyard, namely installing further drainage points around the backyard. They also upgraded the toilets and hot water systems. Ronnie and Marie tendered two invoices totalling $9,350, although it would appear that one of these invoices may have been obtained, or at least reissued, by Stancon after the present dispute arose.

2. In or around late January 2012, Ronnie and Marie engaged a company known as SGS Bobcats to prepare the exterior of the home for completion, including excavation to level the land and removal of the dirt. Ronnie tendered an invoice dated 16 February 2012 in the sum of $4,247.

3. In or around February 2012, Wissam was engaged to complete the driveway, the fencing work down one side of the Property and the landscaping of the Property. The invoice was for the total amount of $41,940. Ronnie purchased the plants and nursery items from Andreasens Green Wholesale Nursery for a total of $491.70. There was an issue about who paid for the driveway and who was meant to pay for the landscaping which I deal with below.

4. In or around May 2012, when the neighbouring property, 23 Robey Avenue, Middleton Grange was complete and the neighbour had moved in, Ronnie and Marie organised for a company, Dial-A-Fence, to attend and install a dividing fence between the respective properties. An invoice was tendered for $1,460.

5. In or around May 2012, Ronnie and Marie engaged Wissam to attend the Property to install wardrobes in the bedrooms. An invoice dated 30 May 2012 totalling $8,030 (including GST) was tendered in support of this work. In or around November 2012, Wissam installed storage wardrobes to the garage and an invoice dated 24 November 2015 in the amount of $3,080 was tendered in support.

81. As I understand her evidence, Ravina did not ultimately dispute that this work was carried out. Save for the driveway, landscaping and the removal of some dirt, her contention was that this work was carried out by Ronnie and Marie, without Ravina’s prior consent or approval. In relation to the driveway, soil removal and landscaping there was a dispute about who paid for the works. I deal with this later in these reasons.

Mortgage Payments

82. It is not in dispute that Ronnie made some of the mortgage payments in relation to the Property, although Ravina says she treated them as payments of rent. The commencement and amount of those payments were in dispute.

83. From time to time, Marie says that Ravina would approach Ronnie and ask Ronnie to assist with mortgage repayments. Ronnie would then ask Marie to make the payments and she attended the bank to withdraw money as most of the times the payments would be given to Ravina in cash. According to Marie and Ronnie’s affidavit evidence, the following mortgage payments were made by Ronnie and Marie towards the Property (the emboldened entries are those which are admitted by Ravina):

1. 3 November 2014 in the sum of $2,200;

2. 16 January 2015 in the sum of $2,500;

3. 16 March 2015 in the sum of $2,500;

4. 10 April 2015 in the sum of $2,500;

5. 11 May 2015 in the sum of $2,500;

6. 18 August 2015 in the sum of $2,500;

7. 11 January 2016 in the sum of $2,500;

8. 3 February 2016 in the sum of $2,800;

9. 8 May 2016 in the sum of $2,800;

10. 18 January 2017 in the sum of $2,500;

11. 19 March 2017 in the sum of $2,500;

12. 25 August 2017 in the sum of $2,500;

13. 10 November 2017 in the sum of $2,500;

14. 27 February 2018 in the sum of in the sum of $2,800;

15. 3 June 2018 in the sum of $2,800;

16. 10 November 2018 in the sum of $2,800;

17. 17 December 2018 in the sum of $2,500;

18. 17 May 2019 in the sum of $2,500; and

19. 30 July 2019 in the sum of $2,500.

84. The total of these payments is $48,400, although the amount claimed in the amended cross-claim is $51,200. The difference of $2,800 is made up of an additional pleaded payment on 5 October 2016 of $2,500 and a pleading that the contribution on 18 January 2017 was for $2,800 (and not $2,500 as set out in the affidavit). As it set out below, the claim for contribution to mortgage payments was broadened in closing address.

85. In total, Ravina agrees that payments totalling $22,400 were made by Ronnie between 7 February 2018 and 8 January 2019. She contends she treated these payments as rental payments. Save for the three payments in bold text above, it is not possible to reconcile Ravina’s admitted payments to the above list.

86. The total mortgage payments said to have been made by Ronnie and Marie, set out in the amended cross claim, total $51,200. At the commencement of his oral evidence, Ronnie also tendered copies of his company’s (Zacron) bank statements, as well as the bank statements for the joint personal account he had with Marie, in which he had highlighted, relevantly, the amounts paid to Ravina for the mortgage. In closing address, counsel for Ronnie and Marie clarified that the quantum of mortgage payments now claimed to have been paid by Ronnie and Marie totalled $65,200, being the sum of the amounts claimed by Ronnie and Marie in their cross-claim and affidavit evidence and the amount admitted by Ravina to have been paid ($22,400) less the three payments which overlap between the two (as highlighted above).

87. I deal with this issue later in these reasons. It is complicated by the paucity of records and the fact that a number of the payments were made in cash.

The period post construction until breakdown

88. The period after construction work was completed until the relationship break down is of little factual relevance to the present dispute.

89. There is no dispute that no rental payments were made by Marie, although Ravina says that she treated the mortgage payments made by Ronnie as payments of rent.

90. Ravina contended that sometime in 2012 or 2013, Ronnie requested that Ravina put his name on the title deeds for the Property. In response to this request and coupled with her concern about the continuing non-payment of rent, Ravina contends that she believed that she needed to arrange a formal rental agreement. Ravina also contends that on a couple of occasions, she asked Ronnie for this agreement to be drafted by a solicitor or real estate agent and that Ronnie refused. As such, Ravina decided not to press the issue further as Ronnie was her brother, and she knew that he would not sign an agreement.

91. Ronnie denies there was any such request. I deal with this later in these reasons.

92. Ronnie and Marie paid water rates for the Property from time to time. They also paid strata levies. Ravina initially denied any such payments had been made but, after provision of bank statements by Ronnie and Marie shortly prior to the hearing, she agreed some payments had been made.

93. Ravina refinanced the mortgage on two occasions. First in 2014, when the two loans were combined into one loan. Ravina was paid $29,785.38 personally as a result of the refinance. The second was in 2016, which resulted in approximately $40,000 being paid to Ravina.

The breakdown of the relationship

94. It would appear that the relationship between Ravina, on the one hand, and Ronnie and Marie, on the other, began to break down following the death of Sonia Senior in July 2019 or shortly prior to then. Each party had a different perspective, however, on the reasons for the breakdown.

95. Ravina appears to have ceased work in late 2017 and as a result, was reliant on her savings to pay the mortgage on the Property. In early 2018, Ravina asked Ronnie to help with her mortgage payments and Ronnie thereafter paid $22,400 in 8 separate payments until 8 January 2019. Ronnie stopped making payments in January 2019, which led to a breakdown in the relationship. The relationship deteriorated further in early 2020 as a result of Ronnie’s continuing refusal to pay the mortgage.

96. According to Marie, issues emerged between Ronnie and Ravina after their mother’s death. Based on information relayed to her by Ronnie, Marie believes this was due to Ravina making accusations to Ronnie against their brother, Robert, namely that Robert was the reason for Sonia Senior passing away. From Marie’s perspective, Ronnie’s refusal to get involved in disputes with his other family members caused the breakdown in his relationship with Ravina, and that it was only after this time that Ravina began attempts to remove Marie, Ronnie and their children from the Property and allege that they were tenants in it.

The request to vacate the Property

97. On 12 October 2020, Ravina sent Marie a text message to the following effect:

Marie: it is Ravina I need to let you know that I need you to leave the house in 4 weeks. Unfortunately I will be selling it due to financial difficulties. If you need extra time let me know. I am sending you this message as I cannot communicate with Ronnie.

98. Marie responded “Ok no problem. Thanks.”

99. Significant reliance during the hearing was placed on the McDonald’s conversation, which was apparently attended by Ravina, Marie, and Marie’s two daughters, Halanie and Sonia, although it appears to be common ground that Sonia arrived after the discussion relied upon by Ravina. The dispute concerns what was said during the McDonald’s conversation, not whether there was any meeting at all.

100. According to Ravina, the McDonald’s conversation included words to the following effect:

Ravina:	I need you to leave the house so that I can sell it.
Marie:	I am sorry. I will start looking for a place with Halanie. I am leaving Ronnie…. I had to start working even though I was sick and lost my licence because he stopped feeding me… I feel like a squatter living in your house.

101. In response to Ravina telling Marie that Ravina will help to pay the bond on a new rental and give her one month’s rental payment to help her, the conversation continued:

Marie:	I don’t need help Ravina. I have plenty of money.
Ravina:	Then why didn’t you pay me the $600 per week?
Marie:	On that part I failed you. (placing her hand on her chest)

102. Halanie’s affidavit evidence suggested that more words were said by Ravina. Her affidavit evidence was to the following effect:

Ravina:	Don’t you remember when you were leaving (property at Hinchinbrook), and you were going to take the kids, and you were agreed to give me $600 per week, because that was what one of the mums at the school was paying?
Marie:	In that I have failed you.

103. Marie denied that words to this effect were said. On her account the conversation was as follows:

Ravina:	Maria, I need you to leave the house, I need to sell it. Why don’t you and the kids come live with me at the Hinchinbook Property, and leave Ronnie, he is no good, I want to shut the water off on him, he is the reason my mum died.
Me:	What are you talking about, Ronnie did everything he could to help mum out. Whatever issues you have with Ronnie, keep it between the two of you and don’t involve me and my children.
Ravina:	I need you guys to leave the house, go and find a rental property and I will help with the bond deposit and first couple of months’ rent.
Me:	Why would we leave the house, it is our house, we have spent a lot of money on the house, and you have said time and time again that the house is ours and for Jamison.

104. Ravina contends that, on her version of events, what was said by Marie during the McDonald’s conversation constitutes an admission as to the existence of an earlier rental agreement. I deal with this contention later in these reasons, when dealing with the existence or otherwise of the rental agreement.

105. The relationship with Halanie appears to have broken down on or around 24 January 2021, when an argument developed between Halanie and Ronnie in relation to a feral cat in the Property, which was brought into the house by Halanie. Halanie, Sonia and Jamison left the Property and drove to the Hinchinbrook Property. Jamison was subsequently brought back to the Property, but Halanie appears to have then moved out of the Property with Sonia and resides with Ravina and Rita at the Hinchinbrook Property. In or around late 2023, Sonia moved back to live with Ronnie and Marie. However, the relationship that Marie and Ronnie had with Halanie has deteriorated greatly to a point where they no longer talk or communicate with one another.

106. Attempts to evict Marie and her family from the Property intensified in 2021. On 15 April 2021, Ravina’s then solicitor sent a letter to both Ronnie and Marie headed “Notice of Your Eviction of Property” which stated relevantly:

We hereby put you on notice that you are required to evacuate property at 25 Robey Street, Middleton Grange which is currently being occupied by you within 14 days of the date of this letter.

107. On 20 April 2022 a further letter was sent by Ravina’s new solicitors to both Ronnie and Marie. The letter stated:

Dear Mr & Mrs Ronnie Joudo

PROPERTY ADDRESS: 25 Robey Avenue, Middleton Grange, NSW, 2171

We act for Ms Ravina Joudo, the legal owner of 25 Robey, Avenue, Middleton Grange, NSW 2171 represented as Folio 287/280017 (“the Property”).

We are instructed that you have been provided with notice of her intentions to sell the property.

We confirm that our client has not received any rent for the duration of the time that you have been renting and as a result our client is experiencing financial hardship. We are instructed that you moved into the property on:

Commenced Occupancy as a renter on or around:    December 2011

Present date:                   20 April 2022

Previous correspondence

On 15 April 2021 you were provided with correspondence from State Law group requesting you to evacuate the property.

I confirm that you remain in the property without lawful reason and we are instructed to provide you with an opportunity to evacuate as a measure of good faith.

Rent Owing

Our client instructs us that the market value for a property in the rental is estimated at approximately $700 per week. However, our client is willing to assess the rent (on a without prejudice basis) at $600 per week.

Having regard to the outstanding rent, we have calculated that rent to be in the order of $324,000 up to the end of April 2022.

Evacuation

We hereby place you on notice that you are to evacuate the property by no later than close of business 18 May 2022 (28 days).

Response

We are instructed that our client is seeking to resolve this on an amicable basis to avoid lengthy and costly disputes as this will benefit both parties.

Please provide your response within 7 days of this letter (28 April 2022).

Yours faithfully,

Ashley, Francina, Leonard & Associates

Tony Nikolic

Director and Principal Solicitor

108. On 3 May 2022, the solicitors for Ronnie and Marie responded to the letter dated 20 April 2022, confirming that Ronnie and Marie rejected the “Notice of Evacuation”. The response also stated:

We place you on notice that our clients have an equitable right to the property and we will be seeking to enforce that right in due course, which we note your clients are no doubt aware of.

109. This prompted an almost immediate response from Ravina’s solicitors confirming receipt of the earlier email and requesting:

Full particulars of your clients’ “alleged” equitable interest in the said property that is owned by our client.

110. It would appear that no full particulars were ever provided in response. A further request for full particulars was made on 30 May 2022, to which there was no response.

111. On 2 September 2022, the solicitors for Ravina sent a termination notice to “Mrs Maria Joudo” pursuant to s 82 of the Residential Tenancies Act (NSW) 2010. The notice stated:

RE: Mrs Marie JOUDO

PROPERTY ADDRESS: 25 Robey Avenue, Middleton Grange, NSW 2171

We are writing to you on behalf of our client, Ms Ravina JOUDO, who is the Landowner and Legal Title Holder of the above said property represented in Folio 287/280017 (the property) which you and your husband have occupied since December 2011.

We are writing to advise you and all occupants must vacate the above property no later than 5pm on Monday 26 September 2022. As a matter of law, I put you on notice of the following:

(a)   The residence concerned is 25 Robey Avenue, Middleton Grange, NSW 2171;

(b)   The residential tenancy agreement between yourself and our client will be terminated on Friday the 9 September 2022 and vacant possession of the property is to be given to my client on or before 5 pm on Monday 26 September 2022.

(c)   The grounds for the Termination Notice are based on the following:

•   On or around December 2011 my client entered into an oral agreement with you that you could reside at the above property for the sum of $600 per week in rental income.

•   Since that agreement you have failed to pay any rental income as agreed between yourself and my client and you are more than 14 days in arrears.

•   My client has previously forwarded to you an eviction notice on the 15 April 2021 and 20 April 2022 advising you of Notice of your Eviction from the property and requesting you vacate the premises however you have continued to ignore these requests.

•   In a conversations with my client, you have acknowledged the existence of a rental agreement with my client and non payment of said monies.

•   My client has suffered financial hardship as a result of the non payment of rental income and is now terminating your lease of the above property.

112. A second letter was also sent by the solicitors for Ravina to Marie dated 2 September 2022, referring to the alleged oral agreement to pay $600 per week from January 2012 to reside in the Property, calculating the outstanding rent at $311,200, making due allowance of $22,400 for monies paid by Ronnie since 2018. The letter also stated:

We are instructed that our client is seeking to resolve this dispute on an amicable basis to avoid a lengthy and costly litigation.

113. An occupancy notice to vacate premises pursuant to s 82 of the Residential Tenancies Act (NSW) 2010 was also sent to Ronnie on 2 September 2022 by Ravina’s solicitors.

114. On 26 September 2022 each of Ronnie and Marie sent two letters to Ravina’s solicitors in response to the 2 September 2022 notices. The responses are relevantly identical and provide:

Dear Sir,

25 Robey Avenue, Middleton Grange, 2171 having folio identifier: 287/280017 (the Property)

I refer to the above matter and to your letters titled:

1   “Urgent – Outstanding Rental Monies owed to Ms Ravina Joudo dated 2 September 2021” addressed to Ronnie Joudo (Outstanding Rental Notice); and

2 “Termination Notice – Notice for Occupant to Vacate Premises pursuant S82 Residential Tenancies Act 2010 New South Wales” dated 2 September 2022, addressed to Ronnie Joudo (Termination Notice).

I respond to the Outstanding Rental Notice and Termination Notice as follows:

(a)   Ronnie Joudo (Ronnie) and myself claim an equitable interest in relation to the whole of Property;

(b)   The Property was held by your client on trust for both Ronnie and myself;

(c)   The Property was to be transferred to Ronnie and myself at our direction;

(d)   I strenuously deny that Ronnie and I entered into an oral agreement for the Property to pay the sum of $600.00 per week as rent to your client (Rental Agreement);

(e)   I confirm that prior to your correspondence dated 15 April 2022, 20 April 2022 and 2 September 2022 neither Ronnie or myself have ever received any demand for payment or for that communication supporting that there was ever a Rental Agreement and I reiterate that the existence and terms of the Rental Agreement as set out in your Occupancy Notice is strenuously denied;

(f)   Your client has suffered no loss or damage as set out in paragraphs (a) to (e) above;

(g)   Even if there was a Rental Agreement, which is denied, the statute of limitations limits that any such claim cannot be made after six (6) years and accordingly your Outstanding Rental Notice is defective and more importantly cannot be reconciled;

(h)   There has never been a demand for rent pursuant to the Rental Agreement, which Ronnie and my position is clear that your client is not entitled to make such a demand for rent as set out in the Outstanding Rental Notice or for that matter that there is any arrears at all; and

(i)   Finally, I draw your attention to the affidavit filed by Ronnie in the AVO Proceedings, which a copy has been served on you, and draw you attention to the false claims your client has lodged with respect to the Property to the ATO.

On the matters raised I strenuously deny that your [sic] entitled to seek relief pursuant to the matters raised in paragraphs (a) to (i) above namely enforce any right to vacant possession or payment of rent for that matter.

Bearing in mind the matters raised above I:

(i)   confirm that any action by either yourself and/or your client to interfere with the occupation of the Property by Ronnie and myself will be reported to the NSW Police for trespass; and

(ii)   place your client on notice that I hereby give your client 28 days notice, from the date of this letter, to execute all documents necessary to transfer the Property pursuant to our equitable rights as set out above, my lawyers provide the relevant transfer forms.

I confirm I otherwise reserve all of my rights.

Yours faithfully

Maria Joudo

115. By letter dated 27 September 2022, Ravina’s solicitors responded to the 26 September 2022 correspondence from Ronnie and Marie, confirming their instructions that no such interest or agreement – as contended for by Ronnie and Marie – was ever created or entered into. The letter again requested the full nature and particulars of the alleged equitable interest in the Property, including the date on which Ronnie and Marie claim they received this equitable interest, together with any documentation in support.

116. Eviction proceedings were subsequently commenced by Ravina in the New South Wales Civil & Administrative Tribunal as well as debt recovery proceedings in the District Court in respect of the alleged unpaid rent.

115. Short minutes of order were made by Judge Dicker SC in the District Court on 18 April 2023 for Marie to provide vacant possession of the Property within 90 days, and Ravina to engage a licenced real estate agent in relation to the sale of the Property within 14 days of the making of the orders. Order 4 of the orders made provided as follows:

Upon settlement of the sale of the Property the proceeds of sale are to be distributed as follows:

a)   Payment of the costs of sale including any valuer’s fees, real estate agent fees, commission, reasonable solicitors’ conveyancing fees, auctioneer fees and other associated expenses with the sale of the Property.

b)   The payment of outstanding interest and capital owed by the plaintiff to the registered mortgagee of the Property.

c)   The payment of one-third of the sum remaining after payment of (a) above into this Court until further order.

d)   The payment of the balance to the Plaintiff.

118. Pursuant to those same orders, the proceedings were transferred to the Supreme Court.

119. The Property was subsequently sold, with settlement occurring on 17 July 2023. The sale price was $1,054,000. From the sale of the Property the sum of $342,835.27 was paid into Court pending resolution of these proceedings. Marie, Ronnie and Jamison vacated the Property at settlement.

120. It would appear that at the time that the monies were to be paid into the Supreme Court, a dispute arose between the parties as to the proper interpretation as to the orders made by Judge Dicker SC. In particular, whether the mortgage in favour of St George Bank should be paid out prior to the payment into Court of any further funds. Ronnie and Marie’s position was that the quarantined one third share should be determined prior to the payment to St George Bank, such that the payment to St George Bank would come out of Ravina’s share. This appears to be what occurred such that the sum paid into Court is significantly more than one third of the net (that is, net of mortgage payout) proceeds of the sale of the Property.

121. Following the sum paid into Court, the mortgage in favour of St George Bank was discharged in the sum of $459,775.32 and the remaining funds being $167,158.45, were paid to Ravina.

Relevant Legal Principles

Ravina’s Claim

122. Ravina’s claim is relatively straightforward and does not give rise to any peculiar legal issues. Ravina relied on the well understood principles set out in Walsh v Lonsdale (1882) 21 ChD 9, although I did not understand Ronnie and Marie’s counsel to take any issue with the ability to create a lease orally. Rather, the question is a factual one. Namely, whether there was a conversation in the terms alleged by Ravina whereby it was agreed that Marie would rent the Property for $600 per week in arrears. It was not suggested that if the conversation occurred as alleged by Ravina, that this did not establish the oral rental agreement relied on.

123. Marie and Ronnie’s counsel stressed the need for me to find an actual persuasion that the words were in fact said, relying on the well-known authorities I have referred to above.

Ronnie and Marie’s Claim

124. As advanced at the hearing, Ronnie and Marie placed reliance on the principle emerging from the judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 620 and approved in Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148:

…the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.

125. It was not disputed that, in order to succeed in their joint endeavour constructive trust claim, Ronnie and Marie needed to establish three elements as identified by Parker J in Woods v MacKinlay (No 2) [2021] NSWSC 1510 (Woods v MacKinlay (No 2)) at [231]:

a.   The formation of a joint endeavour between the parties;

b.   The acquisition of property pursuant to that joint endeavour; and

c.   The premature termination of the joint endeavour, leaving one party with a legal interest which that party was not intended to enjoy beneficially in those circumstances.

126. The following principles were also not in dispute:

1. For there to be a joint endeavour, there needs to be some sort of understanding between the parties, but the scope of that understanding can change from time to time. The understanding does not have to have the sort of precision required for a contract. If it did, the contract would cover the field and there would be no need for the failed joint endeavour doctrine; the whole point of the doctrine is that it covers a situation which the parties have not addressed, namely the failure of the endeavour which would leave one party with an unexpected windfall: see Makaritis v Makaritis (No 2) [2022] NSWSC 1690 (Makaritis (No 2)) at [164].

2. The doctrine operates in a restitutive way: Makaritis (No 2) at [169].

3. What happens is that, when the contingency not foreseen by the parties occurs, equity intervenes, but it does so by retrospective adjustment of the parties’ rights so as to achieve a just outcome having regard to the parties’ omission to deal with that contingency at the time that the property was acquired: Woods v McKinlay (No 2) at [260].

127. It was also not disputed by counsel for Ravina that if the Court was satisfied that there was a failed joint endeavour as contended for by Ronnie and Marie, the appropriate way to frame the relief was in the same manner as that framed by Parker J in Woods v McKinlay (No 2), namely:

1. declare a constructive trust over the properly at the time of sale; then

2. discharge any borrowings; then

3. out of the balance refund to the parties their respective contributions; with

4. the remainder being split equally.

128. Counsel for Ronnie and Marie also conceded that it would be appropriate to charge Ronnie and Marie for a market rental for the period from when the relationship broke down until the sale of the Property. The rationale, as I understand it, is that from the date of breakdown in the relationship, Ronnie and Marie were not entitled to remain in possession on the previously agreed terms and thus should pay an occupation rent thereafter: see Woods v McKinlay (No 2) at [172].

Issues for Determination

129. Counsel for Ronnie and Marie identified, in closing address, that there were three questions for the Court to determine:

1. Was there an oral tenancy agreement?

2. If there was no oral tenancy agreement, was there instead a joint endeavour to build the Property?

3. If yes to (2), what were the respective contributions from the parties?

130. These are the natural questions that arise from the way in which the case was litigated and counsel for Ravina did not identify any other questions.

131. I propose to follow this structure below, although questions (1) and (2) can naturally be grouped together.

Determination

(1) and (2)   The nature of the Agreement

132. For the reasons set out below, I do not accept that there was any conversation whereby Marie agreed to lease the Property from Ravina for $600 per week, as contended for by Ravina. I accept that conversations occurred to the effect contended for by Ronnie and Marie and that thereafter, the parties acted in accordance with a joint endeavour, whereby Ravina would purchase the Property and make mortgage payments and Ronnie and Marie would complete the construction of the house, improve it, maintain it, and assist with other payments where they could. The arrangement obviously changed over time with Ronnie agreeing to make some mortgage payments.

133. The initial dispute concerns the events leading up to the decision to purchase the Property. As set out above, Ravina contended it was solely her idea to purchase the Property as an investment, and it was not until November or December 2011 when the idea of Marie renting the Property first arose. Ronnie and Marie’s version is that the joint endeavour agreement was reached prior to the decision to purchase the Property and arose in response to their stated intention to move to Twin Creeks, being some distance from the family residing at the Hinchinbrook Property.

134. I do not accept Ravina’s version, preferring that given by Ronnie and Marie as being more likely.

135. The undisputed historical fact is that prior to 2010, the Joudo family – or at least Sonia Senior, Ravina, Romina, Rita, Ronnie, Marie and their children – had been extremely close. They were all living under the one roof and there is no dispute of the love and affection which Ravina had for Ronnie and Marie’s children, particularly Jamison. Given this historical closeness, it is natural that there would have been some concern about the family moving much further away than they ever had been.

136. There is also the fact that, historically, the title of previous properties in which the family had lived did not reflect the ownership interests in those properties, such that some family members who were thought to have ownership interests, in fact, did not and were not represented on the title deeds for those properties.

137. Ravina’s evidence was that she had no recollection of it ever being raised with her that Ronnie, Marie and the children had identified and placed a deposit on a property at Twin Creeks. In fact, Ravina contends that her decision to purchase the Property was due to the fact that Ronnie and Marie had no plans to move out of the Hinchinbrook Property. Ronnie and Marie’s evidence on this was supported by Halanie, who gave evidence in chief and in cross-examination of potentially moving to Twin Creeks. If, as I find, a property had been identified at Twin Creeks, it is only natural that the other family members would have been told and lead to Ravina wanting the family to live closer.

138. It also seems perfectly plausible to me that Ronnie and Marie would be seeking to move out of the crowded Hinchinbrook Property and have a house of their own, as they had for many years before.

139. Ravina’s evidence as to the circumstances leading up to the alleged November or December 2011 discussion is also difficult to accept. Her affidavit evidence in chief did not mention any possibility of Marie living in the Property until November or December 2011, when the prospect was raised by Marie in the context of her leaving Ronnie and the children. Her reply affidavit evidence referred to asking Marie to pick the colours in the interior of the house because she would be living in it. This was well prior to alleged discussion occurring in November or December of 2011.

140. There appears to me to be an inherent implausibility in Ravina’s story. She purchased the Property with the intention – apparently discussed with others but not Ronnie and Marie – of Ronnie and Marie and their children living in it. Ravina not only permitted, but invited, Marie to have a role making interior selections for the house, including choosing colours because of this intention. Despite this, there is no discussion with Marie or Ronnie about actually moving into the Property until November or December 2011, when it is alleged that Marie raised the concept of moving into the Property in the context of leaving Ronnie. More plausible, in my view, is the evidence of Ronnie and Marie that the initial discussion was of a joint endeavour. This is consistent with the family history of legal title not reflecting ownership interests, together with the involvement of Marie and Ronnie in making certain choices and carrying out certain works in the construction of the home on the Property.

141. It is also quite implausible that Marie would have offered to pay $600 per week to rent the Property. It is not clear how she would have been able to afford this amount, given that she was only working part-time and looking after three children, one of whom had Down Syndrome. There is also nothing to support Ravina’s evidence, which was introduced in cross-examination, that Marie said she would receive financial support from the government.

142. Of some significance in this regard is the likely rental estimated by St George Bank in early 2011 in the finance approval documentation of $480 per week (unfurnished). There was no other evidence to suggest that $800 per week was likely to some sort of market rent.

143. There is also the agreed condition of the Property as at November or December 2011. Only the interior of the house was finished, and considerable further exterior works were required, including a driveway and landscaping. The undisputed need for considerable further work tells against Marie offering to rent the Property at all and certainly offering $600 per week. On Ravina’s version, Ronnie was also building the driveway as a gift, and Marie was aware of this. However, if Marie were leaving Ronnie, as Ravina contends, it is unlikely that Ronnie would offer to build the driveway, making Ravina’s version even more implausible. The fact that Marie was prepared to move into an unfinished property where not insubstantial sums were required to be spent to finish the Property, in circumstances where there was no suggestion that there were not other properties available for rent in the area if Marie was truly desirous of leaving Ronnie, tells strongly against there being any oral lease discussion and in favour of the joint endeavour propounded by Ronnie and Marie.

144. Moving to the immediate aftermath of the alleged conversation in November or December 2011, it is not in dispute that Ronnie and Marie did not separate (and never have separated), with Ronnie immediately moving into the Property with Marie and the children. This is inconsistent with Ravina’s version of the conversation but consistent with Ronnie and Marie’s evidence that the Property was always intended to be a family home for them and their children.

145. Marie also gave some quite plausible and powerful evidence in cross-examination that immediately prior to moving into the Property, she and Ronnie were not experiencing marital difficulties but instead, they were on good terms and even went together to purchase new furniture for their new family home. It was not in dispute that new furniture was purchased. This is all directly contrary to a critical aspect of the oral lease discussion, namely that Marie was leaving Ronnie.

146. There is then the undisputed fact that at no stage was any rent ever paid by Marie, or ever, it would appear, demanded by Ravina from Marie until the relationship soured and attempts were made to evict Ronnie, Marie and their children from the Property. There was no probative evidence that there was ever any further discussion of the rental agreement after the one alleged discussion in November or December 2011.

147. The only evidence relied upon by Ravina’s counsel to demonstrate a demand for rent was an SMS exchange between Ravina and Ronnie in March 2020 where Ravina texted: “For the last 10 years I asked you to help…” and “I asked you to pay”. This text exchange was at a time that Ronnie and Ravina’s relationship had broken down. Further, as counsel for Ravina frankly conceded, the text message does say whether the previous requests made by Ravina for payment by Ronnie were payments for rent or the mortgage. This text exchange does not assist Ravina.

148. The explanation proffered by Ravina for not demanding rent was, in effect, that she knew that Marie and Ronnie were having financial difficulties and she did not want to bring about a situation where the children – Halanie, Sonia and Jamison – were without a home. I do not accept this explanation. There is no evidence of Ronnie and Marie experiencing financial difficulties at the time. The objective conduct is to the contrary – buying furniture and making improvements to the Property and the like. Any reticence to demand rental money from family falls away as plausible when one considers the events from 2018 onwards, where Ravina asked Ronnie to assist in paying the mortgage on the Property when Ravina was falling behind. Although Ravina now seeks to characterise the $22,400 plus which Ronnie gave to Ravina as payment of rent rather than mortgage payments, there is nothing in the contemporaneous documentation which seeks to characterise the payments as on account of rent pursuant to an agreement reached some eight years earlier.

149. If Ravina had thought she was owed money on a weekly basis for the occupation of the Property and was in desperate need of money to pay the mortgage, one would have thought that Ravina would demand the money that she alleges was owed to her as rent. She did no such thing, instead she asked Ronnie to pay the mortgage. This is conduct quite inconsistent with a rental agreement having previously been formed.

150. Of some significance is the first formal communication referring to an earlier rental agreement. I have set the communications out above. The first letter dated 15 April 2021 makes no mention of any lease agreement. The second letter dated 20 April 2022 was from Ravina’s present solicitors. It refers to Marie and Ronnie having commenced as renters on or around December 2011. Curiously, it refers to a market rent of approximately $700 per week but offers on Ravina’s behalf to assess the rent (on a without prejudice basis) at $600 per week. There is no mention of an anterior agreement reached in November or December 2011 of $600 per week.

151. Ravina also gave generalised evidence that she asked had Ronnie to enter into a rental agreement. I do not accept this evidence, unsupported as it is by any supporting documentation. It is also difficult to understand why Ravina did not ask Marie to enter into the agreement, it being Marie with whom she purportedly entered into the agreement.

152. Ravina also gave affidavit evidence that she paid the council rates, strata rates, water rates and insurance in relation to the Property. In cross-examination, she admitted, having been provided with some material to suggest otherwise, that she was incorrect. This willingness to give evidence in support of her case until material is produced to the contrary tells generally against Ravina’s credit.

153. Ravina’s financial position at the time of the purchase also suggests that she did not have sufficient funds to complete the construction of the house, particularly the exterior. This suggests that she needed the assistance of Ronnie and Marie in completing the construction, which is more consistent with Ronnie and Marie’s version of the underlying arrangement. I deal with this in more detail later in these reasons in relation to particular items.

154. The conduct of Ronnie and Marie immediately after they moved into the Property, in completing its construction and making capital improvements to the Property, is also quite inconsistent with them occupying the Property as renters. Ravina admitted in cross-examination that tenants ordinarily did not carry out improvements such as those carried out by Ronnie and Marie. Later in these reasons, I deal separately with the disputes in relation to the driveway, soil removal and landscaping. Otherwise, Ravina’s dispute in relation to the improvements was that they were carried out without her consent and indeed she contended in the NCAT proceedings that these were unauthorised works which should be removed. This contention was only raised after her relationship with Ronnie and Marie soured in circumstances where, prior to the fallout, Ravina visited the Property many times each week and must have been aware of the improvements yet made no complaint.

155. Apart from the evidence from Ravina and Romina as to what was allegedly said in late 2011, the principal matter relied on by Ravina in support of the 2011 rental agreement was the so-called admission made by Marie during the McDonald’s conversation.

132. I do not accept Ravina’s version of the McDonald’s conversation, supported as it is by Halanie, instead preferring Marie’s account. This is for a number of reasons.

133. First, having regard to the matters set out above, the objective conduct of the parties and the inherent probabilities that follow from that conduct, overwhelmingly support that there was no oral rental agreement in late 2011. That conduct and the inherent probabilities suggest that the agreement or arrangement was as contended for by Ronnie and Marie.

134. Second, I find Marie to be a persuasive witness, more credible than Ravina who I found to be an unsatisfactory witness. I formed the impression that Ravina would give whatever evidence she was required to in order to succeed in her claim against Marie (and indirectly Ronnie), having had a catastrophic falling out with both.

135. As to the evidence given by Halanie regarding the content of the McDonald’s conversation, it is quite different to the account given by Ravina and appears to be a more complete repetition of Ravina’s affidavit evidence as to what was said in by Marie in November or December 2011. On Ravina’s version, contrary to Halanie’s version, there was no mention in the McDonald’s conversation that she was asking Marie to remember the conversation from November and December 2011 and had mentioned what other mums were paying.

136. Halanie was also obviously motivated to give evidence against her parents, with whom she had had a catastrophic falling out and in support of her aunt, with whom she now lives.

137. Reliance was also placed on a number of rental applications that were made by Halanie immediately after the McDonalds meeting. Those applications appear to name Marie as a co-applicant with Halanie. As I understood the submission advanced by Ravina, it was to the effect that the applications were consistent with Marie accepting she did not have any tenure at the Property, and had agreed to move out, being conduct consistent with Ravina’s version of events, including what was said during the McDonald’s conversation. Marie denied any knowledge of the applications and there is no evidence the applications were ever sent to her nor that she responded to them. I do not regard these documents as of much assistance in the present case.

138. Having regard to these matters in relation to Halanie’s evidence, and the inherent probabilities weighing against there being any 2011 oral rental agreement, I do not accept Halanie’s evidence.

139. Counsel for Ravina also placed reliance on Marie’s response to the initial text message from Ravina on 12 October 2020, in which Ravina advised Marie that she had to sell the Property because of financial difficulties and required Marie and the family to vacate the Property in four weeks. Marie’s response was “Ok no problem/Thanks”. In cross-examination Marie said that she “didn’t know what else to say”.

140. As I understood the submission made by counsel for Ravina, it was to the effect that the response was some sort of admission or acceptance by Marie that she had no tenure in relation to the Property and that this also provided some support to Ravina’s version of the McDonald’s conversation, which allegedly occurred shortly thereafter. Allied to this was a contention that Marie – having made admissions in response to the 12 October 2020 text message and in the McDonald’s conversation – then (along with Ronnie) changed her position by later asserting her equitable interest in the Property.

141. I do not accept these contentions. I do not regard the response to the 12 October 2020 text as some sort of admission. The text does not even refer to the alleged earlier rental agreement. Marie’s explanation in her oral evidence is quite plausible given the poor relationship between the parties at the time. Further, Marie’s position at all material times is that she should not be removed from the Property, culminating in Ravina ultimately commencing eviction proceedings.

142. I do not regard Ronnie and Marie’s conduct as involving any significant change of position. I include in this the conduct of Marie in propounding several versions of her cross-claim, culminating in the joinder of Ronnie shortly prior to the hearing. Nothing was put to Ronnie or Marie in cross-examination to suggest some sort of recent invention of allegations and nor were particular submissions advanced by counsel for Ravina as to why the various iterations of the cross-claim somehow tells against the veracity of the case propounded by Ronnie and Marie.

143. A related aspect that emerged during the hearing was the fact that Ronnie had been made a bankrupt in 2020 and had only been discharged in late 2023, his trustee in bankruptcy having obtained a six-month extension due to Ronnie’s alleged lack of cooperation. Ronnie was cross-examined about this and gave evidence seeking to attribute much of the blame to his then solicitor.

144. There was no reference to this in Ronnie’s affidavit.

145. Apart from this non-disclosure having some bearing on Ronnie’s credit, I do not regard it as overly relevant. Insofar as it provided an explanation for Ronnie not being added as a cross-claimant until shortly prior to the hearing, which really was not proved, I do not regard this as overly relevant either, particularly on the core issue as to the nature of the agreement reached in about 2010 or 2011.

146. Counsel for Ravina also took issue with Marie and Ronnie’s version of the agreement on several bases. One such issue focussed on the timing of the alleged initial conversation and the conduct which immediately followed, including searching for a property. The gravamen of the attack, as I understood it, was that the initial conversation could not have occurred in February 2010, and the consequent searching for the Property in the first quarter of 2010 – as Marie suggested in cross-examination – because the Property was not purchased until 2011. I do not accept this attack. As a matter of logic, on Marie and Ronnie’s version of events, the discussions forming the basis of the joint endeavour, and the activity thereafter necessarily predated the purchase of the Property as the very essence of the discussion involved that a property would be looked for and purchased.

147. Further, on Ravina’s evidence it was in 2010, precisely or even generally when in 2010 is not stated, that she visited the Middleton Grange area and identified the Property. No evidence was given by Ravina placing the visit to Middleton Grange in 2011 or sometime in late 2010, so as to create an inconsistency as to timing with Marie and Ronnie.

148. The contention by Ravina that there could not have been a discussion at an early stage to the effect that Ronnie would complete the exterior - as Marie contends occurred at the time Lily Homes was chosen as the builder - can be similarly rejected. Ravina’s own evidence in cross-examination was that she had a discussion before she entered into the contract with Lily Homes, whereby Ronnie would complete the driveway and landscaping. Her evidence was that it was a gift from Ronnie, which I reject as implausible if, on Ravina’s version, they were to be tenants. For present purposes, there can be no attack as to the timing of the discussion as there is no real dispute about this.

149. Given the effluxion of time between the purchase of the Property and the giving of evidence, I would not regard some disagreement of a few months as to precisely when certain events occurred as of much significance in the present case.

150. A further challenge to Ronnie and Marie’s evidence as to the initial discussions concerned Ronnie’s evidence, which alleged that an agreement was reached between Ravina and Ronnie to use the equity in the Property to carry out further property developments.

151. I have set out Ronnie’s evidence in cross-examination on this above.

152. I do not regard this difference – if in fact there is any – as of much significance in the present case. It was not clear on Ronnie’s evidence – taken as a whole – that the discussion about using the equity in the Property for future developments was part of the initial discussion or was something that evolved over time.

153. It is clear that from as early as 2012, there were text communications between Ronnie and Ravina about purchasing further investment opportunities.

154. The authorities discussed above also make it clear that a joint arrangement is not static but can evolve over time.

155. Further, even if Ronnie’s recollection some ten plus years after the event includes a discussion about further investment properties, this does not lead to the rejection of Ronnie and Marie’s evidence and acceptance of the 2011 oral rental agreement. The position remains that there is a core commonality in Ronnie and Marie’s versions which can be accepted, being consistent as it is, with the objective conduct thereafter.

156. Counsel for Ravina emphasised what might loosely be described as the absurdity of the joint arrangement as telling against its existence. Ravina would be unlikely to have agreed to an arrangement whereby she would buy a property, agree to pay all of the mortgage payments but permit Marie, Ronnie and the children to live in it for their lives provided they helped to complete the house on the outside, maintain it and pay outgoings where they could.

157. I do not accept this submission. The arrangement is consistent with prior arrangements in the Joudo family and Ravina had an undisputed motive.

158. The evidence demonstrated that the Joudo family were a close family where a number of family members lived under the one roof and the legal title did not reflect the reality of ownership interests. Title was held in the names of people who did not reside in the property. There was a pooling of resources.

159. As to motive, it was not disputed that the Hinchinbrook Property was overcrowded. As part of their own versions, Ravina, Ronnie and Marie gave evidence of this as being the catalyst for moving out.

160. Further, it was not in dispute that Ravina, her sisters and Sonia Senior were all very close to and fond of the children and took an active involvement in their lives. They had never lived more than one suburb away.

161. Against this background, the arrangement propounded by Ronnie and Marie is not so absurd as to be rejected.

Conclusion on the nature of the Arrangement

186. For the reasons set out above, I find that the initial arrangement was as contended for by Ronnie and Marie and reject Ravina’s contention of an oral lease agreement.

187. I also find that after the initial arrangement was struck, both parties acted in accordance with the joint endeavour and that over time the arrangement changed in the sense that Ronnie contributed to mortgage payments.

188. It was not in dispute that if I find the existence of a joint endeavour as contended for by Ronnie and Marie, then such an endeavour has failed without attributable blame. Whilst the relationship began to deteriorate in around 2018 to 2019, it appears to have become irretrievably broken by 15 April 2021 when the first formal eviction notice was sent by Ravina’s solicitors. I find that this is the date on which the joint endeavour failed.

189. It was also not in dispute that the parties never discussed what would happen in a situation such as that which has occurred, nor where the Property has been sold.

190. Counsel for Ravina also advanced a fallback submission in closing address that I should find that neither party has persuaded me of their respective cases. In such a situation, neither party would succeed, and both the statement of claim and the amended cross claim would be dismissed. The money paid into Court would then be released to Ravina.

191. For the reasons set out above, I am persuaded of the case advanced by Ronnie and Marie and thus reject the fallback submission advanced by counsel for Ravina.

192. Further, an outcome whereby Ravina receives all the money paid into Court, representing the significant increase in the value of the Property over the life of the joint endeavour, would be unconscionable. To the extent that this is a requirement for equity to intervene, this requirement is satisfied in the present case: Woods v McKinlay (No 2) at [256]-[261]; Makaritis (No 2) at [170].

1. Value of the respective contributions

193. Having found that there was a joint endeavour and that it has failed without attributable blame, I turn now to consider the third of the issues identified above, being the value of the respective contributions of the parties.

194. There were several issues between the parties relevant to the value of what each contributed. By far the largest – in terms of dollar value – was the quantum of mortgage payments made by Ronnie and Marie, and the corresponding benefits which Ravina received on the two mortgage refinances.

195. The contributions which Ronnie and Marie contend were made by the respective parties were conveniently summarised in a table provided as part of Ronnie and Marie’s closing submissions entitled “Summary of the Parties’ Contributions to Joint Endeavour” (MFI 4). I consider the issues below. The position is obviously complicated somewhat because it was common ground that a number of the relevant payments, including mortgage payments, were made in cash. Some records which would ordinarily be expected to be available were not. This is not overly surprising given the effluxion of time: see, for example, Sckaff v Sckaff [2023] NSWSC 1582 at [218].

Mortgage Payments

196. I have summarised above the claim for mortgage payments that is now made by Ronnie and Marie, being the sum of the $51,200 claimed in the amended cross-claim and the $22,400 admitted by Ravina to have been received, less the three payments which overlap (totalling $8,400). The claim is thus that Ronnie and Marie contributed $65,200 towards the mortgage. This position only emerged in closing address, although I did not understand counsel for Ravina to object to Ronnie and Marie now claiming the additional amount to that set out in the amended cross-claim.

197. Ravina’s objection was really one of proof – namely that Ronnie and Marie had failed to prove each of the claimed mortgage payments.

198. The starting point is that the amended cross-claim alleged that Ronnie and Marie made 20 separate contributions to mortgage repayments for the Property during the period 3 November 2014 to 30 July 2018, totalling $51,200. I have set out these payments above. The difference between the affidavit evidence and the amended cross-claim of $2,800 is made of two components. First, that the pleaded payment of 5 October 2016 of $2,500 is missing from the affidavit and the pleaded payment of $2,800 on 18 January 2017 is included in the affidavits as a payment of $2,500.

199. Ravina’s defence to the amended cross-claim admits the payments on 27 February 2018, 3 June 2018 and 10 November 2018. In her affidavit sworn 13 September 2022, Ravina deposed that Ronnie contributed to the mortgage on eight separate occasions between 7 February 2018 and 8 January 2019, each payment of $2,800. An annexure listed the eight payments by date, totalling $22,400.

200. Ronnie and Marie also tendered bank statements for Zacron (Ronnie’s construction company) and Ronnie and Marie’s joint account which had been annotated by Ronnie for those payments which Ronnie contended were to Ravina for mortgage payments. These documents were tendered through Ronnie in brief evidence in chief on day two of the hearing. No objection was taken by counsel for Ravina to the tender of the documents or the evidence in chief. The annotated bank statements relate to cash withdrawals on particular dates which coincide with or are proximate to the alleged contributions to the mortgage. Not all of the contributions in the amended cross-claim are linked to bank statements – the 19 March 2017 and 17 May 2019 contributions are not said to be supported by anything in the bank statements. The amount of the cash withdrawals also does not always coincide with the amount of the alleged contribution. In some cases, it is more, in others, less.

201. Ravina’s bank statements were also not produced to Ronnie and Marie’s legal team until the weekend prior to the hearing and they were tendered, through Ravina in evidence in chief and without objection, on day one of the hearing.

202. Those bank statements record the eight cash deposits of $2,800, each of which Ravina accepts were payments made by Ronnie towards the payment of the mortgage on the Property (and which Ravina now contends she treated as payments of rent). No evidence was adduced from Ravina as to the process by which she was able to identify that these payments were from Ronnie and towards the mortgage. I infer that it was because the deposits were proximate to the loan payments being withdrawn which at the time were $2,717 per month, although this is just an inference. Ravina admitted in cross-examination that she did not have any record of when Ronnie had helped her financially.

203. Ravina was extensively cross-examined by counsel for Ronnie and Marie about other cash deposits apparent from bank statements in evidence. Ravina’s response was that these deposits were of Keno winnings, and she relied on the fact that bank statements revealed that at the time, or shortly prior to the deposits, she was withdrawing money from the Liverpool Catholic Club where she went to play Keno. My impression was that this was a reconstruction by Ravina based on the bank statements rather than a recollection.

204. The difficulty with accepting this explanation is that each of the admitted $2,800 deposits are also proximate with visits to the Catholic Club yet are not said on the bank statements to be Keno winnings. Another difficulty with Ravina’s evidence is that according to the bank statements in evidence, during the period from April 2018 onwards where she admits she received the eight payments and when she contends she was in financial distress, there is a sizeable credit balance in the account. The highest balance is on 3 April 2018 when a deposit of $45,020.75 is made from Ravina’s employer, which I infer is likely a sort of termination or redundancy payment. Whilst the balance thereafter reduces, there remains a balance of at least $10,000 thereafter until May 2019, the date at which when the statements in evidence finish.

205. By contrast, the account balance during the period from 2015 onwards, when the statements commence and which includes the earlier period when Ronnie and Marie contend, they were also making mortgage payments, is generally lower, save for a couple of days in late August 2015 when $10,000 cash was deposited but quickly withdrawn.

206. I do not accept Ravina’s evidence that the cash deposits were of Keno winnings. The earlier deposits are relevantly no different.

207. There is then Ronnie’s evidence, both in his affidavit and the bank statements tendered in chief. Ronnie gave oral evidence in cross-examination that amounts totalling $48,400 had been given to Ravina as mortgage payments, with some payments being given to Ravina in cash. This directly contradicted Ravina’s earlier oral evidence that the correlating entries in her bank statements, namely the deposit of $2,500 on 11 May 2015 and $2,500 on 18 August 2015, were in fact Keno winnings, and not, as Ronnie contends, mortgage payments.

208. There is also Marie’s evidence. It was Marie that often was the person who withdrew the cash pursuant to a request from Ronnie. As set out above, I found Marie to be the most reliable of the witnesses and accept her evidence particularly where there is some objective material to support it.

209. Counsel for Ronnie and Marie contended that the mortgage payments could be reduced to four categories. Counsel for Ravina did not disagree, and I propose to deal with them on this basis:

1. Category one is the mortgage payments admitted by Ravina totalling $22,400.

2. Category two consists of those payments were there is a withdrawal from the Zacron account and a deposit in Ravina’s personal account at a similar time for a similar amount. The following payments appear to fall into this category:

11 May 2015	$2,500
18 August 2015	$2,500
11 January 2016	$2,500
8 May 2016	$2,500
10 November 2017	$2,500
17 December 2018	$2,500
TOTAL	$15,000

Given the broad correlation between withdrawals and deposits, Ravina’s lack of recollection, the absence of any records and my rejection of Ravina’s reconstruction that the deposits were of Keno winnings, I accept that these were payments towards the mortgage on the Property. The broad correlation between withdrawals and deposits is quite inconsistent with Ravina’s contention that she was supporting Ronnie during the period up to about 2018 when Ravina sought help from Ronnie. The balance in Ravina’s account in the period prior to 2018, compared with the balance from 2018 onwards (referred to above) is also consistent with Ravina seeking and being provided with support in the period that Ronnie and Marie say they were providing it.

3. Category three consists of those payments where there is evidence of a withdrawal from the Zacron account, coupled with the affidavit evidence of Ronnie and Marie. The following payments fall into this category:

3 November 2014	$2,200
16 January 2015	$2,500
16 March 2015	$2,500
10 April 2015	$2,500
3 February 2016	$2,800
5 October 2016	$2,500
18 January 2017	$2,800
25 August 2017	$2,500
30 July 2019	$2,500
TOTAL	$22,800

I accept that each of these payments were contributions to the mortgage payments on the Property. The withdrawals from the Zacron account support the evidence of Ronnie and Marie. Ravina admitted that payments were made in cash, and that she did not keep records. The fact these monies were not deposited into Ravina’s personal account is not determinative. I find that the payments were made to Ravina towards the mortgage payments on the Property. The evidence also demonstrates that during the period prior to when Ravina admits she received mortgage support from Ronnie, the balance in Ravina’s account was generally lower than when she was, on her own admission, receiving support, which tends to suggest that Ravina would similarly have been seeking mortgage support in this earlier period.

4. Category four consists of two payments – 19 March 2017 and 17 May 2018, each for $2,500 – where there is no support for the payments in the bank records. The only evidence in support of these payments is the affidavit evidence of Ronnie and Marie. Even allowing for the effluxion of time reducing the available records, I have difficulty in concluding that these were mortgage payments. There is nothing in the affidavit evidence or the other material as to how either Ronnie and/or Marie, some five years after the payments were allegedly made in cash, were able to recall the payments being made and their amounts. I do not allow these two payments.

210. For the reasons set out above, I find that Ronnie and Marie contributed $60,200 towards the mortgage on the Property.

The Driveway

211. The driveway was completed in early 2012.

212. There was no issue that Ronnie arranged for the driveway to be constructed at the Property but there was an issue about who paid for its construction and when the discussion occurred in relation to the driveway.

213. According to Ravina, Ronnie promised that he would construct the driveway for Ravina, and that he was doing it as a present which Ravina understood to mean a gift. In her affidavit evidence Ravina said that she could not recall the reason why Ronnie initially promised to do it but in oral evidence Ravina said, in effect, that it was a gift for all that you do for Ronnie and his family.

214. Ronnie did not then complete the driveway and Ravina says she had to pay Ronnie to complete the driveway. Her evidence was that she took out a further personal loan with St George Bank for about $14,000 to complete some outstanding tasks and which she gave to Ronnie in cash in November 2011 to complete the driveway. In her affidavit and in cross-examination there was also some suggestion that the money was also for the removal of soil, or “rubbish” as Ravina referred to it.

215. Ronnie and Marie’s evidence was to a different effect. According to Marie there was a discussion with Ravina in the presence of the Middleton Grange sales lady at the time Marie chose the house design when Ravina said that sales lady that as Ronnie was a builder, she did not need the builder (Lily Homes) to do anything outside the home as there “are things that Ronnie will do himself and he can finish it off”.

216. Ronnie’s evidence was that there was a discussion he had with Marie – which he says occurred in late 2010 – where he was told that Ravina had run out of money and they (Ronnie and Marie) would have to finish the house, including the driveway and landscaping.

217. It does not appear to be in dispute that the driveway was constructed by a contractor, Wissam, who also performed landscaping works. An invoice was in evidence from Wissam, dated 23 February 2012 for $41,940 which covered both the driveway and landscaping and which Ronnie said he paid in instalments.

218. I accept Ronnie’s evidence that he paid for the driveway as part of the Wissam invoice. I do not accept Ravina’s contention that she paid for the work to be completed. There is nothing to support her contention and much against it, including Ravina’s financial position at the time.

Removal of soil

219. There was no dispute that excess dirt was removed from the Property during the construction period – about mid-2011. Again, the issue was who paid for it. On Marie and Ronnie’s version, Ravina told Ronnie that Lily Homes had quoted $18,000 to remove the soil and that in response Ronnie said that he would arrange for the soil to be removed. A quote was then obtained from AJL Excavation to remove the dirt for $12,500. Ronnie and Marie contend they paid AJL in cash.

220. Ravina’s version was that she paid Ronnie in cash for the removal of the dirt and this cash appears to have been obtained as part of the $14,000 additional personal loan obtained by Ravina from St George. Ravina also stated in her affidavit evidence that “I have checked my St George Bank account details and recall withdrawing approximately $14,000 in November 2021 [sic]”.

221. I do not accept Ravina’s evidence on this point principally because there is no evidence to support her contention that she obtained a further personal loan from St George Bank or otherwise withdrew $14,000 in November 2011. Counsel for Ravina was unable to point to any probative evidence that a new personal loan was taken out. This is in circumstances where Ravina apparently still had access to her banking records with St George Bank and indeed put into evidence a number of records from St George Bank including her loan application documents from early 2011 in relation to purchasing the Property and building the house on it. That material referred to an existing personal loan prior to 2011 but no new personal loan. Further, no bank statements were identified as supporting the $14,000 withdrawal, despite Ravina stating in her affidavit evidence that she had checked her bank statements and they supported the $14,000 withdrawal.

222. I accept Ronnie and Marie’s evidence that they paid $12,500 for the dirt removal.

Landscaping

223. In relation to landscaping, Ravina’s complaint appears to be that she did not ask Ronnie or Marie to carry out the work, but rather Ronnie said: “he could finish that himself”, because he could use some leftover grass from one of his other jobs. There also appears to be an issue as to the quantum to be allowed.

224. Marie’s evidence was to the effect that Ravina raised with Ronnie the need for a landscaping design to be submitted to council and that in response Ronnie said that he would get one of the landscape architects that he has used in the past to draft a design. Ronnie’s evidence was to a similar effect.

225. A landscape design was then obtained from Ray Fuggle & Associates. Marie and Ronnie both gave evidence that they paid Ray Fuggle & Associates but could not now locate the invoice or evidence of payment.

226. The landscape work was, as set out above, carried out by Wissam who invoiced Ronnie together with the work on the driveway which invoice was paid by Ronnie in instalments.

227. In circumstances where there was no dispute that the landscape work was done, and no competing evidence was put forward by Ravina as to the cost of that work, I see no reason not to accept the amount set out in the Wissam evidence.

228. I also accept Ronnie’s evidence that the invoice was paid in instalments.

Other improvements

229. I have set out above the additional work that Ronnie and Marie say that they carried out and the evidence relied on in support. No evidence was relied on by Ravina in reply. There also did not appear to be any dispute that the work was carried out.

230. In the absence of any contention that the work was not carried out and no evidence or cross-examination disputing the quantum claimed, I accept the evidence of Ronnie and Marie on these aspects and accordingly make the following allowances:

(a)	X Electronics – install exterior and interior down lights	$9,350;
(b)	Ausrea – complete footing for front retaining wall	$1,168.50;
(c)	Stancon Plumbing – install drainage pits at rear of the property and upgrade bathrooms and hot water system	$9,350;
(d)	SGC Bobcats – excavate property for driveway and landscaping	$4,247;
(e)	Andreasans Green Wholesale – plants	$491.70;
(f)	Dial-A-Fence – boundary fence	$1,460;
(g)	Wissam Riman – wardrobes	$11,110;
(h)	Frost Air Conditioning – ducted air conditioning	$8,950.

Water and other rates

231. It was accepted that Ronnie and Marie paid the strata rates and also the water rates from time to time. Ravina appeared to pay the Council rates. Neither party sought that these payments be brought to account as contributions, presumably because of their relatively low quantum and consequent principles of proportionality.

Total Contributions by Ronnie and Marie

232. Having regard to the above, the total contributions by Ronnie and Marie are:

AJL Excavation – soil removal	$12,500.00
X Electronics – lights	$9,350.00
AUSREO – wall footing	$1,161.60
Stancon Plumbing	$9,350.00
SGS Bobcats	$4,247.00
Wissam Riman – driveway and landscaping	$41,940.00
Andreasens Green Wholesale – plants	$491.70
Dial-A-Fence	$1,460.00
Wissan Riman – wardrobes	$11,110.00
Frost Air Conditioning	$8,950.00
Mortgage contributions	$60,200.00
TOTAL	$160,760.30

Total Contributions by Ravina

233. The contributions made by Ravina were not seriously in dispute. They may be summarised as follows:

Deposit and loan establishment	$28,011.10
Mortgage repayments made	$275,224.51
SUBTOTAL	$303,235.61
Less mortgage repayments made by Ronnie and Marie	($60,200.00)
Less equity withdrawals on refinance	($69,785.38)
Subtotal	($129,985.38)
TOTAL	$173,250.23

Other Matters

234. It is apparent from the findings that I have made above that the respective contributions are roughly equal.

235. In other cases, issues have arisen as to whether any of the respective contributions should be indexed to take account of sizeable contributions being made at different points in the joint endeavour. The issue does not arise to any significant extent in the present case where it is apparent, on the findings that I have made, that each of the parties made contributions throughout the life of the joint endeavour.

236. Bearing in mind these matters and the wide discretion that I have to mould the relief so as to achieve justice in the individual circumstances of this case, I do not propose to allow for any items to be indexed: see Makaritis v Markaritis (No 3) [2023] NSWSC 409 at [56].

237. The only other matter that remains to be considered is the occupation fee that Ronnie and Marie accept they should be required to pay from the date of breakdown in the relationship until the date of sale of the Property. As set out above, I have found that 15 April 2021 is when the joint endeavour failed.

238. Ronnie, Marie and Jamison vacated the Property on settlement of the sale on 17 July 2023.

239. The occupation fee is thus payable for the period 15 April 2021 to 17 July 2023.

240. There was no evidence before me as to what an appropriate fee – being market rent for the Property over the relevant period – would be. This is regrettable.

241. I propose to give the parties an opportunity to seek to agree the occupation fee. If they are unable to agree, I will then make directions for the filing of brief evidence by each of the parties on this issue. The parties should also seek to agree final orders giving effect to these reasons, including the dismissal of Ravina’s claim and orders providing for the distribution of the sale proceeds and the payment out of the moneys held in Court.

Ronnie and Marie’s claim for equitable compensation

242. Ronnie and Marie also advanced an alternative claim for equitable compensation. In circumstances where I have upheld the constructive trust joint endeavour claim, I do not propose to address this alternative claim.

Costs

243. Ronnie and Marie have been successful, and Ravina has not. Costs should follow the event, meaning that Ravina should be ordered to pay Marie’s costs of the statement of claim and Marie and Ronnie’s costs of the amended cross-claim. I will make an order to this effect at the time of making final orders unless either party contends, within the time I propose to allow for agreeing an occupation rent, for some different order.

244. At the time of granting leave for the filing of the amended cross-claim shortly prior to the commencement of the hearing, I reserved the question of costs of the motion seeking leave to amend. Notwithstanding that the application was made late and quite close to the commencement of the hearing, given the nature of the amendments made, the overlap with claims already made and the evidence filed in support, those costs should be costs in the cause. I also propose to make an order to this effect at the time of making of final orders unless any party contends otherwise within the time I propose to allow for the parties to agree an occupation rent.

Orders

245. The Court makes the following orders:

1. Adjourn the proceedings to 9.30 am on 26 March 2024 or such other time as may be arranged with my Associate.

2. Direct the parties to confer and to seek to agree on the occupation rent to be paid by the cross-claimants and orders otherwise to give effect to this judgment and to deal with costs.

3. No later than 24 hours before the adjourned hearing, submit proposed orders for the purpose above in Order (2).

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Decision last updated: 12 March 2024