JUSTESEN v Denham

[1999] WASC 181

JUSTESEN -v- DENHAM [1999] WASC 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 181
Case No:	CIV:2322/1996	Heard:	6-8 SEPTEMBER 1999
Coram:	WHEELER J	Delivered:	24/09/99
No of pages:	19	Judgment Part:	1 of 1
Result:	Findings of fact made
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Parties:	BENT JUST JUSTESEN MAE MCKENZIE DENHAM
Catchwords:	De facto relationship Property dispute Constructive trust Pooling of funds Occupation rent Turns on own facts
Legislation:	Nil
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Biviano v Natoli (1998) 43 NSWLR 695 Calverley v Green (1984) 155 CLR 242 Allen v Snyder [1977] 2 NSWLR 685 Bernard v Josephs [1982] Ch 391 Crew v Sheldon (1995) DFC 95-168 Davis v Johnson [1979] AC 264 Dennis v McDonald [1981] 2 All ER 632 Grant v Edwards [1986] Ch 638 Leake v Bruzzi [1974] 2 All ER 1196 Luke v Luke (1936) 36 SR(NSW) 310 McMahon v Burchell (1846) 2 Ph 127 Muschinski v Dodds (1985) 160 CLR 583 Re Figgis [1969] 1 Ch 123 Suttill v Graham [1977] 3 All ER 1117 Tracy v Bifield, unreported; SCt of WA; Library No 980260; 14 May 1988 Van Rassel v Kroon (1953) 87 CLR 298 Voulis v Kozary (1975) 180 CLR 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : JUSTESEN -v- DENHAM [1999] WASC 181 CORAM : WHEELER J HEARD : 6-8 SEPTEMBER 1999 DELIVERED : 24 SEPTEMBER 1999 FILE NO/S : CIV 2322 of 1996 BETWEEN : BENT JUST JUSTESEN

Plaintiff

AND

MAE MCKENZIE DENHAM
Defendant

Catchwords:

De facto relationship - Property dispute - Constructive trust - Pooling of funds - Occupation rent - Turns on own facts

Legislation:

Nil

Result:

Findings of fact made

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Representation:

Counsel:

Plaintiff : Mr R S Hooper
Defendant : Mr A A Jenshel

Solicitors:

Plaintiff : Lewis Blyth & Hooper
Defendant : Elizabeth Wiese & Associates

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

Baumgartner v Baumgartner (1987) 164 CLR 137
Biviano v Natoli (1998) 43 NSWLR 695
Calverley v Green (1984) 155 CLR 242

Case(s) also cited:

Allen v Snyder [1977] 2 NSWLR 685
Bernard v Josephs [1982] Ch 391
Crew v Sheldon (1995) DFC 95-168
Davis v Johnson [1979] AC 264
Dennis v McDonald [1981] 2 All ER 632
Grant v Edwards [1986] Ch 638
Leake v Bruzzi [1974] 2 All ER 1196
Luke v Luke (1936) 36 SR(NSW) 310
McMahon v Burchell (1846) 2 Ph 127
Muschinski v Dodds (1985) 160 CLR 583
Re Figgis [1969] 1 Ch 123
Suttill v Graham [1977] 3 All ER 1117
Tracy v Bifield, unreported; SCt of WA; Library No 980260; 14 May 1988
Van Rassel v Kroon (1953) 87 CLR 298
Voulis v Kozary (1975) 180 CLR 177

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1 WHEELER J: The parties in this matter are in dispute concerning the ownership of a house property, two motor vehicles, a diamond ring, and certain small items of furniture. I am told that it should be possible for the parties to resolve the furniture dispute. The house, the cars and the ring were all acquired during the course of a de facto relationship that lasted approximately 10 years, from early 1986 until late 1995 or early 1996. Both parties contributed substantial amounts financially towards the acquisition of the items of property, although over the period of the relationship the plaintiff's contribution was greater.

2 The house property was acquired in the joint names of the plaintiff and defendant, one motor vehicle ("the Fairmont") was registered in the name of the plaintiff and is currently in his possession, although during the course of the relationship it was more usually driven by the defendant, the other motor vehicle is also in the possession of the plaintiff, and was usually driven by him ("the utility"), and the diamond ring has been worn and continues to be worn by the defendant. The plaintiff claims that he is entitled to an interest in the house, proportionate to his contributions, which contributions he calculates in a particular way; that the motor vehicles are entirely his; and that the ring was intended to be the joint property of himself and the defendant and that he is entitled to beneficial ownership of it in a share proportionate to his contribution to the acquisition of property generally. The defendant, on the other hand, asserts that the ring was a gift from the plaintiff to her and is her sole property, and that the house, and the motor vehicles are the property of the plaintiff and defendant in equal shares.

3 I do not think it is helpful to set out in detail the contentions contained in the pleadings, or the competing stories of the parties. To the extent that there is a conflict of evidence, I prefer the evidence of the defendant as to the course of the relationship and as to the contributions which were made, and the conversations which took place, or did not take place, between the parties. I propose, therefore, first, to explain why I prefer the evidence of the defendant; second, to set out as briefly as possible the history of the relationship and of the acquisition of the property as the defendant explained it; and finally, to ascertain what are the consequences for the beneficial ownership of the property on the facts recounted by the defendant.

Credibility Issues

4 I should note at the outset that the plaintiff's command of spoken English was not good. Although it appeared to me that he readily

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understood what was being said to him, his accent and his somewhat convoluted sentence structure made his answers sometimes difficult to understand. There is a tendency, which must be guarded against, unconsciously to prefer the evidence of the more articulate witness, simply because it is easier to understand and because it more readily "hangs together". This is not, however, the basis of my preference for the defendant's evidence.

5 To the extent that the evidence dealt with the state of the parties' bank accounts and other financial matters, I prefer the evidence of the defendant because it was she who did most of the banking, who checked the bank statements relating to the parties' joint account when they arrived, and who did the greater part of the bookwork when the parties later acquired a newsagency. For example, although the plaintiff's evidence at first appeared to be to the effect that when he and the defendant first purchased some vacant land, he made the mortgage repayments through a joint account held for that purpose while the parties otherwise retained separate bank accounts, it became clear in cross-examination that if banking was to be done, the plaintiff would usually give the defendant money to put into the bank, and that he would not check the statements of the joint account. He apparently never had any detailed familiarity with the day-to-day state of the parties' joint finances. He was not in a position to know what contributions the defendant made to that account. It is more likely, therefore, assuming that the defendant was truthful in her evidence, that her evidence as to these matters would be accurate.

6 While both parties were at times forced to concede that their recollections were not entirely accurate, in my view the plaintiff's evidence was more often contradicted either by a statement, which he had made on an earlier occasion, or by independent evidence. For example, the defendant said when she first began to live with the plaintiff, his workers' compensation payments were irregular and that this irregularity from time to time caused them financial hardship. The plaintiff denied that there had been irregularities and denied that there had been any real difficulty. However, in a proof of evidence which he prepared, apparently for an earlier personal injury action, he painted a picture of irregularity in his workers' compensation payments, which at that time caused him financial hardship and caused him to be substantially dependant upon the defendant. Whether or not it is true to say, as was suggested on his behalf, that in the end he always paid his way and that he has known greater financial hardship since that time, is not to the point; the tenor of

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his evidence in these proceedings was wholly at odds with that earlier account.

7 In relation to the purchase of the ring, the plaintiff was positive that the purchase price was $17,000, which was paid by a deposit of $1,000, a cheque for $8,000 and a further cash payment of $8,000. He did not explain when or how the $8,000 cash payment came to be made. However, the jeweller's receipt shows the purchase price as being $9,000 with a deposit of $1,000 and a "balance to pay" of $8,000 which corresponds with an $8,000 cheque. The receipt records the price as an "export price" and an address in the United Kingdom is given for the defendant on the receipt. It appears that some person (and it is not necessary for these proceedings to consider who that person may have been) decided that it would be possible that the ring be sold at a price which did not include sales tax, so that it may be that the value of the ring was greater than $9,000 and it may even be that the value of the ring was of the order of $17,000, if sales tax had been included. However, as to purchase price, the document is inconsistent with the plaintiff's account of the $8,000 cheque plus the $8,000 cash payment.

8 Finally, and importantly, it seems to me that the plaintiff has, over time, come to view his past relationship with the defendant in the light of a particular theory about her motivation, which colours his memory of their relationship. That theory might be called, somewhat indelicately, the "gold digger" theory.

9 It was put to the defendant in cross-examination, for example, that as an office manager to an orthopaedic surgeon, she was at the time she met the plaintiff, when he was receiving workers' compensation payments, very familiar with the workers' compensation system; the underlying suggestion clearly was that she had reason to anticipate that he would in due course receive a large lump-sum settlement. The plaintiff also said on more than one occasion, words to the effect that he had been prepared to share financially with the defendant, but that she had not been prepared to share with him.

10 When the plaintiff and defendant met, however, the defendant had savings of some $10,000 and was expecting to receive some funds in the future from a property settlement with her ex-husband and was in regular employment as office manager for the orthopaedic surgeon. The plaintiff, by contrast, had just commenced receiving workers' compensation payments, was by reason of his disability unable to work, and appeared to have relatively limited savings. A woman who in that situation went to

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live with the plaintiff, as the defendant did, opened a joint bank account with him, and became liable with him for a mortgage on a block of land, upon which she paid the entirety of the $10,000 deposit, cannot, it seems to me, be thought to have been motivated from an early stage of the relationship by a desire to acquire the plaintiff's property.

11 It seems to me that the plaintiff's present bitterness towards the defendant, from whatever causes it arises, has coloured his recollection so as to render it unreliable. His demeanour in giving evidence was markedly hostile and suspicious towards her. By contrast, although the defendant disagreed strongly with certain aspects of the plaintiff's evidence, I detected no such bitterness in her attitude towards him.

The Acquisition of the Property

12 The plaintiff was born in 1939, and the defendant in 1948. The parties are now 59 and 51 years respectively. The plaintiff was injured in June 1985 and met the defendant in November 1985 at about the time he commenced to receive workers' compensation payments. In early 1986, the parties began living together in rented accommodation. In about May 1986, the defendant received $14,500 from a property settlement from her former matrimonial home. In addition, as I have mentioned, she had approximately $10,000 of savings in an investment account.

13 In August 1986, the parties purchased vacant land at Whitfield Terrace, Winthrop, for the sum of $40,000. The defendant supplied the $10,000 deposit and paid approximately $2,500 worth of expenses associated with the purchase. The parties became tenants in common and entered into a mortgage to finance the remainder of the purchase price under which they were jointly and severally liable for repayments. At about the same time, they opened a joint bank account for the purpose of making mortgage repayments. Both paid money into this joint account.

14 It appears that both parties continued to have individual accounts in addition to the joint account for some period of time. The records have been lost and I can make no finding in relation to the extent of the pooling of funds at this time, except to find that there was certainly some pooling for the purpose of meeting mortgage repayments. It also appears that because of difficulties with the plaintiff's workers' compensation, there were at least times at which the defendant met nearly all of the household expenses. It may be that the plaintiff repaid all, or the majority, of his

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share of those expenses when he from time to time received backdated workers' compensation payments.

15 In January 1988, the parties sold the property in Winthrop and the net receipt from that sale, after repayment of the mortgage, was $43,240. In April of that year they purchased a house at Dixon Place, Kardinya as joint tenants, paying a deposit of $35,000 and financing the remainder through a mortgage for which they were jointly and severally liable. At almost the same time, a lottery ticket purchased by the plaintiff won the sum of $13,665.80. This was apparently paid into the joint funds, either as part of the deposit for Dixon Place, or alternatively, for use in general living expenses. At some time thereafter, the parties effected a number of improvements to Dixon Place, including the installation of a spa at a cost of approximately $10,000. The Dixon Place property was lived in as the joint home of the plaintiff and defendant.

16 In approximately November 1989, the plaintiff received $75,000 as part settlement of his personal injury claim, and at that time used the settlement funds to reduce the mortgage on Dixon Place. It is not clear how this payment was effected, whether through the joint account or through direct deposit of the cheque to the mortgage account.

17 In September and October 1990, the plaintiff received further funds from his personal injury litigation (which had been the subject of a District Court action and an appeal) amounting to a little under $180,000. During this period, the defendant had been working continuously while the plaintiff had worked from time to time but had been unable to cope with the work for lengthy periods and had in each case left his employment.

18 In about November 1988 the plaintiff had started a small business venture called "Viking Steel" which was involved in making gates. The business was not profitable. The defendant appears to have been a partner in it and to have offset some of the business losses against her wages for taxation purposes. That business effectively ceased functioning in February 1989. It is convenient to mention at this point that further businesses were operated in which the plaintiff was the active partner, called "Viking Dealer" and "Viking Maintenance". In each case, the defendant was apparently a partner and in each case the business appears to have been unprofitable. At the time when the parties eventually separated, the business had an overdraft level of approximately $10,000 for which the plaintiff has apparently assumed responsibility.

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19 The funds from the plaintiff's personal injury litigation were expended in part in reducing the mortgage over Dixon Place in November 1989 and discharging that mortgage in January 1991. Some funds were invested. It appears that other funds were used for the purchase price of the disputed ring and as part of the purchase price of the disputed Fairmont.

20 As to the ring, it is to be noted that the sum awarded to the plaintiff included an amount of approximately $7,000 in respect of gratuitous services provided to him by the defendant. The defendant said that the purchase of the ring at this time was in effect intended as a "thank you" to the defendant for those services, which had included some periods of her assuming responsibility for the entirety of the household tasks, and for the personal care of the plaintiff, when the plaintiff's injuries had wholly incapacitated him.

21 As to the Fairmont, the defendant had been the owner of a Toyota vehicle and the plaintiff of a utility. The Toyota was apparently not easy for the plaintiff to get in and out of because of his back condition, and so the parties decided to purchase a more comfortable sedan. As the plaintiff put it in evidence, "… we decided that we would purchase a Fairmont". (emphasis supplied). The defendant's Toyota was traded in at a value of $6,000 as part of the purchase price while the remainder was paid by the plaintiff. There had been some discussion of registering the vehicle in the joint names of the parties, but when the salesman advised that only one individual could be named on the registration, they decided that it would be in the name of the plaintiff.

22 In late October 1990 as a result of discussions between the parties, the defendant ceased her employment as office manager to the orthopaedic surgeon. This was either at the request of, or with the encouragement of the plaintiff.

23 Over the next few months, the parties looked at the possibility of buying a small business. In January 1991, they purchased the Ashburton Newsagency for a total purchase price of $243,057, of which $33,660 was allocated to stock. Some of the price appears to have been funded from the balance of the personal injury monies which had been invested while an amount of $105,000 or thereabout was funded by way of mortgage, in respect of which the parties were jointly and severally liable, with 18 Dixon Place, Kardinya, providing the security. The bank conditionally approved an overdraft limit in the name of the parties in the sum of $20,000. In February 1991, the defendant applied a sum of $8,000

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received from her mother's estate towards the Ashburton Newsagency. It is now necessary to consider in some little detail the running of the Ashburton Newsagency.

24 Both parties worked in the newsagency. The plaintiff put in longer hours in the shop, while the defendant appears to have been largely responsible for the bookkeeping, which was done at home. The business included a Lotto agency. Both parties had played Lotto over the years and had had a number of relatively small wins. They had over the years during which they were together discussed from time to time what would happen when, as the defendant put it "we won Lotto". Each had used their own Lotto registration card and had generally used numbers which were of personal significance to them to purchase tickets, although sometimes the tickets would be of the "Slikpik" variety. Wins had apparently been celebrated jointly and funds deposited into the joint account or used for general joint purposes. The wins had apparently assisted in funding a relatively high standard of living, which included holidays to Thailand, Hong Kong, Macau and China, to Mauritius, and to Bali.

25 When they acquired the newsagency, the parties purchased Lotto tickets in two ways. First, it was common practice for tickets to be purchased "by the shop". This occurred in two ways. First, there would be syndicates created, generally by the plaintiff and bearing his name, in which his contribution would be funded by the newsagency. The purpose of his participation in the syndicate was to encourage customers to join the syndicates and thereby increase the newsagency's Lotto turnover. Also, shortly prior to the closing time of each Lotto draw, the shop would "run off" a number of tickets, which would be available for purchase by customers who had arrived to make purchases after the closing time. If late customers did not purchase all of the tickets that had been run-off, the remainder would be in effect purchased by the shop. There was apparently a system in place whereby the Lotteries Commission could ascertain precisely the value of tickets run off by the newsagency and could directly debit the newsagency account with those amounts. The defendant said that she would account for purchases of that kind in the books of the shop as proprietors' drawings.

26 In addition, each of the parties continued to play Lotto as before using their own personal registration cards. The difference after purchase of the newsagency was that, rather than being required to pay cash when the tickets were purchased, those tickets too could later be accounted for as proprietors' drawings. The defendant's evidence, which I accept, was to the effect that she would play Lotto games to a relatively small value in

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her own name, while the plaintiff applied substantial amounts to the purchase of his Lotto tickets, up to around $200 a week, on occasions. She said that the effect of drawings of this magnitude was that the Lotto agency, which operated on a margin of around six or seven per cent, was not profitable and that she would speak to the plaintiff about cutting down on the number of Lotto tickets purchased. However, the plaintiff regarded the ability to run off tickets in this way as one of the advantages of proprietorship of the business.

27 In March 1992, a Lotto ticket purchased with the plaintiff's registration card, won the sum of $252,441.17. Because of the magnitude of the sum, it is desirable to mention that the plaintiff explained that that ticket came to be purchased in a particular way. He said that he had some little time previously, received a cheque from the Lotteries Commission for an unclaimed prize in the sum of $167, which he had deposited into the bank. He had then withdrawn a sum of $100 as part proceeds of that winning which he had then used to purchase a ticket that included the numbers, which won the sum I have mentioned. In effect, he said that the ticket was purchased in cash from funds which were derived from his own prior winnings and not from the funds of the newsagency.

28 This explanation did not feature in the plaintiff's pleadings, despite the fact that the defendant, in her defence, had asserted that the ticket was purchased with funds from the Ashburton Newsagency. Indeed, the account relating to the $167 cheque did not feature in the plaintiff's first witness statement, emerging only in his statement made in response to the defendant's witness statement. I did not find the plaintiff's account in this respect convincing. Rather, I preferred on this point also, the evidence of the defendant, and I therefore accept that the ticket was run off by the plaintiff in the normal course of running the Ashburton Newsagency, that no cash was paid at the time of its being run off and that the price of the ticket would, in due course, have been accounted for as part of the proprietors' drawings. I am further satisfied that up to and including the date of this win, the parties had regarded Lotto winnings, which accrued to either of them, from tickets which were generally purchased from their joint funds, as windfalls accruing to both of them, rather than to either individually.

29 Having received the funds from the Lotteries Commission, the parties instructed the bank to use the funds to repay the Ashburton Newsagency loan; deposit an amount into the Ashburton Newsagency cheque account, which was in the joint names of the parties; to deposit a further amount into the personal account in the joint names of the parties;

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to place a sum of $50,000 in an investment account; and to pay an amount to Esanda Finance Corporation Ltd ("Esanda") in respect of the Fairmont. This last amount arose because, at the time of the purchase of the Ashburton Newsagency, the parties funded the purchase in part by selling the Fairmont to Esanda and leasing it back. The amount paid to Esanda after the lottery winning, was some $33,000 necessary to discharge Esanda's interest in the vehicle.

30 Some time later, in May 1992, the defendant received a further sum of approximately $46,000 from her mother's estate, which she deposited into the parties' joint bank account. In September 1992 the Ashburton Newsagency was sold at a loss, and the proceeds deposited into the parties' joint account. Between December 1992 and late 1993, the parties purchased, as joint tenants, vacant land at Moresby Close, Bibra Lake and built a house upon it. The building contract was in their joint names. In mid-1993, the Kardinya property was sold and the funds deposited into the parties' joint account. The funds from the joint account were the funds used to purchase and build on the Bibra Lake property.

31 In late 1995 or early 1996, the relationship between the parties irrevocably broke down. In October 1996, following some disputes about entitlement to possession of it, the plaintiff attended at the defendant's workplace and took possession of the Fairmont, which he has since retained. He also had retained in his possession the utility which appears to have been a vehicle purchased for use in the business of Ashburton Newsagency at a time when the plaintiff had sold his former utility, which he had owned when the parties commenced their relationship.

32 Also in October 1996, the defendant obtained an ex parte restraining order, later confirmed after a hearing, which effectively restrained the plaintiff from attending at Moresby Close. Since that time, the defendant has continued in sole occupation of Moresby Close. While the restraining order was varied to allow the plaintiff to collect certain personal items, the defendant has largely continued in possession of the furniture and other chattels, which the parties acquired during their cohabitation. In March 1997, the plaintiff sold the utility for a sum of approximately $9,500 while also in 1997 the defendant sold some small items of furniture for a total of $600.

Beneficial Ownership of the Disputed Property

33 The plaintiff has not claimed that any resulting trust arises in this case. A resulting trust would arise if it were possible to apply the

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principle that where two or more persons contribute to the purchase of property which is conveyed to them in their joint names, the equitable presumption is that they hold the legal estate on a resulting trust for themselves as tenants in common in shares proportionate to their contributions.

34 There have been observations in the cases, with which I respectfully agree, concerning the extent to which such a presumption is likely to be out of step with the expectations of ordinary people: Calverley v Green (1984) 155 CLR 242 per Gibbs CJ at 248, Murphy J at 264, Deane J at 266. Although there is rarely express discussion of the matter, it generally appears to be a surprise to parties to litigation of this kind to learn that the manner in which they have disposed of the legal title to property which they acquire does not necessarily result in a similar disposition of the beneficial ownership. However, as has also been noted in Calverley v Green, the presumption of resulting trust is now too well established in the law to be removed without legislation, although it may be that it is more easily rebutted than was once the case.

35 Any attempt to apply the principle in this case, would encounter the substantial difficulty that the parties have been living together for a considerable period of time and have made contributions to the acquisition of property over a number of years, which have in turn fed into the acquisition of the property ultimately the subject of the dispute. In order to determine the respective "contributions", if such a task could rationally be undertaken in a case such as the present, it would apparently be necessary to go back and untangle the respective contributions of the parties to properties acquired along the way, which were disposed of and the funds from which were used to purchase property at Moresby Close, taking account in doing so of the fact that contributions made at earlier times would be worth proportionately more in current values, having regard to changes in the value of money over the years, and taking account also of the fact that there may have been non-financial contributions between the parties over the years. Fortunately, as I have noted, the plaintiff seeks no such relief, nor does the defendant assert that a resulting trust should be presumed to arise in this case in respect of any property.

36 The parties had slightly different versions of the actual intention, which they said they mutually entertained at the relevant time. Although, so far as Moresby Close was concerned, the relevant time was the acquisition of that property, both parties in effect put forward the view that they had formed a mutual intention at a very early stage in their

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relationship which, impliedly, continued and existed at the time at which Moresby Close was purchased.

37 The plaintiff asserted that the home was to be the joint home of the parties for an indefinite period and that the substratum of the agreement was an agreement that they would spend the rest of their lives together. He went on to explain this in his evidence by asserting that it was the expectation of each party that they would be together for the rest of their lives, although they would not marry, and that the defendant had promised that she would look after him (impliedly it seems in return for his making substantial financial contributions to the wellbeing of the parties).

38 The defendant appeared to accept that the parties did expect that they would remain together either indefinitely or for the rest of their lives (I do not think anything turns on the difference) but she said that it was the parties' common intention to "share and share alike" in the assets which they acquired through the pooling of their respective financial and non-financial resources, explaining in her evidence that she would never have made the initial contribution to the deposit of the Whitfield Terrace property, nor joined in a joint bank account with the plaintiff, unless such a common intention had been present.

39 In my view, there was no common intention in respect of the property which was intended to prevail if the relationship should break down. Neither party apparently contemplated that eventuality. Rather, it appears that the parties did intend to pool their resources for their mutual benefit and to acquire assets which they would use together, without giving any detailed consideration - let alone consideration which was communicated to the other party - to the shares in which the property so acquired would be beneficially held. It does seem that the parties behaved during the course of the relationship as if they were equally entitled to any property; although the defendant said that at sometime after the major lottery win the plaintiff became "possessive" about the newsagency business. It otherwise appears that the parties had roughly equal input into decisions concerning the acquisition, improvement, and disposition of property and there appears to have been no suggestion, apart from this "possessiveness" that either of them had at any time a greater entitlement to any item (other than the ring) prior to the break down of the relationship.

40 There being, in my view, no common intention, either express or implied, and the remedy of a resulting trust being unsought by either party, it is my view that this is a case which must attract the intervention

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of equity and the imposition of a constructive trust. The issue then arises as to what the terms of such a constructive trust should be.

41 To a large extent, this case resembles Baumgartner v Baumgartner (1987) 164 CLR 137 in the sense that it is one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves. Another purpose, it seems to me, was to secure a standard of living higher than that able to be sustained by either of them individually. The fact that the Moresby Close property was acquired and developed as a home for the parties and was financed out of money drawn from a pool which consisted of their earnings over a period of time, of the profits which they had made from earlier enterprises, and of capital contributions which fell to each of them at different times, tends to suggest an equality of beneficial ownership as a starting point. As the court observed in Baumgartner:

"Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind." (per Mason CJ, Wilson and Deane JJ at 149 - 150).

42 It does appear to me, however, that this is a case in which there does need to be an adjustment to recognise a disparity of contribution.

43 Because of the way in which the plaintiff's lottery win was derived from the funds of the jointly owned, jointly worked, and jointly financed newsagency, and because of the way the parties had treated lottery winnings to that date, I do not think it is appropriate to regard the lottery winning as a "contribution" by him; rather it simply forms part of the joint pool. Both of the parties made very substantial contributions in kind during the course of the relationship. That of the defendant seems to have been somewhat greater, in the sense that there were some times during which she was not only contributing more financially to the household than the plaintiff, but was also providing household services and effectively nursing him when he was incapacitated. Additionally, she contributed the Whitfield Terrace deposit, monies from her inheritance,

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and, over time, the earnings which she contributed were greater than the earnings and compensation payments of the plaintiff.

44 However, it seems to me that the reason in the end for making adjustments to recognise disparity of contribution arises out of the payment into the parties' joint funds of the proceeds of the personal injury claim of the plaintiff. That claim contained a number of elements. It seems to have been common ground that at least a substantial component of the amount awarded to the plaintiff was to compensate him in respect of a loss of earning capacity which would endure for the rest of his life. Had the relationship terminated shortly after that amount was paid into the joint bank account, it would, in my view, have been plainly unconscionable for the defendant to assert that she was entitled to an equal share in it. As time went on, as the defendant's contributions in kind and financially to the relationship continued, that element of unconscionability would tend to diminish. However, the relationship broke down only some five years after the personal injury monies were received. It seems to me that the stage had not been reached at which it would be appropriate to disregard that greater contribution by the plaintiff.

45 A schedule of the parties' financial contributions to the relationship, assuming their contributions in kind to have been roughly equal, would look as follows:

Particulars	Plaintiff	Defendant
1 Deposit - Whitfield Terrace and expenses of purchase	Nil	$12,500
2 Net income	$63,000 (approx)	$135,000 (approx)
3 Compensation payments and personal injury claim proceeds 13/02/89 11/05/98 13/11/89 28/09/90 11/10/90	$5,000 $2,000 $75,000 $120,000 $56,278

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4 Defendant's inheritance	$46,744
5 Toyota Trade-in	$6,000
6 Lotto winnings (April 1988) 13/12/91 06/03/92 27/02/92 ($252,440) 16/09/92 16/10/92 28/04/92 12/05/92 05/10/94	$18,066 $7,607 $167 $126,220 $1,559 $317 - - $1,569	- - - $126,220 - $317 $803 $798 $2,000
Total	$476,783	$330,382

46 As I have noted, there is an argument that the defendant's contributions in kind were perhaps greater than those of the plaintiff, although they were to an extent recognised and "compensated" for, by the gift of the ring. She has also paid some rates and taxes since 1996. It is my view that it would be appropriate to hold that the beneficial ownership of the Moresby Close property would be as to the plaintiff 470/800, and as to the defendant 330/800.

Occupation Rent

47 As I have noted, the plaintiff was excluded from the premises pursuant to a restraining order. That order was granted under s 172 of the Justices Act, which allows Justices to make an order imposing such restraints upon a person as are necessary or desirable to prevent the person from acting in an apprehended manner, where they are satisfied that the person has acted in any one of a number of ways, described in the legislation, in the past. An order of this kind is commonly granted ex parte, with a further hearing after service of the order at which the defendant shows cause why the order should not be confirmed. The onus of proof at such a hearing is upon the applicant to show that the defendant should be restrained. An order of this kind may have the effect of limiting access to property, even though the defendant has a legal interest in the property.

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48 The plaintiff submits that by her actions in applying for the original ex parte order, and in maintaining her application, the defendant has ousted the plaintiff from Moresby Close so as to entitle him to occupation rent.

49 I do not think it is necessary to canvass in any detail the arguments of the parties, which were addressed to me without the benefit of having read the decision of the Court of Appeal of New South Wales in Biviano v Natoli (1998) 43 NSWLR 695, which I drew to the attention of the parties following the conclusion of argument.

50 In that case, the Court of Appeal considered the effect of an apprehended violence order made pursuant to s 562 of the Crimes Act 1900 (NSW). Although the grounds for granting of an order of that kind are not identical to those upon which a restraining order may be granted, the procedure is essentially the same, in that an applicant who fears that certain behaviour is likely to occur may apply to the court which, if satisfied that the relevant pre-conditions have been met, will grant an order which may have the effect of restricting or preventing access to property, without thereby affecting the ownership of the property.

51 Beazley JA, with whom Stein and Powell JA agreed, discussed issues of ouster and liability for occupation rent in some detail, and reached the conclusion that the respondent's removal from the property in that case pursuant to the apprehended violence order did not constitute a legal wrong, but occurred pursuant to an express statutory power. Her Honour held that in those circumstances the respondent could not successfully have maintained an action for ejectment, and had not been the subject of an ouster so as to be entitled to occupation rent. Powell JA added that although it was the complaint made by the appellant which enlivened the jurisdiction of the court to make the apprehended violence order, it was not the action of the appellant, but the order of the court, which prevented the respondent from occupying the property so that there had been no ouster by the appellant. I agree with the reasoning of the Court of Appeal and in particular, with the comments of Powell JA in that case. It follows, that there has been no ouster of the plaintiff by the defendant in this case so as to entitle him to occupation rent.

52 Unlike Biviano v Natoli, the defendant in this case has not denied the plaintiff's interest in the property, although there has been a dispute between the parties about the extent of the plaintiff's interest. There is therefore no liability for occupation rent which might otherwise have

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arisen from a denial of title. It follows that the claim to occupation rent should be dismissed.

Other Property

53 So far as the ring is concerned, it appears to me that the facts which I have recited lead to the conclusion that the ring was a gift by the plaintiff to the defendant and should be retained by her.

54 So far as the motor vehicles were concerned, the Fairmont was, it seems to me, jointly purchased by the plaintiff and defendant, with the intention that they were equally beneficially entitled to it, and the utility was purchased by the parties for use in their newsagency. The sale price of the utility, however, is roughly equivalent to the amount of the overdraft of the Viking Maintenance Business in which the parties were partners and it seems to me that any adjustments made in respect of the overdraft and the utility would effectively cancel each other out. I propose to make no order in respect of the utility.

55 So far as the Fairmont is concerned, I note that the defendant has since the plaintiff's exclusion from Moresby Close, had the enjoyment of all of the chattels which they jointly obtained; the chattels include a number of knick knacks which are no doubt of sentimental value but of little other utility, but also include substantial and useful purchases such as white goods and major items of furniture. They are roughly equivalent in value to the motor vehicle, and it seems to me that they are also roughly equivalent in utility. So far as the past is concerned, it seems to me that there is no need to make any adjustment in the financial interests of the parties to allow for the use which they have had of the vehicle and the chattels respectively. So far as the future is concerned, the appropriate course is either to allow the plaintiff to retain the vehicle but to ensure that the defendant retains the chattels to a proportionately greater value to compensate her for the loss of what I find was intended to be an equal share in the vehicle, or alternatively, for some cash adjustment in the defendant's favour to be made between the parties.

Orders and Costs

56 It seems to me that the appropriate course, having indicated the findings I would make as to the parties' interests, is to allow the parties to consider the form of orders which they would wish made. It may be that they will be able to come to some agreement so that each of them can retain in specie those items, which they wish to retain, and that

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appropriate cash adjustments can be made. It may be that one will be in a position to purchase the interest of the other in Moresby Close, or that they will be able to come to some agreement as to how it can be disposed of. In my view, some rational agreement about Moresby Close is particularly important, because the valuation report suggests that it is somewhat over capitalised for the area in which it is located, so that it is likely that any forced sale would not recover the optimum value. As to costs, it appears that each party has been unsuccessful to a substantial degree; the plaintiff has failed in respect of the ring and the vehicles, and in his claim in respect of the lottery winnings, and the occupation rent, while the defendant has not established equality of interest in Moresby Close. It is my preliminary view that each party should bear their own costs, but I will hear submissions if either party wishes to contend for some other result.