Kukula v The Public Trustee

[1990] HCATrans 307

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1990

B e t w e e n -

MARIE KUKULA

Applicant

and

THE PUBLIC TRUSTEE

Respondent

Application for special

leave to appeal

BRENNAN J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Kukula 1 7/12/90

AT SYDNEY ON FRIDAY, 7 DECEMBER 1990, AT 2.15 PM

Copyright in the High Court of Australia

MR B.W. RAYMENT OC:  In this matter, may it please

Your Honours, I appear for the applicant with my

learned friend,MR G.P. SEGAL. (instructed by Hopper

Serisier)

MR C.G. GEE, OC:  May it please the Court, I appear with my

learned friend, MR P. HALLEN, for the respondent.

(instructed by Horowitz & Bilinsky).

BRENNAN J: Yes, Mr Rayrnent.

MR RAYMENT:  Your Honours, may I start as briefly as I may

be drawing attention to the findings of fact made

by the trial judge in this case because they, when

analyzed, in our respectful submission, throw up

for consideration a number of questions of

sufficient importance, to warrant the grant of

special leave, having regard to the way in which

this matter was dealt with in the Court of Appeal.

The conversations that His Honour found took

place between these parties are set out between
pages 3 and 5 of the application book, that is - and I will summarize them as I go if I may - the

plaintiff, my client, was widowed, aged about

35 years; the deceased was separated from his

wife; there was a proposal of marriage to my client

which she thought about. It was explained to be on

the basis that they would need to wait five years

until his divorce entitlement matured. This was at

a time under the old Act when five years separation

was a ground of divorce. That in due course, when

they married, he expected to have to part with

about half of his property that then stood in

favour of his then wife under a property

settlement; that she should sell her property, at

that time a farm property which she had lived with

her deceased husband and her deceased husband's
son, I think then an adult; that they would
continue in the poultry business together on the
deceased's property sharing everything that was

involved 50/50 and that the title to the property

would be in joint names and the survivor of the two

of them would, in due course, inherit it; that in

the meantime they would work on each other's

properties, "helping each other as much as we can",

he said, and "looking after each other until

death".

Now those were conversations which His Honour found to have taken place in 1965. Thereafter the

parties had a de facto relationship in the course

of which, according to the estimation of the
present applicant, she spent about 40 per cent of
her time working on the deceased's property and he

spent about 10 per cent of his time working on her

property and it was hard work. She was working

Kukula 2 7/12/90

from dawn until 10 pm fruit picking and the like

during the relevant seasons. He kept his true

marital status from her from 1971 until at or about

the time of his death when she discovered that from

1971 he was divorced and free to marry her, but he

kept it from her and she continued, at any rate,

for some 13 years in all, to do the relevant work.

She made a will in his favour as early as 1965.

The failure to bring the contract to fruition

by marriage stemmed, as His Honour found on the

probabilities, from, in effect, deceit practised

upon the applicant by the deceased. He kept his

divorce a secret and therefore no question arose of

the marriage. The crucial fact, in our respectful

submission, about the work which she did was that

it was done in the expectation that all that was

promised by the deceased would happen. Yet that

fact seems, in our respectful submission, to have

been very much put to one side and wrongly so, we

submit, by the Court of Appeal. We submit that the

facts of the case give rise to, first of all, when

one asks is the applicant for special leave

entitled to any relief at all on those facts, the

question of the true reach of this Court's
decisions in Muschinski v Dodds and Baumgartner,

and for that matter a series of decisions of this

Court which have, we submit, now established that

there is in the law a principle that unconscionable

conduct will, prima facie, result in the imposition

of a constructive trust or some other appropriate

proprietary remedy. It is true, as the

Court of Appeal say, that Baumgartner depended on

its facts on there having been a pooling of income

between the parties on a particular expectation,
but to say that the Baumgartner case is limited to

those facts, in our respectful submission, is to

read it too narrowly and similarly to say that the

aspects of Muschinski v Dodds, which led to the

particular result were all that the case stands

for, as Their Honours did in the Court of Appeal,

we submit, is to read it too narrowly.

Your Honours, in the first place, several of

Your Honours have, in those two decisions to which

I have referred, indicated that the Court would

contemplate laying down some more general rules

than have so far been laid down, perhaps under the

rubric of the notion of unjust enrichment. Justice Deane adverted to this area in the Muschinski case,

160 CLR, and may I go straight to the passage at

page 617. At the foot of page 616, His Honour

said:

Once its predominantly remedial character is

accepted -

Kukula 7/12/90

that is the constructive trust -

there is no reason to deny the availability of
the constructive trust in any case where some
principle of the law of equity calls for the
imposition upon the legal owner of property,

regardless of actual or presumed agreement or

intention, of the obligation to hold or apply

the property for the benefit of another. In

the United States of America, a general
doctrine of unjust enrichment has long been

recognized as providing an acceptable basis in

principle for the imposition of a constructive

trust.

And he refers to some of Scott on Trusts.

It may well be that the development of the law of this country on a case by case basis will eventually lead to the identification of some

overall concept of unjust enrichment as an

established principle constituting the basis

of decision of past and future cases.

Whatever may be the position in relation to

the law of other common law countries however,

no such general principle is as yet

established, as a basis of decision as

distinct from an informative generic label for purposes of classification, in Australian law.

The most that can be said at the present time

is that "unjust enrichment" is a term commonly

used to identify the notion underlying a

variety of distinct categories of case in

which the law has recognized an obligation on

the part of a defendant to account for a

benefit derived at the expense of a plaintiff.

And then His Honour goes to the particular facts.

In the Baumgartner case, 164 CLR, and if,

again, I may go straight to that passage, page 153.

Justice Toohey refers, in line 2, to the suggestion

in Goff and Jones: 

that" ... the case law is now sufficiently

mature for the courts to recognize a
generalised right to restitution".

His Honour observes that:

Certainly the courts of the United States have

no difficulty with the proposition just stated

as the Restatement of the Law of Restitution,

originally published in 1937, evidences. This

is an issue that does not need to be debated

in order to resolve the present appeal.

Unjust enrichment is at the very least "a

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unifying legal concept", as Justice Deane

noted in Pavey & Matthews Pty. Ltd. v Paul.

And the development of a general doctrine is

an important for the notion of unconscionable
conduct as it is for unjust enrichment.

First, the decision in Canada and then at the foot of the page His Honour notes that Professor Waters, writing in lectures delivered at the Law School of the University of Western Australia, wrote that:

the task of the courts is "to continue

sharpening the edges of the criteria which

must be satisfied before the claimant can

obtain constructive trust relief".

Now, Your Honours will have observed in the

judgment that the approach of the Court of Appeal

was to say, "Well this case is not like Baumgartner

because there was no pooling of assets. It is not

Muschinski V Dodds set of reasons, therefore it does not fall within any category that the law recognizes." In

like for another set of reasons. another

our respectful submission, it does; it falls

within the category of cases where one party has

expended labour, or it would be the same as
expending money, on a particular expectation

induced to be held by the other party in

circumstances where, we submit, it would be

unconscionable for the other party to deny the

benefit of it to the party who has so expended his

labour or time and that, we would respectfully

submit, if it is not visible in cases hitherto

decided in this Court, ought properly be laid down

in a case such as this.

BRENNAN J:  And what is the proposition that, if (a) expends

labour on the performance of work on the land of

(b) in an expectation that (a) will obtain some

interest in (b's) land?

MR RAYMENT:  Yes.

BRENNAN J:  And (b) induces that expectation and fails to

fulfill it, then none the less (a) has acquired an

interest.

MR RAYMENT:	Yes, or the courts would impose one as a matter of imposition of the conscience of the defendant.
That, we would submit - - -
BRENNAN J:	And that is the interest which was expected, I

suppose?

MR RAYMENT:	Yes, Your Honour.
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BRENNAN J: Well, what is the difference between that and

contract?

MR RAYMENT: Well, Your Honour, it is closely related to

contract, it certainly is. One needs to proceed, in our respectful submission, in this area of the

law by analogy for a number of different areas of

law, one of which is contract.

BRENNAN J:  It is one thing to say that it is an analogy,

but what happens, for example, to the statute of

frauds?

MR RAYMENT: Well, Your Honour, if it is being used as a

..... of fraud it will not be an answer to a proper

claim.

BRENNAN J: There is no question of fraud here, is there?

MR RAYMENT:  If the legislature wants to stop the

development of an area of the law by extending the
statute of frauds to incorporate it then, of

course, it may do so.

BRENNAN J:  No, but it there be no difference between such a

remedy and contract, and contract is inhibited by

the statute of frauds from giving the relief which

is to be claimed under the remedy, it is a large

step, is it not, to say that you can circumvent the

requirements of contract in the statute of frauds

by invoking the remedy.

MR RAYMENT: Well, Your Honour, no doubt Your Honour is

really referring to a matter that would weigh in

the balance in the ultimate resolution of the

question whether there is such a principle in the

law of this country. If it might conflict with

approaches in other areas of the law undoubtedly

that would be relevant to the formulation of the

principle.

BRENNAN J:  Am I right in thinking that the basis on which you put this case is not in terms of a personal

right to compensation but in terms of proprietary

right?

MR RAYMENT:  Your Honour, it is put both way and that was

the next question I was about to come to. We

submit the question whether relief is available in

these circumstances at all is itself a matter,
having regard to the way in which the

Court of Appeal decision has made in this case, of

public importance. The question then of the

particular kind of relief to which the applicant or
plaintiff would be entitled is itself, in our

respectful submission, a further question of

considerable importance. For example, if one looks

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at the trial judge's way of dealing with this matter, his approach, which was to give to my

client the benefit of, in effect, wages for the

period of time when she worked on the property,

would broadly, we submit, be consistent with the

approach of, for example, Your Honour

Justice Dawson in Muschinski v Dodds, whereas the

submission I previously put, which is a higher way

of putting this case, namely, that she ought to be

entitled to at least that which she would have

obtained in the ordinary course in the lifetime of

the deceased.

GAUDRON J:  I really do not understand that at all. What is

it, on your argument, to which she would have been

entitled? Marriage? Selling her farm? It sounds

to me as though she might well have been safe from

a very bad bargain by all this.

MR RAYMENT: Well, Your Honour, she lived in a de facto

relationship with this man.

GAUDRON J:  She did not end up selling her own property as

was contemplated?

MR RAYMENT:  She did not and if she had predeceased then the

benefit of it would have gone to him under the

arrangements. On the other hand, if, as happened,

he predeceased, she indeed would have become

entitled not just to half the estate but to the
whole of it under the arrangements which she made

with this man.

BRENNAN J:  It was to be joint placing of property in joint

names, was it?

MR RAYMENT:  Yes, both properties were to be put in joint

names, upon marriage.

BRENNAN J:  Not as tenants in common?

MR RAYMENT: Well, it does not make it clear, but it was on

the basis that the survivor would take all so one

would presume it is either accompanied by wills or

it is a joint tenancy that they are talking of
there. But, in our respectful submission, we

submit that once it be established that there is an

equity and, that, we submit, would follow from the

particular facts and circumstances, that that is

when equity becomes at its most flexible. But the

precise question ought it to give rise to personal
rights for wages or ought it to give rise to a

proprietary interest in the property of the

deceased is itself, in our respectful submission, a

matter of interest in respect of which there has

been hitherto, in general terms, a difference

between, for example, the approach of Your Honours

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Justices Brennan and Dawson in Muschinski V Dodds

and those who form a majority in that case.

DAWSON J:  I find, I must say, Mr Rayment, some difficulty

in seeing where the equity lies or where the

inequity lies, in the result as it is now.

MR RAYMENT:  Well, the result now is nothing. The inequity

is - - -

DAWSON J: Well, they both worked on each others properties,

roughly speaking. They made contributions which

are not terribly unequal.	The arrangement was not
carried out, but that was on both sides.	Where is
the inequity?

MR RAYMENT: Well, the inequity really stems from this, Your

Honours: she works, for many years here - 13 years - not just by way of exchange for work done on her property but in a special expectation engendered in her mind by him. That is to say she, for 13 years, believes - - -

DAWSON J: At one time he worked with that expectation too.

MR RAYMENT:  At one time, yes.

DAWSON J: But the relationship breaks down - - -

MR RAYMENT:  No, it did not, with respect, Your Honour. It

merely had involved in it an element of deception.

It did not break down in 1971 when he became

divorced and free to marry. He simply withheld the

information from her. It continued as a

relationship and she continued to work.

BRENNAN J: But it did break down later on.

MR RAYMENT:	It broke down in a year or two before the death, but not - - -
DAWSON J:	It broke down on one side earlier anyway. It may

have been deception, but as far as he was concerned

he obviously did not intend to carry it through,
but he still continued to work, did he not, on her

property?

MR RAYMENT:  No doubt he did, yes.

DAWSON J: Yes. But that is a mutual arrangement which, no

doubt, apart from the agreement, gave satisfaction

in various ways.

MR RAYMENT:  Yes, if all that happened in this case was one

party worked on the other's property without any

expectations of any kind, then obviously the matter

is appropriately left where the Court of Appeal

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left it, but if, in our respectful submission, the

work is done on one basis only, namely, not because

she feels like it, she contributes 40 per cent of

her time; he contributes 10 per cent of his, on

the basis of an understanding that the parties

would marry and that the benefit of the operation
and the saving that he has in wages and so on,

would redound to her - she is building up an asset,

in other words, that will one day be half hers - if

those are the facts, in our respectful submission,

it is unconscionable.

BRENNAN J: Well it is all contingent upon the marriage, is

it not?

MR RAYMENT:  Your Honour, it is contingent on the marriage.

She expects that there will be a marriage and that

then the interest will be acquired.

BRENNAN J:  So if there be some unconscionable conduct, it

must embrace the failure to marry as well.

MR RAYMENT: Well, either that or the failure to inform of

the divorce and to remake the arrangements

accordingly.

BRENNAN J: Yes.

MR RAYMENT:  There was presumably little about the

arrangements that, in so far as they have before

this Court, but depended exclusively upon the

marriage.

BRENNAN J: Well, one can readily understand why the

Court of Appeal perceived it as an action for

breach of promise of marriage dressed up, as it

were.

MR RAYMENT:  Yes, well I want to come to that point next.

In our respectful submission, that is another

reason why special leave is appropriate here.

BRENNAN J: Yes. Can I just raise one point before you come

to it. Mr Rayment, can I take you to page 12 of

the appeal book just to understand the basis on

which the case was put in the courts below.

Lines 2 to 6 suggests that there was no claim in contracts, but it was only in:

constructive trust or ..... proprietary estoppel

Is that correct?

MR RAYMENT: That is right, Your Honour, yes.

BRENNAN J: Well that does not extend to a personal claim

for compensation, does it?

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MR RAYMENT: Well, rights arising from proprietary estoppel,

it depends on what the remedy is, I suppose,

Your Honour. The remedy which His Honour granted

was a remedy of a personal nature in respect of an

effective wages claim.

BRENNAN J: Well, it was a charge, was it not?

MR RAYMENT:	A charge, a charge to secure a wages claim.
BRENNAN J:	A kind of contractor's and workman's lien.

MR RAYMENT:  Yes. His Honour really said that there should

be a charge but in respect of a claim for

compensation for the work done by the applicant and

His Honour said without deduction for any claim for

work done by the deceased.	The Court of Appeal
took issue with that.	We would respectfully submit

that in the circumstance that if one is going to

approach the matter without reference to a

proprietary interest in the property, other than a

charge, we submit that it is an appropriate way of
giving effect to the equity to disregard his work

if there is to be the kind of inquiry that the

trial judge referred to.

BRENNAN J: But it is a novel approach, is it not, to say there is a constructive trust here, to which the

court will then give effect by declaring an

equitable charge?	I must confess the language is
escaping me.	I am finding difficulty in trying to

understand the concepts.

MR RAYMENT:  I think, Your Honour, that what

Mr Justice Cohen did was to find that moneys

expended upon a property with an expectation, gave

rise to a charge for repayment if the expectation

were not fulfilled, relying upon some quite old

Chancery authority, which was, as it were, often

the alternative claim made in the old days before

Allen v Snyder and before Muschinski v Dodds, when

an express trust could not be proved. His Honour

has framed the relief in terms of a particular

equity arising, not from the payment of money, but
from the doing of work, on the analogy of the

giving of charge for the expenditure of money.

Your Honours, could I hand up a copy of

section lllA of the Marriage Act, in case

Your Honours do not have it there.	The provision
is to the following effect:

A person is not entitled to recover

damages from another person by reason only of

the fact that that other person has failed to

perform a promise, undertaking or engagement

to marry the first-mentioned person.

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And we draw attention to the word "damages" in

there and to the words "by reason only of the

fact". The breaches here were not just a failure

to marry and moreover the word "damages", we would

submit, has reference to the common law action for

damages for breach of promise. It is, in our

respectful submission, a point of general public

importance in itself whether section lllA operates

in, for example, the Baumgartner or the

Muschinski v Dodds type of case. Indeed, the reach

of the Baumgartner case and the Muschinski v Dodds

case may well extend well beyond the law of

affecting persons who live in de facto relations.

They may be principles, we submit, of the general law of property which would imply between persons

not in de facto relationship and also, for that

matter, between spouses. Mr Justice Toohey in

Baumgartner said at page 154 of the report that, and I read from line 4:

The existence of a de facto relationship

between the parties constitutes no barrier in

either case. The object of a constructive

trust is to redress a position which otherwise

leaves untouched a situation of unconscionable

conduct or unjust enrichment. It is equally

applicable to persons in a de facto

relationship as it is to spouses.

GAUDRON J: But is not your problem here, Mr Rayment, to

establish either unconscionable conduct or unjust

enrichment?

MR RAYMENT: Well, that is the - - -

GAUDRON J:  And your factual findings do not necessarily establish the latter.

MR RAYMENT:  They show work in an expectation; they show

that the expectation was frustrated by the

deceitful -

GAUDRON J: And work the other way as well: unvalued, no

precise value as to the work performed by the

deceased.

MR RAYMENT:  No, well that was why His Honour directed an

inquiry about the matter. His Honour regretted

that it was necessary to direct an inquiry about it

but found the evidence before him insufficient for

the purpose. And having decided that the

appropriate remedy was a remedy by way of, in

effect, the equivalent of wages, he needed

further - - -

Kukula 11 7/12/90

GAUDRON J: Is that not to put the cart before the horse

though, in this area.	Must we not find the unjust
enrichment first?

MR RAYMENT: Well, His Honour found a disproportionate

amount of work done by the present applicant by

comparison with that of the respondent, but where

he felt the need for inquiry was as to quantum.

His Honour was reluctant to go upon - at page 25,

line 8:

The evidence is inadequate for the

purpose of my fixing a figure to which the

plaintiff is entitled. There were no facts

upon which the estimate of 40 per cent could

be gauged. If there were figures to

substantiate that percentage then it would be

relatively easy to estimate what was a
reasonable wage for each of the appropriate
years, depending on current conditions at the

time, and allowing 40 per cent of that amount.

I do not feel however that a mere statement by

the plaintiff that this represented the time

spent by her would on its own be sufficient

for me to make a finding that this is the

amount to which she is entitled.

GAUDRON J:  The finding stops short of any findings as to

enrichment thereby though, do they not?

MR RAYMENT: Well, on page 24 - - -

GAUDRON J:  Or corresponding - - -

MR RAYMENT: - - - there is a finding of improvement of the

property and general fortunes. His Honour does not

seem to be doubting the disproportionate nature of

what is referred to on page 25, but just the

precise percentages, if I may put that submission.

GAUDRON J: Yes, but it measured surely in terms of time,

not value.

MR RAYMENT:  Yes. What is unjust though, Your Honour, is

not just the difference between the work that he

did for her on the one hand and she did for him on

the other. What is unjust is that the fact that

she did it at all, because the expectation that she

had was not met.	She did it with a certain belief
in her mind.	The fact that she did it is one

thing, but she cannot be put back in the position

that she would be in if she had not had those

expectations in her mind. In other words, that which is unjust is that she did anything in the circumstances of the case.

GAUDRON J: But that was not entirely one-sided.

Kukula	12	7/12/90
MR RAYMENT:	No, that is so.	Now, Your Honours, can I go

back to section lllA. Whether this section applies

at all to the law enunciated in this Court in

Baumgartner or Muschinski v Dodds, we respectfully

submit, is a very important question, because in

many de facto relationships, within those

principles, there must no doubt be involved a

promise to marry or intention to marry and surely,

if those cases are not limited to situations where

the parties have not discussed marriage - now, Your

Honours, moreover, the section - - -

GAUDRON J: Are there not two issues in relation to that,

Mr Rayment? Firstly, section lllA would only arise

once you have found unconscionable conduct or

unjust enrichment.

MR RAYMENT:  Yes.

GAUDRON J: Secondly, is there not a real distinction

between Muschinski v Dodds and Baumgartner in this

case in that the very acquisition of the property

could be located in the relationship in both cases?

MR RAYMENT:  Yes.

GAUDRON J: Whereas in this case there was no alteration of

property interests effected.

MR RAYMENT:  No, there was -

GAUDRON J: At most there is labour going both ways, perhaps

of unequal value.

MR RAYMENT: That is right, but that which is crucial to it

and we respectfully submit that it is crucial to a

number of decisions of this Court making findings
on conscionability, is the encouragement by one

side of a false expectation for the purposes of which the labour was spent in this case, or the money was spent in the case of Baumgartner and the

like.

BRENNAN J: It is not simply doing something with a false

expectation. It has also got to redound to the

detriment of the person doing it, has it not?

MR RAYMENT:	Yes.
BRENNAN J:	Is that not then the same sort of problem as you

are involved in in relation to unjust enrichment?

Under the total arrangement there was a give and

take. Was the enrichment, if any, unjust? Was

there any detriment in the end?

MR RAYMENT:  My client would have seen for 13 years that one

consequence of what she was doing was that in due

Kukula 13 7/12/90

course she would be a one-half owner of a property

much larger than hers.

BRENNAN J:  And have only one-half of her own?

GAUDRON J: Assuming she survived. Assuming she was the

survivor.

MR RAYMENT:  No. In due course she would be the owner of

the lot if she were the survivor.

GAUDRON J: If she were the survivor, yes.

BRENNAN J: But the fulfilment of it would be a half

interest in both.

MR RAYMENT:  Yes. During the lifetimes of the two of them

she would have a half interest in both. I should

have referred Your Honours previously to page 21 of

the appeal book, lines 19 to 22:

The plaintiff carried out work in order to

help build up and preserve the deceased's

business but he, but to a lesser extent,

carried out work in order to assist in her

business.

Your Honours, if section lllA is to be

considered in the context of this and similar

cases, the question arises, in our respectful

submission, as to its validity. It is authorized,

one thinks, only by the marriage power.

BRENNAN J:	Has a notice under section 78B been given?
MR RAYMENT:	Yes, and none of the Attorneys desire to come

at this stage of the proceedings, although they are

keeping their options open if special leave is to

be granted. In our respectful submission, a

properly arguable question arises as to the validity of section lllA in any event as an

exercise of the marriage power, it being a section,

apparently, directed not to marriage - indeed, it

is only if there is not a marriage that the section

has any relevant application. We submit, properly

speaking, it is a proceeding in the common law

courts which is dealt with here which is not, we

submit, arguably within the marriage power. And

that question, in our respectful submission, is a

question of public importance.

I should say, Your Honours, that no argument

was addressed to the Court of Appeal about

section 111A at all on either side. So that it is

only by reason of the terms of the judgment of the

Court of Appeal that this Court may be confronted with an issue under section 111A and, if it were,

Kukula 14 7/12/90

there would be an occasion to consider its

validity.

Your Honours, in the next place, the Court of

Appeal has noticed the proposition that a contract

to marry by a person already married is, by long-

standing authority, void as contrary to public

policy. In our respectful submission, that

question, that is to say whether that is still the

law - in the state of the law at any rate today,

one could say, without exaggeration, that a party

to a marriage has a legal right to a divorce should

any longer be regarded as being contrary to public

policy. Those principles were enunciated when
divorce was discretionary and depended upon proof

of fault. The Family Law Act does not so depend.

Indeed, I think it is right to say the only

circumstance in which you are not entitled to a

decree absolute is if some property arrangements

have not yet been made for the children, not on any

other ground. Mind you, I should point out,

Your Honours, when I say that, that these promises were made in 1965 when, while there was a five-year

separation ground, the making of a decree was still

discretionary.

Your Honours, in our respectful submission,

there is relevant detriment, if I can just go back

to the questions which Your Honours have been

asking me, in the doing of work, albeit that one receives the benefit of work done for one if one

does the work in the expectation of receiving a

benefit which, by deceit or otherwise the other

party withholds. One must imagine, for example,

the case of this lady who, for 13 years, thought

that she would have a relevant legal interest if

she continued to do the hard work, as it was to

her, which she did and, indeed, believing that the

extent to which she maintained her own property

would save it for herself and her future husband as

she saw it, she makes a will in favour of this man.

The relationship must, indeed, have been affecting

her behaviour.

We submit there is relevant detriment from

that fact, from the frustration of the expectation,

quite apart from the finding to which I have just

referred at page 21. My learned junior points out

that the effect of that will was that he would

have, if he had survived her, derived the benefit

of this arrangement, although he apparently
intended, at least from 1971, not to comply with

his part of it. Those are our submissions, if the

Court pleases.

BRENNAN J:  The Court need not trouble you, Mr Gee.

Kukula 15 7/12/90

MR GEE: If the Court pleases.

BRENNAN J: There is no sufficient reason to doubt the

correctness of the conclusion arrived at by the Court of Appeal. There are no findings of fact

which would establish what could be characterized

as unjust enrichment, nor do the circumstances of

the present case provide a suitable vehicle for the

development of the law considered in Muschinski v

Dodds, (1985) 160 CLR 503, and in Baumgartner v

Baumgartner, (1987) 164 CLR 137. Accordingly,

special leave will be refused.

MR GEE: If the Court pleases, we ask for costs.

MR RAYMENT:	We cannot resist that.
BRENNAN:	It will be refused with costs.

AT 3.00 PM THE MATTER WAS ADJOURNED SINE DIE

Kukula 16 7/12/90