LEES v Cooper - [2009] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LEES v COOPER
[2009] SADC 51
Judgment of His Honour Judge Clayton
24 April 2009
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
EQUITY - TRUSTS AND TRUSTEES
LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - OTHER CAUSES OF ACTION
The parties were in a de facto relationship from March 1999 until December 2005. In November 2006 The Plaintiff claimed relief under De Facto Relationships Act 1996 alleging that he had provided work and money which increased the value of the Defendant’s home, purchased shares and made superannuation contributions in the name of the Defendant and paid medical expenses for the Defendant which were recovered in an award of damages for a motor vehicle accident.
HELD:
(1) Application under s 9(3) of De Facto Relationships Act 1996 for extension of the time within which proceedings could be issued refused.
(2) Shares and superannuation contributions paid for by the Plaintiff held by the Defendant subject to a resulting trust and/or constructive trust in favour of the Plaintiff.
(3) The Plaintiff had an interest in the Defendant’s home to the extent that the value of the property was increased by his contribution of money and labour. The interest valued at $20,000 was protected by a constructive trust and can be traced to proceeds of sale of the house.
(4) The Defendant liable to repay medical expenses totalling $6,419 which were recovered by her in award of damages on basis of implied contract or money lent or money paid at her request.
De Facto Relationships Act 1996 s 3, s 9, s 16, referred to.
Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Napier v Public Trustee (WA) (1980) 32 ALR 153; Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; Calverley v Green (1984) 155 CLR 242; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Allen v Rochdale [2000] Ch 221; Parij v Parij (1997) 72 SASR 153; Jacobs’ Law of Trusts in Australia seventh edition; Bullen & Leake’s Precedents of Pleadings eleventh edition, considered.

LEES v COOPER
[2009] SADC 51

The plaintiff claims relief pursuant to the De Facto Relationships Act 1996, or alternatively a declaration that the defendant holds property on trust for himself and the defendant. In the further alternative he claims the repayment of monies paid by the plaintiff for shares and superannuation purchased in the name of the defendant and for medical treatment for the defendant.
An Outline of the Facts
The defendant agrees that the parties were in a de facto relationship within the meaning defined in s 3 of the Act from March 1999 until July 2003, that is a period of about four years and three months. The plaintiff, on the other hand, claims that the relationship commenced in about June 1998 and concluded in early 2004. That is a period of about five and a half years. The exact commencement date is of no great consequence but the conclusion date is relevant for the purpose of determining when the time for the commencement of proceedings commenced to run.
The plaintiff and the defendant met in about October 1995. At that time each was about 50 years of age, single, financially secure and owned an unencumbered residence and other investments. The plaintiff was a senior public servant. The defendant previously held responsible and well paid positions and hoped to establish a new career combining her talent as an athlete with public speaking skills in the same way that another person had done very successfully overseas. Her plans came to an end when the defendant suffered injury in a motor vehicle accident in April 1998.
A friendship developed and in early 1996 the defendant allowed the plaintiff to stay at her house overnight when he needed to be kept under observation following a dental procedure. The plaintiff said that during the period from October 1995 until the middle of 1996 the parties had an exclusive relationship including sexual relations, although they continued to reside in their own homes. In mid-1996 the defendant, who was overseas for reasons of her own, joined the plaintiff when he was in Canada on a business trip.
In 1996 the defendant accompanied the plaintiff for two days of a retirement seminar at his place of work. The plaintiff said he invited her because at that stage he had expectations of a potentially long-term relationship and she agreed to attend.
The plaintiff said that by 1997 the relationship had developed to the point where he was spending money on her house. He referred to work repairing damage caused by white ants and the purchase of an expensive stove. The plaintiff said that he purchased the stove because the existing one had broken and by that time he was doing a lot of the cooking at the defendant's home.
In August 1997 the defendant accompanied the plaintiff on another overseas trip as his "official spouse" and his employer paid her fares.
The plaintiff gave evidence that at about the middle of June 1998 he moved many of his belongings into the defendant's house where the parties were sleeping together "substantially full-time". Soon after that the defendant's daughter began living at his Gilberton house. He said he was sleeping at the defendant's house almost every night of the week and had almost all his clothes there. He felt they had a full-blown relationship.[1] He said that he moved the last of his belongings into the defendant's home in around the middle of March 1999.[2] In a letter of instructions to his solicitors the plaintiff said that he had lived in a de facto relationship with the defendant from April 1999 to December 2003.
[1] T 22.
[2] T 29.
It is unnecessary for me to resolve the uncertainty as to when the plaintiff physically moved into the defendant's house at St Peters or when the relationship came within the definition of a de facto relationship within the Act. For present purposes it is sufficient to note that the defendant accepts and I find that the evidence establishes that the de facto relationship commenced no later than March 1999.
The decision that the plaintiff would move into the St Peter's house was made after the parties had considered the alternative of the defendant moving into the plaintiff's house at Gilberton. The St Peter's house was larger and would have commanded a significantly higher rental. The defendant claims that she was to be compensated for her loss of the rental by the payments of superannuation which I discuss later.
The plaintiff gave evidence that they shared in the work of renovations to the defendant's St Peter's house, that he did most of the cooking, that they shared other domestic duties including shopping, that they did their own ironing and both did some washing although the defendant may have done more, that they shared the gardening, went out socially together, jointly invited guests to the home and slept in the same bedroom. I find that there was a de facto relationship within the meaning of the Act.
The plaintiff claims that upon his retirement on 1 April 2001 he carried out work and spent money improving the defendant's house. The defendant agrees that he did carry out work but there is a contest as to the extent of the work and its worth.
Mr Brooke, an experienced valuer, gave evidence that the increase in the value of the defendant's St Peter's property, as a consequence of the work carried out by the plaintiff, was of the order of $20,000. The defendant argues that some of the work, such as changing the colour of walls or replacing polished floorboards with carpet, did no more than give effect to the plaintiff's personal tastes and made little difference to the capital value of the property. The defendant's evidence was that she did not agree to some of the work, but by reason of his personality the plaintiff got his own way.
The plaintiff said that they spoke about their financial situation and agreed to get advice. They acknowledged that they had a long-term relationship and decided they wanted the best strategic advice as to how to manage their finances including potential income from pensions. They went to the defendant's accountant at KPMG who recommended another person in that office. They both met with the recommended adviser to give instructions and in May 1998 a financial plan[3] was prepared for them as a couple. The plaintiff said it was a joint decision to get joint planning advice.
[3] Exhibit P1.
In her evidence the defendant tried to disassociate herself from the KPMG report, although she did acknowledge that she had attended at the KPMG office with the plaintiff. She said that when the envelope arrived in the mail she thought it had come to the wrong address. She said that the meeting with the financial adviser was not what she had expected. She gave the report to the plaintiff and did not retain a copy. She said she next saw the document during the course of discovery in connection with these proceedings and that the document was never the subject of any discussion between herself and the plaintiff.
I find that the parties jointly sought the advice from KPMG and relied upon the report in planning their financial affairs. I do not accept the defendant's evidence that she thought the document had gone to the wrong address or that she never discussed the document with the plaintiff. In reaching this finding I take into account the fact that the defendant did participate in subsequent conferences with other financial advisers for the purpose of planning their joint financial affairs.
The author of the KPMG report noted that the plaintiff held an important position with the Commonwealth Public Service, that the defendant had previously acted as a consultant and it was likely that she would earn income in that capacity in the future. At the date of the report she was receiving Centrelink payments which would cease once the parties commenced cohabitation. The report noted that the partners were contemplating a merger of their financial situations and had sought advice on tax effective strategies. It listed the assets and liabilities of the parties, their anticipated income and anticipated expenditure. It made recommendations as to the best option for the plaintiff's pension and noted that as the defendant would not be in receipt of any government pension it would be best to generate income in her name as far as possible. A number of strategies were suggested. One possibility which was rejected, because of the high cost of stamp duty, was placing a home in a trust or changing ownership.
The plaintiff said that the KPMG financial advice was strategic and "the particular idea of the plan was to come down with something more concrete about what particular proportion we should put where, you know, how to handle our super. Things like what to do with our properties, how best to maximise our – to maximise our long-term returns, risk assessment, protect our income but still maintain long-term comfortable living, and to minimise our tax, joint tax".[4]
[4] T 23.
Further advice and another Personal Financial Plan was obtained from MLC Financial Planning on 29 January 1999.[5] The report recorded that the parties had approached the adviser for advice "in relation to restructuring (their) finances and allocating them to work more effectively for (them)." Seven "major objectives" were listed which included placing emphasis on investment alternatives that would provide taxation benefits as well as prospects for capital growth, protecting the lifestyles of each of the parties in the event of disability or major illness, providing an appropriate annual sum for living expenses and protecting beneficiaries in terms of the parties income and assets.
[5] Exhibit P2.
The Personal Financial Plan stated that it was prepared for both the plaintiff and defendant and made recommendations which included investigating salary sacrifice, rolling over an amount in the plaintiff's AGEST fund into an MLC fund, selling shares to make superannuation contributions which would be deductible, selling shares held by the defendant and placing the proceeds into a superannuation fund, and renting the plaintiff's property at Gilberton to derive an income of $300 per week.
The defendant acknowledged that she accompanied the plaintiff to conferences with another financial adviser "a couple of times", but denied that she ever saw the report which the adviser produced.
The plaintiff retired on 1 April 2001. At that time the plaintiff had 10 months accrued long service leave, some of which would have been included in the plaintiff's full assessable income and have been taxed at marginal tax rates. The MLC report recommended that an amount ($75,000) be paid into the defendant's superannuation fund as an un-deducted contribution and noted that in that way the parties would both receive an income stream in retirement.
That recommendation provides insight into the intentions of the parties when the plaintiff did subsequently make payments of superannuation for the defendant.
The report also recommended that the defendant sell land which she owned at Cape Jarvis and place the proceeds in her superannuation fund. That did not happen.
From the time when the parties started living together the plaintiff provided most of the living expenses for the relationship. One of the consequences of the decision to cohabit was that in March 1999 the defendant lost the Disability Support Pension that she had been receiving for the previous two and a half to three years.[6] The pension would not have continued indefinitely and would have come to an end when the defendant's disability came to an end.
[6] T 386.
For a time after the plaintiff's retirement the parties carried on a partnership business as consultants and notionally divided the profits equally. A new motor vehicle was purchased for the defendant out of the profits. The plaintiff paid the income-tax on the defendant's share of the profits.
The defendant earned some money from an art exhibition which cleared between $5,000 and $7,000.
The rental from the plaintiff's Gilberton property was paid into a dedicated bank account. The parties agreed that the defendant would be paid a fee to manage the rental of the property and that she could deduct $200 per week from the bank account for her own purposes.
The plaintiff claims that he supported the defendant, spent $66,565 on improvements and $14,560 on furnishings and fittings for the St Peter's house, paid $6,419 for the medical treatment necessitated by the defendant's motor vehicle accident and paid $2,000 to the defendant's solicitor on account of disbursements to enable the defendant's claim for damages to proceed. That $2,000 was refunded by the defendant's solicitor after the damages award was received.
In June 1998 the plaintiff purchased AMP Ltd shares in the name of the defendant at a cost of $18,810. The plaintiff claims that the purchase of the shares in the name of the defendant was part of the overall financial strategy to place income in the name of the defendant. He claims that it was understood between the parties that if the relationship broke down the shares would be refunded to him. The defendant claims that the shares were a gift.
In addition it is accepted that the plaintiff made a number of separate contributions totalling $139,000 towards the defendant's superannuation.
The plaintiff claims that the payments for AMP Ltd shares and superannuation contributions were made pursuant to the joint plans of the parties for the purposes of the relationship. In her Defence the defendant admits that the payments were made but says that they were made by the plaintiff as an inducement to the defendant to permit the plaintiff to live in the defendant's property and to reimburse the defendant for loss of income suffered by her as a result of being unable to rent out the St Peter's property in the same way that the plaintiff was able to rent his property at Gilberton.
The relationship broke down. The defendant said she became concerned by the way the relationship had developed and in late 2002 she obtained advice from solicitors about separating from the plaintiff, but did not take the matter further. At about the same time the parties consulted a psychologist for relationship counselling.[7]
[7] T 426.
The defendant claims that the de facto relationship came to an end in about July 2003. Fixing the exact date of the termination is difficult because there is no identifiable event. The defendant said that she had requested the plaintiff to leave her property but he refused to do so. In early 2004 the defendant went to Western Australia where her daughter was living. She expected that by March 2004 the plaintiff would have vacated her home, but when she returned she was surprised to find him still there.
The plaintiff acknowledged that the defendant had asked him to vacate the house by the time she returned from Western Australia, but she agreed that because he had tenants at Gilberton he could stay until mid-February.
The defendant asserts that during the period from July 2003 until December 2003 the relationship had come to an end whilst the plaintiff asserts that it had not. The evidence leaves no doubt that during the period from July 2003 until December 2003 the relationship between the parties was strained, but it is unclear as to whether the relationship continued to satisfy the statutory definition of a de facto relationship. The parties did live in the same house and the defendant was supported by money which she withdrew from the Gilberton rent account. The question is whether during that time the parties were living "together in a genuine domestic basis as husband and wife".[8]
[8] De Facto Relationships Act 1996 s 3.
The defendant said that by July 2003 the relationship was "absolutely finished". She said she just got up one morning and thought that she could not stand it any more, went for a bike ride and on her return picked up her books from the bedside table, walked down the passage and put them in the spare bedroom and said "That's it, I'm not doing this any more". She said that thereafter she occupied the spare bedroom and the plaintiff occupied the front bedroom. He was not allowed in her room at all and there was no further sexual relationship.[9]
[9] T 424 to 428.
On the other hand the plaintiff said that while the defendant did spend a substantial portion of her time in her bedroom during this period she also spent time in the master bedroom.[10]
[10] T 214.
The defendant said that in January 2004, she could not get the plaintiff to leave her home and packed her car and drove to Western Australia where her daughter resided. The parties have not cohabited since then.
In late February 2004 the plaintiff registered with an Internet dating site.
For the purpose of these proceedings I find that the de facto relationship terminated at the end of 2003, that is immediately prior to the defendant going to Western Australia.
I do not regard the evidence that the defendant had made a cash withdrawal from the rent account whilst she was in Western Australia as an indication that the parties were still living together in a genuine domestic basis as husband and wife.
During the time that the parties cohabited the St Peter's and Gilberton properties increased in value significantly, the St Peter's property more because it's underlying value was greater.
The plaintiff claims a share of the increase in the value of the St Peter's property on the basis of his contribution. His primary claim is for relief pursuant to the De Facto Relationships Act 1996.

The defendant denies that she is required to pay the plaintiff anything.
The Plaintiff's Application for Extension of Time under the De Facto Relationships Act 1996
I am satisfied that the parties were in a de facto relationship for at least three years and that the requirements of subs 9(2) of the De Facto Relationships Act 1996 are satisfied. However, the application for division of property was not made within one year after the end of the de facto relationship and the plaintiff requires an extension of the period of limitation created by subs 9(3) of the act. That subsection provides:
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that the extension of this period of limitation is necessary to avoid serious injustice to the applicant.
I have found that the de facto relationship ended at the end of 2003. The proceedings should therefore have been issued no later than 31 December 2004. They were not issued until 16 November 2006 that is almost three years after the relationship had ended and almost 2 years late.
At the end of the plaintiff's case Mr Heywood-Smith QC, who represented the defendant, submitted that there should be no extension of time and that there was no case to answer.
For the purpose of that application I was required to take the case of the plaintiff at it’s highest on the material then before the court. I ruled that the evidence adduced by the plaintiff might establish an entitlement to an extension of time and rejected the defendant's submission of no case to answer. At that time I had not heard the defendant's evidence. Having now heard the defendant's case I must now consider the application for an extension of the period of limitation on the basis of the totality of the evidence.
Mr Mellows, who appeared for the plaintiff, argued that the plaintiff acted reasonably once he became aware of the dilemma in which he was placed. He argued that once the relationship broke down the plaintiff approached the defendant about achieving a settlement of the claim and the defendant was initially responsive to his approaches. He also argued that the plaintiff granted the defendant indulgences to take account of her circumstances, only to find that, at the end of their negotiations, she sought to take advantage of his goodwill. He argued that there could be no serious injustice to the defendant if the claim is allowed to proceed, because she had knowledge of the plaintiff's claim and anticipated it.
Mr Mellows argued that if the plaintiff is not granted an extension of time the plaintiff will suffer a serious injustice in that he will be unable to proceed with his claim under the De Facto Relationships Act 1996 and obtain the relief he seeks.
The defendant disputes the claim for an extension of time. Mr Heywood-Smith QC submitted that Parliament took the view that people need to be able to get on with their lives and order their affairs without the threat of proceedings hanging over them. There is merit in that submission.
I am required to consider the interests of both de facto partners and I need to be satisfied that the extension is necessary to avoid serious injustice to the applicant.
I have come to the conclusion that an extension is not justified by the facts of this case.
In his final address Mr Mellows referred to a calculation which he asserted established an entitlement of $274,617 and submitted that it would be just and equitable to equalise the assets that the defendant pay the plaintiff the sum of $300,000. The first notice that the defendant had of that specific claim seems to be at the time of addresses on 4 April 2009.
The plaintiff's written submission[11] asserts that in November 2005 the parties agreed that the plaintiff would receive the sum of $186,000 "in part recognition" of his claim which was reduced to $178,000. The agreement to which the submission refers is disputed by the defendant. If the defendant had honoured the alleged agreement of November 2005 the plaintiff would have received a sum of $178,000. He now claims $300,000.
[11] Closing Submissions of the Plaintiff p 17.
There is no precise evidence of any particular discussion, during 2004, that is the period during which the plaintiff could have commenced valid proceedings, which could amount to a promise by the defendant to satisfy the plaintiff's claim if he was prepared to wait.
On the plaintiff's case the parties had discussed settling for $178,000 at a meeting on 15 September 2005.[12] That was almost nine months after time had expired on 31 December 2004 and was 14 months before proceedings were finally instituted.
[12] Exhibit P31.
At the time of the no case submission the plaintiff contended that he had a belief, fostered by the defendant, that the division of property could be resolved without the necessity to resort to litigation. There is no evidence upon which a finding could be made that the defendant said anything during the calendar year 2004 which encouraged an incorrect belief in the plaintiff. Nor is there evidence that the plaintiff was aware that proceedings had to be commenced within 12 months or that he deliberately deferred issuing proceedings because of what the defendant had told him.
For reasons which I discuss below, I have come to the conclusion that the plaintiff should succeed on some of his alternative claims. I have found that the claims in respect of the AMP Ltd shares, superannuation contributions and medical expenses should be allowed. That means the plaintiff’s claim will not be entirely defeated by his failure to commence proceedings within the prescribed time. It is only that part of the claim which extends beyond what I would allow that the plaintiff cannot recover. Given that the alleged agreement in September or November 2005 did not extend significantly beyond the amounts that I would allow, I have come to the view that an extension of time is not necessary to avoid serious injustice to the applicant.
The plaintiff asserts that he was asked to bide his time until the defendant received payment of her damages claim. However in November 2005 he was aware that the plaintiff had received payment of the damages but did nothing until June 2006 when his solicitors wrote.
To the extent that the plaintiff seeks an order extending time he carries the onus of bringing forward evidence which persuades the court that the extension the criteria set out in subs 9(3) have been satisfied. In my opinion the plaintiff has not identified specific evidence which would justify making an order.
The defendant denies that any discussions suggesting that she would deal with the plaintiff's claim took place upon her return home from Western Australia in March 2004.[13] Mr Heywood-Smith QC submitted that the plaintiff's evidence on this issue was unsatisfactory because he asserted a discussion concerning an inability to access superannuation which was to his knowledge incorrect.
[13] T 430.
Mr Heywood-Smith QC argued that a consideration of the interests of both parties does not establish that an extension of time is necessary to avoid serious injustice to the plaintiff; but to the contrary serious injustice would follow to the defendant who acted in her affairs from July 2004 until July 2006 (two years) under the belief that no claim was being made. On my finding the relevant period would be from 1 January 2005 until July 2006, but the point remains the same. In my opinion there is merit in the point. I am required to consider the interests of both de facto partners.
For these reasons the plaintiff's application for extension of time is refused. Accordingly the plaintiff is not entitled to a property adjustment order pursuant to the De Facto Relationships Act 1996.
The Plaintiff's Work and Expenditure on the Defendant’s House at St Peter's
The plaintiff claims an entitlement to compensation to reflect the increase in the value of the St Peter's house as a consequence of his work and expenditure of money.
There is evidence that the plaintiff did spend money and provide his labour to improve the defendant's house. There is a dispute as to the amount of money and time spent and the necessity and utility of the improvements.
The plaintiff said the house had been partly renovated but there remained a lot of work to do. The defendant on the other hand said that the renovations had been completed by the time of her 50^th birthday in August 1997 when she held a party to celebrate its completion.[14]
[14] T 361.
The plaintiff gave evidence room by room. He said that in the main bedroom the ceiling was falling down in the corners and was replaced, some French doors were opened out to a courtyard, the floor was lifted because it was falling in one corner, new skirtings were installed, the walls were stripped right back and the cracks repaired and repainted. In the living room opposite similar work was done. There was painting throughout the whole house, three coats. Every wall was stripped right back. There were major cracks in two rooms where they had to get a tradesman to carry out repairs and then three coats were painted throughout the whole house. New carpets were provided, new furnishings. The old French doors and old front door were jamming and in bad shape so they had new doors made up in western red cedar. A French door which had been cemented up at the front of the house was opened up to a French door again and new doors and screens were obtained.[15]
[15] T 19-20.
In cross-examination, the plaintiff referred to other work including the installation of new kitchen cupboards, cladding, painting the exterior, plasterwork around window frames and door frames and installation of cornices and skirtings.[16] He also referred to further ceiling repairs, the installation of cornices and skirting boards and a new fire surround in his office, fittings, filling in between his office and an old servery, re-painting the whole back wall, fixing leaks from the shower including re-plastering a wall in his office, finishing off tiled floors and living room including ceiling re-plastering of external treatment by plasterer's, repair and repainting of screens, repairs done on the quoin work above veranda, repainting the whole exterior of the house, creation of a large deck at the back and installation of a pergola.[17]
[16] T 89.
[17] T 192-193.
The plaintiff said that the parties shared in the renovation work and that it was an ongoing process that continued for the whole relationship. He estimated that he put in at least a couple of hundred hours overall, probably more after he retired than before.[18]
[18] T 35.
The plaintiff said he spent around $60,000-$64,000 on the house at St Peter's. The defendant denied that. The plaintiff prepared a document which listed his payments. Some were identified in his cheque-book and others, when cash was paid, were estimations.
Initially the house had coloured walls chosen by the defendant. One of the things which the plaintiff wished to do was to repaint the walls a "creamy beige" colour. The defendant said she wanted the plaintiff to have a sense of belonging and agreed to changing the colours. She said she did most of the painting herself but the plaintiff did some at the weekends. She was not working at the time.[19]
[19] T 402.
The St Peter's house had polished Baltic pine floors which the defendant wished to retain. The plaintiff wanted carpet. There was a disagreement but in the end the defendant relented.[20]
[20] T 402.
The plaintiff took out an old servants fireplace and replaced it with a reproduction antique fire surround against the defendant's wishes. It was the only reproduction fireplace in the house.[21]
[21] T 402-403.
The defendant said that the front of the house was in reasonable condition but the plaintiff had it repointed.[22]
[22] T 403.
The defendant's attitude to the work is illustrated by her evidence of the replacement of the original French doors at the front and the replacement of a window by the French door. She said:
…I found that very difficult to cope with. That's changing the whole character of the house. It still got done but I found that particularly difficult to accept...[23]
[23] T 403.
The plaintiff personally installed an automatic watering system over the top of the defendant's manual watering system. The defendant said that she could not see the point in spending money on things that were already there.[24]
[24] T 403-404.
The defendant referred to the replacement of mirrors in the bathroom, replacement of a shower screen and the addition of a layer of blue tiles on top of the existing tiles in the bathroom, the replacement of the dishwasher that matched the stainless-steel stove, and the replacement of the defendant's separate fridge and freezer with a new stainless-steel fridge that required carpentry work to fit into the kitchen.[25] She also referred to the replacement of curtains and blinds and the replacement of a gas space heater.[26]
[25] T 404.
[26] T 405-406.
The defendant agreed that the parties together built decking outside the kitchen door which she planned to do but had not done.[27]
[27] T 407.
I find that the plaintiff did spend money and perform work which improved the value of the St Peter's property.
The Decision to Live at St Peter's
The defendant said that when she was discussing setting up house together with the plaintiff her children had left home and she was considering downsizing because she did not need a home that large. She was looking at generating some cash reserves for herself, so that she could generate income for herself during an anticipated lag before she could get back into public speaking. The plaintiff wanted to live at St Peter's, that was the house which the defendant's children knew to be her home, and the plaintiff thought that the place to live was at St Peter's.[28]
[28] T 396.
The defendant would have preferred to rent out St Peter's and live in the plaintiff's house at Gilberton. She said there were two things about that: Gilberton was a smaller home and she could then rent her home and obtain some independence.
The likely rental for the Gilberton property was $300 per week whereas the rental being paid for a nearby property indicated that $800 per week might be obtained for the St Peter's property.
The defendant gave evidence that the plaintiff said that the defendant should consider the expenses related to St Peter's and said:[29]
In a generous scenario you might clear $500 a week... I've considered-thought about your need for income and I don't really want you to work and you don't need to work. I've got enough resources to have a comfortable income for both of us and I would like to live in St Peter's and I know your children would like to be coming to St Peter's as well. So I’ll make up the difference for you.
[29] T 398.
The matter was left there and couple of days later the defendant asked how his proposal would work. The plaintiff repeated that he would make up the difference for the defendant. He identified the difference as being $500. They then started talking about how they could move into St Peter's and discussed how they would use the rooms.[30]
[30] T 398.
The Purchase of AMP Ltd Shares
The plaintiff gave evidence that he purchased AMP Ltd shares which were placed in the name of the defendant for $18,810. He said the shares were placed in the name of the plaintiff on the basis they had an ongoing relationship.[31] The plaintiff denied that he told the defendant that he had bought some AMP Ltd shares and would like to give them to the defendant.[32] The plaintiff said:
They were purchased in her name from the very first. They weren’t transferred in her name and I didn't give them to her. The strategic advice from KPMG talked about being able to split our incomes and that was one way of following that strategic advice to split incomes.[33]
[31] T 69.
[32] T 163.
[33] T 163-164.
The plaintiff also said:
… we mentioned the public offer and discussed it and it made sense for us to buy them in her name because it was able to split assets and the divided income jointly and they were at that point and therefore they were purchased in her name and we had strategic advice to that effect from KPMG.[34]
[34] T 164.
The plaintiff said they discussed buying the shares in her name, agreed that they would do that and then he bought the shares. He said the defendant told him that the shares would be his if they separated. That was at the time of or soon after the purchase of the shares. Why they should have discussed the matter after the purchase of the shares is not clear. For present purposes what is relevant is the plaintiff's intention at the time of the purchase.
There was no discussion of the timeframe or what would happen if she had sold the shares.[35] The plaintiff said "we had just been discussing buying the shares and she said "you know you’ll get these back" or those shares will be mine if ever we separated…".[36] The plaintiff also said:
…I decided I said it would be a good idea if we did (purchase the shares in her name) because to maximise our joint assets and it made sense to have them in her name and we agreed that I would do that and she told me that "You know these will be yours if ever we separated".[37]
[35] T 166.
[36] T 166.
[37] T 167.
The plaintiff repeated that on the purchase of the AMP Ltd shares the defendant said they would be his if the parties separated.[38]
[38] T 239.
After the parties separated there was a capital split between AMP and HHG and the defendant paid the cash from the HHG component to the plaintiff but kept the AMP Ltd shares herself.[39]
[39] T 233.
The defendant gave evidence of a discussion between herself and the plaintiff concerning the AMP Ltd shares which took place at her home on a Sunday night. The only persons present were the plaintiff and herself. She said:
The plaintiff was talking about investments and money and being secure and securities, you know, that type of thing, and he was talking about redeveloping my, you know, being more financially secure - we have a different approach to money - and he said to me that he thought he would like me to be more secure, or to look at it. Then he started talking about AMP shares and Max said to me that AMP had just come on the market, it was available for corporate or institutional buyers and private buyers and that they would be a very good investment and he’d purchased them, and I was just listening to him and he said "I have some"-and I said "that's all right, you’ve told me that", and "I’d like to give you some".[40]
[40] T 390.
When asked how she responded to that the defendant said:
I'm trying to put it into words. I sort of started playing with him about it because I-I guess I thought it was a really delightful thing to do, to give me a gift, as he did from time to time, and I started playing with him saying "shares? It's something intangible. You can't sort of see shares. I've never had a gift like this that doesn't come wrapped up in paper and ribbons", and Max was sort of serious about it which made me play a bit more, then he put his hand out, and he had these papers on the table next to him, and picked it up and gave me the paper with the AMP heading on it, saying "AMP shares", and I guess I just told him he was wonderful, playing a bit more about it, and said I'd never had shares as a gift before. I had other gifts, but not shares, so I said to him how wonderful he was.[41]
[41] T 390-391.
The defendant said that at the time there was no conversation about the conference that they had attended at KPMG. She said there was no discussion about her returning shares to the plaintiff. She kept the shares and still has them.[42]
[42] T 391.
The plaintiff denied the suggestion of the defendant's counsel that he told the defendant that she would be a lot more secure if she had more investments in her portfolio and that he could do that for her. He had no recollection of a discussion in which she told him that he was "wonderful" and that she had never had a gift like that and how could she know that she had the shares if she could not see them.[43] He denied that she joked "you mean you're giving a single sheet of A4 reflex paper as a gift".[44]
[43] T 164.
[44] T 165.
The Purchase of Superannuation in the Name of the Defendant

The plaintiff said that the parties followed the KPMG plan by putting superannuation into the defendant's name "as part of an expectation that (they) had a long-term future together and that would have given (them) the best joint financial advantage".[45] He said that his intention was to maximise their joint return and minimise their tax position. He said it would have maximised their joint return for the relationship and:
My expectation was that the relationship was ongoing and long-term and my intention was to invest the money in line with the general principles of those plans in superannuation in the defendant's name, in order to maximise our joint income and reduce our personal risk.[46]
[45] T 24.
[46] T 24.
The plaintiff said that the parties went back to advisers on several occasions and jointly went through all the issues. They took the advice and agreed that it made sense to put money into superannuation but it did not make sense to sell the plaintiff's house at Gilberton and put the money into superannuation so they did not do that. He said the defendant agreed that the strategy was sound and they discussed where the funds would come from to put into the superannuation. He said:
She was positive about the plan, that we had a long-term relationship and that putting money into superannuation in her name made sense. But that it didn't make sense to sell my house to provide those funds.[47]
[47] T 25.
The plaintiff said that following receipt of the MLC report[48] the parties agreed that the plaintiff would contribute to superannuation via salary sacrifice and that they would not sell his house at that stage to put money into superannuation.[49]
[48] Exhibit P2.
[49] T 28.
When he retired the plaintiff received a large lump sum payout of which he rolled over all but $94,000 into additional superannuation policies. Of the $94,000, $30,000 went to each of three superannuation policies for the defendant and $4,000 went into the defendant's cheque-book for general day-to-day expenses. In addition he received a significant lump sum termination payment.[50]
[50] T 56.
The plaintiff said that following advice from Intervest the parties discussed investing in the defendant's superannuation and he subsequently invested $90,000 by drawing the money from his retirement rollover salary which he cashed out. There were three cheques of $30,000 each to each of three companies which Intervest invested in superannuation in the defendant's name. He said that before the money went into the defendant's name the parties had often looked at their financial position. He said "It was discussed that we put the money into her account for the purposes of the relationship because we would both benefit from that in the longer term".
He also said that the parties had no wills and "Each time I put money into super, she said, her words generally were that would be mine, meaning me, the plaintiff, if we ever separated".[51]
[51] T 61.
The plaintiff said the basis of putting the superannuation into the name of the defendant was that it was the best financial strategy for the parties as a relationship based on the advice from three separate financial advisers. His expectation was that if the relationship broke down he would be repaid those superannuation contributions. He did not consider whether he would have put the money into the name of defendant in the first place if that had not been the arrangement because he did not think about it that way. He said "I just saw that we had a long-term relationship and that I put it in for the purposes of benefiting us both jointly as part of the relationship" and "I put money into superannuation on more than one occasion, so on each occasion, the defendant said that money would be mine if we separated, so providing that level of assurance".[52]
[52] T 61-62.
The plaintiff denied that he ever told the defendant that she did not need $500 per week, that $200 was ample and it would be better if he put the difference into super for her.[53] He denied that one evening he just came home and told the defendant that he had arranged to put the moneys into her super fund. He said "No it was discussed. We jointly saw Intervest Securities. We looked at which ones were the most appropriate, and agreed that $90,000 would go as $30,000 each into those three funds identified".[54] The plaintiff said:
Every time I put money into those assets, she said they would be mine if we separated, those three. So it's superannuation, the AMP shares on their purchase, and the refund of medical expenses related to her accident.[55]
[53] T 183.
[54] T 210.
[55] T 240.
The defendant said that when the plaintiff paid the first instalment of $3,000 into superannuation for the defendant there was a brief discussion in which he said "Look, I'll just put this $3,000 into super for now. That's going in now" and she understood that was the plaintiff's way of being prudent, of meeting his obligation to her that he had said earlier that he would, make contributions (in lieu of rent) to her.[56]
[56] T 412.
The defendant said that just prior to his retirement the plaintiff told her that he was retiring and would get lump sum payments. She told him she was struggling without any money and that restricted what she could do and the decisions she could make. She said:
…he talked about the fact that he would be getting a lump sum payment and that would become part of the money for me but at that stage he didn't say where it would go. In 2001 he did talk to me about it and he made it really clear that he thought the wisest decision, for the money that was part of the rent he would have been paying living in my home, should go into the super, because it was much more prudent to go into the super. I didn't disagree. I think I'd almost given up trying to push my point.[57]
[57] T 420-421.
The defendant said that on the occasion of the second payment of superannuation there was no conversation concerning the obligation to repay the moneys.[58]
[58] T 421.
The Payment of the Defendant’s Medical Expenses by the Plaintiff
The plaintiff prepared a list of the payments which he made for medical expenses in connection with the damages claim.[59] He said he had an expectation that the medical expenses would be repaid "because the defendant had told me that upon settlement, she would repay me for the medical expenses and, in our subsequent discussions after separation, they were all in the discussion papers and we had discussed them".[60]
[59] Exhibit P25.
[60] T 72.
I accept that evidence. The repayment of the medical expenses upon their recovery from the insurer is what one would have expected to happen in the circumstances. If the defendant does not repay the medical expenses which the plaintiff paid on her behalf, she will have made an unjustifiable profit.
Furniture and Work provided by the Defendant for the Plaintiff's House at Gilberton
At the time the plaintiff rented his property at Gilberton the defendant provided furniture said to have a value of $11,250. The plaintiff accepts that.[61] The furniture included some wardrobes, chest of drawers and a sideboard.
[61] T 184.
In addition the plaintiff carried out work at Gilberton. The plaintiff acknowledged that in about February of 1999 the defendant spent some weeks getting the Gilberton house ready for rental.[62] The defendant gave evidence of the work which she had done. It involved extensive cleaning, repairing walls, arranging to have carpets cleaned, making curtains and gardening.[63]
[62] T 181.
[63] T 400.
The defendant has no claim with respect to her contribution to the Gilberton property. Having regard to the fact that I have held that the claim under the Act is out of time there is no reason to discuss this work further. The work may have been relevant if it had become necessary to value all the assets of the parties, but that is not the case. I note that the defendant's contributions to Gilberton as a matter of completeness.
The Negotiations Post Separation – February 2004 and Following
There are significant differences between the evidence of the plaintiff and the evidence of the defendant. This is an area where an examination of the contemporary documentary evidence reveals what did happen.
The plaintiff said that at the time the parties separated they discussed what would happen in the future and the defendant told him that she "didn't know what would happen downstream". The issue of the assets, in particular her superannuation, was raised. The plaintiff said "I raised the topic of how I would be repaid for that, because she had told me that the superannuation, the AMP shares and the medical expenses for the accident, would be mine if we separated".[64] He said he telephoned the superannuation companies who told him nothing could be done without a court order and the defendant told him that she had her accident claim pending and would pay him when the proceeds from that came along.[65] He agreed to wait. In May 2004 he advanced $2,000 to further the accident claim.[66] That advance is consistent with an expectation of the plaintiff receiving some benefit from the proceeds of the claim.
[64] T 73-74.
[65] T 73.
[66] T 74.
The plaintiff said that when the payment from the insurance claim took a lot longer than they both expected he again initiated discussions. He said that up to that time he thought they had an agreement that the defendant would pay him and he initiated discussions again in about September 2005 when the parties met at the defendant's house. He prepared a discussion document for that meeting.
The plaintiff said that they met again at the defendant's house about two weeks later at that time he thought they had an agreement that the defendant would pay him $186,000, but the defendant's settlement had not come through and because of the defendant's particular circumstances he agreed to wait for the settlement to be finalised.[67]
[67] T 75.
The plaintiff said that in around November 2005, after he discovered the settlement was imminent, the parties met again at the St Peter's bakery and he took along the material they had discussed previously. He said he left that meeting under the impression that the defendant would pay that $186,000 when the settlement came through.[68]
[68] T 76.
In January 2006 the plaintiff knew that the settlement monies had been received and the parties met again at a cafe in Glenelg. At that time the plaintiff was living with her mother whose health had deteriorated. He said that the defendant told him that she needed money to fix a bathroom and wanted the plaintiff to reduce the amount that she had to pay by $10,000. The plaintiff thought that was too much and they agreed to an $8,000 reduction to $178,000. He said the defendant told him that she had legal advice that she did not have to pay anything but said "Don't worry, though, I'm going to pay you and your money is in trust from the accident payout".[69]
[69] T 76.
Exhibit P26 is a letter which the plaintiff wrote to the defendant on 15 May 2006 advising that he wanted to get the settlement finalised as quickly as possible. It is a lengthy letter including the following statements:
I do feel that I've done my best to fit in with your wishes up until now. For example, I wanted to transfer super and AMP shares from your name to mine when we separated but I agreed to wait until your accident settlement. That took longer than expected, with the result that I’ve had to wait two and a half years so far. Then early this year after you received your accident payout we agreed on a settlement figure of $178,000, but since then you have delayed payment because you said that you could only deal with one issue at a time. I do recognise some of the issues that you have been dealing with, but in the meantime the super and shares have gone up another $30,000 (to about $230,000) so I've missed out on that $30,000.
I accept that letter as an accurate record of events that occurred, including agreement on a settlement figure of $178,000. Such an agreement is inconsistent with the defendant's claim that the AMP Ltd shares were a gift and superannuation was compensation for rent deprivation.
The plaintiff said that following the letter of 15 May 2006 he spoke to the defendant by telephone and she told him that she was not going to pay anything and he should get on with his life.
On 26 June 2006 the plaintiff wrote that he had tried to ring the defendant that day to advise that he had sought legal advice following her recent decision not to honour the agreed settlement. He enclosed his lawyers advice which was that he may have grounds to make a claim and he wrote "my preference is that you reconsider your decision and that you pay me our agreed figure of $178,000. The alternative of going through the courts seems unpleasant and expensive, even though in that case I might have a larger claim because I would then seek an equal share of jointly accumulated assets".[70]
[70] Exhibit P27.
The defendant never responded to the plaintiff's letter of 26 June 2006. The defendant's failure to respond and deny the plaintiff's assertions is significant. The plaintiff instructed his solicitor, Mr Harris, to write on 5 July 2006.
On his return from holidays in August 2006 the plaintiff contacted the defendant who agreed to meet again at Glenelg. The plaintiff said that at that meeting:
…she agreed to pay me $120,000 for the super because she said that's all we agreed up to that point, and she would not pay any of the added value from that super because that was an arrangement she had with a previous boyfriend where she claims she just paid back the cost…[71]
[71] T 80.
The plaintiff said he also raised the AMP Ltd shares and the defendant agreed that she would give him the value of the shares, not the purchase price, but the current value which had depreciated and half of the accident claim which came to about $133,000.[72] The plaintiff said:
The total of the superannuation payment that she said she would pay me for, the AMP shares and half of the repayment of the medical expenses from the accident. I said I didn't think that was fair and she rounded it up to $140,000 and I said I still didn't think it was fair, and she said "think about it" and left.
[72] T 80-81.
The plaintiff did not receive any money or hear anything more. Proceedings were issued on 16 November 2006.
The only money which the plaintiff has received is the return of the $2,000 paid on account of legal costs from the defendant's solicitors. He has not received reimbursement of the medical expenses.
The plaintiff claims that from as early as March 2004 there was an agreement that the defendant would convey money or assets to him.[73] Initially it was not a specific agreement to pay $186,000, but an agreement to repay or transfer the assets.[74]
[73] T 239.
[74] T 240.
Later the plaintiff said that the decision referred to in his letter of the 26 June 2006[75] was the decision which was conveyed to him when he rang the defendant about making the payment and she said "I'm not going to pay you anything. Get on with your life".[76]
[75] Exhibit P27.
[76] T 245.
The plaintiff said that as at 5 September 2006 he would have accepted $178,000 but the defendant was offering $140,000.[77]
[77] T 247-248.
The defendant agreed that she met with the plaintiff on Tuesday 29 January 2006 at a café in Glenelg. She said that the plaintiff had a document with him which stated that she owed money (Exhibit D50). It considered two "situations", one of which resulted in a payment by the defendant of $273,000 cash and the other in a payment to the plaintiff of $186,000. The letter commenced with the statement "here are the financial details to help us reach agreement on dividing of jointly accumulated assets" and as "Background" asserted that "during our time together we agreed that if we separated then we would each keep our initial assets and divide the joint accumulations in a fair and practical way".
The defendant said that at the meeting on 29 January 2006 the plaintiff claimed that she owed him money, she asked what, because at that stage she had not read the document, "and he then started to explain, in his detailed way, what I owed him, and that included returning the AMP shares, giving him back the super that he put in my name, paying him back the money that he’s paid out for expenses relating to my motor vehicle accident, the money that he paid on my rates and taxes to my property at Cape Jarvis and the money that he had paid into Timbercorp...".[78] The defendant said that the plaintiff:
Was discussing, telling me that I, I owed him this money and that he had spent all this amount of money on my home, it was that sort of thing, that I'd always-then he started saying things like I'd always agreed that I'd give him back the super, and I always agreed that I'd give him back the AMP shares. That I'd always agreed to all these things that I’d do if the relationship ever finished. I just said to Max "in your dreams"-I didn't quite say it like that, I'm sorry, I said "Look this isn’t real. This is not real. This is not what happened", and I said to him " You gave me the AMP shares. It was a gift. You gave it to me before we even live together" and I said to Max "Do you really think that if someone gives you a gift, you give it back? Does that mean that every man I've ever had a gift from who I have never lived with, I had to give the gift back?". I really remember-and then I made a comment about the money for the super, and I said "Look, does that mean that you lived in my house the whole time for no rent and got rent for your place? This isn't real.[79]
[78] T 436-437
[79] T 439.
The defendant said that she told the plaintiff that the only thing that seemed reasonable was for her to give him money for rates and taxes paid for Cape Jarvis and the Timbercorp money which "looked like about $6,000". She told him to go away and think about it.[80]
[80] T 440.
The defendant denied that she ever agreed on a settlement figure of $178,000 as alleged in the plaintiff's letter of 15 May 2006.[81]
[81] T 443.
The defendant said she did not respond to the letters because she thought the plaintiff was "just trying to have me on".[82] I do not accept that. It should have been apparent that the plaintiff's claim was serious. Her failure to deny the assertions made in the documents is consistent with her having made the offers of $186,000 and then $178,000 referred to by the plaintiff. If she had made such offers, which I find that she did, she was well aware that the plaintiff was not “trying to have (her) on” as she put it.
[82] T 443.
The defendant referred to the letter from the plaintiff's solicitors of 23 June 2006 and agreed that the parties met at the cafe in Glenelg on 5 September 2006. She said the plaintiff had another document with him and he was very definite about her telling him "all these things". She said he took that document away with him.
Exhibit D56, a document headed "Summary of Discussions with Lynley Cooper 5 September 2006" is a letter from the plaintiff to his solicitor. In the document the plaintiff noted that the parties had not reached agreement at their meeting on 5 September 2006 and continued "In summary, Lynley offered me $140,000 and left me to consider the offer. I told her that I would consider it but that I thought it was particularly unfair and that I doubted that I would accept it". The plaintiff also wrote:
…Lynley agreed that during our relationship she said that she would repay the money that I put into her super if we separated. In this we clearly have different recollections because I assumed that she meant market value. Lynley's claim is that she said she was referring to the actual cash amount that I put in, and that she said more about this after I had put $120,000 into her super. She said that she would honour this and yesterday she offered me $120,000 as return of this money, without interest or fund earnings, and ignoring my later contributions of $19,000. She has never raised the specific interpretation in any of the discussions that we have had post separation and leading up to an agreement in January this year.
Regarding the AMP shares, Lynley could not recall saying that if we split, then the shares that I bought in her name (initially for $18,000) would be mine. She did agree however that she would pay me current market value of $7,000.
She also agreed that she would reimburse me $6,500 for medical expenses that I paid towards her car accident and treatment because she had recovered these from her accident claim.
In total therefore, she agreed to pay me $133,500 to cover the super, the AMP shares and the medical expenses. I did not agree so she rounded up to $140,000 as we were leaving and asked me to think about it. I said that I would consider her offer but doubted that I would accept it because it was too unfair.

Later the document referred to the agreement of $178,000 in January 2006 when the defendant said she had agreed to that figure despite having legal advice not to pay the plaintiff anything.
In Exhibit D56 the plaintiff advised his solicitor that he was considering accepting the offer so that he could move on and avoid the risks of things going wrong, but he did not think the offer was a fair one.
The defendant denied that she ever offered $140,000 as asserted in Exhibit D56[83] or offered $120,000 or that she agreed to pay the current value of AMP Ltd shares or $6,500 for medical expenses.[84]
[83] T 450.
[84] T 451.
I do not accept the evidence of the defendant. The documents establish that she participated in discussions at which payments of $186,000, $178,000 and $140,000 were discussed. I find that she would not have continued negotiations if the plaintiff was referring to events which never occurred. As I have mentioned she never denied the plaintiff's assertions. If her case is correct there would have been no point in continuing the discussions.
The letter of 15 May 2006 corroborates the plaintiff's oral evidence. There is no written reply to the letter and there is no written evidence that the defendant disputed the allegations which the plaintiff made in the letter.
All the other documents corroborate the plaintiff's oral evidence. I accept the plaintiff's evidence.
I find that in September and November 2005 the parties discussed the figure of $186,000, then in January 2006 the parties discussed the figure of $178,000 and in September 2006 the defendant offered $140,000. I find that negotiations proceeded in the way discussed by the plaintiff.
I reject the testimony of the defendant as to the settlement negotiations. I do not accept her evidence.
The Defendant’s Submission that Equitable Principles do not apply
Mr Heywood-Smith QC submitted that the principles recognized in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137 have become of less importance following the introduction of legislation such as the De Facto Relationships Act 1996.
I do not accept that submission.
For the equitable principles described in those two cases to be rendered less effective by the legislation plain words would be required. The De Facto Relationships Act 1996 gives no indication of an intention on the part of Parliament to curtail equitable principles. On the contrary, s 16 of the De Facto Relationship Act 1996 specifically provides that the Act does not exclude other forms of remedy or relief.
It may be that the decisions of the High Court in Muschinski and Baumgartner arose out of the absence of such legislation throughout the country at that time. It is unnecessary for me to make any decision on that submission. For present purposes what is important is that the principles have evolved and still apply.
The submission that the equitable presumption and principles are of "diminished importance" given the impact of the legislation may be correct in a practical sense, because a claim under the Act would normally be a plaintiff's first option and would itself provide effective relief. However that does not mean that the equitable principles are to be read down or do not apply.
I do not accept the defendant's submission that the applicability of the Act in this case effectively precludes a claim pursuant to a constructive trust.[85]
AMP Ltd Shares and Superannuation Contributions paid by the Plaintiff for the Defendant – Resulting Trusts
[85] Defendant’s Outline of Case [39].
First, there is a question as to whether the parties had any agreement or understanding as to what should happen to the AMP Ltd shares and superannuation if the relationship came to an end. If there was an agreement effect should be given to that agreement. If there was no agreement it is necessary to consider whether the facts establish that the assets paid for by the plaintiff were subject to a resulting trust.
I find that the AMP Ltd shares and the superannuation acquired in the name of the defendant were paid for by the plaintiff. I also find that there was no agreement, in the strict sense of a contract, relating to the AMP Ltd shares or superannuation contributions.
The situation where an asset is purchased by one person in the name of another is discussed in Jacobs’ Law of Trusts in Australia, seventh edition in the following terms:
[1210] A resulting trust will be presumed where, on a purchase, the legal title to real or personal property is vested in someone other than the person who is proved (by parol or other evidence) to have provided the purchase money…
The learned authors continue:
…The classic authority is Dyer v Dyer (1788) 2 Cox 92 at 93 in which Eyre LCB said:
The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.
The authors state that represents the law today in Australia and refer to Napier v Public Trustee (WA) (1980) 32 ALR 153 at 158 where Aickin J. said:
The law with respect to resulting trusts is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted by evidence.
Jacobs’ says[86] that "the law endeavours always to give effect to the intentions of the parties, but in the absence of any evidence of such intention except for the bare fact of the transfer to someone other than the purchaser, it presumes, until the contrary is proved, in the first case, in favour of the person providing the purchase money …". (Martin v Martin (1959) 110 CLR 297).
[86] [1213].
In Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 the House of Lords held that money advanced to a company by a creditor for the purpose of enabling the company to pay a dividend was held on trust for the creditor when the liquidation of the company prevented the payment of a dividend.
These principles have been affirmed in many cases such as Calverley v Green (1984) 155 CLR 242 at 266 and Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 364. (Hancock Family Memorial Foundation Ltd v Porteus (2000) 32 ACSR 124 at [68].
The presumption may be rebutted by evidence to the contrary or where the doctrine of advancement applies. There should be nothing to indicate that the plaintiff intended the defendant to take those assets beneficially.
The legal estate in the AMP Ltd shares and superannuation contributions was placed in the name of the defendant. The question to be determined is what did the plaintiff intend with respect to the beneficial interest in those assets, at the time that the assets were acquired. It is the intention of the plaintiff which is relevant, not the intention of the defendant. (Jacobs’ para 1213. Pearson v Pearson [1961] VR 693 at 697).
It is necessary to consider the circumstances in which the assets were acquired. Whether the facts give rise to a resulting trust or not will depend upon an interpretation of what happened at the time the assets were acquired. (Allen v Rochdale [2000] Ch 221 at 223).
The presumption of a resulting trust would be rebutted if the evidence established that the transactions were gifts. In this case it is necessary to consider whether the presumption of a resulting trust is rebutted by the defendant's evidence that the plaintiff put some or all of the assets in her name as a gift or as compensation for loss of rental on her St Peter's property. Evidence as to the subsequent actions of the plaintiff is inadmissible in favour of the plaintiff's case, but would be admissible against his case. (Jacobs’: para 1213 referring to Shephard v Cartwright [1955] AC 431, Calverley v Green (1984) 155 CLR 242 at 251, 262, 269 and Bryson v Bryant (1992) 29 NSWLR 188 at 215.)
There is no evidence that the parties discussed matters such as what should happen in the event that one party predeceased the other. For example they do not appear to have considered whether, in the event that the defendant predeceased the plaintiff, the AMP Ltd shares and superannuation would pass to the defendant's next of kin or would revert to the plaintiff. Remarkably, for persons who had gone to so much trouble to plan their joint financial affairs and had intermingled their assets, they did not have wills. Nor did they have a domestic/de facto partnership agreement.
Where the property is purchased in the name of another a person whom the person paying the money is under an obligation to support there is a presumption of advancement and there is no resulting trust. However, there is no presumption of advancement where a man purchases property in the name of a woman who is not his wife. (Calverley v Green (1984) 155 CLR at 260-261).
I find that the purchase of the AMP Ltd shares and the superannuation contributions were payments made by the plaintiff for the purpose of divesting himself of income and directing income into the hands of the defendant for taxation reasons in accordance with the recommendations of financial advisers. Those steps were taken for the purpose of maximising the combined income the parties. On that finding the presumption of a resulting trust is not rebutted.
There is no evidence that when the AMP Ltd shares and superannuation payments were made on behalf of the defendant either party specifically applied their mind to the question of whether the asset was to be held in trust. The plaintiff asserts that there was an agreement that if the relationship broke down the assets would be returned to him. [87]
[87] T 52, 69, 163-166.
I accept that evidence. His evidence is corroborated by the proximity of the transaction to the KPMG advice. The KPMG report is dated 4 May 1998 and the AMP Ltd shares were purchased by the plaintiff in June 1998.
Similarly, so far as the payments of superannuation are concerned, I find that when the plaintiff made each of the payments he intended to transfer income from himself to the defendant for the purpose of maximising their joint net income for their mutual benefit. I do not accept the defendant's evidence that the plaintiff made contributions to the defendant superannuation fund for the purpose of compensating her for loss of rental on the St Peter's property.
I have found that the parties discussed payments of $186,000, $178,000 and $140,000 from the defendant to the plaintiff. Such discussions are inconsistent with the defendant's claim that the superannuation contributions were compensation for lost rent. As I have said it is the plaintiff's intention which is relevant.
So far as the defendant’s claim that the superannuation contributions were to compensate her for lost rental is concerned it is relevant that the defendant was entitled to $200 per week out of the total of $300 per week that was paid for the Gilberton property. That entitlement did compensate the defendant for any rent imbalance and is inconsistent with the defendant's claim that superannuation contributions were made to remedy the rental imbalance. I do not accept the defendant's evidence as to the superannuation contributions. Her evidence was vague, not persuasive and is contrary to the objective facts. Her evidence is inconsistent with the offers of $186,000, $178,000 and $140,000 which I have found she discussed. The plaintiff's evidence, which I accept, is supported by the objective facts.
The defendant's evidence is inconsistent with the contemporary documentation. She is an intelligent person with business experience. Her failure to respond denying statements contained in the plaintiff's letters is telling, whether, as she said, she considered the plaintiff's claim to be a "try on" or not.
I find that the payments of $186,000, $178,000 and $140,000 which were discussed demonstrated an acknowledgement by the defendant of an obligation to repay the superannuation contributions and AMP Ltd shares. Her involvement in those discussions is inconsistent with her evidence that the AMP Ltd shares were a gift and the superannuation was compensation for the loss of rental on the St Peter's property.
I do not accept the evidence of the defendant that the plaintiff made a gift of the AMP Ltd shares. Nor do I accept her evidence that the superannuation was purchased to compensate her for the rent that the plaintiff was receiving on his property at Gilberton.
I find that both the AMP Ltd shares and the superannuation contributions were placed by the plaintiff in the name of the defendant as part of the strategy that had been recommended to the parties by the financial advisers.
I find that there is no evidence which rebuts the presumption that the AMP Ltd shares and the superannuation was held in the name of the defendant subject to a resulting trust in favour of the plaintiff who had paid for those assets. There should be a declaration to that the AMP Ltd shares and superannuation contributions were held by the defendant subject to a resulting trust. I will hear counsel as to the terms of the declaration and any consequential orders.
Time and Money Spent by the Plaintiff carrying out Improvements to the Defendant’s St Peter's Property – Constructive Trust
In Australia it is now accepted that a de facto partner who contributes to property held in the name of the other partner has an interest in the property protected by a constructive trust in order to prevent an unconscionable retention of the property by the other partner.
The starting point is Muschinski v Dodds (1985) 160 CLR 583 where Deane J stated[88] that a constructive trust arises regardless of the intention of the parties to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle. Deane J said:[89]
…The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncrasy notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles…
[88] at p 613.
[89] at p 615.
Later[90] His Honour said:
…Once its predominantly remedial character is accepted, 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 to the benefit of another…
[90] at p 616-617.
Deane J drew an analogy with the rules that entitled a partner in a collapsed joint-venture to a proportional repayment out of his contributions. His Honour said:[91]
…Those circumstances can be more precisely defined by saying that 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…
[91] at p 620.
In Muschinski Deane J examined the principles which the court should follow in assessing the respective contributions of the parties saying:[92]
…The personal relationship provided the context and explains the content of the planned commercial venture. If the personal relationship had survived for years after the collapse of the commercial venture and the property had been unmistakably devoted to serve solely as a mutual home, any assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a “de facto” situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In the forefront of those special considerations there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home making and family care…
[92] at p 621-622.
At p 614 Deane J concluded:
…Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle…
What Deane J said in Muschinski v Dodds was affirmed by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137. Mason CJ, Wilson and Deane JJ[93] affirmed that a constructive trust may be imposed, even though the person on whom the trust is imposed had no intention to create a trust or to hold property on trust.
[93] at [29].
Their Honours also noted that in Muschinski Deane J (with whom Mason J agreed), reached the conclusion (that the parties held their respective legal interests upon trust to repay to each his or her respective contribution) by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. Referring to the statement of Deane J, their Honours, said at 148:
…that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle". In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged (at page 616) that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.
Toohey J referred to Muschinski and said:[94]
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.
[94] at p 154.

The Supreme Court of South Australia followed Muschinski and Baumgartner in Parij v Parij (1997) 72 SASR 153. Debelle J referred to the observations of Deane J in Muschinski and observed[95] that the guiding principle is unconscionability.
[95] at p 161.
There are many decisions which acknowledge that when determining what is or is not unconscionable conduct in this context regard will be had to financial and non-financial contributions by the parties. Indirect contributions or non-financial contributions which are taken into account commonly include support, home making and family care. (Parij p 162). In Baumgartner the majority had regard to contributions which included the acquisition of land, the building of a house, the purchase of furniture and the making of a home. Work carried out on a property or money spent on a property are contributions that should be taken into account.
I accept that the plaintiff did perform work and spend money in connection with the house at St Peter's. There is a dispute as to whether the work was necessary and the extent to which it improved the value of the property. The defendant claims that she opposed some work. For example, she claims that the plaintiff insisted upon laying carpets contrary to her preference for the existing polished timber floorboards and that some painting achieved nothing more than a new colour scheme which was more to the plaintiff's personal taste.
On the basis of the principles to which I have referred I find that the plaintiff had an interest in the house to the extent that his work and expenditure added to its value, irrespective of the intention of the parties. The defendant therefore held the house subject to a constructive trust. Even if the defendant had not requested the work and expenditure by the plaintiff, which is her case, the plaintiff's actions did have the effect of increasing the value of the property. I accept that the defendant contributed money and labour to the home in the belief that he was enhancing the value of the parties’ assets.
The defendant has sold the house at St Peter's. The property is therefore no longer subject to the trust, but the plaintiff's interest can be traced.
In my opinion the interest of the plaintiff should be valued by reference to the increase that his contribution made to the value of the property. The value of his interest should not be calculated by reference to the money which he claims to have spent and the cost of his own labour. A calculation on that basis would be an almost impossible task in any event.
I accept the evidence of Mr Brooke, as to the value which was added to the property by the expenditure of money and labour by the plaintiff.
I find that the interest of the plaintiff in the St Peter's property should be valued at $20,000. That interest was protected by a constructive trust and can be traced.
In the present case the AMP Ltd shares and the superannuation payments were also made on the assumption that the de facto relationship between the parties would be of indefinite duration. The underlying basis for the payments no longer exists.
If I had not found that the AMP Ltd shares and superannuation contributions were subject to a resulting trust I would hold that those assets were placed in the name of the defendant for the defendant to hold on trust for the mutual benefit of the parties during the continuation of de facto relationship and if the relationship broke down prematurely were to be held on a constructive trust for the plaintiff.
The plaintiff is entitled to an appropriate declaratory order. I will hear counsel as to the form of the order.
The Plaintiff's Claim in respect of Furniture
If the plaintiff purchased furniture the items remain his property. Counsel did not address me on the specific items of furniture. If specific items, which are the property of the plaintiff, are still in the possession of the defendant, those items could be the subject of a specific demand or a claim in detinue. If the items have been sold they might be the subject of a claim for conversion.
The defendant complained that the plaintiff had moved items of her furniture from St Peter's to Gilberton. The same observations should apply with respect to her furniture.
Jacobs’ Law of Trusts in Australia, seventh edition states that the purchase of furniture does not give rise to an interest in property, but I note in passing that the purchase of furniture was one of the matters mentioned in Baumgartner.
I have already stated the basis upon which I have valued the plaintiff's interest in the St Peter's property. There is no evidence upon which I could make any order with respect to the contribution of furniture which goes beyond the order which I have foreshadowed with respect of the value of the St Peter's house.
The Payment of Medical Expenses
In my opinion the payments made for medical expenses were not the subject of any trust.
However each payment of medical expenses was made by the plaintiff for the benefit of the defendant. In my opinion the plaintiff has a claim for money lent or money paid by the plaintiff for the defendant at her request. There was an implied agreement that the defendant would repay the amount advanced by the plaintiff for medical expenses once the defendant recovered them from the insurer. (Bullen & Leake’s Precedents of Pleadings, eleventh edition, page 312-313).
I find that the plaintiff paid an amount of $$6,419 for medical expenses of the defendant and that the plaintiff is entitled to recover those moneys.
The Motor Vehicle
I dismiss the plaintiff's claim for the cost of a motor vehicle purchased for the defendant. The motor vehicle was purchased from the profits of the partnership. If the defendant has overdrawn her entitlement that would be a matter for a partnership accounting. There is no basis for regarding the motor vehicle as a trust asset or holding the defendant liable to pay the cost of the vehicle to the plaintiff.

Conclusion

In my opinion:
·    The plaintiff's claim pursuant to the De Facto Relationships Act 1996 is out of time and there should be no extension.
·    The AMP Ltd shares are held by the defendant on a resulting and/or constructive trust for the plaintiff.
·    The superannuation contributions are held by the defendant on a resulting and/or constructive trust for the plaintiff.
·    The plaintiff is entitled to trace the sum of $20,000 to the proceeds of sale of his interest in the St Peter's property which was the subject of a constructive trust.
·    The defendant is liable to pay the plaintiff the sum of $6,419 as being the repayment of a loan made by the plaintiff for medical expenses.
·    The plaintiff is not entitled to relief with respect to his claim for the purchase of furniture or the cost of the defendant's motor vehicle.
I dismiss the application for an extension of time within which a claim pursuant to De Facto Relationships Act 1996 could be commenced.
I will hear submissions from counsel as to the orders required to give effect to the relief which I have foreshadowed.
I will also hear from counsel as to interest and costs.