Penzikis v Brown

[2005] NSWSC 215

CITATION:	Penzikis v Brown [2005] NSWSC 215
HEARING DATE(S):	14, 15 February 2005
JUDGMENT DATE :	18 March 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready
DECISION:	Paragraph 46

CATCHWORDS:	Family Law. Application under Property (Relationships) Act 1984. Application fails as relationship was between same sex partners and relationship ended before commencement of the Property (Relationships) Legislation Amendment Act 1999. - Equity - claim for a constructive trust based upon principles in Baumgartner v Baumgartner. Orders for a constructive trust.
PARTIES:	Mary Pennzikis v Christine Dawn Brown
FILE NUMBER(S):	SC 2606/2001
COUNSEL:	Mr D. Alexander for plaintiff Miss P. Ryan for defendant
SOLICITORS:	Vagg & Reynolds for plaintiff Commins Hendriks

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 18 March 2005

2606/01 Mary Penzikis v Christine Dawn Brown

JUDGMENT

1 Master: This is a claim for an adjustment of the parties’ property interests both under the general law and the Property (Relationships) Act 1984. The parties commenced their admitted de facto relationship in September 1983, which continued on the plaintiffs account until June 1999 and on the defendants account until September 1991. A Judge of the court has referred the whole of the matter to a Master for hearing.

Short chronology

2 The plaintiff was born on 19 July 1948 and the defendant on 23 September 1956. In 1981 the defendant purchased a property at 132 Gurwood Street, Wagga Wagga. The purchase price was $35,000 and the defendant borrowed the sum of $30,300 to enable her to complete the purchase..

3 The parties met in July 1983 and commenced their relationship in September when the plaintiff moved in to the defendant’s rented premises in Paddington Sydney. In March 1984 the parties moved to Wagga and resided in the defendant’s property after the tenants had vacated it.

4 In February 1986 the plaintiff was arrested and charged with break enter and stealing a sizeable quantity of Grange Hermitage wine. The defendant was charged with being an accessory after the fact. The charges and their defence were a great drain on the parties’ finances. Eventually the defendant was acquitted in early 1991 and the plaintiff pleaded guilty to her charges. She was fined and put on a good behaviour bond.

5 Between 1984 and September 1991 the parties lived together at Wagga except for a period of 6 months during 1986 when the plaintiff lived and worked in Sydney. In September 1991 the plaintiff left for Adelaide where she stayed until October 1992 after which she returned to Wagga. The parties then lived in the same house sharing a bed but not having a sexual relationship. This continued until March 1997 when the plaintiff returned to Sydney where she remained, except for visits to Wagga, which occurred at about monthly intervals. According to the plaintiff, after an argument on a visit commencing 20 June 1999, the relationship ended and she returned to Sydney on 24 June 1999.

6 In the year 2000 the defendant sold her property in Wagga for $215,000 netting a sum of about $154,000. These proceedings were commenced on 14 May 2001.

The statutory provisions

7 Prior to the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 relief was only available under the then De Facto Relationships Act in respect of relationships between a man and a woman. Under the amendments, which took effect on 28 June 1999, there was an extension of the Act that applied to relationships, which ceased after that date. Under the amended Act a de facto relationship is a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.

8 The Act applies to domestic relationships which are defined in s 5 as follows:-

"5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
………….

9 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. In the present case this might have been of some importance given the alleged cessation of the de facto relationship in September 1991 and the continuance of the parties living together under the same roof until perhaps June 1999. Unfortunately, the relationship ceased on 24 June 1999, which was before the commencement of the relevant provisions of the Act. The parties are both female and, accordingly, the Act will not apply to whatever relationship they may have had.

Constructive trust claim

10 Before embarking upon a consideration of whether or not a constructive trust might be imposed either as a result of matters arising at the time of purchase or as a result of matters arising after the purchase, (see the judgment of Gleeson CJ in Green v Green (1989) 17 NSWLR 343 at pages 354 to 356) it is necessary that I remind myself of a number of the cautions which are expressed in the cases about how these matters should be approached. The first of these is the fact that community of ownership arising from marriage either de facto or de jure has no place in the law of this state. See Windeyer J in Hepworth v Hepworth (1963) 110 CLR 309, 317 to 319 and the reference by Samuels AJA in Bryson v Bryant (1992) 29 NSWLR 188 at page 229 where he refers to the comments by Dickson J in a Canadian case.

11 The other matter, when considering the constructive trust, is that His Honour Mr Justice Deane in Muschinski v Dodds (1985) 160 CLR 583 said at page 615:-

"The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic 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."

12 His Honour went on to say at page 616 the following:

"The mere fact that it would be unjust or unfair in a situation of discord for the owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other: cf. Hepworth v. Hepworth 89 (1963) 110 CLR 309, at pp. 317-318. Such equitable relief by way of constructive trust will only properly be available if applicable principles of the law of equity require that the person in whom the ownership of property is vested should hold it to the use or for the benefit of another. That is not to say that general notions of fairness and justice have become irrelevant to the content and application of equity. They remain relevant to the traditional equitable notion of unconscionable conduct which persists as an operative component of some fundamental rules or principles of modern equity: cf., e.g., Legione v. Hateley 90 (1983) 152 CLR 406, at p. 444.; Commercial Bank of Australia Ltd. v. Amadio (1983) 151 CLR 447, at pp. 461-464, 474-475.
The principal operation of the constructive trust in the law of this country has been in the area of breach of fiduciary duty."

13 His Honour's conclusion which, it must be remembered, was in respect of a consideration of the parties' property interests after the break-up of their de facto relationship, appears at page 620 of the report in the following terms:-

"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: cf. Atwood v. Maude 107 (1868) L.R. 3 Ch. App., at pp. 374-375., and per Jessel M.R., Lyon v. Tweddell 108 (1881) 17 Ch. D. 529, at p. 531."

14 His Honour's conclusion was adopted by the majority in Baumgartner v Baumgartner (1987) 164 CLR 137.

15 It was suggested that there might be a constructive trust based upon a common intention. For this to occur it is necessary that one is able to infer from the evidence such a common intention. Gleeson CJ in Green & Ors v Green (1989) 17 NSWLR 343 at 354-355 said the following:

"An important case in this area of the law is the decision of the Court of Appeal in Grant v Edwards (1986) Ch 638. That case was approved and applied by the Privy Council, in an appeal from New South Wales, in Austin v Keele (1987) 10 NSWLR 283; 61 ALJR 605; 72 ALR 579. It was also approved by the Privy Council, although not in a New South Wales appeal, in Maharaj v Jai Chand (1986) AC 898. In the latter case (at 907) their Lordships said:

'As to the principles of law to be applied to those facts, references were made in argument to cases where constructive trusts, carrying beneficial interest in land, arise between parties who are man and wife, whether de jure or de facto, on or after the acquisition of their home. The authority now classic is the speech of Lord Diplock in Gissing v Gissing (1971) AC 886, 903-911, and later English cases are reviewed in the judgments of the Court of Appeal in Grant v Edwards (1986) Ch 638 which concerned an unmarried couple. In such cases a contract or an express trust as at the time of the acquisition may not be established, because of lack of certainty or consideration or non-compliance with statutory requirements of writing, but a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to the detriment of the claimant party. And it has been held that, in the absence of evidence to the contrary, the right inference is that the claimant acted in the belief that she (or he) would have an interest in the house and not merely out of love and affection ...'

In the judgment of Vice-Chancellor Browne-Wilkinson in Grant v Edwards his Lordship identified as two matters to be demonstrated when a party seeks to establish a constructive trust based on actual intention, first, that there was a common intention that both should have a beneficial interest, and secondly, that the claimant acted to his or her detriment on the basis of that common intention.

His Lordship pointed out that proof of such common intention can be direct, as for example, by evidence of express agreement or the making of admissions, or such common intention can be inferred from the making of contributions to the cost of a property, or meeting expenses in maintaining it. That, however, is merely one of the ways, but not the only way, in which the evidentiary basis for inferring a common intention can be laid."

16 In this case, the contributions to the property made by way of payments to mortgage are an important part of the plaintiff's case. The original borrowings in 1982 by the defendant were in the amount of $30,600. In 1984, when the relationship between the parties commenced in the Wagga home, the mortgage was with New South Wales Building Society and repayments were being made at the rate of $374 per month. In 1985 the mortgage was then with United Permanent Building Society and the principal sum had obviously been increased probably to fund alterations to the property of $40,000. The monthly repayments were $445.77. By 1988 the mortgage was with the Royal Bank still in the amount of $40,000 and the monthly repayments had increased to $474. By 1990 the payments had increased to $571 per month.

17 In July 2000 apparently there was a refinancing with Wizard Mortgage and weekly payments were $108.98. This continued until sale of property in November, when the loan was paid out there was an outstanding principal balance of $58,121.49. It is clear that there have been repayments of the mortgage to cover both principal and interest for a period of some 16 years. Although the evidence is not detailed it is probably clear that the repayments over the years have been in excess of $80,000. Although the mortgage was not reduced, it was maintained throughout the period and allowed the defendant to keep the house, which increased in value over the period.

18 For a part of the period the parties maintained a joint account with the ANZ bank and payments from time to time were made from this account. However that was not the only way in which payments were made and it is necessary to consider the plaintiff's evidence as to her employment and how she made payments to the defendant to cover not only repayment of the mortgage but also her other expenses and the parties debts. During the period of the relationship the defendant allowed her property to be used as security for advances to the plaintiff to cover the plaintiff’s debts.

19 The plaintiff started work in Wagga in 1986 and worked at various places and a wine bar until April 1991 except for one period when she was unemployed between March 1988 and February 1989. Her evidence was that:

“Her pay packet went on paying bills for the house including the mortgage payments on the house.”

20 Between May 1991 and August 1991 the plaintiff worked at Scribble's cafe in Wagga. She moved to Adelaide in November 1991 where she remained until November 1992, when she returned to Wagga. When she was in Adelaide she worked as a waitress doing double shifts and working six days a week. She says that the majority of her pay packet was sent to the account in Wagga.

21 From early 1993 until mid 1994 she was a manager of Barter's restaurant earning $500 per week. She described how she would go to the bank with the defendant and pay the bills from her wage including the mortgage. Between November 1994 and February 1996 the plaintiff worked at the Officers’ Mess at the RAAF Base at Wagga. The defendant also worked there for a time during the period but not to the same extent as the plaintiff. Their pay went into the joint account and an analysis shows that the following amounts were contributed by each of the parties to the joint account:

Plaintiff $35,455.90
Defendant $ 8,897.60

22 Between March 1996 and February 1997 the plaintiff and the defendant worked at the Townhouse Restaurant in Wagga. Once again their earnings were paid into the joint account with the following contributions:

Plaintiff $19,504
Defendant $2,256

23 The plaintiff returned to Sydney and from February 1997 until January 1998 she worked in restaurants and she says that the majority of her wages were sent to the defendant in Wagga. Between January 1998 and August 1998 she was employed by the Garage Restaurant and she says that her salary was divided equally between her and the defendant with the defendant's share being sent to the St George Bank. From August 1998 until May 1999 each week she sent $450 to the defendant making a total of some $17,550.

24 From May 1999 until August 1999 she did casual work earning about $400 per week most of which, she said, she sent to the defendant. In August 1999 she obtained permanent employment which lasted until August 2000 and she says that she divided her salary in this period. After the argument in June 1999 she reduced the amount that was sent to the defendant to $200 per week till such time as the property was sold. The defendant has, for many years during the relationship, operated a portrait business which was not very successful. She was often on unemployment benefits except when they were both working at the RAAF Base at Wagga.

25 A comparison can be made by comparing the taxable income of the plaintiff and the defendant for the years where, in the evidence, assessments are available. Between 1992 and 1999 the plaintiff’s taxable income varied between $15,445 and $38,085. The total for the period was $212,775 being an average of $26,997 per annum.

26 In contrast the defendant's taxable income between 1992 and 1998 varied between $6,001 and $17,101. Her total taxable income was $55,718 being an average of $11,143 per annum. It can be seen that there was a substantial difference between their earning of about $15,400.

27 It is plain that the defendant managed the household finances for the parties. She paid the debts, including the mortgage on the house, and various debts of the plaintiff such as her credit cards, store accounts and other matters. There is no accurate analysis on the evidence of the use and application of funds. Although there were substantial legal expenses there is also no analysis of the separate amounts each had to pay over the many years they were incurring these expenses. Plainly the plaintiff contributed substantial funds which were used to pay the mortgage over the years from 1986 to 2000.

What was the joint enterprise?

28 It seems that initially the joint enterprise was the plaintiff and defendant living together first at Paddington and then in Wagga in the property owned by the defendant. In 1991 the plaintiff went to Adelaide but it is plain on the evidence that there was still an agreement between them that the plaintiff would continue to pay her share of the legal expenses and the defendant was to be in charge of accounts. On the return of the plaintiff in 1992 the parties resumed living together sharing a bed and this continued substantially up until 1997. Although there was debate in this case as to whether or not in this period there was a de facto relationship, clearly they continued to live together as friends and this change I do not think is of importance. They were still living together in the same house and managing their finances together.

29 A more substantial change occurred in 1997 when the plaintiff returned to Sydney and thereafter visited Wagga on a monthly basis. So far as the defendant was concerned the relationship was over. However, their financial arrangements, which involved the defendant managing the parties’ accounts, paying the mortgage and paying the plaintiff's debts with contributions from the plaintiff, continued. The joint enterprise clearly ended on 24 June 1999 and it did so without any attributable blame.

Common intention to acquire a beneficial interest in the house

30 Before considering whether the circumstances concerning the mortgage payments and other matters might lead to the inference of a common intention, it is necessary to notice the evidence about the parties actual intention and whether or not there is any evidence negativing the existence of a common intention.

31 In paragraph 30 of her affidavit the plaintiff gave the following evidence:

“Although we discussed putting my name on the title with a manager of the Wagga Branch of the ANZ bank, John Gray, Christine said words to the effect:

It will cost us two or three mortgage payments in stamp duty. There is no point in giving it to the government.”
I agreed.”

32 In response the defendant said the following:

“In answer to paragraph 30, I deny the conversation about the stamp duty. I went guarantor for Mary’s loans using my Wagga house as security and this was sufficient to obtain the loans. I never agreed for Mary to buy in to my property or have joint title over the Wagga house.”

33 A denial of any actual agreement would not, of course, be the end of the matter as the Court could still infer a common intention. However the matter went further when the parties were cross-examined on the matter.

34 During the course of the final argument in 1999, the plaintiff discussed with the defendant what she would get on a sale of the house. She gave the following evidence:

“WITNESS: She said I agree it is time we ended this
relationship. She then held me and cried. I went back
into the TV room and left Christine there in the
lounge room. Then after a few minutes I went back to talk
to her about the sale of the house.

ALEXANDER: Q. What was said?
A. I said to her, I would like to know what I would be
getting on the sale of the house in money, in order to go
to the bank and secure myself a credit rating in order to
buy a property for myself, and I discussed what would be
divided in the furnishings and the goods and chattels.

Q. Did she respond to that?
A. Yes.

Q. What did she say?
A. She said I had premeditated this.

Q. Are they the words she used?
A. Yes, she said, You have premeditated all this and
already decided what you want in furnishings, and I said
I hadn’t but I couldn’t see why we couldn’t divide the
furniture up, as there is enough in the house for both of
us to furnish our residence. I then asked Christine if
she would put in writing for me, should I go to the bank,
and the property hadn’t sold yet, a letter stating that I
had moneys coming to me in order to secure a mortgage with
the bank. And she said, As long as I have a hole in my
arse, I will give you nothing in writing.”

35 The fact that the plaintiff actually raised the matter supports the plaintiff’s belief that she had some interest in the house. She agreed in cross-examination that this was the first time she had raised the division of the Wagga house with the defendant.

36 The defendant was also cross-examined on the matter.

“Q. I want to take you back to the meeting you had with Mr
Gray, which is recorded at paragraph 39 of your affidavit.
That was a conversation which occurred fairly shortly
after you began to live at the Wagga property, wasn’t it?
A. No.

Q. You began to live together at the Wagga property?
A. No.

Q. When do you say that conversation occurred?
A. I just can’t remember offhand.

Q. Was it a year after you moved in together at the Wagga
property, was it more than that, less than that?
A. It was between, I guess, 1984 and 1988.

Q. The context of the conversation was that you were
discussing the question of whether it would be
advantageous for Mary’s name to be put on the title?
A. Only in relation to Mary’s loan.

Q. But it was raised, wasn’t it, as one of the issues?
A. He raised it, yes.

Q. I take it what you considered at that time were the
upsides and the downsides of doing so?
A. No, there was no - that was his suggestion.

Q. Once he made the suggestion you had a conversation,
did you not, about the case of doing so in terms of stamp
duty?
A. No.

Q. What happened in the conversation? He raised it.
What did you say?
A. That I was always prepared to put the property up as a
guarantor.

Q. Do you say you did not discuss at all whether Mary’s
name should be on the title?
A. No.

Q. Once Mr Gray said to you it would be advantageous for
Mary to obtain loans through the bank if her name was on
the title, what did you say?
A. No, because I was prepared to go guarantor with my
home.

Q. That was at a time, wasn’t it, when Mary was making
the principal contribution to the finances of the
property?
A. What year was that?

Q. You say somewhere between 1984 and 1988 and throughout
that period she was making the greater contribution,
wasn’t she?
A. She first started employment in 1986.

Q. Was she making a greater contribution over that
period?
A. No contribution until 1986.

Q. That is not right. She was working for SHRM in 1984?
A. No, we had just come down from Sydney, relocated to
Wagga in 1984.

Q. Can I suggest to you what was said to you during that
conversation with Mr Gray was the only impediment to
Mary’s name being on the title was the stamp duty costs
that would be implicit in doing so?
A. No.

Q. Can I suggest to you that conversation with Mr Gray
took place in about 1984, that is, in the year in which
you first began living together in Wagga?
A. Can you repeat the question please?

Q. Let me apologise and start again. Can I suggest to
you that the conversation with Mr Gray did not take place
when you say and that it took place in about 1994?
A. If you say.

Q. So, it took place, did it not, some 10 years after you
commenced to live together?
A. Yes, without seeing anything I just cant recall.

Q. You opened a joint account, didn’t you, in about
November 1993?
A. Yes. I believe so, yes.”

37 It seems clear that this conversation took place in 1994 after the opening of the joint account. The plaintiff gave no evidence in reply on this matter.

38 It does not seem to be an issue in this case that the funds which the plaintiff contributed to the joint endeavour were used along with such funds as the defendant contributed to meet the mortgage repayments. There were some minor renovations which the plaintiff assisted the defendant with but these are of little moment in seeking to establish any common intention. There also were renovations at a cost of about $5,000 which were done with borrowed funds and the plaintiff contributed money which was used to repay those borrowed funds. Although it is not clear on the evidence, it is probably the fact that the renovations were done from funds borrowed to repay legal costs and that may have been prior to the departure of the plaintiff for Adelaide in 1991.

39 Until the conversation in 1994 with the bank manager, in my view, the facts would lead to the inference that there was a common intention that the plaintiff should have a beneficial interest in the house. The terms of the conversation with the bank manager raise a clear difference between the parties which raises the credit of the parties. The defendant often had a tendency to understate the facts in relation to the plaintiff's case such as, for example, the number of times the plaintiff came back to Wagga after 1997. On another occasion when giving details for a bank loan application she grossly overstated the value of the plaintiff's wine collection. At times she was unable to recall details of matters in the past.

40 The plaintiff gave her evidence in a straightforward manner. The subject of stamp duty is a likely subject to be raised in the context of putting someone else's name on the title. The plaintiff has had no experience of buying properties, at least according to the evidence in this case, and thus the use of these words on this occasion may well have stuck in her mind. The fact of the matter was that the defendant did allow her property to be used as security when she went guarantor for the plaintiff's loan with the bank. The defendant on her version made it clear that she was happy to use the property as security for such a loan. It is not clear from the defendant’s answer in cross-examination to the bank manager's question whether the only spoken answer was the word “ no”.

41 It seems to me that the question of stamp duty was raised in the context of the bank manager’s suggestion but was not proceeded with due to its cost. In any event there was no need to do so because the defendant was quite prepared to go guarantor for the plaintiff using her house as security. In these circumstances I do not think that the conversation that occurred with the bank manager is inconsistent with or contradicts an inferred common intention that the plaintiff would have a beneficial interest in the house.

42 There is no doubt that the plaintiff has suffered detriment bearing in mind the greater contribution she has made over the period of the relationship. The quantification of the extent of the beneficial interest was never considered by the parties and cannot be precisely determined on the evidence. In Gissing v Gissing (1986) Ch 638 Lord Diplock said at p 657:

“"Where, as in this case, the existence of some beneficial interest in
the claimant has been shown, prima facie the interest of the claimant will be that which the parties intended: Gissing v Gissing [1971] AC 886, 908G. In Eves v Eves [1975] 1 WLR 1338, 1345G, Brightman LJ plainly felt that a common intention that there should be a joint interest pointed to the beneficial interests being equal. However, he felt able to find a lesser beneficial interest in that case without explaining the legal basis on which he did so. With diffidence, I suggest that the law of proprietary estoppel may again provide useful guidance. If proprietary estoppel is established, the court gives effect to it by giving effect to the common intention so far as may fairly be done between the parties. For that purpose, equity is displayed at its most flexible: see Crabb v Arun District Council [1976] Ch 179."

43 Although equality might be appropriate in a case where there are contributions during the whole of the time of the ownership of property, in this case the contributions only commenced in 1986. The defendant apparently made contributions from time of purchase in 1982 until 1986 and she also contributed the initial equity of 13% in the property. The defendant did most of the work involved in the improvements to the house. From 1986 to 1999 the plaintiff contributed her salary in the way I have indicated earlier. In these circumstances, it seems that an appropriate proportion would be 35% for the plaintiff and 65% for the defendant.

44 The plaintiff's claim was for a constructive trust in respect of the proceeds of sale of the Wagga property. The net proceeds of sale amounted to $154,000 and those proceeds no longer exist. Thirty five percent of those proceeds amounts to $53,900. The defendant has used the proceeds to buy land in Victoria for $36,000 and there is an amount of $16,500 in the trust account of solicitors, Commins Hendriks.

45 Normally a constructive trust would be imposed only from the date of the Court's order. See Muschinski v Dodds (1985) 160 CLR 583 at 615 and 623. The constructive trust is an equitable remedy and is seen as constituting an in personam remedy attaching to property. In these circumstances there should be no objection to it being applied to a property in Victoria as the parties are resident in New South Wales.

46 In the circumstances of this case the plaintiff is entitled to a declaration that the defendant hold her interest in the proceeds of the sale of the land known as 132 Gurwood Street, Wagga Wagga subject to a constructive trust as to the amount of $53,900 in favour of the plaintiff. Such proceeds include:

(a) The interest of the defendant in the land known as 46 Pioneer Road, Stanley in the State of Victoria.
(b) The balance of a trust account held for the plaintiff and defendant by solicitors, Commins Hendriks.

47 I direct the parties to bring in short minutes and, if necessary, argue costs.

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