Rush v Keogh

[2000] NSWSC 624

CITATION:	RUSH v KEOGH [2000] NSWSC 624
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1451/1999
HEARING DATE(S):	06/06/2000
JUDGMENT DATE:	31 October 2000
PARTIES :	DENNIS DONALD RUSH v RAYMOND IGNATIUS STEWART KEOGH - ESTATE OF VICTOR RICHARD BREWER
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr W. Hodgekiss (P) Mr D. Russell (D)
SOLICITORS:	Symonds & Company (P) Thorntons Solicitors (D)
CATCHWORDS:	Equity - Constructive trust - life tenant paying principal and interest due under mortgage on property subject to life estate. Principles upon which the remedy of constructive trust will be applied. Whether it is necessary to have a triggering mechanism or merely to fall within the rubric of unconscionable conduct. Finding of constructive trust as to 45% of the subject property.
CASES CITED:	Green v Green (1989) 17 NSWLR 343 Hepworth v Hepworth (1963) 110 CLR 309 Bryson v Bryant (1992) 29 NSWLR 188 Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Beatty v Guggenheim Exploration Co (1919) 225 NY Stephenson Nominess Pty Ltd v Official Receiver (1987) 16 FCR 536 Collins v Kerry, Bryson J 13 September 1989 Walker v McClelland Young J 24 June 1988 Carson v Wood (1994) 34 NSWLR 9 "The Remedial Constructive Trust" by David M. Wright 1998.
DECISION:	Paragraphs 46 and 47

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

MASTER MACREADY

Tuesday 31 October 2000

1451/1999 DENNIS DONALD RUSH v RAYMOND IGNATIUS STEWART KEOGH

JUDGMENT

1   MASTER: In these proceedings the plaintiff seeks a declaration that the defendant holds half the proceeds of the sale of the property at 10 Crown Street, Henley upon trust for the plaintiff or, alternatively, an equitable charge over part of the proceeds of sale of the property. The principal claim is one for the imposition of a constructive trust. The whole of the matter has been referred to a Master for hearing. 2   In 1950 Mr Brewer purchased the property 10 Crown Street, Henley. At the time he was living in a de facto relationship with a Mrs Tyson who contributed some funds to assist with the purchase. Mr Brewer died on 24 August 1952. Thereafter Mrs Tyson continued living in the home as life tenant until she died on 12 February 1998 aged 93 years. Under Mrs Tyson’s will the plaintiff was appointed executor and is the sole beneficiary. Mr Rush, the plaintiff, had originally gone to board with Mrs Tyson in 1952 some time after Mr Brewer died and he remained in the property until its ultimate sale after the death of Mrs Tyson. At some stage he ceased to be a boarder and took on the role of carer for Mrs Tyson as he was a trained nurse. At the time of her death Mrs Tyson was 93 years of age. 3   The defendant is the trustee of Mr Brewer’s estate. The case is thus unusual in that both parties to the original arrangement in respect of which a constructive trust is sought to be imposed are now dead. 4   It is necessary to deal with the facts in a little more detail. It seems that in about 1948 Mr Brewer became a boarder with Mrs Tyson in Lancaster Road, Dover Heights. Subsequently they apparently lived together and it seems, on the evidence, that by 1950 the parties may have commenced their defacto relationship. In any event the evidence is clear that when the property at Crown Street, Henley was purchased both Mr Brewer and Mrs Tyson lived in a defacto relationship in the premises. The purchase of the property was in Mr Brewer’s name the purchase price being 1,800 pounds. A mortgage was taken out with Manchester Unity in the sum of 950 pounds and the balance was apparently paid in cash. It is clear on the evidence that 150 pounds of this cash balance was provided by Mrs Tyson she having funds from the sale of her former matrimonial property. The balance clearly was provided by Mr Brewer. There is a debate as to the circumstances of the provision of the funds of 150 pounds by Mrs Tyson and I will return to that later. The fact of the provision of such funds is not in dispute. The property was purchased in Mr Brewer’s name and the mortgage also of course was only taken out by Mr Brewer. 5   As I have recounted Mr Brewer died on 24 August 1952 and probate of his will which is dated 9 March 1951 was granted on 24 August 1954 to the defendant Mr Keogh. The provisions of the will are important. It was a home drawn will which was typed by a secretary in Mr Keogh’s office. After appointing Mr Keogh as his executor the will provided:-

“I give devise and bequeath unto my defacto wife Eileen Tyson of 2 Crown Street Henley Gladesville for her absolute use and benefit all my real and personal estate wheresoever situated: for her life. After her death I direct that my estate be sold and the proceeds be equally divided between by grand nephew Kark van Rhoan of No 1 Culver Street Brighton-le-Sands and grand niece Susan Penny, Flarming of the Carrageen Flats Wild Street Potts Point to do with as they wish.
I hereby clearly state that all the furniture in my home at 2 Crown Street Henley is the absolute property of Eileen Tyson having been brought from her flat at 66 Lancaster Road Dover Heights or having been purchased by her since. Further she holds a second mortgage for 150 pounds (One Hundred and fifty pounds) on my property. She having loaned this to me to enable me to purchase our home.”

6 It is immediately apparent that there is reference to Mrs Tyson being his defacto wife and the provision for her of a life interest. The will makes reference to her holding a second mortgage for 150 pounds. The evidence before me did not establish the existence of any mortgage although it was clear that the money had been provided. The affidavit “D” in support of the probate application reflected the will showing 150 pounds as a loan to Mrs Tyson. It also showed the amount owing to the first mortgagee as 852 pounds five shillings and seven pence. The property was then valued at 2000 pounds. 7 On 5 April 1955 a further mortgage was taken out with Manchester Unity by Mr Keogh the executor for an amount of 135 pounds. Mr Keogh cannot remember the precise use of these funds but it is tolerably clear that at least death duties of 89 pounds 8 shillings and 6 pence and costs regarding a transmission application of 10 pounds 6 shillings were paid from that advance. 8 The evidence is clear that after the date of death of Mr Brewer, Mrs Tyson repaid over a period of time both these mortgages. The mortgages were eventually repaid by 1965 and the parties are agreed that $2,684 was paid by Mrs Tyson since the date of death of Mr Brewer in respect of the principal and interest under those mortgages. 9 Given the state of the evidence no claim was made that Mrs Tyson repaid any part of the initial mortgage between the date of purchase and the death of Mr Brewer. 10 The plaintiff gave evidence of a number of improvements and repairs that were carried out by Mrs Tyson with his assistance over the period up until the early 1980s. Thereafter there appears to have been little done on the property which suffered some deterioration with repairs being necessary. The trustee, Mr Keogh, sold the property after the death of Mrs Tyson and paid from the proceeds of sale the outstanding rates which had been deferred by Mrs Tyson. The amount of these rates was $11,641.38. After payment the amount of the sale price was invested pending the resolution of these proceedings and the current balance with interest as at 31 May 2000 amounts to $473,787.46. 11 There is a cross claim in which the defendant, Mr Keogh, seeks to claim the amount of the rates which were paid as they were clearly a liability of the life tenant Mrs Tyson. 12 The plaintiff’s principal claim was one for the imposition of a constructive trust based upon the principles developed by the High Court in a number of decisions concluding with Baumgartner v Baumgartner (1987) 164 CLR 137. 13 The alternative claims formulated by the plaintiff were first for an equitable charge in respect of the funds paid by Mrs Tyson in discharge of the mortgage after the death of Mr Brewer. As recounted above those funds amounted to $2,684 and the parties are agreed that interest on those payments from the date on which they were incurred totals $11,235. Such interest was calculated at the rate of 5 percent up until 30 June 1972 and thereafter at the Supreme Court rates set out in Schedule J to the Rules. 14 The next alternative claim propounded by the plaintiff is one for a resulting trust in respect of the provision of 150 pounds by Mrs Tyson at the time of purchase. In the further alternative a charge is sought in respect of that sum and the calculations of interest on that sum amount $1,388. It is on the same basis as the previous calculation. 15 The defendant opposes the relief and in particular suggest that the arrangements were not sufficient for the imposition of a constructive trust. In particular they suggest there has been no unconscionable conduct on the part of either Mr Brewer or his executor Mr Keogh in order to found relief. 16 I have already adverted to the evidentiary difficulties in the present case and the absence of evidence from the parties to the de facto relationship in an almost complete way. It is obviously impossible to form any view as to whether there was an express common intention about the ownership of the property at the time of its purchase. There is no doubt, on the evidence, of the contribution by Mrs Tyson of the 150 pounds to the purchase. However, the only evidence concerning the terms upon which that was contributed is that obtained in the will of the deceased in which he stated:

“Further she holds a second mortgage for 150 pounds (One Hundred and fifty pounds) on my property. She having loaned this to me to enable me to purchase our home.”

17 Although emphasis was made in submissions on the words, “our home” probably more telling is the reference to the 150 pounds being by way of loan. In these circumstances, this being the only evidence, it is impossible to conclude that there would be a resulting trust which would normally be implied as a result of the contribution to the purchase of the property in another’s name. Clearly on this evidence the presumption would be rebutted. 18 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. 19 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.”

20   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: of. 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.”

21   His Honour’s conclusion which it must be remembered was in respect of a consideration of the parties’ property interests after the breakup 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.”

22 His Honour’s conclusion was adopted by the majority in Baumgartner v Baumgartner (1987) 164 CLR 137. 23 The flexibility of a constructive trust appears in a number of cases. For instance in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 108 Mr Justice Mason, as he then was, quoted Cardozo J in Beatty v Guggenheim Exploration Co (1919) 225 NY at 389 who said:-

“A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief.”

24   In Green v Green (supra) at 358 Chief Justice Gleeson as he then was referred to the area being one in which equity is at its most flexible. 25   In Muschinski v Dodds (supra) a number of members of the Court referred to the uncertain area to which a constructive trust applies. At p595 Justice Gibbs said:-

“There is no need in the present case, to attempt to chart further the ill-defined limits of the rules relating to constructive trusts..”

26   On a more positive note Dean J at 614 said:-

“The acknowledgment of the institutional character of the constructive trust does not involve a denial of its continued flexibility as a remedy…”

27   He went on to say at 616 to 617:-

“The principal operation of the constructive trust in the law of this country has been in the area of breach of fiduciary duty. Some text writers have expressed the view that the constructive trust is confined to cases where some pre-existing fiduciary relationship can be identified: see, e.g., Lewin on Trusts, 16th ed. (1964: Mowbray ed.), p 141. Neither principle nor authority requires however that it be confined to that or any other category or categories of case: cf., generally, Professor R.P. Austin's essay on "Constructive Trusts" in Essays in Equity, (Finn ed.) (1985), esp. at pp. 196-201; Waters, op. cit., p. 28ff. 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 for the benefit of another: cf. Hanbury and Maudsley, op. cit, p. 301; Pettit, op. cit, p. 55.”

28   In America, Canada and to an extent in New Zealand, the jurisprudence in respect of constructive trusts draws heavily on principles of unjust enrichment. In Australia there have been suggestions in the cases that this is appropriate. See for example Mr Justice Kirby, as he then was, in Bryson v Bryant (supra) at 205 where he adopted what was said by Mr Justice Toohey in Baumgartner v Baumgartner (supra) at 153:-

“The notion of unjust enrichment, qualified in this way, is as much at ease with the authorities and is as capable of ready and certain application as is the notion of unconscionable conduct. No doubt, as Professor Waters suggested in "The Constructive Trust", Paper 1 in Where Is Equity Going? Remedying Unconscionable Conduct, lectures delivered at the Law School of the University of Western Australia this year, the task of the courts is "to continue sharpening the edges of the criteria which must be satisfied before the claimant can obtain constructive trust relief". But that exercise is necessary, whichever approach is adopted.
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.”

29   It would seem, however, that the present position of unjust enrichment in the law in Australia may be encapsulated in what Justice Deane said in Muschinski v Dodds at page 617. There he said:-

“In the United States of America, a general doctrine of unjust enrichment has long been recognised as providing an acceptable basis in principle for the imposition of a constructive trust: see, e.g., Scott, op. cit., vol. V, par. 461. It may be that the development of the law of this country on a case by case basis will eventually lead to the identification of some overall concept of unjust enrichment as an established principle constituting the basis of decision of past and future cases. Whatever may be the position in relation to the law of other common law countries (cf, as to Canada, Pettkus v. Becker 92 (1980) 117 D.L.R. (3d) 257. and, as to New Zealand, Hayward v. Giordani 93 [1983] N.Z.L.R. 140, at p. 148.) however, no such general principle is as yet established, as a basis of decision as distinct from an informative generic label for purposes of classification, in Australian law. The most that can be said at the present time is that "unjust enrichment" is a term commonly used to identify the notion underlying a variety of distinct categories of case in which the law has recognised an obligation on the part of a defendant to account for a benefit derived at the expense of a plaintiff: cf. Goff and Jones, op. cit, p. 11. It therefore becomes necessary to consider whether there is any narrower and more specific basis on which, independently of the actual intention of the parties, Mrs. Muschinski can claim to be entitled to relief by way of constructive trust in the particular circumstances of the present case.

30 Similar views have been expressed by Gummow J when he was sitting in the Federal Court in Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536. In these circumstances it would seem inappropriate for me to consider the present case by reference to concepts of unjust enrichment. But that is not to say that the present case which, after the death of Mr Brewer, falls outside the context of de facto married relationships is one in which the finding of the existence of a constructive trust is not possible. 31 There has started to emerge more writings upon the result which has been achieved as a result of the decisions of Muschinski and Baumgartner. See for example, “The Remedial Constructive Trust” by David M. Wright 1998. At page 66 he deals with a number of different interpretations which can be placed upon the judgments of the High Court in those cases. One important point he makes is that it is fairly clear that the availability of the constructive trust is not limited to domestic property situations. First, there is nothing in the judgments to indicate this and, indeed, various comments by members of the court indicate that the bounds are somewhat wider. Since the two cases there have been a number of cases applying the principles in a commercial context. See for example, Collins v Kerry, Bryson J 13 September 1989, Walker v McClelland Young J 24 June 1988 and Carson v Wood (1994) 34 NSWLR 9. 32 The second important matter is the question as to whether one adopts a somewhat conservative view of what was said and thus a need to find some appropriate triggering situation in order to attach a constructive trust. In Muschinski Justice Deane found the triggering situation was the analogy between the failed personal relationship and a joint venture which failed without attributable blame. The perhaps more liberal approach to the judgments is one which as Mr Wright indicates involves greater emphasis on the concept of unconscionability. This approach abandons entirely the triggering situation requirement and replaces it with a liability based on unconscionablity. Mr Wright at page 67 describes this approach in these terms:-

“This (restrained) unconscionability approach is restrained in that a claim can only be brought where the unconscionability is actionable. The unconscionability will only be actionable when it is informed by the traditional process of legal reasoning, deduction, induction and analogy. Under this approach unconscionability is not a head of liability which is a ‘formless void of individual moral opinion’ as it is informed by equitable notions of unconscionability although it is not filtered through any of them.”

33 There are two cases at appellate level in New South Wales which have touched these boundaries. One, of course is Bryson v Bryant to which I have referred earlier. In that case the President, Mr Justice Kirby, indicated that the remedy of the constructive trust should not be confined to the context of defacto married relationships which was what the cases in the High Court concerned. In his view the unconscionable actions in retaining the benefits were all that were necessary to found a liability. His Honour Mr Justice Samuels rejected that conclusion and preferred the view that there must be a link between the relevant wife’s contributions and the acquisition of property before the court could determine whether the spouse with title was to be accountable as a constructive trustee. His Honour Mr Justice Sheller seems to have decided the matter more upon the fact that he did not find the circumstances as giving rise to an unconscionable retaining of the title. 34 The next matter in which the Court of Appeal has dealt with it is that of Carson v Wood (1994) 34 NSWLR 9. The case concerned a dispute over a trademark and an agreement for transfer which was only partly completed. A transfer of the trademark failed and the defendant asserted that he was the sole legal owner of the trademark. The court held that he held one half of the trademark on constructive trust for the appellant. In that case both Mr Justice Clarke at page 18 and Mr Justice Kirby at page 10 proceeded straight from the principles in the two High Court cases to reach the conclusion that unconscionability existed and that a constructive trust should be applied. They did not adopt the employment of any triggering situation in order to found liability. His Honour Mr Justice Sheller at page 26 also did not employ a triggering situation noting that equity would impose a constructive trust as a remedy to preclude the retention or assertion of beneficial ownership to the extent that such retention or assertion would be contrary to equitable principles. This case tends to indicate that the restrained unconscionabilty approach referred to by Mr Wright is appropriate. 35 There is still enormous difficulty in application of this approach, particularly if one does not adopt the touchstone of whether there has been some unjust retention of benefit. Two important central themes relating to unconscionabilty have been identified by the Finn in his lecture “Unconscionable Conduct (1994) 8 Journal of Contract Law”. These are the protection of the vulnerable and reasonable expectations. They are of necessity broad headings of what is comprehended within the meaning of unconscionability. The width of the term unconscionable conduct is referred to by Mason J in Commercial Bank of Australia v Amadio (1982-3) 151 CLR 447 at 461. 36 It is, of course, necessary in the present case to consider not only whether the constructive trust will be imposed but the extent of the remedy to be granted. Cases since Baumgartner have seen the splitting of these two aspects. See the discussion by Mr Wright at pages 84 - 86. The present case throws up an enormous disparity in remedy depending upon whether the remedy gives a proportion of the present value of the property (value survived approach) or an equitable lien over the property to secure repayment of the funds expended in paying off the mortgage (value received approach). Before moving to this difficult task it is necessary to determine whether a constructive trust should be imposed. 37 There is no doubt in this case that there have been significant changes to what commenced as an ordinary de facto relationship between a man and a woman when the parties concerned moved into the subject property. The following matters are important when considering what change there might have been either at or after the death of Mr Brewer. The evidence discloses:-

(a) That Mr Brewer was ill in hospital for some 10 months before his death. During that time Mrs Tyson attended on him at the hospital.

(b) Mr Keogh, the defendant, an executor for Mr Brewer, recalls that he visited Mr Brewer in hospital Mr Brewer asked him to promise that Mrs Tyson was not to be put out of the house at Henley. He used the words, of the deceased, “Don’t let those bastards get the place”. The deceased was there referring to his relatives other than the remainderman and their parents.

(c) Mr Keogh made it clear that Mrs Tyson made all mortgage payments after Mr Brewer died and he did not advance her any money. Indeed even though he took out the mortgage for the 135 pounds he was certainly satisfied that she repaid it.

(d) For Mrs Tyson’s part it is clear that she considered whether the house should be sold or whether it should be retained. Mrs Vlaning a great niece of Mr Brewer gave evidence of a conversation that she had with Miss Hill a solicitor who said:

“Mrs Tyson has obtained legal advice about whether she can sell your uncle’s house in Henley. Her lawyer told her that she could obtain an income from the interest on the balance of the capital after the mortgage is paid out from the sale. She has decided she cannot live on this income so she is going to stay in the house and rent out rooms. If she does this she will have enough money to pay off the mortgage and to live on without getting a job.”

38   There was evidence from Mrs Miller, a niece of Mrs Tyson, that on a number of occasions Mrs Tyson had said that she had paid the mortgage off on the house and would like to be able to leave it to Mr Rush. She apparently said that she had got some advice on the matter. 39   It is clear that a substantial change in circumstances was about to happen with the death of Mr Brewer. He provided, to the extent that he could, for a life estate for Mrs Tyson. No account appears to have been taken of what would happen about the mortgage which existed on the property. It would seem clear from the evidence that the payments off the mortgage were not intended by Mrs Tyson to be for the benefit of the remainderman. The burden of her complaint, as revealed in the evidence, was that after two years only a small amount had been paid off the mortgage and she had to thereafter continue to pay off the substantial part of the mortgage. 40   The question of whether the retention of the legal estate for the benefit of the remainderman is unconscionable in the correct sense of that term can be looked at in part by seeing what may have occurred if Mrs Tyson had not taken that step of paying off the mortgage. The failure to meet the mortgage would have led to the sale of the property. The mortgagee was owed some 850 pounds plus another 135 pounds was owing for death duties on a second mortgage. That is a total of 987 pounds. The property was worth 2000 pounds at the date of death and its sale could have produced something in the order of 1000 pounds, i.e. $2,000. Mrs Tyson would have been entitled to the whole of the income on that investment. The investment no doubt would have been in trustee securities which would not have had the benefit of inflation. There was no power to invest, for instance, in shares or land and, accordingly, the residuary beneficiaries would expect after some forty years that they would receive an amount of something similar to that which resulted from the sale, namely, $2,000. In contrast they presently stand to receive something in excess of $470,000 being the proceeds of the sale of the land. They were only able to have the benefit of the proceeds of the sale of the land because Mrs Tyson elected to undertake the payment of a substantial part of the mortgage, in effect, close to one half of the capital cost of the land as at the date of death of Mr Brewer. 41   The other important aspect to consider in seeing whether the retention of the legal estate is unconscionable in the correct sense of that term focuses on the situation of Mrs Tyson after the death of Mr Brewer. The evidences discloses that Mrs Tyson was born in 1905. Her husband left her in 1940 and at that stage she was living at a property at 66 Lancaster Road, Dover Heights. She was not employed and on the departure of her husband she commenced to take in boarders and provide for them in order to support herself. It seems clear that when she took in Mr Brewer, as a boarder, she was still not working and was making ends meet by providing lodgings for boarders. Thereafter she and Mr Brewer moved into the property at Henley. There is evidence to show that she was not working at this time, that Mr Brewer was working as warehouseman and that he supported her. At the time of death of Mr Brewer in 1952 Mrs Tyson was 47 years of age. She was still not working and had not been in employment for many many years. The only means of support that she had, according to her recent experience, was to take in boarders, provide them with meals and accommodation and make a living in that way. It was not an uncommon circumstance. On the death of Mr Brewer she was faced with a difficult situation. The mortgage had to be met or the house would have to be sold. If the house was sold she would get nowhere near enough to support herself. She would have had to move into rented accommodation and try and obtain work which would be difficult for a woman who for many years had not worked in paid employment but who had only managed to support herself by taking in boarders. To this extent she was in a vulnerable situation. She had also invested 150 pounds by way of loan in the property. She had little choice but to adopt the course of paying the mortgage and taking in boarders in order to survive. Mr Rush makes it clear that for board not only did he have his accommodation but he also had meals provided by Mrs Tyson. 42   One thus has a circumstance of a vulnerable Mrs Tyson who had little alternative. In these circumstances the executor, and through her, the remaindermen had everything to gain by allowing her to pay off the mortgage. 43   It would seem to me that in those circumstances it would be unconscionable for the remaindermen, through the executor, to insist on their legal rights to the full ownership of the property on the death of Mrs Tyson and thus deny even the remedy of a lien to secure repayment of the funds provided. I am mindful in coming to this conclusion of the evidence of Mrs Tyson’s knowledge of her rights and the choice which she made. She was not misled by the remaindermen or Mr Keogh and the case is thus outside the realms of that part of equity which deal with mistaken expenditure on another’s property. The executor, Mr Keogh, and through him the remaindermen, sat by and allowed Mrs Tyson to provide for them about 45% of the value of the property as at the date of death of Mr Brewer. 44   It is thus necessary to turn to a consideration of what is the appropriate remedy. I have already earlier in this judgment talked of the different remedies that may be available and the difference between them. There are a number of aspects which could be taken into account in deciding whether or not to grant a remedy which gives the plaintiff the opportunity to participate in the increased value of the property over the years. These are as follows:-

(a) There is a clear connection between the payment of the amount off the mortgage and the ultimate retention of the property. Normally one does not now need to have had some right of ownership for there to be a remedy by way of constructive trust.

(b) There are no third parties involved in this matter and such interests do not have to be considered.

(c) There would be no personal remedy that the plaintiff’s estate would have for the recovery of her funds.

(d) There was substantial delay in the sense that Mrs Tyson although she complained about it did nothing about the fact that she had paid off the mortgages by 1965. Such delay can only work to the benefit of the remaindermen as the facts have turned out in the present case. There is no suggestion of alteration of position or detriment as far as the remaindermen are concerned. The delay was all to their advantage.

(e) The remaindermen will still have the benefit of the increases due to inflation on their 55% share which they would not have achieved if Mrs Tyson had not paid off the mortgages.

45   It seems as a result of these factors that Mrs Tyson’s estate should have the remedy of a constructive trust which gives him a proportionate share of the property to which Mrs Tyson has contributed. On the figures Mrs Tyson contributed 45% of the value of the property as it was valued at the time she commenced her repayments of the mortgage. She has also, of course, paid the interest on that mortgage but the capital share is 45%. 46   In these circumstances it seems to me that the plaintiff should have constructive trust over the funds remaining to that extent and that there should be judgment for the defendant against the plaintiff for the amount of the rates that have been paid with an appropriate set off. Given that the funds are in an account the parties should bring in short minutes of order to reflect these reasons. 47   Subject to any submissions the plaintiff should have his costs of the action.

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Last Modified: 11/02/2000