Spink v Flourentzou

[2019] NSWSC 256

Supreme Court

New South Wales

Medium Neutral Citation:

Spink v Flourentzou [2019] NSWSC 256

Hearing dates:

3-5 December 2018

Date of orders:

14 March 2019

Decision date:

14 March 2019

Jurisdiction:

Equity

Before:

Robb J

Decision:

(1) The plaintiff is entitled to be repaid by the defendants the amounts of $147,000 and $18,314.26, plus interest as set out at [323] of these reasons, secured by an equitable charge over the property described as the Casula property.

(2) The plaintiff is entitled to an order that the defendants pay her costs of the proceedings.

(3) Direct the parties to submit draft short minutes of order, consistent with [323]-[326] of these reasons, within 14 days.

(4) Direct the plaintiff, if she wishes to make an application for a special costs order, to submit suggested directions within 14 days in accordance with [327] of these reasons.

Catchwords:

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Entitlement to be repaid contribution — Entitlement to equitable charge over property to secure repayment of contribution

 

EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Failure of joint endeavour in acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame — Whether the appropriate remedy involves return of contributions made or proportionate share of beneficial interest in property

  EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Whether the presumption applies when a mother gives moneys to her daughter and son-in-law jointly

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bennett v Horgan (NSWSC, 3 June 1994, unreported)
Brown v Brown (1993) 31 NSWLR 582
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Chalmers v Pardoe [1963] 1 WLR 677
Hill v Hill [2005] NSWSC 863
Knight v Biss [1954] NZLR 55
Kriezis v Kriezis [2004] NSWSC 167
Malsbury v Malsbury [1982] 1 NSWLR 226
McKay v McKay [2008] NSWSC 177
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Nolan v Nolan [2015] QCA 199
Plimmer v Wellington Corporation (1884) 9 App Cas 699
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Sirtes v Pryer [2005] NSWSC 1082
Tadrous v Tadrous [2010] NSWSC 1388
Watson v Foxman (1995) 49 NSWLR 315
West v Mead [2003] NSWSC 161
Z v Z (2005) 34 Fam LR 296

Texts Cited:

Jacobs' Law of Trusts in Australia (8th edition)

Category:

Principal judgment

Parties:

Rickie Spink (Plaintiff)
Mario Flourentzou (First Defendant)
Dianne Flourentzou (Second Defendant)

Representation:

Counsel:
P M Lane/M Cobb-Clark (Plaintiff)
R Glasson/S McCarthy (Defendants)

  Solicitors:
Legal Aid NSW (Plaintiff)
Carroll & O’Dea Lawyers (Defendants)

File Number(s):

2017/196183

Judgment

1. The plaintiff in these proceedings is Mrs Rickie Spink, and the defendants are Mrs Spink's daughter, Dianne Flourentzou and her husband Mario Flourentzou.

2. Mrs Spink has two other children, Denise Taylor and Troy Spink. As is customary, and without meaning any disrespect, I will for convenience call Mrs Spink's children, and her son-in-law Mario, by their first names.

3. Dianne and Mario are the registered proprietors of a property at Casula in this State (the Casula property). A three-bedroom home with separate one-bedroom accommodation is erected on the Casula property.

The issues

4. The question in these proceedings is whether, by reason of payments made by Mrs Spink to Dianne and Mario at about the time of the completion of the contract by which they acquired the Casula property, Mrs Spink has an interest in the Casula property or some other right to compensation, and, if she has, what is its nature and value, and by what means can that value be recovered by Mrs Spink.

5. There was an arrangement between the parties that Mrs Spink would be able to live at the Casula property indefinitely. The precise nature of that arrangement is in issue in these proceedings. The relationship between the parties broke down. Mrs Spink was required to leave the property by the defendants. At the time of the hearing, Mrs Spink was dependent upon the pension and the goodwill of friends and acquaintances for accommodation. She was on a waiting list for public housing.

6. Mrs Spink filed her statement of claim on 30 June 2017, and Dianne and Mario filed a defence on 18 August 2017.

7. The parties have agreed the issues for determination by the Court in these proceedings. Those issues are, using the language of the parties, as follows (Issues):

1.   Was the money provided by Rickie to Dianne and Mario in the period from 1 November 2012 to 4 January 2013 (whether $147,000 or $150,000) a gift?

2.   Has Rickie rebutted any presumption of advancement that applies to that money?

3.   Was the Arrangement between Rickie, Dianne and Mario in respect of the Casula Property made in terms to the effect of those alleged in SOC paragraphs [7]-[9]?

4.   Did Mario and Dianne make the House Representations as alleged in SOC paragraph [60]?

5.   What amount was spent by Rickie on renovations/improvements to the Casula Property?

6.   What effect, if any, does Rickie's occupation of the Casula Property rent free in the period from about January 2013 to October 2016 have on her entitlement to relief in respect of any renovations/improvements to the Casula property?

7.   If the amount of $150,000 and the renovation costs were not gifts, does equity recognise any entitlement to Rickie in respect of the Casula Property?

8.   If so, what is the nature and extent of Rickie's interest in the Casula Property?

9.    If Rickie is entitled to an interest in the Casula Property, what relief should be ordered?

8. While this is a useful list of the issues, although perhaps not complete, it will be convenient in these reasons to consider the main forensic contests between the parties, rather than to deal with the issues identified by the parties one by one.

9. The Arrangement (as referred to in Issue 3) was pleaded by Mrs Spink in her statement of claim as follows:

…

7.   In and from June 2012 the first and second defendants and each of them proposed an arrangement to the plaintiff ("the Arrangement").

Particulars

a.   The proposal was made either at the plaintiff’s residence at Engadine or at the defendants’ residence at Moorebank.

b.   The proposal was discussed at various times when the defendants visited the plaintiff at Engadine or when the plaintiff visited the defendants at the Moorebank property, and over the telephone.

c.   The proposal was discussed at least weekly from June 2012.

d.   The proposal was oral.

8. The terms of the proposed Arrangements were that:

a.   Mrs Spink and the defendants should purchase a house together.

b.   The house to be purchased would be a bigger house than the Moorebank property.

c.   The defendants would retain their Moorebank property and rent it out.

d.   The plaintiff would have a separate area for her own use in the proposed new house including a kitchen, lounge, laundry, bedroom and bathroom.

e.   The plaintiff would sell the Railway Parade Unit and contribute an amount of $100,000 from her share of the proceeds of the sale to the purchase of the new home.

f.   The plaintiff would have an interest in the house which would on her death pass to her two daughters being the plaintiff [an erroneous reference intended to be to Dianne] and Denise Taylor.

9.   The plaintiff and the defendants agreed on the terms of the proposed Arrangement.

Particulars

a.   The plaintiff communicated her acceptance in words to the effect "Yes, okay."

b.   The defendants and each of them commenced in or about July or August 2012 to search for properties that would be suitable to implement the proposed Arrangement.

c.   The plaintiff accompanied the defendants in inspecting houses that might be suitable for purchase pursuant to the Arrangement.

d.   The first defendant confirmed that she would provide her sister Denise Taylor with an amount equal to half the plaintiff’s share of the property pursuant to the Arrangement on the death of the plaintiff.

…

10. Paragraph 60 of the statement of claim, referred to in Issue 4, contains the following allegation: "…the defendants made representations to the plaintiff in terms of the Arrangement pleaded at paragraphs 7 and 8 above ("the House Representations")”. This allegation forms part of a claim that, by reason of Mrs Spink paying Dianne and Mario $150,000 in the belief that she would enjoy the right to reside in the Casula property for her lifetime, which right has been denied to her, Mrs Spink is entitled to a remedy based upon the principles of estoppel. The reference to $150,000 is not an error, as Mrs Spink’s case was that Dianne and Mario initially told her that she would need to contribute $100,000, but that was subsequently increased to $150,000.

11. It will be convenient to make a number of observations concerning the allegations in pars 7 to 9 of the statement of claim.

12. Dianne and Mario won an auction for the Casula property on 15 September 2012, and signed the contract for sale on that date. The price was $462,000. Settlement of the purchase took place on 15 November 2012. Although Mrs Spink alleges that the so-called Arrangement was proposed by Dianne and Mario in and from June 2012, it seems likely on the evidence that the alleged Arrangement was initially suggested somewhat earlier, no later than early 2012. The actual date does not matter, save to the extent that, if Mrs Spink is in error in her recollection, that may tend to undermine the credibility of her evidence.

13. There is no doubt on the evidence, and there was no contest between the parties, that they entered into some oral arrangement that involved Dianne and Mario buying the Casula property in their names, and that after suitable renovations were carried out, including by making a one bedroom area with sitting room and kitchen suitable for sole occupancy by Mrs Spink, Mrs Spink would in fact live with Dianne and Mario's family indefinitely at the property. Mrs Spink moved into the Casula property in early January 2013 and vacated it on 28 October 2016, following a demand made by Dianne and Mario that she do so. In the intervening period, the relationship between Mrs Spink on the one hand and Dianne and Mario on the other broke down. The parties accepted at the hearing that neither side bore any relevant responsibility for the collapse of the relationship, or the consequences of the relationship ending.

14. The significance of these observations is that most of the allegations in pars 7 to 9 of the statement of claim are not significantly in issue. What is in issue are the claims made by Mrs Spink that it was part of the arrangement that the parties "…should purchase a house together" (par 8(a)), and that Mrs Spink "…would have an interest in the house which would on her death pass to her two daughters being [Dianne] and Denise Taylor" (par 8(f)). An issue that arises consequentially is whether Dianne confirmed "…that she would provide her sister Denise Taylor with an amount equal to half the plaintiff's share of the property pursuant to the arrangement on the death of the plaintiff" (par 9(d)).

15. Mrs Spink's primary case was that she made an explicit oral agreement with Dianne and Mario, which she has called the Arrangement because of its lack of contractual force, that the parties would buy what turned out to be the Casula property together, so that Mrs Spink would have a right to reside in the Casula property for her lifetime and, on her death, would have an interest in the Casula property that would pass equally to Dianne and Denise.

16. Dianne's and Mario's response was to deny these assertions and to say that Mrs Spink did not have an interest in the Casula property because there was no agreement that the property would be purchased "together", but rather that Mrs Spink voluntarily contributed the amount that she paid as an explicit gift, representing Dianne's inheritance conferred prematurely.

17. There are a number of intermediate positions between the two contended for by Mrs Spink and by Dianne and Mario, which I will address in due course.

18. The relationship between Mrs Spink and Dianne and Mario in relation to the Casula property was a domestic one, although of a somewhat more complicated and unusual nature than a relationship between a cohabiting couple. When a claim is made by one party to a domestic relationship to have a beneficial interest in the property in which the parties to the relationship have lived that is different to the interest that arises out of the legal title, complicated questions may arise. Those questions involve issues concerning the intent of the parties at the time the property was acquired, the respective contributions in money and kind, whether the parties have agreed the consequences of a breakdown in the relationship, and what consequences should flow in the absence of any such agreement, if the party with legal title seeks to enforce exclusive ownership. The law in this field has developed in relatively recent times. Various legal principles may provide the means for properly resolving disputes of this kind, which essentially involve the existence of trusts, but the principles subtly overlap and slight differences in factual findings may have significant consequences to the selection of the principles that are properly to be applied.

Background

19. Mrs Spink purchased a property at The Esplanade, Sylvania Waters (the Sylvania Waters property), with her second husband, Ronald Spink, in 1984. That property was transferred to Mrs Spink on 30 June 1989 as part of a divorce settlement.

20. Mrs Spink sold the Sylvania Waters property for $580,000 on 30 January 2002 and, on 12 February 2002, she purchased a property at Anzac Avenue, Engadine (the Anzac Avenue property), for $370,000.

21. In 2003, Mrs Spink made gifts of $15,000 each to Denise, Dianne and Troy after she sold the Sylvania Waters property.

22. On 29 April 2003, Mrs Spink purchased a property at Railway Parade, Engadine (the Railway Parade property), as an investment with Troy. The transfer shows that Mrs Spink held 30% and Troy held 70% of the legal interest in the property. Mrs Spink and Troy jointly borrowed the money necessary to purchase the property. Mrs Spink supplied the deposit from money that she had saved from the sale of the Sylvania Waters property. Mrs Spink said that she acquired the property with Troy because she was trying to help him and thought it would be good for him to have an investment. The property was rented in order to help pay the mortgage. Mrs Spink said that she paid one third and Troy paid two thirds of any extra expenses.

23. From 2004 to 2009, Mrs Spink operated a dress shop called "Just Perfect". She closed the shop because of the consequences of the Global Financial Crisis.

24. For about a year, in 2007, Dianne and Mario lived with Mrs Spink at the Anzac Avenue property. They did not contribute to any rent, and the evidence is that their cohabitation with Mrs Spink was not problematic.

25. On 5 February 2008, Dianne and Mario purchased a townhouse at Newbridge Road, Moorebank (the Moorebank property). Dianne and Mario made that property the home for themselves and their then family.

26. Mrs Spink sold the Anzac Avenue property for $460,000 on 29 August 2008, and moved into the Railway Parade property. Mrs Spink said that she used most of the money from the sale of the Anzac Avenue property to reduce the loan for the Railway Parade property.

27. In about 2009, Mrs Spink made a payment to Troy to assist him to purchase a mechanics business (according to Mrs Spink the amount was $100,000, and according to Troy it was $120,000). The parties are at issue as to whether this payment was a loan or a gift. I will return to this issue separately below.

28. In July 2010, Dianne's and Mario's third child was born. He suffered from significant health problems, and Dianne also developed health problems including depression.

29. Mrs Spink regularly made the round trip from Engadine to Moorebank to help look after Dianne and her three children. This became a gruelling exercise. The evidence is not clear as to the frequency with which Mrs Spink made the trip, but it may sometimes have been up to three times a week. The parties accepted that a primary motivation for Mrs Spink deciding to pay money towards the acquisition by Dianne and Mario of a new, larger residence, to accommodate their growing family, and also to accommodate Mrs Spink, was her desire to avoid the tiring necessity to frequently travel between Engadine and Moorebank.

30. Mrs Spink, Dianne and Mario inspected the Casula property in early August 2012.

31. On 12 September 2012, Mario and Dianne signed a home loan contract for $252,000 with the Bank of Cyprus. The loan was a refinance of their existing loan on the Moorebank property, as Dianne and Mario wanted to retain that property, as well as to acquire a bigger home, so that the Moorebank property could be an investment for the long-term benefit of their children. Part of the money borrowed on the security of the Moorebank property was used to finance the deposit under the contract for the purchase of the Casula property.

32. Dianne and Mario succeeded at the auction for the Casula property with a bid of $462,000 on 15 September 2012, and entered into a contract for the purchase of that property on that date.

33. On 8 October 2012, Mrs Spink and Troy entered into a contract to sell the Railway Parade property for $396,000.

34. Dianne and Mario signed a home loan contract with the Bank of Cyprus for $369,600 on 29 October 2012 to finance the purchase of the Casula property.

35. I will set out below the evidence concerning the payments that Mrs Spink made to Dianne and Mario in relation to the purchase of the Casula property and its renovation. Dianne and Mario say that, in September 2012, Mario's parents made a gift to him and Dianne of $70,000 in cash to assist with the purchase of a new house.

36. Settlement of the contract for the purchase of the Casula property occurred on 15 November 2012.

37. Settlement of the contract for the sale of the Railway Parade property took place on about 18 December 2012. Troy said that, notwithstanding that he and Mrs Spink held title to the Railway Parade property in the proportion 70% to 30%, it was agreed between them that $25,000 of the sale price for the property would be treated as Troy's share, and as between them it would be treated as a reduction of the loan that Mrs Spink had made to Troy to enable him to purchase his mechanics business. Troy said that this was an amicable arrangement between himself and his mother, as Mrs Spink had repaid most of the mortgage.

38. Mrs Spink moved into the Casula property in early January 2013.

39. On 4 July 2015, Dianne and Mario sold the Moorebank property for $475,000. Part of the motivation for Dianne and Mario to sell the Moorebank property, contrary to their original intention, was that Mario had built up a debt to the Australian Taxation Office of approximately $87,000. Additionally, Dianne and Mario had been in default under the loan agreement secured over the Moorebank property for a considerable period. It had originally been intended that Dianne and Mario would help finance the loan by renting out the property, but, apparently, for some time Mario's parents were allowed to live in the property without paying any rent. None of the proceeds of sale of the Moorebank property was used to reduce the mortgage over the Casula property. Apparently, some part of the proceeds of sale was paid to Mario's parents.

40. Gradually, the relationship between Mrs Spink and Dianne and Mario soured, and, according to Mario, they stopped communicating with Mrs Spink in about late January 2016.

19. Mrs Spink lodged a caveat claiming an interest in the Casula property on 21 July 2016. Eventually, that caveat lapsed. The parties' solicitors entered into correspondence.

20. Mrs Spink vacated the Casula property on 28 October 2016 after being required to leave by Dianne and Mario.

21. It will be convenient to deal now with a number of separate factual issues contested by the parties.

What payments did Mrs Spink make to Dianne and Mario?

44. The evidence establishes that Mrs Spink deposited the following amounts into the joint account of Dianne and Mario: $40,000 on 1 November 2012, $30,000 on 6 November 2012, $7,000 on 6 November 2012, and two amounts of $30,000 on 3 and 4 January 2013. The total of those amounts is $137,000. I have taken these facts from the agreed chronology of significant facts provided by the parties to the Court. The chronology also records that, on 27 December 2012, Mrs Spink gave $10,000 in cash to Dianne and Mario. The total amount paid by Mrs Spink to Dianne and Mario is $147,000.

45. The references to the evidence given in the agreed chronology do not appear to entirely support the supposed agreed facts, and there is some measure of disagreement in the evidence.

46. First, Item 36 in the agreed chronology records that Mrs Spink deposited $7,000 cash into the joint account of Dianne and Mario on 6 November 2012.

47. Paragraph 51 of Mrs Spink's primary affidavit asserts that the amount of cash deposited was $10,000.

48. Paragraph 60 of Mario's affidavit asserts that the amount paid was $7,000. Mario included in the exhibit to his affidavit a bank statement for his joint account with Dianne that appears to confirm that the amount paid into the account was $7,000.

49. The parties did not deal with the dispute concerning the amount of cash that was paid into the account in cross-examination and, on the basis of the evidence before the Court, the better view is that the amount paid was $7,000, not the $10,000 claimed by Mrs Spink in her primary affidavit.

50. The second issue is that the parties agreed, in Item 39 of the agreed chronology, that, on 27 December 2012, Mrs Spink gave $10,000 in cash to Dianne and Mario. Mrs Spink said, in par 59 of her affidavit, that she paid Mario $10,000 in cash. Mario said, in par 67 of his affidavit, that Dianne had informed him that Mrs Spink gave the $10,000 in cash to her. In these circumstances, it is appropriate for the Court to find, relying upon the agreed chronology, that, irrespective of the person to whom Mrs Spink handed over the cash, it was intended to be a payment to both Dianne and Mario.

51. Apart from determining that the total amount paid by Mrs Spink was $147,000, these findings establish a number of other significant matters. First, the payments were not made to the vendor of the Casula property. Secondly, the payments were not made to Dianne, Mrs Spink’s daughter, but rather they were all made to Dianne and Mario jointly. This will be significant to the determination of Dianne’s and Mario’s reliance on the presumption of advancement. Thirdly, as the purchase of the Casula property was completed on 15 November 2012, Mrs Spink paid $77,000 before completion and $70,000 after completion. This may raise an issue concerning the determination of Mrs Spink’s proportional share in the beneficial ownership of the Casula property, if she establishes an entitlement to such a share.

How was the $147,000 paid by Mrs Spink applied?

52. Mrs Spink alleged, in par 21 of her statement of claim, that Dianne and Mario “…expended the $80,000 provided by the plaintiff on the Casula Property.” I have found above that the amount paid was, in fact, $77,000. This allegation is not precise as to how the money was “expended”. Mrs Spink then alleged, in par 27, that Dianne and Mario “…applied the amount provided by the plaintiff to the acquisition or renovation of the Casula Property…”, and gave particulars in a general way by referring to the completion of the purchase for $462,000 and the carrying out of renovations. Again, Mrs Spink was not specific as to what happened with the money.

53. In their defence, Dianne and Mario responded to par 27 of the statement of claim by alleging that none of the $147,000 was used for the purchase of the Casula property and that they expended the $147,000 “…on renovations to the Casula property, repayment of the Casula loan and general living expenses.”

54. Mrs Spink gave evidence that she was told by Dianne that she and Mario needed $60,000 from her to assist in paying the deposit for the Casula property (primary affidavit par 48). Mrs Spink did not have that money, and borrowed $40,000 from her friend, John Caronna, and a further $40,000 from her sister-in-law. Mr Caronna confirmed in par 8 of his affidavit, that Mrs Spink told him that she needed to borrow money from him “…to pay for the deposit on this house in Casula…”.

55. Mario’s reply to Mrs Spink’s evidence at par 116 of his affidavit was that he did not recall Dianne saying that they needed $60,000 for the deposit. Dianne at par 71 of her affidavit denied that she made the statement to Mrs Spink concerning the need for a deposit of $60,000.

56. In fact, as referred to at [31] above, Dianne and Mario refinanced their Moorebank property on 12 September 2012, by signing a home loan contract for $252,000. That loan enabled them to pay the deposit under the 15 September 2012 contract for the purchase of the Casula property, by payments of $11,500 on 15 September 2012 and $23,100 on 2 October 2012.

57. Mrs Spink borrowed the total of $80,000, and, as stated above, she paid $77,000 into Dianne and Mario's joint account in three payments between 1 and 6 November 2012, after Dianne and Mario exchanged contracts on 15 September 2012.

58. Although Dianne and Mario pleaded that none of the $147,000 was used for the purchase of the Casula property, the final Internal Memo of the Bank of Cyprus before completion, dated 16 October 2012, showed that, in addition to the money to be loaned by the Bank, Dianne and Mario would require further funds described as: “Less client funds: $77,080 (to be provided by Mario F & Ms [Rickie] Spink)”. The officer of the Bank who dealt directly with Dianne and Mario, Ms Ellen Hiripis, gave evidence in cross-examination that they required an additional $77,000 to the money to be advanced by the Bank.

59. As I understand the evidence in pars 60 to 64 of Mario’s affidavit, after Mrs Spink had paid $77,000 into the joint account, and a further $47,000 bank cheque from the Commonwealth Bank of Australia (CBA) had been deposited into the joint account, that account held about $103,000, out of which Dianne and Mario paid $77,927.79 at settlement.

60. Dianne and Mario submitted (outline of submissions par 9(c)) that, of the $77,927.79, $52,055 came from funds provided by Mrs Spink and the balance of $25,872 came from their funds. They relied for evidence of this submission on the Bank of Cyprus’ 16 October 2012 Internal Memo, to which I have referred above. That document contains a statement:

…Ms Spink has advised that she currently holds

NOT IMPLEMENTED: support for m:oMath -

$60K in her Bank account which she will be providing to Marios & Dianne . Marios has also advised that he holds a further

NOT IMPLEMENTED: support for m:oMath -

$20K (which he originally had set aside to assist in renovations) which he will now contribute towards the purchase …

61. I interpolate that, on the evidence, Mrs Spink did not then have $60,000 in her bank account, and the statement was apparently made in anticipation of Mrs Spink borrowing the money from her sister-in-law and Mr Caronna referred to above. It is also odd that Mario said that he held $20,000 that had been set aside to assist in renovations, given his evidence in par 22 of his affidavit that, in about September 2012, his parents gave him $70,000 in cash, which he ultimately spent on renovations.

62. The evidence relied upon by Dianne and Mario does not appear to prove, in any precise way, how the $77,927.79 was made up. Whatever may have been the expectation on 16 October 2012, before completion of the contract Mrs Spink paid $77,000 into Dianne’s and Mario’s joint account.

63. Although, as will be seen, Mrs Spink was only required to provide to the Bank a statutory declaration that she would provide Dianne and Mario with $60,000 before settlement, I have taken the view that the full $77,000 should be treated as having been paid by Mrs Spink to Dianne and Mario as a contribution towards the purchase price. This finding will depend upon an issue that I will deal with below concerning the purpose for which Mrs Spink made the payments to Dianne and Mario. I am satisfied that the payments made by Mrs Spink to Dianne and Mario before completion were for the purpose of assisting them to pay the purchase price. Therefore, it should not matter whether Dianne and Mario elected to pay part of the $77,000 from their own money and to use part of the payments made by Mrs Spink for other purposes.

64. The sale of the Railway Parade property was completed on 18 December 2012 and, as stated above, Mrs Spink gave $10,000 in cash to Dianne and Mario on 27 December 2012, and deposited two amounts of $30,000 into their joint bank account on 3 and 4 January 2012. The last three sums were not needed to assist in funding the purchase of the Casula property.

65. Dianne and Mario submitted that the $70,000 that they received after settlement of the purchase of the Casula property was applied in the following way (outline submissions par 7(b)). First, $57,500 was used to pay off the mortgage against the Moorebank property, not the Casula property, in January 2013. They relied for evidence on a single page (5 of 7) of a statement from an unidentified bank account number 06 2204 10313661 which was part of the exhibit to Mario’s affidavit. In par 67 of his affidavit, Mario described this document as an excerpt from a Commonwealth Bank of Australia bank statement which showed the receipt of payments by Mrs Spink of $30,000 on each of 3 and 4 January 2013. The extract shows payments of $10,000 on 8, 9 and 10 January 2013 described as “Transfer to other Bank NetBank home loan”. The relevant home loan is not identified. The total is $30,000, not $57,500.

66. Secondly, Dianne and Mario submitted that $10,000 of Mrs Spink’s money was used on renovations. Dianne said, in par 36 of her affidavit, that she kept the $10,000 in cash that Mrs Spink had given her on 27 December 2012 and used it to pay for renovations.

67. Overall, the evidence does not allow for precise findings to be made as to what was done with the final $70,000. Dianne and Mario gave evidence that Mario's parents gave them $70,000 in cash to go towards the purchase of the Casula property. Other than the oral evidence given by Dianne and Mario, there is no evidence of the receipt of these funds. Dianne's and Mario's evidence was that they used Mario’s parents’ cash to make payments towards the renovation of the Casula property after its purchase. In par 22 of his affidavit, Mario said only that: “…I spent this money on renovations to the Casula Property.”

68. The evidence is not complete concerning what these renovations involved and what they cost. It is not objectively clear whether, and if so how much, of the $70,000 in cash allegedly given by Mario's parents, and the amount of $70,000 paid by Mrs Spink after settlement of the Casula property contract, was paid for the renovation of the Casula property.

69. In pars 94 and 95 of his affidavit, Mario gave evidence that there was a lot of work to be done and that the couple undertook constant renovations. However, he only attempted to give comprehensive evidence of the amounts spent on renovations to the downstairs area where Mrs Spink lived, or other work that was specifically done to improve the utility of Mrs Spink’s use of the separate accommodation. The total, on my calculation, was $45,715. Mrs Spink did not challenge this evidence in cross-examination. However, apart from giving evidence of the total cost of gyprocking and tiling the house ($16,750 and $16,620 respectively), Mario did not provide comprehensive evidence of the cost of the renovations paid for by him and Dianne. At par 20 of their outline of submissions, Dianne and Mario submitted that they “…paid at least $64,300 (if not more) towards renovations…”

70. The absence of satisfactory evidence of the cost of the renovations paid for by Dianne and Mario may cause difficulty if it becomes necessary to take into account the amounts paid by the parties for the renovation of the Casula property in determining their proportionate entitlements to the beneficial ownership of the property.

71. It seems to be a consequence of the fact that Mrs Spink gave her money directly to Dianne and Mario that they mixed it with their own money, to some unknown extent, and applied that money in various ways. Dianne and Mario seem to submit that any exercise that must be carried out to determine the relative proportionate shares in the beneficial ownership of the Casula property should be carried out by attempting to trace the extent to which Mrs Spink’s money was actually applied for the purchase or renovation of the Casula property. It may be that the correct approach is, if it can be done, to determine the purpose for which Mrs Spink gave Dianne and Mario the money, rather than to have regard to how Dianne and Mario chose to spend money that was a mixture of their own and the money given to them by Mrs Spink.

72. However, that is a subject that is best deferred until I have determined whether Mrs Spink is entitled to a remedy, and if so, what that remedy should be. How much did Mrs Spink pay towards the renovation of the Casula property?

73. Mrs Spink claims that she paid a total of $18,314.26 of her own money for renovations to the Casula property, some of which related to the improvement of the area in which she was going to live, but some of which concerned the renovation of the property generally (such as the electrical switchboard).

74. Dianne and Mario acknowledged in their outline of submissions (par 19) that Mrs Spink paid for work on the property, although they say that they were unaware of the cost.

75. Mrs Spink gave evidence of the payments that she made in pars 67 to 69 of her primary affidavit, some but not all of which were supported by receipts. This evidence was not challenged in cross-examination. Given that the total amount asserted by Mrs Spink is not substantial having regard to a review of the items paid for, I will accept Mrs Spink’s evidence.

Did Mrs Spink make a gift to Troy?

76. Dianne and Mario attempted to prove that the payment of $120,000 that Mrs Spink made to Troy in 2009 to enable him to purchase the mechanics business was a gift. They submitted that if that was so, it was more likely that Mrs Spink intended to make a gift of the $147,000 to them so that Dianne would be treated more or less equally with Troy.

77. I consider the logic of this argument to be dubious. There is no evidence that Mrs Spink preferred any of her children over the others, and the argument does not explain why Mrs Spink would have made gifts to Troy and Dianne in amounts that did not leave enough over for her to make a comparable gift to Denise.

78. In any event, even if Mrs Spink made a gift to Troy as claimed, that would not establish some tendency to make gifts that would make it substantially more likely than it otherwise would have been that Mrs Spink intended to make a gift of $147,000 to Dianne and Mario. Mrs Spink's financial circumstances were significantly better in 2009 than in 2012, as Mrs Spink had enough money after she had paid the $120,000 to Troy to be able to house herself by her own means. A gift of $147,000 to Dianne and Mario at the end of 2012 would have deprived Mrs Spink of the independent means to provide herself with suitable accommodation.

79. Mrs Spink and Troy both gave firm evidence that the payment of $120,000 was not intended as a gift. Mrs Spink expressly insisted, and Troy agreed, that, at the time the payment was made, it was a loan and was required to be repaid to Mrs Spink when Troy's business was sufficiently established to enable him to do that.

80. Both Mrs Spink and Troy explained the fact that Troy had not been able to repay Mrs Spink, notwithstanding her present dire financial straits, by saying that the business was not sufficiently profitable to permit repayment, and that Troy had suffered events in his life, such as divorce, which had undermined his ability to repay Mrs Spink.

81. Troy produced a book that purported to have in it a record of the loan repayments made by Troy to Mrs Spink: see Exhibit PD. The document is handwritten and is headed "RICKIE/MUM MONEY OWED". The opening balance, as at 1 January 2013, is $95,000. The contract for the sale of the Railway Parade property was completed on 18 December 2012. Mrs Spink and Troy said that they agreed that $25,000 of the price received from this sale would be attributed to Troy and treated as a repayment of the loan. That explains the opening balance of $95,000. There is then a list of payments and balances at various dates up to 20 August 2017, when the balance was $89,359. There is a column that gives a brief description of the nature of the payment. Most of the amounts seem to reflect work done by Troy as a mechanic on Mrs Spink's car. Apparently, Mrs Spink and Troy decided that he would commence to repay the loan by providing services in kind. There are columns for Troy and Mrs Spink to sign the document to acknowledge the transactions.

82. It was put to Mrs Spink and Troy in cross-examination that the document was concocted sometime in 2017 in order to support Mrs Spink's claim that the payment made by her to Troy was a loan, in order to support her case that she had not made a gift to Dianne and Mario.

83. Dianne and Mario relied on the form of the document and, in particular, that the column of signatures by Troy and Mrs Spink looked, from the similarity of the signatures, to have all been written at the same time.

84. Both Mrs Spink and Troy steadfastly denied that they concocted the document in the manner that was suggested, and they said that it was prepared generally at the time of the individual transactions, although Mrs Spink said that there were occasions when, for convenience, a number of recent transactions were entered into the document at the one time.

85. The evidence does not warrant the Court making a finding that the document was concocted by Mrs Spink and Troy. I am satisfied that the Court should accept their evidence, both in respect of the circumstances in which the document was prepared, and as to the fact that the payment of $120,000 made by Mrs Spink to Troy was not intended to be a gift.

86. The claim made by Dianne and Mario was based upon mere supposition, as they were not privy to the actual arrangements made between Mrs Spink and Troy. I do not consider that there is anything particularly unusual about the nature of that arrangement, and, at the time that it was made, it did not create an undue burden on Mrs Spink's financial circumstances.

87. In par 16 of his affidavit, Mario gave the following evidence that positively supports a finding that the payment made by Mrs Spink to Troy was a loan:

In or about 2009, I recall Rickie saying to me words to the following effect at her townhouse located at Anzac Avenue, Engadine:

Rickie:   I am giving Troy $120,000 for his business to pay off his business loan. He can pay me back when he can.

88. In cross-examination, at T 162.50, Mario gave an affirmative answer to the question: "And you knew that was a business loan?" This question was referring to the payment made by Mrs Spink to Troy.

Did Mrs Spink inform Ms Hiripis that she would make a gift?

89. Dianne and Mario alleged that Mrs Spink expressly admitted to Ms Hiripis, in connection with Dianne's and Mario's loan applications to the Bank of Cyprus, that she would make a gift of $150,000 to Dianne and Mario.

89. Ms Hiripis gave evidence that, in the period from January 2012 to about late March 2012, she saw Dianne and Mario socially at the Moorebank property on about five or six occasions. She said that, on at least four of those occasions, Mrs Spink was also present. According to par 18 of Ms Hiripis’ affidavit, on one occasion either Dianne or Mario said to her words to the following effect:

We want to buy a new home. Rickie will sell her property, give us $150,000 as a gift and move in to live with us. Will you help us get a home loan?

91. On one occasion, when at the Moorebank property, Ms Hiripis made notes of the discussion and a calculation of the amount of the loan that was required, as well as the ability of Dianne and Mario to service it. Ms Hiripis said that she could not recall the date, but that it was before late March 2012, and that she recalled that Dianne, Mario and Mrs Spink were present during that discussion.

92. In calculating the amount that Dianne and Mario would need to borrow, Ms Hiripis made an allowance for a "$150,000 gift". At par 11 of her affidavit, Ms Hiripis said:

…I do not specifically recall who told me during that discussion that the $150,000 was to be a gift but do recall it being discussed in those terms at the Moorebank Property, including when Rickie was present.

93. Subsequently, on 27 March 2012, Ms Hiripis prepared a Credit Submission Memorandum for the Bank in respect of an application by Dianne and Mario to borrow $600,000. One of the line items in the calculation of the amount that they required read:

…Less gift: $150,000 (Dianne's mother will be providing a non-refundable gift)…

94. In a later Credit Submission Memorandum dated 15 August 2012, Ms Hiripis included the earlier line item concerning the $150,000 gift, and also included the following reason for her recommendation that a $580,000 home loan facility be approved:

…4. Clients are to provide a Statutory Declaration from Dianne's mother Rickie Spink confirming that the $150,000 is a non-refundable gift and will be provided from the sale proceeds from the sale of her unencumbered unit located at 12/7-9 Railway Parade Engadine NSW…

95. Ms Hiripis made a similar reference to a non-refundable gift of $150,000 in an Internal Memo dated 16 October 2012.

96. Ms Hiripis explained the source of the information that led her to include the line item as follows (T 122.27-122.31):

Q. So "gift" was basically their suggestion to you that they might have a gift. That was Dianne and Mario's suggestion to you that they could have a gift from Rickie.

A. At this stage I can't verify because there's no date on this, so I'm not sure if it was Dianne and Mario that told me, or Rickie herself.

97. Ms Hiripis gave oral evidence in chief of her recollection of what Mrs Spink said to her, which prompted me to intervene to clarify the language that Ms Hiripis had used, as follows (T 113.19-113.29):

Q. What's your best recollection of the words used at the time during those conversations when Ms Spink was present?

A. To the best of my recollection, it was basically Mrs Spink was telling had told me that she will be selling her property, and from the sale, she will be gifting them a hundred gifting Mario and Dianne $150,000 towards their purchase.

HIS HONOUR

Q. Are you saying that the word "gifting" was used?

A. Giving.

98. This is a significant clarification. The word "gifting" is generally taken to mean an outright gift, while the word "giving" is apt to apply to both the making of a gift and the transferring of property more generally. The latter word is capable of more than one meaning, and can properly refer to the making of a transfer that is not intended to assign title for no consideration.

99. Ms Hiripis gave the following evidence in cross-examination concerning the source of her belief that Mrs Spink had offered to make a non-refundable gift of $150,000 to Dianne and Mario (T 131.11-132.19):

Q. "Dianne's mother will be providing" but that assertion is based on things that Dianne had told you, wasn't it?

A. No. It was based on conversations with Mrs Spink as well.

Q. Mrs Spink didn't use the word "non-refundable gift", did she?

A. No. The words "non-refundable" are bank terms used. So she wouldn't come up to me you wouldn't come up to a normal conversation and say, "It's a non-refundable gift." These are banking terms.

Q. You had no basis to believe then, did you, that the gift so called was a non-refundable gift other than what Dianne told you?

A. Incorrect. I had no basis to believe it wasn't a gift. Otherwise the loan would have been assessed completely differently.

100. She gave the following further evidence (T 137.37-138.10):

Q. Did she say or do anything that said to you, "I am making a gift which I don't expect to be paid back"?

A. There was no she did not say or do anything that would make me assume it wouldn't. Otherwise I would have assessed the loan differently again.

Q. I'll take that answer as a yes to my question. There was nothing to assume either way, was there?

A. I suppose.

Q. Nothing to assume either way.

…

A. There was no indication to me that they would have to pay the money back in any shape or form.

Q. Or that they were getting it free.

A. As far as I knew, she was giving the money to them. But it was not elaborated.

101. Ms Hiripis thus steadfastly maintained her evidence that Mrs Spink was present when Ms Hiripis was given instructions that Mrs Spink would make a gift of $150,000, in circumstances that caused Ms Hiripis to believe that the payment was “non-refundable” in the Bank’s terms. Had Ms Hiripis not had that belief, she would not have assessed the loan application in the way that she did.

102. I have mentioned above, in the context of considering what Dianne and Mario did with the $70,000 that Mrs Spink paid into their account after the completion of the purchase of the Casula property, the Internal Memo dated 16 October 2012. That document recorded:

…Dianne’s mother (Rickie Spink) was to provide the $150K from the sale of her current owner occupied property which had been placed on the market. A COS was issued and accepted to sell her property on the 6th of October which would have settled 1 week prior to the Flourentzou purchase settlement date of 23/11/12. However, Ms Spink was recently advised that the purchaser has withdrawn from the sale during the allowed 5 day cooling off period and the house is now back on the market. Therefore, seeing that a contract was not signed by the week ending 14/10/12 any impeding [sic] sale will not settle in time for Ms Spink to provide the full $150K for settlement to the Flourentzou’s.

Clients have therefore requested a $39,600 increase on the approved $330K facility (new total of $369,600) so that they may complete the purchase…

103. There was no issue between the parties concerning the general accuracy of the facts stated in this document. The contract for the sale of the Railway Parade property from which Mrs Spink intended to pay the $150,000 ‘fell through’, so Mrs Spink could only expect to receive her share of the sale price of that property following the making of a new contract and its completion, which could only take place after the scheduled date for completion of the contract to purchase the Casula property.

104. Ms Hiripis said that she asked Mrs Spink personally to make a statutory declaration to confirm that she would make a non-refundable gift of $60,000 to Dianne and Mario. She said that she initially asked Mrs Spink to refer to a $150,000 gift, but that Mrs Spink informed her that she currently only had $60,000 in her bank account. In fact, as I have mentioned above, Mrs Spink only had a small sum in her bank account, and intended to raise the money by borrowing from a friend and her sister-in-law.

105. The statutory declaration that Mrs Spink made on 29 October 2012 contained the following statement:

…I will be providing sixty thousand dollars $60,000 – to Marios & Dianne Flourentzou. This is to help with the purchase of the property at [omitted] Casula 2170. This amount will be supplied before settlement…

106. The statutory declaration did not refer to Mrs Spink making any gift in terms, let alone a non-refundable one (ignoring the tautological aspect of a non-refundable gift). It only said that Mrs Spink would "be providing" the money.

107. Mrs Spink said, at par 6 of her affidavit in reply to Ms Hiripis' affidavit, that she denied that Ms Hiripis was present at any conversation between her and Dianne and Mario about the purchase of the new home or any arrangement about her providing money. She said that she did not agree "…to gift $150,000 to Dianne and Mario…", as was recorded in the memoranda prepared by Ms Hiripis. Mrs Spink said further at par 6, in reference to the statutory declaration, that she denied that she met with Ms Hiripis at the Bank or that Ms Hiripis handed her the blank statutory declaration form. Mrs Spink said that Dianne and Mario said to her either at Moorebank or Engadine: "We need you to give us a statutory declaration to say that you will be putting in $60,000 towards the purchase of Casula so we can get the bank to lend us the money".

108. Mrs Spink gave the following evidence in cross-examination concerning the circumstances in which she made the statutory declaration (T 42.39-43.7):

Q. You also understood at the time that it was being provided as a condition for the loan that Mario and Dianne were obtaining from the bank to purchase the Casula property?

A. Yes.

…

Q. What you were really doing was giving them a gift, wasn't it?

A. No. I wasn't giving them a gift. The word gift - the first time I heard the word gift was in my solicitor's office when I read some papers that came.

109. I am satisfied that, initially, Ms Hiripis genuinely believed that Mrs Spink had offered to make a gift of $150,000 to assist Dianne and Mario to purchase the new property. In Ms Hiripis’ terms, this gift was to be non-refundable. Ms Hiripis was confident in her evidence that, on at least some occasions, Mrs Spink was present when Ms Hiripis was given the information that led her to believe that the gift would be made. The Internal Memos prepared by Ms Hiripis provide firm, contemporaneous support for her evidence. Furthermore, the calculations that Ms Hiripis made to show her colleagues that Dianne and Mario could service the loans sought clearly depended upon Dianne and Mario receiving an additional contribution in the form of the payments from Mrs Spink. Ms Hiripis persuasively explained in her evidence that she could not have justified the proposed loans to her colleagues in the manner that she did, if she did not believe both that Dianne and Mario would receive the additional funds from Mrs Spink, and that the money would not be repayable.

110. I will return to this subject below, after I have resolved all of the material factual disputes and given consideration to the credibility of the witnesses. For the present, I will only make the following observations.

111. First, as between the members of a family the choice may not be limited to the binary one of a payment being a gift on the one hand, or a loan on the other. It is possible that Mrs Spink may have understood that the proposal was that she would pay the money to Dianne and Mario, and that she would not have a right to demand it back if she wished to do so, but that she retained some rights that meant that the payment was not entirely a gift.

112. Secondly, whatever the character of the intended payment of $150,000, the evidence of Ms Hiripis and the contemporaneous documents that she prepared support that the money was intended to be paid as a necessary component of the funds needed by Dianne and Mario to buy the new property, and not for other personal purposes of Dianne and Mario.

113. Thirdly, there is no evidence that Mrs Spink was told that, as a result of the unexpected delay in the sale of the Railway Parade property, Dianne and Mario would not ultimately need all of the $150,000 to fund the purchase of the new property. True it is that part of the money could only be paid over by Mrs Spink after completion of the purchase, but, on the evidence, Mrs Spink was entitled to continue in the belief that, in one way or another, the $150,000 was needed by Dianne and Mario to fund the purchase or the renovation of the Casula property.

Did Mrs Spink receive the statutory declaration form personally?

114. Dianne and Mario made an attack on Mrs Spink's credit arising out of the circumstances in which Mrs Spink signed the statutory declaration on 29 October 2012, in connection with the loan application that Dianne and Mario made to the Bank of Cyprus.

115. The issue relevant to Mrs Spink's credibility is that both Dianne and Ms Hiripis said that Mrs Spink attended the Bank's office with Dianne, was handed the blank statutory declaration form personally by Ms Hiripis, and was given an instruction as to what it should say. Mrs Spink was then said to have taken the document away, completed it, and signed it in the presence of her stepson. Mrs Spink was adamant that she did not go into the Bank's office, but left Dianne to conduct her own business with the Bank, saying "…when she went in and I looked at shops…” (T 71.42), and that she did not speak to Ms Hiripis at the Bank (T 74.9). Ms Hiripis specifically said that she actually remembered Mrs Spink coming into the Bank with Dianne (T 141.14). Dianne gave evidence to the same effect (T 212.16).

116. I do not consider this dispute to be of great significance to Mrs Spink's credibility. The detail of how Mrs Spink was physically given a copy of the blank statutory declaration form is the sort of inconsequential event that could well be incorrectly remembered by even highly credible witnesses. I am inclined to favour the evidence given by Ms Hiripis and Dianne over that given by Mrs Spink, although the issue of which version should be preferred is relatively finely balanced. Dianne's evidence on the subject appeared to me to be somewhat equivocal, and, although Ms Hiripis was an independent witness, she was relying upon her recollection of an inconsequential event, and there may be some reason to doubt her recollection. That doubt arises because Ms Hiripis said that she told Mrs Spink what wording was required for the statutory declaration (T 144.4), which was to the effect that Mrs Spink would make a non-refundable gift of $60,000 to Dianne and Mario, but then Ms Hiripis accepted a completed statutory declaration that did not contain the statement required.

Application for finance completed by Mrs Spink

117. Dianne and Mario made an attack upon Mrs Spink's credit related to the entirely unconnected circumstances in which Mrs Spink had provided financial information to a prospective lender to enable her to purchase a new car.

118. Exhibit D1 is a loan application made by Mrs Spink to the St George Bank in respect of the proposed purchase of a vehicle from a dealer called Tynan Motor Group. The amount of the loan was $11,123.30.

119. The application contained a statement of assets and liabilities above a declaration signed by Mrs Spink in the following terms: "I…Declare that the details in this application are true and correct and are not by omission, or otherwise misleading”.

120. Relevantly, the statement of Mrs Spink's assets was as follows:

Residence:         $0.00

Invest Property:      $0.00

Vehicles:         $1000

Cash On Hand:      $8000

House Contents:      $300,000

Other 1: Super      $160,000

121. The only liability shown was a CBA credit card of $2,000. Mrs Spink's total assets were stated as $469,000, and her net position was therefore $467,000.

122. Mrs Spink recorded her monthly income as being her pension of $1722.06, which I understand was correct.

123. Mrs Spink did not record as her assets any loan by her to Troy, or any interest in the Casula property.

124. On the other hand, her assets were stated to include house contents of $300,000 and superannuation of $160,000, neither of which was accurate.

125. In cross-examination, Mrs Spink gave the following evidence at T 62.27-64.25:

Q. You didn't have much by way of furniture or contents when you were living at the Casula property in August 2016?

A. Bedroom furniture, lounge room furniture, dining table, washing machine.

Q. Certainly wasn't worth $300,000, was there?

A. $300,000?

Q. Is that just plainly wrong?

A. Sorry?

Q. That would be plainly wrong?

A. Yes, that would.

Q. Do you remember applying for finance to buy a car in about August 2016?

A. Yes.

Q. Do you remember filling out an application form?

A. Yes, I would have.

…

Q. And going up to the table, you'll see the table above that, towards the top of the page.

A. Yes.

Q. There's a table 4 on assets, you see that?

A. I have never seen that before.

Q. Is that your signature on the page?

A. Yes, it is.

Q. And you read this application carefully before you signed it when you were declaring the details were true and correct and not misleading?

A. I would never have said that. I would never have said that. Why would I have said that?

Q. Said what?

A. "House contents: 300,000." Why would I have said that?

Q. You accept that that's utterly wrong?

A. No, that's wrong.

Q. And, "Residence and property, zero"?

A. Yes.

Q. And that was your view on 31 August 2016 when you swore the declaration on this finance form for the car finance?

A. I don't - I don't remember that part of it at all. I don't remember that at all. I would never have said that.

…

Q. Do you remember reading this form?

A. On this - I'm shocked. I'm shocked. I don't believe that.

Q. Well you're shocked because it's plainly false?

A. Because it is not right. It is not right. I would never have said that.

…

A. I remember signing it. I don't remember seeing all this on it. I don't remember whether it was on there. I - if it'd been on there like that, if that'd been on there, I would never have signed it.

Q. Are you saying it wasn't on there when you signed that page?

A. I'm thinking it mustn't have been because I wouldn't have signed it. Why would I sign something for $300,000 worth of household content? I didn't have $300 worth of household content. I didn't have super 160,000.

Q. But that is your signature on page 15 of--

A. Yes, I know I signed the papers. I'm not - I'm saying I didn't see any of this on the top. I don't know that that was filled out there when I signed it.

126. Mrs Spink gave the following evidence concerning her failure to list the amount owing to her by Troy or her claimed interest in the Casula property as assets, at T 67.4-67.49:

Q. This document doesn’t record under the heading Assets in that table in the top any loan from Troy as an asset of yours, does it?

A. No.

Q. It doesn’t disclose any interest in the Casula property as an asset of yours.

A. No, I didn’t put that down as I didn’t have my name on the deed.

Q. As at August 2016 your view was that you did indeed have an interest or ownership.

A. Yes, I did.

Q. We asked you questions yesterday about the amount for house contents and super and you accept that those amounts are wrong.

A. Yes, I accept that they're wrong because they weren't on the form when I signed it.

Q. I'm suggesting to you when you signed this form

A. When I signed this form there would not have been any super amount and there would not have been any household contents of that amount on that form.

…

WITNESS: I would not have signed the form with those amounts on there because they were incorrect.

…

Q. You signed it knowing that it did not disclose as an asset the loan from Troy.

A. The loan to Troy.

Q. "To Troy," yes.

A. I did - I didn’t class that as an asset. I didn’t think of that as an asset because I didn’t have it.

127. I am satisfied from observing the way in which Mrs Spink responded in cross-examination to questions about the statement of her assets in the finance application that she was genuinely surprised about the information contained in it. She appeared to be genuine when she said: "…Why would I have said that?" to the statement that her house contents were worth $300,000. One might reasonably wonder how many people who do not have a house and who do not pay rent have $300,000 worth of house contents and $160,000 in superannuation. On the face of it, the statement of Mrs Spink's assets and liabilities in the finance application is improbably bizarre.

127. Even if that be so, no explanation has been provided of why Mrs Spink signed the finance application containing the statement of assets and liabilities. The Court has no basis for believing that the document was signed in blank by Mrs Spink and subsequently made up by a representative of the dealer. It is perplexing as to why such false information would have been included in the finance application, given that Mrs Spink disclosed that her only income was the pension, and it appears that she only sought to borrow $11,123.30.

128. The fact that the finance application contained false information requires the Court to treat Mrs Spink's conduct as being unsatisfactory. I have not concluded that Mrs Spink consciously sought to mislead the bank but, at the least, her conduct shows that she was careless in her approach to the transaction.

129. Mrs Spink's explanation for why she did not record the debt owed to her by Troy and her interest in the Casula property as assets was, in effect, that she did not think that she should list the debt "…as an asset because I did not have it…", and that she did not have her name on the "deed" for the Casula property. I accept that there is some logic in a person in Mrs Spink's position not claiming to be entitled to an asset unless her entitlement was clearly established and readily enforceable. For different reasons, neither the debt owed by Troy nor Mrs Spink's claimed interest in the Casula property satisfied such a test. On the other hand, Mrs Spink's explanation becomes somewhat dubious in the light of the fact that she did claim to be entitled to house contents and superannuation when those assets did not exist at all.

130. The most favourable explanation that I can arrive at for Mrs Spink's conduct concerning the finance application is that she was careless about the information that she supplied to the dealer's representative, and as to the contents of the finance application that she signed. Consequently, while I do not accept that Mrs Spink has been wholly discredited by this incident, it does undermine the reliability that the Court should accord to her evidence.

Did Mrs Spink acquire an interest or make a gift?

132. Mrs Spink gave the following evidence in her primary affidavit concerning what she described as the Arrangement:

…

36. The first time I recall the proposal that Dianne, Mario, the kids and I move in together was an occasion when they visited me at the Railway Parade unit, but I do not have a really clear memory of exactly when this was…Mario was the person to bring it up. He said words to the effect of "We should buy a place together. It will be easier for you to help Dianne with the kids and you will not be living on your own. We want to buy a bigger place, big enough for all of us to live in"…“You can sell Engadine and put in $100,000 to buy a new place that is big enough for us all to live." I said words to the effect of "I will have to have a think about it. I would have to have my own area and be completely separate."

37. I did not jump in hook, line and sinker at the beginning…I remember Denise said it would be a silly thing to do. Denise and Troy did not approve of the idea...

38. …I do not remember exactly how long it was after they first raised the idea, but I told Mario and Dianne that I agreed to buy a house with them. I think we were at the Railway Parade unit but I cannot be 100% sure. I said "Okay, as long as there is a separate area for me. I need a separate one-bedroom unit with my own kitchen, lounge, laundry and bathroom." Mario said "Yes we agree, we want a separate 3 bedrooms for ourselves."

39. I also said "I will not agree unless I have seen it because this is a long-term thing." I thought this would be a forever house so I wanted to make sure it was a house I was happy with.

…

41. I also had a separate conversation with Dianne and Mario at a time and date I do not recall but before the purchase of the Casula property where I said "If anything happens to me, my share of the property will go half to you and half to Denise." Dianne said "yes"...

42. We never talked about what would happen if Dianne and Mario had trouble paying their loan. I never thought to talk with them about what would happen if someone changed their mind and wanted to move to a different house. In my mind it was for life so I did not think about that.

43. Mario and I talked a number of times about whether I should contribute to the rates and other bills of the house. I do not remember exactly when, but we had this conversation before I moved in and we had it many times after I moved in. The conversations went along the following lines:

Me:   "I should make a contribution towards the rates, electricity and water."

Mario:   "I do not want you to. It does not cost anything more to have you living with us than it would cost a family of five."

Me:   "I do not feel comfortable with that. I will be using electricity and water and I think I should pay for it."

Mario:   "No, it is not necessary, you are helping with other things."

…

133. Later, after the parties had inspected the Casula property, they had a conversation that Mrs Spink related as follows:

…

48. After we viewed it I had a conversation with Mario and Dianne about buying the house. I think it was at their Moorebank townhouse because we had driven together to see the property.

Dianne:    I think we should buy it because it has three bedrooms for us or Mario and is big enough downstairs for everything that you want.

Me:   Yes. There are a few things that would need to be done. I would not be happy unless we make the spare room downstairs into a kitchen me for me [sic], but I think it would do.

Mario:   Yes. We can do the renovations to your part. There is a couple of things we would like to do as well. It is going to auction in a week. You will need to put in $150,000.

Me:   Yes. That will cover my area and the work needed to be done to make my area liveable. $150,000 will be my full share.

Dianne:   Okay. We need $60,000 for the deposit or we will miss out. Why don’t you try to borrow the money from your friends and you can pay them back when you get the money from Engadine.

Me:      That would be embarrassing.

Dianne:   Why would it be embarrassing? You should ask.

Me:      Okay. I will try but I am not happy about it.

…

134. The significant aspect of this evidence is the discussion in terms that the parties would "…buy a place together…" (par 36) and that Mrs Spink said that she "…agreed to buy a house with them…" (par 38). Mrs Spink also made it known that she considered that it would be "…a long term thing…" (par 39). Mrs Spink also said that, before the purchase of the Casula property, there was an agreement that, upon her death, her "…share of the property…" (par 41) would be split evenly between Dianne and Denise. Finally, it was part of the Arrangement, according to Mrs Spink, that there would be specified renovations to make the downstairs area suitable for her as separate accommodation, as well as unspecified renovations to the part of the house that Dianne and Mario would use (par 48).

135. The concept of parties buying a house together is inherently ambiguous. It can mean that the parties intend to own the property together. It can also mean that the parties will, in a practical way, live together in the one house, without dealing with formal ownership. Mrs Spink's evidence was that the parties did not specifically address fundamental long-term issues concerned with ownership (for example, at par 42).

136. Mario gave the following affidavit evidence regarding his initial conversation with Mrs Spink concerning the proposal:

…

29. In or about November 2011, I recall having a conversation with Dianne and Rickie at the Railway Parade unit in words to the following effect:

Me:   We are going to buy a place. We need a bigger house. My parents are going to help us out by giving us money. We want you to live with us as we take care of our own.

Rickie:      I will just have to think about it.

Me:   If you sell the [Railway Parade] unit, you will have money in the bank, you will not have to struggle and you will not have to worry about the pension not being enough for you. You will get to be with your grandchildren and your daughter and by living with us you will always have someone to look after you which will be good given you have had a couple of falls and hurt yourself.

Rickie:   It is a big decision. I am going to have to think about it. What are your thoughts Dianne?

Dianne:   I just want you to be happy Mum.

…

32. In or about January or February 2012, Rickie came to visit Dianne and me at the Moorebank Property and I recall a conversation in words to the following effect:

Rickie:   I will move in with you as long as I have my own bedroom, kitchen, lounge, laundry and bathroom.

Me.   Yes we agree, whatever we find will be suitable for both of our living needs.

Rickie:   You are the only son-in-law I can live with because you show me respect.

137. Mario said that, on at least five or six occasions, Mrs Spink was present during the discussions that he and Dianne had with Ms Hiripis (par 35).

138. Mario continued:

36. In early to mid-March 2012, I recall having a conversation with Rickie and Dianne at the Railway Parade unit in words to the following effect:

Rickie:   I will be putting the [Railway Parade] unit up for sale and I want to give you guys some money.

Me:      That is not my business. It is between you and your daughter.

Rickie:      Take it. This will be your inheritance. I have always helped (turning to   Troy, I have given Troy enough help with his business. I have Dianne)   helped Troy out by giving him an amount of money and I want

to help you as well. Whatever is left over, I will leave for Denise.

Dianne:   We appreciate whatever you give. This is not about the money. It is about you being happy.

37. A couple of days after that conversation, I recall having a further conversation with Rickie and Dianne at the Moorebank Property in words to the following effect:

Rickie:   I want to give you $150,000. I will give it to you once I have sold the [Railway Parade] unit.

Me:      This has nothing to do with me. Give it to your daughter.

…

38. In about mid-March 2012 at the Moorebank Property, I said to Ellen words to the following effect:

My mother in law is giving us a $150,000 gift. She is going to come live with us and she might sell her unit.

I recall that Rickie was present when I made that statement to Ellen. I also recall that Rickie did not say anything in response.

139. Mario gave evidence that Mrs Spink did not attend the auction, the contract for sale was signed by Mario and Dianne, and that he never had any discussion with Mrs Spink about her going on the title or signing the contract (see pars 49-50).

140. Mario specifically denied Mrs Spink's evidence in par 36 concerning the original conversation about the proposal (par 105) and said that all he said to Mrs Spink was: "Me and Dianne will buy a place. Come live with us…" He also denied (par 107) that Mrs Spink ever spoke to him in terms that they would "buy a house together" or that she "agreed to buy a house". Mario said (par 108) that Mrs Spink never spoke to him about it being "a long-term thing", and nor did they talk about the property being a "forever house".

141. At par 110, Mario denied Mrs Spink's evidence in par 41 about her share of the property being divided between Dianne and Denise when she died. It is of some significance that, in par 113, Mario denied the evidence in Mrs Spink's par 44, and said that he denied that Mrs Spink ever said yes to buying a house with Mario and Dianne. He continued by saying: "…By the time that Rickie decided to put the Railway Parade unit up for sale, Dianne and I had already purchased the Casula Property at auction."

142. Mario also denied (par 116) that he said that Mrs Spink would need to put in $150,000, and he did not recall Mrs Spink saying "$150,000 will be my full share."

143. Thus, it was Mario’s case that there was no talk of the trio buying a house together. Rather, Mario alleged that he and Dianne simply made an offer that they would buy a house that had a space for Mrs Spink to live in. Significantly, Mario’s position was that Mrs Spink’s offer to give the $150,000 gift was made after the decision in principle to buy the new home, and was separate from that decision.

144. It may be noted that, from as early as Ms Hiripis’ 27 March 2012 Credit Submission Memorandum, she mentioned that Mrs Spink would be providing a gift of $150,000 to Dianne and Mario. The only source for that money on the evidence would have been the sale of the Railway Parade property. Ms Hiripis’ Credit Submission Memorandum dated 15 August 2012, on page 5 par 4 (extracted above), noted that the $150,000 gift was to be "…provided from the sale proceeds for the sale of her unencumbered unit located at 12/7-9 Railway Pde Engadine NSW".

145. In pars 14, 16, 17 and 18 of her affidavit, Dianne gave evidence of being present at conversations involving Mrs Spink that was to the same effect as the evidence given by Mario. In particular, she said in par 18 that she had a conversation at the Moorebank property at which Mrs Spink said: "I have decided that I want to give you $150,000." Dianne also made specific denials of the aspects of Mrs Spink's evidence that I have dealt with when considering Mario's affidavit, substantially in the same terms as Mario's evidence.

146. Mrs Spink was cross-examined about the reason why she did not insist upon going on the title to the Casula property (T 33.45-34.34):

Q. You helped Troy buy that property in his name and your name.

A. Yes, that was - that was in Troy's and my name, that property, it wasn’t just mine.

Q. You paid all the deposit.

A. I put the deposit down, yes.

Q. You then went on a joint loan and mortgage with Troy.

A. Yes, I did.

Q. You were on the title as to 30% and he was on the title as to 70%.

A. Yes, as we had to get the loan, I found it necessary that I was on the title as well.

Q. So you had no difficulty going on the title at that occasion when you were jointly purchasing the property with Troy.

A. No, because I was on the loan and as I was on the loan I had to be on the title.

Q. But you made no effort to go on the loan with Dianne or Mario or obtaining the purchase of the Casula property.

A. No, that wasn’t discussed. No, I didn’t go on that.

Q. But you knew what it was to go on a joint loan and to go onto title of the property when it was being purchased with other people.

A. I did know about that, yes.

Q. You made a, what, deliberate decision not to go onto the title of the Casula property?

A. No, the decision was made because from the time that I was told that they had found Casula when I went to look at it there was three days till the auction, it was very quick and I - and I hadn't - we didn’t even have a conversation about it, so.

Q. This was going to be your forever house, wasn’t it?

A. Yes, it was.

Q. Your version of the events are that you were purchasing an interest or part of that house as co-owner.

A. Yes, that's right.

147. Further, at T 36.34-37.11:

Q. Tell me, I think earlier in your evidence you said it was about three days between you inspecting the property and the auction?

A. Yes, it was.

Q. And I think you said that was the reason why you couldn't go on a contract at the time?

A. I didn’t say it was the reason why I couldn’t. I said it was one of the reasons that I didn't think to push the point of going on the deeds.

Q. It would have been a simple matter for you, over that three day period, to say to Dianne or Mario, "I want to go on the title" or, "I want to go on the contract because I'm buying part of this property."

A. In hindsight, had I know [sic] what was going to happen, it probably would have been a good idea to do that.

Q. But you made a deliberate decision not to do it.

A. It wasn't so much a decision, it was just how things went.

Q. But you accept you could easily have said to them, "I want to go on the title because I'm buying this property with you."

A. Probably could have said that. Did not think to.

Q. But you had already been on the title with Troy for the Railway Parade property. Why was it that you went on the title with Troy..(not transcribable)..

A. Because of the - the loan. Because of the loan aspect of the property.

Q. Is that because Troy couldn't obtain a loan without you going on top?

A. Yes.

148. Mrs Spink gave the following evidence as to her understanding of the effect of the arrangement that she had with Dianne and Mario (from T 43.34):

Q. It was clear in your mind, was it not, at the time you swore this statutory declaration, the true arrangement or position between, Mario, and Dianne, was that you were putting in $150,000 to become some form of co-owner with an interest in the property?

A. In my mind, it was going to be a permanent home for me. Yes.

Q. I didn't ask you that question. The arrangement was, by the time you swore this stat dec, that you were putting in $150,000 to become a co-owner of the property. That was the truth at the time in your mind?

A. That was the truth in my mind at the time.

149. She also said, at T 49.50: "…I was putting the 150,000 into the purchase of [the] Casula property which was going to be my home and theirs". Further, Mrs Spink said, at T 82.37: "I did not give Troy money. I loaned Troy money. I never told Dianne and Mario that I was just giving the money. I was contributing to an agreement that we were purchasing a house together which was going to be my home as well is [sic] theirs".

150. Denise gave the following evidence of what she had been told by Mrs Spink concerning what should happen when Mrs Spink passed away (T 93.21-.38):

Q. At some stage, your mother told you that you would get inheritance, and that would be out of what she put into the house.

A. My mother's always been very open about what would happen on her passing. Even down to photo frames. "Oh you like that one? Well that'll get put aside for you when I die." We're quite open in the way that we discuss. I when [sic] she told me that, I said I wanted no part of it.

Q. You didn't want any inheritance from her.

A. I don't.

Q. That would include any money from what she put into the […]

A. I don't. That's her money. She deserves to use it as she needs.

Q. She also told you that at least half of that money she decided was Dianne's inheritance.

A. She said that when she passed that my Dianne [sic] was to pay me out my portion of what she had placed of her funds into that property. Again, I don't want the money. I don't need it.

151. This evidence is of some significance, as it suggests that Mrs Spink's understanding was that Dianne would have a personal obligation to pay to Denise half of the value of Mrs Spink's share in the Casula property.

152. In cross-examination, Mario adhered to his evidence that he never said to Mrs Spink: "We should buy a place together" (T 167.28), and that, instead, he said that he and Dianne were going to buy a property and: "We want you to move in with us" (T 167.35).

153. Mario, however, gave the following evidence concerning his understanding of the effect of Mrs Spink giving Mario and Dianne the money (T 171.39-172.2):

Q. …but Rickie is certainly not saying that she made you a present now, is she?

A. Well, she never gave me a loan, either.

Q. She provided money, did she not[?]

A. Yes, she did, yes.

Q. What I'm asking is, from your perspective, were you aware, or did you have any understanding that the reason why she was providing that money was because you had offered her a place to live?

A. Yes, she felt - yes, that's right.

Q. And in return for having a place to live. Is that correct?

A. Well, she felt obligated to give something to us, yes.

154. This evidence seems to be an acceptance by Mario that the payment and the opportunity for Mrs Spink to live in the new house were linked.

155. Dianne also denied that Mrs Spink said: "We should buy a place together" (T 204.19).

156. On the issue of the length of time that Mrs Spink would be entitled to live with her, Dianne said (T 206.4): "As far as long-term being in the same property, no. We never committed to that being a forever home, but long-term, I was happy to have her live with me. I did not see a problem with that." Dianne also accepted that she never had in her mind that Mrs Spink would live with her only as long as Dianne decided (T 206.26).

263. The reasoning of Deane J in Muschinski v Dodds started with equitable principles that apply in a commercial context, particularly that of partnership, and extended those principles so that they might apply in a context that was wholly or partly domestic. His Honour concluded that the basic right of the parties upon the collapse of the venture, in the circumstances considered by his Honour, was the return of contributions.

264. As Brereton J (as his Honour then was) said in McKay v McKay [2008] NSWSC 177:

…

[30] The cases to which I have referred all show that the fundamental principle in this area of discourse is the restoration of contributions upon failure of the substratum of a joint venture. They also show that in those cases that has actually been the result. None of those cases saw one party being permitted to retain the benefit of the other’s contribution in return for paying out the other. Such a result would be inconsistent with the basal concept of a return of the contributions on failure of the joint venture.

[31] However, too many authorities stress the flexibility of equitable remedies in this area to deny that there is at least some flexibility in what equity can decree. In particular, there is no doubt that, in an appropriate case, a charge securing the return of the contribution may be preferred to a constructive trust based on the contributions. But, from the perspective of principle and certainty, it is unsatisfactory and unhelpful, as well as inaccurate, to state that the remedy is an entirely flexible one. One needs to identify a principle that guides what is the appropriate remedy, or at least the prima facie remedy or starting point.

[32] Thus, after toiling for some time with the concept of the minimum equity to do justice in the field of proprietary estoppel, the law has moved to the position that the prima facie remedy in such a case is the making good of the relevant assumption on which the plaintiff acted, although where that relief would be disproportionate to the requirements of conscionable behaviour, equity may, as a matter of discretion, decree something less [Giumelli v Giumelli (1999) 196 CLR 101; Galaxidis v Galaxidis (No 2) [2002] NSWSC 831 [52]–[55]; O'Neill v Williams [2006] NSWSC 707 [73]; Tory v Tory [2007] NSWSC 1078].

[33] In the field of the premature failure of the substratum of joint ventures, the cases made clear that the guiding principle is the return of contributions. Once again, it may well be that, as a matter of discretion, equity can decree something less than that where to so would be disproportionate to requirements of conscionable behaviour. But, in my opinion, the prima facie remedy in such a case is the return of contributions.

…

267. In the present case, the parties did not suggest that the proper remedy would be to make good the assumption upon which Mrs Spink made the payments to Dianne and Mario, as all agreed that it was no longer possible for the parties to live in close proximity.

268. In my view, Baumgartner v Baumgartner accepted what Brereton J described as the "fundamental principle", and did not, in finding that equality of beneficial ownership was the starting position in determining the proportionate entitlements of the parties, intend to detract from that fundamental principle. Baumgartner v Baumgartner was, in a sense, a special case in which the purely domestic nature of the relationship, and the pooling of funds for the purpose of establishing and maintaining a joint home for the indefinite future, justified the conclusion that it was unconscionable for the man to assert his sole legal ownership of the property, without allowing the woman equal beneficial ownership, subject to limited adjustments based upon their disproportionate contributions.

269. Baumgartner v Baumgartner was a case that not only recognised and applied the observation by Deane J in Muschinski v Dodds that there could well be circumstances in which equity would require the party who has made the major contribution to obtain a correspondingly greater share of any surplus, but by reason of the nature of the relationship and the pooling of funds concluded that the Court should go further and start from an assumption that good conscience on the part of the man required equality of beneficial ownership as the starting point.

270. An important question may be whether, and in what way, it is necessary to take into account what the legal and beneficial ownership was at the time the parties first acquired the property. In principle, that issue arises in the present case, as the parties have contested whether a partial resulting trust arose in favour of Mrs Spink, or whether her intention was to make an absolute gift in favour of Dianne and Mario.

271. The original shares in the legal and beneficial ownership of the property were significant in Muschinski v Dodds. After Deane J held that the parties were entitled to the return of their respective contributions, the question became whether the woman, having initially intended that the man would become beneficially entitled to half ownership of the property, had established that he should hold his half of the residue on some trust that recognised her initial disproportionate contribution. She failed to establish that good conscience on the part of the man required that result. Deane J would have declared the constructive trust only from the time of the publication of the reasons for judgment. Up to that time, the parties were equally entitled to the legal and beneficial ownership of the property.

272. The situation was different in Baumgartner v Baumgartner. In that case, the nature of the relationship and the joint venture between the parties was such that the High Court found that the man held the legal title to the property on trust for the parties equally, subject to some adjustments to reflect their disproportionate contributions. The High Court declared that the man held his interest in the property on trust for himself beneficially as to 55% and for the woman beneficially as to 45%, subject to such further adjustments as should be made in accordance with the reasons for judgment. The High Court said that it would be necessary to remit the matter to the Supreme Court, if the parties could not agree upon the quantification of the adjustments that the Court found should be made.

273. There may, therefore, be a question in each case as to whether it is necessary for the Court to start by determining what the respective beneficial entitlement of the parties was at the time of the initial acquisition of the property. There will be no difficulty in determining the legal title, as that will be established either by the register or by instruments of title.

274. As a matter of judicial practice, it is not desirable for a Court to have to determine this question if the outcome is immaterial because the circumstances warrant a determination in the same manner as occurred in Baumgartner v Baumgartner.

275. The initial condition of the beneficial ownership of the property will be material in a case that requires the approach in Muschinski v Dodds, provided that there will be a residue after the payment of joint debts and the return of the parties' respective contributions, given the extended meaning of that term in this context. The initial proportionate beneficial entitlement to the property will apply to the residue, unless one party propounds an equitable basis for adjusting the initial proportionate beneficial ownership.

276. The initial proportionate beneficial ownership may also be determinative in cases where it is not appropriate for the Court to start with an assumption of an equal proportion of beneficial ownership, and if there are significant forensic difficulties in the parties establishing what their individual contributions were.

277. The initial proportionate legal and beneficial ownership will also be significant when questions of competing proprietary interests arise as between the parties and third parties: see the discussion by Ward J (as her Honour then was) in Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 at [146]-[168].

Application of principles

278. In the present case, it will be necessary to decide first whether the principle in Muschinski v Dodds applies, as that has been put in contest by Dianne and Mario. If it is found that the principle does apply, it will then be necessary to consider whether the return of Mrs Spink's contribution will be the appropriate remedy, or whether she should in addition be entitled to a share of the residue.

279. I respectfully accept the following statement by Ward J in Australian Building & Technical Solutions Pty Ltd v Boumelhem as to the criteria that must be established to prove an entitlement to this form of constructive trust:

…

[50] In West v Mead [2003] NSWSC 161, Campbell J (as his Honour then was) considered what was to be established before such a trust could be imposed.

[51] First, it is necessary that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired. The scope of the joint venture in which the parties were engaging may be of relevance and as Deane J in Muschinski considered, may change from time to time.

[52] Secondly, the substratum of that joint relationship or endeavour, must have been removed or the joint endeavour prematurely terminated “without attributable blame”.

[53] Thirdly, there must be the requisite element of unconscionability — it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.

…

Existence of joint relationship or endeavour

280. Dianne and Mario submitted that the first criterion was not established because they and Mrs Spink were not in the same sort of relationship as a de facto couple, and there was no real pooling of funds of the type that had occurred in Baumgartner v Baumgartner.

281. I reject that submission. First, the principle may apply where the relationship is between a parent and child and a child's partner: see Kriezis v Kriezis [2004] NSWSC 167, Malsbury v Malsbury [1982] 1 NSWLR 226, Sirtes v Pryer [2005] NSWSC 1082, McKay v McKay [2008] NSWSC 177, and Nolan v Nolan [2015] QCA 199. This is unsurprising, given that, as explained by Deane J in Muschinski v Dodds, the source of the principle was the equitable treatment of the cases where a commercial enterprise terminates without there being in effect an agreed arrangement for dealing with the consequences of the termination, which demonstrates that the principle applies in much wider cases than arrangements between couples.

282. Further, the application of the principle does not depend upon there being a pooling arrangement between the parties. It is sufficient if, as here, the parties make individual contributions to the collective venture. That is what the parties contemplated in Muschinski v Dodds, although the relationship broke down before the man had made his contribution. In any event, in the present case there was a pooling of funds, albeit by the making by Mrs Spink of only seven payments in cash or transfers to Dianne's and Mario's joint account. The special type of day-to-day pooling for the general purposes of the relationship that occurred in Baumgartner v Baumgartner may justify the special result in that case, but it is not necessary for the application of the Muschinski v Dodds principle.

283. In my view, the present case is on all fours with a significant number of cases in which a parent has made a contribution to the acquisition of a residential property by children on the basis that the parent would have an indefinite right to live in the property, and for that reason the first criterion is satisfied.

End of endeavour without attributable blame

284. The parties joined in accepting that the second criterion, being that the substratum of the joint endeavour has prematurely terminated "without attributable blame", is satisfied. There was little evidence of the real reasons for the breakdown in the relationship, and it appears that both sides took the view that the conduct of the other was the cause. Although Mario required Mrs Spink to leave the Casula property, that was only because the relationship between the parties had already broken down to the extent that it was untenable for them to live together. The parties' acceptance that there was no attributable blame between them is well-founded, given the following statement of principle: "The concept of attributable blame must be understood and applied with some tolerance; in my view it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable…": see Bennett v Horgan (NSWSC, 3 June 1994, unreported), as approved in Kriezis v Kriezis at [23], Hill v Hill [2005] NSWSC 863 at [35], and McKay v McKay at [16].

Was there unconscionability?

285. I am also satisfied that the third criterion, that there must be the requisite element of unconscionability, is satisfied in the present case, unless Dianne and Mario establish their claim that Mrs Spink intended to make an absolute gift to them of the money that she contributed. I will return to consider the gift issue below.

286. Subject to consideration of whether Mrs Spink made a gift to Dianne and Mario, I would hold that it would be unconscionable for Dianne and Mario to assert their legal ownership of the Casula property, without making any proper allowance for the contributions made by Mrs Spink.

What is the appropriate remedy?

287. The question that then arises is: what is the appropriate nature of the remedy to be granted? Should Mrs Spink be entitled to an order for the return of her contributions plus interest, secured if necessary by an equitable charge over the cash or property? If so, should Mrs Spink be entitled additionally to a share in the residue after allowing for the contributions made by Dianne and Mario, having regard to the appreciation in the value of the property? Should the Court start from the proposition that the parties in this case should be entitled to beneficial ownership in proportion to their respective contributions, after making appropriate allowances for differences in contributions?

288. As a first step to answering these questions, I would not equate the relationship between the parties in this case to that which was the subject of Baumgartner v Baumgartner. The parties did not in any real way pool their resources for the purpose of jointly acquiring a home, in a manner that would justify the starting point that good conscience would require that they have beneficial interests in the Casula property that are proportionate to their different contributions. The joint endeavour in the present case went little further than the making of contributions for the purchase and renovation of the Casula property, so that all parties could live on the one property, though separately. While the closeness of the separate living areas would generate subsidiary benefits, such as Mrs Spink enjoying the benefit of services paid for by Dianne and Mario, and Mrs Spink being able to help out with childminding and the like, the arrangement did not contemplate that the parties would live together in a joint household.

289. It is important to consider how the intention of the parties may have a residual influence on how the principle in Muschinski v Dodds should be applied.

290. In West v Mead, Campbell J said:

…

[62] Another aspect of difference between the Baumgartner basis for a constructive trust, and a resulting trust, concerns the role which the intention of the parties plays. The Baumgartner type of constructive trust is imposed to prevent an unconscionable assertion of legal title, in circumstances where the parties had no explicit intention about how the legal title would be held in the circumstances which have arisen. By contrast, the presumption of a resulting trust is one which seeks to give effect to the intention of the parties, by making a presumption about what that intention was (Russell v Scott (1936) 55 CLR 440 at 451; authorities collected in Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 at [133]-[136]). Even so, that is not to say that the intention of the parties has no role to play in whether a Baumgartner constructive trust should be held to exist. Part of the justification for imposing the Baumgartner constructive trust is that the parties have jointly been building up assets, on the basis that those assets will be available for the joint endeavour in future. Part of the reason why it can be unconscionable to let the legal title lie where it falls, if the relationship fails, is that each knew that the other was contributing to a common pool on the basis that the pool, and assets acquired from it, would be used for their ongoing common benefit. It is unconscionable for the party who ends up, at the end of the relationship, with a disproportionate share of the assets which were built up during the relationship, to keep those assets when he or she knew that that was the basis on which the assets were being built up.

[63] Another way in which the intention of the parties would be relevant would be if they had formed an express intention about what was to happen in the circumstance which has in fact arisen. If the parties have expressly contemplated the very situation which has arisen, and have, in advance, agreed how the assets built up as a result of their joint efforts should be divided in that situation, it would often be the case that there is nothing unconscionable in holding the parties to their agreement.

[64] A further way in which the intention of the parties is relevant is that the Baumgartner basis for a constructive trust arises only when there is a premature termination of the relationship. To decide whether this has happened, one must look at what the intention of the parties was, about how long their relationship would endure. To take an extreme example, if one of the partners makes clear that he or she is making no commitment whatever to the relationship, and is free to walk out at any time and keep any property he or she has acquired during the relationship, it is hard to see how there is anything unconscionable in the property interests lying where they fall when the relationship ends.

…

291. Additionally, in my view, the parties' intention as to how the joint endeavour would end if it was implemented to fruition may have a proper bearing on the relief that should be given.

292. In the present case, I have found that it was Mrs Spink's intention, and Dianne's and Mario's expectation, that, if the relationship between the parties continued, any obligation that Dianne and Mario owed to Mrs Spink would terminate on her death, at which time Dianne would be personally obliged to pay half of Mrs Spink's share of the money contributed for the purchase and renovation of the Casula property to Denise. Mrs Spink understood that Dianne and Mario would become the registered proprietors, and intended that nothing would disturb their beneficial entitlement to the property, provided that they complied with the expectation that Mrs Spink would be allowed to reside in her part of the property indefinitely.

293. That aspect of the arrangement, in my view, militates in favour of the conclusion that the appropriate remedy is that Mrs Spink be entitled to the return of her contribution to the acquisition and renovation of the property, plus interest, secured by an equitable charge over the property. That would be consistent with Mrs Spink's original expectation that, on her death, Dianne and Mario would be entitled to the benefit of any appreciation in the capital value of the Casula property. It is consistent with the view, adopted in many cases, that the Court should aim at granting the minimum remedy that is consistent with correcting an unconscionable reliance upon ownership of the property. It is consistent with the outcomes in Kriezis v Kriezis, Sirtes v Pryer, McKay v McKay, and the decision of Pembroke J in Tadrous v Tadrous [2010] NSWSC 1388.

291. At [72] above, I deferred the resolution of the dispute as to whether Mrs Spink’s entitlement should be calculated by reference to the total amount that she paid on the basis that it would be used for the acquisition and renovation of the Casula property, or whether it should depend on the amount that can actually be traced as having been applied for those purposes. It is clear, in my view, that the former approach is the correct one. If Dianne and Mario received money from Mrs Spink for the particular purpose of applying it towards the acquisition and renovation of the Casula property, they cannot be heard as against Mrs Spink to say that they used it for some other purpose, which does not give Mrs Spink a proprietary interest in the property.

Significance of initial legal and beneficial ownership

295. It is now necessary to return to consider whether the interests in the Casula property to which the parties became respectively entitled at the time of its acquisition require the Court to come to a different conclusion than that which is expressed in the preceding paragraphs.

296. The first contention of Dianne and Mario was that Mrs Spink made an absolute gift to them of the moneys that she paid, and that, to the extent that she paid additional money for the renovation of the property, that amount should be set off against the fact that she enjoyed rent-free accommodation for the period that she lived at the property.

297. In accordance with the findings of fact that I have set out above, I reject the submission that Mrs Spink made an absolute gift of the moneys that she paid to Dianne and Mario. Her intention was more subtle than the making of an unqualified gift. Further, I find that Dianne and Mario were aware of the conditions upon which the money was paid over. Mrs Spink's intention was that her payments would ultimately take effect as a gift, but that this would occur on Mrs Spink's death. It was a condition of Dianne and Mario becoming free from any obligation to Mrs Spink that she be allowed to live in her part of the Casula property indefinitely, and Dianne was required to pay half of Mrs Spink's share to Denise following Mrs Spink's death. Those conditions were inconsistent with the payments being an unqualified gift to Dianne and Mario.

298. Dianne and Mario then said that a presumption of advancement applies, and that the Court should find on that basis that Mrs Spink intended that Dianne and Mario would enjoy the full beneficial ownership of the Casula property.

299. If a presumption of advancement applied, the finding that I have made as to the true intention and understanding of the parties would rebut the presumption.

300. However, in any event, I am not satisfied that, as a matter of law, the presumption of advancement arose in this case. The payments that Mrs Spink made were not made solely to her daughter, Dianne. As I have found, all of the payments were made to Dianne and Mario jointly.

301. The High Court, in Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25, held that a presumption of advancement arises against a mother, even in favour of an adult daughter.

302. However, as noted by the learned editors of Jacobs' Law of Trusts in Australia (8th edition) at [12-12], the presumption of advancement does not arise where the purchase is taken in the name of a son-in-law or daughter-in-law, citing respectively Knight v Biss [1954] NZLR 55 and Z v Z (2005) 34 Fam LR 296 at [145].

303. It is necessary to consider what the rule is when property is transferred into the names of a child and that child’s spouse jointly.

304. All of the Justices in Nelson v Nelson held that the relationship of mother and child was one that gave rise to a presumption of advancement, even in the case of adult children: see Deane and Gummow JJ at 548-549, Dawson J at 576, Toohey J at 585 and McHugh J at 601. There had previously been some doubt about whether the presumption of advancement arose as between mother and child or only father and child, for historical reasons that were dispelled in a number of cases culminating in this State by the decision of the Court of Appeal in Brown v Brown (1993) 31 NSWLR 582.

305. While the reasons given by all of the Justices in Nelson v Nelson are consistent, it will be convenient, with respect, to set out the following extract from the judgment of Toohey J at 585, 586 (footnotes omitted):

…

So long as the presumption of advancement has a part to play, there is no compelling reason for making a distinction between mothers and fathers in relation to their children and every reason, in the present social context, for treating the situations alike. The rationale underlying the presumption of advancement has varied. Some have expressed it in terms of the obligation of the grantor to support the grantee. Others have seen it as arising from established categories of lifetime relationships. In Calverley v Green, Gibbs CJ said that the presumption should be raised “when the relationship between the parties is such that it is more probable than not that a beneficial interest was intended to be conferred, whether or not the purchaser owed the other a legal or moral duty of support”. Such an approach tends to be open ended as the Chief Justice recognised when he said that to regard reconsideration of the correctness of the actual results reached in earlier cases as a barrier to acceptance of the principle he enunciated “would be to treat the established categories as frozen in time”. That, he added, citing Dixon CJ, “would not be characteristic of the doctrines of equity”. At the same time the approach taken by Gibbs CJ does have a question begging aspect and the uncertainty it generates is perhaps evidenced by the fact that in Calverley v Green only the Chief Justice held that the presumption of advancement applied to a de facto relationship.

But again, it should be stressed that what the Court is concerned with in the present appeal is the very clear relationship of mother and children, albeit adult children. And whether the governing consideration is said to be a duty to support or a lifetime relationship, the result is that the presumption of advancement should apply. Section 66B(1) of the Family Law Act 1975 (Cth) imposes on the parents of a child “the primary duty to maintain the child”. No distinction is made between father and mother; the particular objects of Div 6 of Pt VII of that Act, in which s 66B appears, include ensuring “that parents share equitably in the support of their children” (s 66A(2)). In Pt VII the definition of “child” is not geared to any particular age (see s 60), though “the income, earning capacity, property and financial resources of the child” must be taken into account (s 66D(1)).

While, in the case of many adult children, the statutory obligation cast on parents may have no practical consequences, the obligation is there. In so far as the presumption of advancement derives from an obligation of support, its application to mothers who fund the purchase of property by their children is logical. In so far as the presumption operating in the case of a father and his children derives from their lifetime relationship, the same is no less true of a mother and her children. The “egalitarian nature of modern Australian society, including as between the sexes” demands no less. The point is highlighted in the present case by the fact that the cheques for the purchase price of Bent Street were drawn on the joint account of Mr and Mrs Nelson just before the former's death and were presented just after his death. To draw a distinction between them in terms of the presumption would be quite unreal.

…

306. What is the position where the payment is made by a mother jointly to a daughter and son-in-law for the purpose of acquiring and renovating a property in their joint names?

307. As both the receipt of the money and the acquisition of title were joint, it seems to me to be inconsistent with principle to apply a presumption of advancement as to half of the money in favour of Dianne, but a presumption of a resulting trust against Mario. At least in a case such as the present, where there is no basis in fact for finding that Mrs Spink had a different intention vis-a-vis Dianne and Mario, and good reason to find that she only had the one intention that applied to both of them, the possibility should not be countenanced that Mrs Spink could be found to have inconsistent intentions concerning the payments to Dianne and Mario, arising out of limitations in the evidence and the vagaries of which of the presumptions can be rebutted. In my view, the presumption of advancement must either arise or not.

308. The preferable and most logical course is to hold that the presumption of advancement should only arise where all of the joint recipients of the money or property are in a relationship with the payer that is of a category that gives rise to the presumption. If that is true, then the presumption of advancement does not arise in the present case.

309. I should repeat, for completeness, that this is a case in which a mother has made a payment for the benefit of an adult daughter and son-in-law for the purchase and renovation of a family residence, which was also intended to be the residence for an indefinite period of the mother. These are circumstances which make the decision as to whether the presumption of advancement should, or should not, apply difficult.

310. A consideration of the rationale for the existence of the presumption of advancement, as it has historically evolved, and has been explained in Nelson v Nelson and other cases, does not make the proper decision obvious.

311. While it may be, as noted by Toohey J in the extract set out above, that although "…in the case of many adult children, the statutory obligation cast on parents may have no practical consequences, the obligation is there…", that obligation may be less justified in circumstances in which the child is married and the married couple have their own obligations to each other and their children to provide a home for the family.

312. Ultimately, the proper explanation in principle may simply be that the presumption of advancement arises where the relationship between the payer and the joint transferees falls within an established category, and it has not been shown that the relationship between parent and child and the child's spouse jointly is such a relationship.

313. The next question is whether the Court should hold that, when the Casula property was first acquired, Mrs Spink became entitled beneficially to an interest in the property that was proportional to her contribution.

314. The finding that I have made above as to Mrs Spink's real intention is sufficient to rebut the presumption of a resulting trust. It was not Mrs Spink's intention that she would in any sense immediately become an owner of the property.

315. It is therefore not necessary for the Court to consider what otherwise may have been difficult questions arising out of the circumstances that part of the contribution by Mrs Spink was paid after the acquisition of title to the property, Mrs Spink's contributions were paid jointly to Dianne and Mario rather than the vendor, part of Mrs Spink's contribution was used for renovations and for purposes unconnected with the Casula property, and that Mrs Spink's contribution was mixed with the general funds of Dianne and Mario.

316. Further, Mrs Spink’s contribution to the cost of the renovation would, in my view, have added to the capital value of the property. Mrs Spink will not receive any share in any increase in the capital value of the property. The evidence also suggests that, at least while the relationship between the parties was relatively civil, Mrs Spink assisted Dianne and Mario by minding the children on occasion. As the plurality in Baumgartner v Baumgartner said, the Court should not pursue complicated factual inquiries which will result in relatively insignificant differences in contributions. I am satisfied that the sum of $18,314.26 that Mrs Spink paid for the renovation of the Casula property should be treated as part of her contribution, notwithstanding that she was not required to pay any rent or contribute to outgoings during the time that she lived at the property.

Remedy based upon the principle of estoppel

317. It may be that the same result could be reached in the manner adopted by McLelland J in Morris v Morris [1982] 1 NSWLR 61. Mrs Spink relied upon this decision in the alternative to her reliance upon Muschinski v Dodds. In that case, the plaintiff father entered into an arrangement with his son and his son’s wife that he would sell his unit and reside with the defendants in their house, and that the proceeds of sale of the unit would be used to pay for the construction of a second-storey extension to the house which, on completion, would be occupied by the father. The arrangement was that the father would become part of the defendants' family unit, eat with the family, perform household chores and assist the defendants with their business activities, and have no responsibility for rates or taxes or other household outgoings. There was no discussion between the parties as to the duration of the arrangements, or as to what was to happen if their relationship broke down, or if the defendants wanted to sell the house. Following the divorce of the defendants, the relationship between the plaintiff and the son's wife deteriorated so that he could no longer live in the house.

318. McLelland J relied upon the principle "analogous" to that stated by the Privy Council in Chalmers v Pardoe [1963] 1 WLR 677 at 681-682. That case applied the principle that is now known as proprietary estoppel based upon the decision of Plimmer v Wellington Corporation (1884) 9 App Cas 699, 714 PC.

319. McLelland J said, at 64:

…

The principle to be applied is analogous to that stated by the Privy Council in Chalmers v Pardoe [1963] 1 WLR 677, at pp 681, 682, as follows:

“The claim is based on the general equitable principle that, on the facts of the case, it would be against conscience that Pardoe should retain the benefit of the buildings erected by Chalmers on Pardoe's land so as to become part of that land without repaying to Chalmers the sums expended by him in their erection. …

There can be no doubt upon the authorities that where an owner of land has invited or expressly encouraged another to expend money upon part of his land upon the face of an assurance or promise that that part of the land will be made over to the person so expending his money, a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended. … It was said in Plimmer v Wellington Corporation (1884) 9 App. Cas. 699, 714 P.C. that the court must look at the circumstances in each case to decide in what way the equity can be satisfied.”

The principle illustrated by this extract is a flexible one and has been applied in a great variety of situations. In the present case the assurance or promise to the plaintiff of an indefinite right of residence in the defendants' property is the operative equivalent of the assurance or promise to make over part of the land referred to in the extract from Chalmers v Pardoe.

The remedies to which the principle gives rise are imposed, as is a constructive trust, in order to satisfy the demands of justice and good conscience. Indeed in some circumstances the appropriate remedy may well be the imposition of a constructive trust. However, in the particular circumstances of the present case the plaintiff's equity would in my opinion be satisfied by his having an equitable charge over the Kingsgrove property in the sum of $28,000 together with interest thereon at the rate of 10 per cent per annum as from the date of commencement of these proceedings, namely, 19th May, 1980.

…

320. Although relief in the present case may be supported on the principle adopted by McLelland J, on the particular facts of this case I consider the principle in Muschinski v Dodds to be a more satisfactory basis for the relief.

321. In Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, the plurality said, at [77] (footnote omitted):

This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created….

322. There may be a question in cases such as the present as to whether parties in the position of Dianne and Mario are resiling from an expectation that they have created, given that the collapse in the substratum of the joint endeavour has arisen through no attributable fault of either party, and given that the practical reality is that the parties can no longer live together. Regardless, that is an issue that need not be determined in this case.

Conclusion

323. For the reasons given above, I find that Mrs Spink is entitled to be repaid her contribution to the acquisition and renovation of the Casula property, where her contribution was $147,000 plus the payment of $18,314.26 for renovations. She is also entitled to pre-judgment interest as provided for in the Civil Procedure Act 2005 (NSW). Mrs Spink is entitled to an equitable charge over the Casula property to secure payment to her of the amount to which she is entitled.

324. Given that this is the remedy that the Court will grant to Mrs Spink, the issue of the amounts that the parties proportionately contributed for the purpose of the purchase and renovation of the Casula property is not material.

325. Mrs Spink is also entitled to an order that Dianne and Mario pay her costs of the proceedings.

326. I will give the parties an opportunity to consider the orders that should be made, and to submit draft short minutes of order to my Associate. That should be done within 14 days and, if that timetable cannot be met, the parties should arrange with my Associate for the matter to be relisted for further consideration. It will be necessary for the parties to determine the amount of interest that is payable. The parties should also give attention to the manner in which Mrs Spink will be paid the amount to which she is entitled. That will require consideration of whether Dianne and Mario are able, within a reasonably short time, to borrow the money necessary to pay out Mrs Spink, or whether appropriate orders will need to be made to enforce the equitable charge to which Mrs Spink is entitled.

327. I will hear Mrs Spink if she wishes to make an application for a special costs order. In that event, Mrs Spink should inform my Associate of the position within 14 days, together with suggested directions so as to enable the parties to deal with any outstanding costs issues themselves such that the matter can be decided on the papers in chambers.

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Decision last updated: 20 March 2019