Taylor v Ismailjee

[2001] WASC 36

TAYLOR -v- ISMAILJEE [2001] WASC 36

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 36
Case No:	CIV:1517/1999	Heard:	25 & 26 OCTOBER 2000
Coram:	MURRAY J	Delivered:	16/02/01
No of pages:	19	Judgment Part:	1 of 1
Result:	Declaration as to equitable interests and consequential orders made
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Parties:	JENNIFER CECILIA TAYLOR AHMED ISMAILJEE
Catchwords:	Equity Constructive trust Unconscionable conduct Joint endeavour Defacto relationship came to an end Parties have right to take transfer of land as joint tenants Determination of equitable interests which would then arise Similar determination in respect of proprietary interests in domestic chattels Turns on own facts
Legislation:	Nil
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Carkeek v Tate-Jones [1971] VR 691 Kais v Turvey (1994) 11 WAR 357 Muschinski v Dodds (1986) 160 CLR 583 Scapinello v Scapinello [1968] SASR 316 Abela v Public Trustee [1983] 1 NSWLR 308 Bull v Bull [1955] 1 All ER 253 Burgess v Rawnsley [1975] 3 All ER 142 Crew v Sheldon (1995) DFC 77427 Guthrie v Miller, unreported; SCt of WA; Library No 960663; 21 November 1996 Hulme v Schaecken [1999] NSWSC 1291 In Re B (minors) (Care Proceedings: Issue Estoppel) [1997] FAM 117 Landsdowne v Andrew, unreported; SCt of NSW; (BC 9806727); 14 December 1998 Miller v Guthrie, unreported; FCt SCt of WA; Library No 970552; 28 October 1997 Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TAYLOR -v- ISMAILJEE [2001] WASC 36 CORAM : MURRAY J HEARD : 25 & 26 OCTOBER 2000 DELIVERED : 16 FEBRUARY 2001 FILE NO/S : CIV 1517 of 1999 BETWEEN : JENNIFER CECILIA TAYLOR

Plaintiff

AND

AHMED ISMAILJEE
Defendant

Catchwords:

Equity - Constructive trust - Unconscionable conduct - Joint endeavour - Defacto relationship came to an end - Parties have right to take transfer of land as joint tenants - Determination of equitable interests which would then arise - Similar determination in respect of proprietary interests in domestic chattels - Turns on own facts

Legislation:

Nil

Result:

Declaration as to equitable interests and consequential orders made

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Representation:

Counsel:

Plaintiff : Mr R Cywicki
Defendant : Mr M D Cole

Solicitors:

Plaintiff : Williams & Co
Defendant : Terrace Law

Case(s) referred to in judgment(s):

Baumgartner v Baumgartner (1987) 164 CLR 137
Carkeek v Tate-Jones [1971] VR 691
Kais v Turvey (1994) 11 WAR 357
Muschinski v Dodds (1986) 160 CLR 583
Scapinello v Scapinello [1968] SASR 316

Case(s) also cited:

Abela v Public Trustee [1983] 1 NSWLR 308
Bull v Bull [1955] 1 All ER 253
Burgess v Rawnsley [1975] 3 All ER 142
Crew v Sheldon (1995) DFC 77427
Guthrie v Miller, unreported; SCt of WA; Library No 960663; 21 November 1996
Hulme v Schaecken [1999] NSWSC 1291
In Re B (minors) (Care Proceedings: Issue Estoppel) [1997] FAM 117
Landsdowne v Andrew, unreported; SCt of NSW; (BC 9806727); 14 December 1998
Miller v Guthrie, unreported; FCt SCt of WA; Library No 970552; 28 October 1997
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

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1 MURRAY J: At the trial of this action, involving both a claim and counterclaim, there were but two witnesses, the plaintiff and the defendant. As will be seen, the events with which the case is principally concerned arise out of a defacto relationship which ended, so the plaintiff maintains, in April 1985 or, as the defendant would have it, early in 1992. The case is essentially concerned with the need to determine the respective equitable interests of the parties in certain real and personal property. Because so many of the events upon which the decision of the case turns occurred 15 or more years ago, little assistance was to be derived from documentary evidence and the case really turned upon credibility issues as between plaintiff and defendant.

2 The parties are both of Burmese extraction, but each came to WA in the mid-1970s. They are citizens of this country who have resided here for many years. Although English is not their first language, each gave evidence in English with, I am satisfied, quite sufficient facility to handle the process and convey effectively to the court their version of the facts. Each of them presented as their evidence-in-chief written statements which had attracted a number of unresolved objections on each side. Rather than spend time at the outset of the trial in resolving those objections, many of which, in my view, had merit on both sides, it was agreed that in later evaluating the evidence of each party, I should have regard to the objections and draw the appropriate conclusions in the light of the objections about the weight to be attached to particular aspects of the statements. The process I have described meant that the witnesses gave their oral evidence entirely in the form of answers to questions asked in cross-examination. In each case the process was of sufficient length and sufficiently probing to enable me to form a clear impression of the reliability of the witness concerned.

3 Despite the length of time since the occurrence of the relevant events, neither party professed any general lack of memory. The plaintiff was, on occasions, caused to concede that on particular issues her recollection may have been faulty. The defendant never did so. My view of the plaintiff was that she was a relatively simple or straightforward person, although not unintelligent, who lacked guile and generally displayed a concern to accurately relate to the court the facts of the case as she perceived them to be. I had no doubt she was a truthful witness and by and large her evidence was reliably accurate, although there were times when she displayed, as did the defendant, an antagonism towards the opposing party which caused me to approach with care the question whether I should accept her evidence, in case her antipathy towards the defendant had caused her to present her version of the facts in a more

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favourable light than they truly bore. In the end, however, I was satisfied that by and large that was not so. As will appear when I state the facts I was content generally to accept her evidence, including where it was necessary to decide between competing versions.

4 I was not so satisfied about the evidence of the defendant. He was clearly an intelligent man who well appreciated the significance to his case of the questions he was asked in cross-examination. He approached that process confidently and somewhat aggressively, endeavouring from the outset to establish control over the process by an overt display of relaxation and command of the factual material, while answering questions he clearly appreciated were of some significance. When he was dealing with matters which were put contrary to his interests, he would, while answering confidently, smile at counsel in a rather patronising manner. I was unimpressed by his demeanour and except where his evidence was supported by other material, I was not confident to rely upon him as a truthful and accurate witness. There were occasions when dealing with specific issues when the defendant, to my mind, displayed elements of recent invention. I will mention these matters more specifically later, to the extent that it is necessary to do so. Suffice it to say that for the above reasons, concerned particularly with questions of demeanour, I preferred where there was conflict to rely upon the evidence of the plaintiff rather than upon that given by the defendant.

5 As I have mentioned, the asset with which the litigation is principally concerned is a house and land purchased by the parties, who were then in a defacto relationship, by a contract of sale dated 20 July 1984 made with the State Housing Commission as vendor. The parties had lived together as man and wife since 1979. They had two small children born in February 1982 and September 1983. The house was bought to be their home, as it was, at least until April 1985. It is common ground between them that at least until then they lived in the house as a family with the defendant assuming the financial responsibility to pay for the purchase of the house and all household expenses, while the plaintiff "provided services as a wife, mother and homemaker", the defendant adding that he for his part provided services as a husband, father and homemaker.

6 The pleading central to the plaintiff's case is that in the statement of claim, par 7, in which she says:

"In or about April 1985, the defendant vacated the property and represented to the plaintiff that she was on her own by which it was meant and understood that the parties' relationship as

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common law man and wife was over and that the plaintiff would be solely responsible for the financial commitments under the contract and the care and welfare of [the children]."

The plaintiff pleads that since that date she has assumed sole responsibility for the financial payments in respect of the acquisition of the property, as well as having the sole support of, and responsibility for, her children.

7 The defendant denies the termination of the relationship so pleaded. He asserts that in April 1985 he was working at Tom Price, as he continued to do for some short time thereafter. He then returned to live at the home because, despite the physical separation, the relationship had continued and he continued to provide financial and other support to the plaintiff and the children. He pleads that the relationship continued and he was committed to it both financially and personally until 1994, or at least until 1992, although he pleads that his contact with other members of the family ceased in 1993 at which time the plaintiff obtained a restraining order to prevent the contact. He says he was then unemployed and "his financial resources precluded his assisting the plaintiff with the conservation, maintenance and improvement of the property."

8 Under the contract of sale the parties did not immediately become the registered proprietors of the property. It is common ground that they were not entitled to call upon the State Housing Commission as the vendor to transfer the property into their joint names until they had paid at least one tenth of the total purchase price and interest due on the purchase monies up to that time. Then, if they had otherwise observed the conditions of the contract to the satisfaction of the vendor, and they had paid the costs of preparing, stamping and registering a mortgage and transfer, they could have the vendor transfer the property into their names and give a mortgage for the balance of the purchase price.

9 In fact that has never been done, although it is clear that it might have been done some time ago. The plaintiff pleads that as in effect she is the one of the purchasing parties who has satisfied the pre-conditions of the contract for a transfer to be made, it is to her only that the transfer may be made. In fact she continues to this day to make the repayments of principal and interest at a rate of $250 per month, a rate of repayment greater than that which is strictly required under the contract. The fact is then that the parties neither individually, nor as joint tenants, have any legal interest in the property which has been the home of at least the plaintiff and her children since 1985.

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10 So the plaintiff's primary contention is that she has a legal entitlement to a 100 per cent interest in the property, but if that may not occur she asserts that in the circumstances pleaded she is entitled to an equitable interest in the property in proportion to her financial contributions to its acquisition and maintenance over the years. In truth she says that it amounts to the same thing because she contends that on the evidence it should be found that the defendant has contributed no more than about two per cent of the equity in the property thus far acquired. On that basis she asserts a beneficial entitlement to 100 per cent of the property. She says that she has maintained the purchasers' obligations under the contract at a considerable sacrifice, and it would therefore be unconscionable not to recognise her 100 per cent equitable interest and to decline to make orders conveying the legal interest in the property to her. She seeks appropriate consequential orders to that end. I am told that HomesWest, as the vendor is now called, would be prepared, although it is not a party to the litigation, to abide any order the court might make resolving the dispute between the parties which at the same time preserves their rights under the contract.

11 The defendant, on the other hand, as I have said, disputes the plaintiff's case as to when the defacto relationship terminated and he pleads that regardless of that dispute, it was at all times the common intention of the parties that the property, treated not only as a family home, but also as a joint investment, was to be jointly owned by them "as joint tenants". He pleads that both parties were entitled to reside at the property and it was their common intention and understanding that each would contribute to its acquisition, maintenance and upkeep to the best of their financial abilities.

12 By a pleading which the plaintiff accepts as amounting to a counterclaim, the defendant seeks a declaration that the parties be recognised as the joint beneficial owners of the property and in lieu of partition, he asks that it be ordered under the Property Law Act, s 126 that the property be sold and the net proceeds divided equally between the parties. In addition, in what is simply a prayer for relief, but is accepted by the plaintiff as constituting a claim, the defendant seeks an order that he be paid the sum of $5,000 in lieu of the sale and equal division of the net proceeds of the sale of what he describes in the defence as the parties' "joint chattels" at the house.

13 To complete the reference to the pleadings I should deal with the plaintiff's reply and defence to counterclaim which, the defence having been amended by my leave, but only on 12 October 2000, was filed only

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on 17 October 2000 about a week prior to the trial. In this document the plaintiff raises the assertion that the defendant is estopped from asserting the defacto relationship continued until 1992 by reason, it is said, that in proceedings in the Family Court the defendant acknowledged that the defacto relationship with the plaintiff had terminated in April 1985 in an agreement registered with the Family Court of Western Australia on 1 February 1998. Further, it is said that the estoppel would at least arise out of the fact that in 1990 the defendant married and his marriage subsists. Further, it is said that the issue of the termination of the defacto relationship is res judicata, having been determined by Holden J, as his Honour then was, in a judgment given in the Family Court on 30 August 1996.

14 I propose to say no more about the pleading in the reply that a joint tenancy of the property between the plaintiff and the defendant was severed. The paragraph of the defence to which that pleading refers did not assert a joint tenancy and it is perfectly clear that, as a matter of law, there is none and there never has been a joint tenancy of the property. There is a defence to the counterclaim raised in respect of chattels which, so far as I need notice it, contains the assertion that in fact the only chattels in the property are those owned by the plaintiff because they were purchased by her, or given to her by the defendant. Finally, in respect of that claim, there is a reliance upon the Limitation Act 1935 as causing the claim to become statute barred and there is a reference to the doctrine of laches. I may need to touch upon these matters again in due course.

15 Upon the evidence which I accept, having regard to my views set out above in respect of credibility issues, the facts as I find them to be are as follows.

16 I have briefly mentioned the early history above. The parties commenced to live together in 1981. They lived in rented accommodation, including a flat in Balga. As the two children were born, they outgrew that accommodation and negotiated the purchase of a house and land in Balga with the State Housing Commission, as HomesWest was then called. At that time the defendant was in full time employment as a storeman or motor vehicle spare parts salesperson. He applied for purchase assistance and was ultimately successful.

17 The contract of sale of the property describes the purchasers as joint tenants. The purchase price was $31,900. There was a deposit of $1,500. The parties applied for a grant under the first home owner's scheme. They received the sum of $3,500 initially and a further $2,750 was to be paid

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periodically over the next five years. The $3,500 they received was applied to the payment of the deposit and fees of about $500, leaving a balance of just under $1,500. That sum was spent on the property and basic furniture. I accept that when the parties moved in there were no light fittings, window treatments, carpeting or any furniture and the grounds of the property appear to have been no more than a sandy waste with no driveway, carport, exterior paving or garden.

18 I should deal more particularly with the relevant features of the contract of sale. It is a terms contract requiring monthly payments of principal and interest at a rate which might be varied by the vendor from time to time. There are the usual obligations to insure and properly maintain the property, and to pay rates and taxes and all outgoings in respect of the property imposed on the purchasers. They covenant that the premises are only to be used as a private dwelling house. I have mentioned the effect of par 11 of the contract. I should set it out in full:

"11. Where the purchaser at any time -

(a) has paid a sum not less than one-tenth of the purchase money and all interest due on the purchase money up to such time;

(b) has observed and performed to the satisfaction of the Commission all the conditions contained in this Contract up to such time, and

(c) has paid the cost of preparation stamping and registering of the mortgage and transfer hereinafter in this clause referred to;

he may upon giving the Commission 28 clear days notice in writing of his intention so to do execute in favour of the Commission a mortgage of the premises in a form to be approved by the Commission for the balance of the purchase money interest and all other monies payable under this Contract and thereupon the Commission shall register at the Office of Titles Perth in the said State a transfer of the premises to the purchaser and the mortgage."

19 As I have said, the contract was executed on 20 July 1984. Having regard to its terms, it is clear that the parties did not purchase as joint tenants, although it was clearly the intention that upon qualifying

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themselves under par 11, they might take a transfer as joint tenants or, I suppose, if they preferred, as tenants in common. In one way or the other, they would, in my view, if they satisfied the pre-conditions in par 11, be entitled to a transfer which gave them individually equal undivided half shares in the property. Until that should occur, as I have already indicated, it is my view that they acquired no legal interest in the property, although equally clearly, having regard to the terms of the contract, it would be appropriate to find that their common intention was, and the fact was, that during the initial performance of the contract, each of the parties possessed an equitable interest in the property by way of an equal undivided share.

20 The initial rate of payment of principal and interest on the purchase price was $233.80 per month. It is accepted that for the period during which both parties resided in the home and maintained their defacto relationship until April 1985 when the defendant went to Tom Price to take up employment there (and without at this stage considering the situation as it applied after April 1985), the defendant kept up the monthly payments. The relevant period is accepted to be 8 months and, if the rate of payment remained unchanged, as to which there appears to be no evidence, he would have paid just over $1,870. I accept that during this period the defendant paid all the outgoings on the property. An informed guess might therefore suggest that he would have expended some $2,500 upon the acquisition and running of the house during this period.

21 I have mentioned that of the $3,500 lump sum payment by way of the first home owner's scheme, some $1,500 was expended jointly by the parties on furniture and the like. The balance of $2,750 was payable over 60 monthly payments. I am satisfied that money was received, but I am unable to find to what extent it was received and expended by either party. I suspect that the bulk of it would have been received at the property by the plaintiff, but the evidence does not establish to my satisfaction what she did with that money.

22 On the defendant's evidence, well over a year after April 1985, he was spending money on improvements to the home, both internally and externally, and upon the property generally, despite the fact that he was retrenched and became unemployed in September 1984 and was then unemployed until he commenced with Hamersley Iron at Tom Price as a trades assistant on 17 April 1985. Without detailing the period of time involved, the defendant said in evidence that he estimated that he had spent at least $15,000 on the property and its contents, borrowing some of

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the money from his family. He provides no supporting evidence and there is nothing to go on beyond his estimate.

23 The plaintiff disputes the accuracy of the defendant's evidence as to what was purchased and by whom. I need not go into the particulars. It is sufficient to note that she is prepared to concede that the defendant made some expenditure while she denies that other expenditure identified by him was actually incurred at all, or if incurred, was incurred by him. She gives herself as the source of the expenditure on some occasions. Suffice it to say that in my view the onus of establishing these matters relevant to what is conceded to be the defendant's counterclaim rests upon the defendant and I am unpersuaded to accept his evidence.

24 Of great importance to the cases of both parties are the events of early April 1985. I have mentioned that the defendant lost his position as a storeman in September 1984. He obtained the position as a trades assistant in Tom Price with the assistance of his brother and he commenced work there in April 1985. The plaintiff's evidence, which I accept, is that initially the defendant did not ask her and the children to accompany him. In an affidavit sworn for the purposes of Family Court proceedings, she makes a statement to the contrary, but she says it is wrong and she did not notice the error because the main topic of the affidavit was her response to the defendant's application made in July 1995 for access to, and contact with, the children. That was the case in which, in a judgment given on 30 August 1996, Holden J held that the relationship was effectively terminated in or about 1985 and certainly before 1990, having regard, among other things, to a maintenance agreement entered into by the parties in January 1988, which was the subject of enforcement proceedings later that year, a preamble to which recited the fact that the parties separated in April of 1985. His Honour made findings in no more concrete terms and it was not necessary for his judgment that he should do so.

25 I accept the plaintiff's evidence that when he obtained the position in Tom Price, the defendant told her that he was leaving her and the children because of their constant arguments and he told her that "I was on my own." She understood that to mean that their relationship was at an end, and that in my opinion proved to be the case. She immediately applied for a supporting parent benefit and received that allowance for the support of herself and the two children, but she also assumed from that time the responsibility for the periodic payments for their home, the outgoings such as rates, taxes, power and water and the responsibility to maintain herself and the children. It is clear that when the defendant moved to Tom

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Price it was not into married quarters, although he did not deny that such were obtainable.

26 The defendant says that the plaintiff was reluctant to go with him and only subsequently agreed to do so for a two week trial period, bringing the children with her. On the other hand, in an affidavit sworn by him on 19 August 1996 in respect of the proceedings in the Family Court to which I have referred, he deposes:

"I completely the reject the notion that I asked the [plaintiff] to come and live with me in Tom Price, on the basis that I was given only single accommodation quarters by the company and hence, would have been unable to accommodate the whole family, as accommodation is always very difficult to get in mining towns."

Although the defendant says he thought this was true at the time, I find it impossible to accept that explanation.

27 The plaintiff did agree to go to Tom Price for a trial period for a holiday, but in my opinion it is clear that it did not work out and she and the children soon turned to Perth where they resumed residence in the property and the plaintiff continued to assume the financial responsibilities to which I have referred. As I have already said, in my view, the defacto relationship was truly at an end at this time and so was the joint enterprise of the parties which was previously marked, so far as the property was concerned, by their common intention that they would acquire it, maintain it and improve it jointly for their mutual benefit as their family home.

28 I need not spend much time on the subsequent history. The defendant soon returned from Tom Price. He came back to the property and stayed there. He says a sexual relationship resumed. The plaintiff denies it and I accept her evidence. She says that she could not keep the defendant away. He continued to regard it as his right to come and go as he pleased, but thereafter he made only very occasional contributions of a financial kind. Indeed the plaintiff would deny that he made any such contributions. There is ample evidence of payments made concerning the house and some of it appears to support the view that it was the plaintiff who was dealing with these matters, although much of the material is simply non-specific and I do not shrink from the conclusion that my finding that it was the plaintiff who met the financial contributions required to continue the acquisition of the property and to maintain it, depends on my acceptance of her evidence.

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29 Certainly there is evidence that she continued to be in receipt of the supporting parent's benefit to which I have referred and in about 1987 the plaintiff applied in the Family Court for maintenance, particularly for the children. An order was made in the form of an agreement between the parties, registered in the Family Court on 1 February 1988, for a payment of $60 per week. Later, on the defendant's application, that was reduced to $40 per week. Later again, the plaintiff sought to have that payment doubled, but in that application she was unsuccessful.

30 The defendant says that the plaintiff had no need for the supporting parent's benefit because he was providing adequately for her financial needs throughout the whole period of the late 1980s and early 1990s. He says that she is a greedy woman and she sought maintenance from him simply because she wanted more money without being in real need. "She is never satisfied", he said. When it was put to the defendant that although in his 1985 tax return he had shown the plaintiff as his spouse and claimed for her, he did not do so in his 1989 return, the defendant clearly found himself in some difficulty. In the end he said that he had shown her as his spouse and claimed for her in the 1990 return and on occasions even thereafter. He had not done so every year because it was a relationship which was at times in place and at other times not, and also he was conscious that she was in receipt of social security benefits. His answers to the questions about this topic developed in such a way that I was satisfied that the story was changing as he thought of an explanation which might be palatable. This is one of those areas to which I previously referred where his evidence showed indications of recent invention.

31 The defendant fell into arrears in the payment of maintenance. Late in 1988 enforcement proceedings were required. During that year the plaintiff endeavoured to have the defendant assign to her his interest in the property, on which, with the assistance of her lawyers, she placed a value, in consideration of her willingness to suspend her insistence upon maintenance for a period. Later in 1995 in the Family Court proceedings she made a cross claim for a half share in the property. She thought then, she says, that that represented her entitlement. She now takes the view, she says, that her entitlement is to the whole of the property.

32 I take neither occurrence to be an admission that the defendant has an interest in the property, nor an admission as to the extent of any such interest. Certainly over the years that the dispute between the parties has continued, there have been occasions when the plaintiff was prepared to "buy the defendant out". She investigated with HomesWest how that might be done by refinancing the property to raise money to make a

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payment to the defendant, but in the end that came to nothing because she thought she may not be able to afford the increased payments which would be required and she did not want HomesWest "on the title". In my view the plaintiff's case is not damaged by this evidence.

33 Nor is it damaged by the evidence that contact between the two continued. The plaintiff says, and I accept, that she permitted the contact largely for the sake of the children whom she thought should know their father. They would go on outings and she allowed the defendant's visits to the house. However, to cut the story short, ultimately, she says because of the defendant's increasingly violent behaviour, in 1992 she obtained a restraining order against him which prevented him having contact with her and prevented him coming to their former home in which, of course, she continued to reside and for which she continued to pay. It is that event which the defendant says ultimately marked the termination of their relationship, contrary to his wishes, but that is not a view of the facts which I accept despite the evidence of occasional financial assistance provided to the plaintiff, and by other evidence which showed that in some respects at least, the defendant supported the children, eg by the payment of school fees and by various gifts. Ultimately, all that ceased, as I have said, contemporaneously with the plaintiff obtaining a restraining order against the defendant.

34 It is clear that the defendant soon gave up his job at Tom Price to return to Perth in about September 1985. He says that by then he had obtained a permanent position as a mail officer with Australia Post. He did resume residence with the plaintiff and he commenced to work in Australia Post in January 1986. I think he lived there from time to time in an atmosphere of increasing tension following the breakdown of the relationship between the parties until in early 1987 the defendant had a two month holiday overseas, travelling to Fiji and the USA. Thereafter, I do not believe that he resided at the property at all. He had bought a residential property in East Perth in August 1986 and he owned this property until he ultimately sold it in 1993. In July 1988 the defendant bought a further property in North Beach, which property he also sold in 1993.

35 As to the defendant's living circumstances during this period, however, apart from my acceptance of the evidence of the plaintiff, I am uncertain what the position was. It appears that he again took leave from Australia Post and travelled overseas to Pakistan from June to August 1989. There he contracted to marry. It was an arranged marriage, ultimately solemnised on 20 June 1990. At the completion of that process

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the defendant took his new bride to the plaintiff and the property and sought to move in. Being an adherent of the Muslim faith, the defendant put to the plaintiff that she could regard it as effectively a polygamous marriage. She resisted the notion and it did not happen. The defendant remains a married man and by his union with his wife he now has three children. None of that to my mind is consistent with the case advanced by the defendant that his relationship with the plaintiff and their joint enterprise in relation to the acquisition and maintenance of the property continued until 1992.

36 I should note in passing from this topic that the defendant was cross-examined to suggest that in his evidence-in-chief, his written statement, he intimated that he had put pressure on the plaintiff and the children to vacate the property so that he might take up residence there with his new wife. The defendant denied in evidence that he had put any pressure on the plaintiff of that kind, recognising, in my opinion, an inconsistency in that notion with his case. When pressed, he shrugged it off, observing that "it is just words". To my mind that was an observation which was rather indicative of the defendant's attitude that he would say what needed to be said to advance his case as he conceived it to be.

37 Finally, with respect to factual matters, I note that the defendant's evidence was that his employment with Australia Post ceased in 1993 when he was injured at work. He has now been certified as incapacitated for work and receives an appropriate social security allowance. Thereupon, finally, at the beginning of 1995, the operation of the maintenance order currently in force was terminated and the obligation to pay arrears was discharged.

38 The property itself has presently an agreed value of $115,000. I am not persuaded, as I have said, that there would now be anything in the way of jointly provided chattels of any sufficient value to affect the total figure. On the basis of the evidence before me, which goes as far as September 2000, I would expect that the balance outstanding of principal and interest would be in the region of $20,500. The plaintiff continues to make payments at the rate of $250 per month.

39 It is quite impossible for me to make any sensible calculation of what she has paid in total directly upon the acquisition of the property, in respect of outgoings of various kinds and its maintenance and upkeep. But from May 1987, two years after I have found that the plaintiff assumed the responsibility to make the payments of principal and interest required under the contract of sale, until September 2000, the records

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show that she paid $41,143 for that commitment alone. Having regard to that and what must additionally have been expended, as described by the plaintiff, otherwise generally upon outgoings in respect of the property and its maintenance as a dwelling house, the plaintiff must have spent well in excess of $50,000 on the property, and given my view that the defendant has established expenditure of no more than $2,500 of a like kind, to conclude that he has contributed 5 per cent of the total expenditure directly on the acquisition and maintenance of the property would be generous in my view.

40 A number of the questions of law debated by counsel may, in my respectful opinion, be disposed of shortly. The defendant contends that in his favour an assessment should be made of the value to the plaintiff of the benefit of her occupancy of the property to the exclusion of the defendant over the lengthy period during which this litigation was not instituted and then during the time it took for the matter to be brought to trial. However the plaintiff has, on my finding, paid all relevant outgoings during the period in question and so it is by her efforts that the parties' contractual right to occupy the premises as a dwelling house has been maintained. That the defendant has for the better part of the period in question been excluded from occupancy, results from the termination of their relationship upon his abandonment of it. It would be entirely inappropriate in those circumstances, where the plaintiff has not in any sense wrongfully excluded the defendant from the use of the property, that she should be regarded as liable for occupation rent: cf Scapinello v Scapinello [1968] SASR 316, 320; Carkeek v Tate-Jones [1971] VR 691, 702.

41 On the central factual issue of when the defacto relationship terminated and when there was terminated with it the common enterprise and intention to acquire, maintain and improve the property as a jointly owned family home, in my opinion no question of issue estoppel arises. In fact, Holden J, in the Family Court, did not determine either of these issues in favour of April 1985 in his Honour's judgment delivered on 30 August 1996. The issue is therefore not res judicata. The reference to this question in the preamble to the maintenance agreement registered in February 1988 does not in my opinion even constitute an admission of fact on the part of the defendant. Nor in the circumstances does his marriage in June 1990 constitute any admission of the fact of the termination of the defacto relationship and, more importantly, the conclusion of the joint enterprise with respect to the property, necessarily of itself or in the circumstance for which the defendant contends that he would regard it as entirely possible that he might marry and continue to

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maintain a pre-existing defacto relationship. Further, it is not necessary to address these issues because on the evidence which I have accepted, I have found the facts to be as the plaintiff asserts.

42 As I have already indicated, the parties to this litigation have no legal interest in the property as joint tenants, tenants in common, or otherwise. The question of the conduct necessary to sever a joint tenancy simply does not arise, although it has been pleaded and was argued. Nor is it necessary to deal with any issues of law which are said to arise upon the defendant's counterclaim which, in my view, is unsustainable in respect of an asserted interest in domestic chattels.

43 As I have already said, the parties jointly possess an equitable interest in the land arising out of their capacity under cl 11 of the contract of sale to call upon HomesWest to convey the legal estate in the property to them as joint tenants in equal undivided shares, giving a mortgage over the property for the balance of the purchase money and interest which remains payable under the contract. The question then is whether upon the declaration of that equitable interest, no further action should be taken by the court, as is the contention of the defendant, or whether, as the plaintiff asserts, it should be declared that the defendant's interest is held in trust for her in its entirety or in proportion to their respective payments made towards the acquisition of the equitable interest by way of an undivided share in the property to which I have referred. That is a claim for a declaration that a constructive trust arises in respect of the equitable interest of the defendant in the property.

44 For the defendant then, it is asserted that the respective equitable interests of the parties arising out of the capacity to call upon the vendor to convey the land to them in equal undivided shares accords with the common intention of the parties that the property was to be acquired by them jointly and equally. On the other hand, the plaintiff relies, in my opinion, upon the notion of a constructive trust in the sense to which Deane J referred, with the agreement of Mason CJ, in Muschinski v Dodds (1986) 160 CLR 583 at 614 when his Honour said:

"Viewed in its modern context, the constructive trust can properly be regarded as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle."

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45 There are two features of that statement of the law to which I would draw attention in the context of this case. The first is that the constructive trust may be imposed by equity regardless of whether or not that would be in accord with the result intended by any or all of the parties involved. The case of Kais v Turvey (1994) 11 WAR 357 is a good example of a constructive trust imposed directly contrary to what was found to be the common intention of the parties.

46 The second point is that the constructive trust will not be imposed by law whenever fairness or justice or good conscience might, according to the idiosyncratic personal views of the particular Judge, be held to require it. Its imposition depends upon the application of accepted equitable principle, although, of course, as Deane J said in Muschinski at 616, notions of fairness and justice are bound up in recognised equitable principles. But the particular principle identified by Deane J, with the agreement of the other members of the court in Muschinski, was the notion of unconscionable conduct. At 619 - 620 his Honour said that the principle of unconscionable conduct:

"…operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do… ."

47 That statement of general principle was expressly approved by Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner (1987) 164 CLR 137. The observations of their Honours in that case make it clear that whether the imposition of a constructive trust is grounded in the equitable doctrine of unjust enrichment, or in the notion of unconscionable conduct, it has sufficient flexibility to support the making of orders required to bring about a result which is in accord with the true demands of equity in the case before the Court.

48 Applying those principles to this case, I note that I have found that at an early stage, in April 1985, the relationship of the parties and their common intention that the property would be acquired, maintained and

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improved as a joint asset of their relationship broke down, certainly without attributable fault on the part of the plaintiff. Thereafter, in my opinion, having regard to the conclusion that it fell upon the plaintiff to maintain the parties' equitable interest in the land, it would be unconscionable that the Court would merely declare that each party's interest was that originally intended, an equal undivided share in the property.

49 Nor is this a case where constructive trusts might be said to arise in relation to the parties' equitable interests in the land in proportionate to their contributions to the acquisition, maintenance and improvement of the property. There is an extreme imbalance in those contributions and, as I have found, the defendant's contributions to the extent that I have found they were made, were made before the breakdown of the joint enterprise concerned with their equal acquisition of the property. Thereafter the maintenance of that joint equitable interest was entirely the product of the expenditure and effort of the plaintiff.

50 In my opinion, in those circumstances, it would be unconscionable and the defendant would be unjustly enriched by a decision which maintained, contrary to the facts as I have found them to be, the continuation of the joint endeavour and joint undivided equal interests in the property. In my opinion equity demands in this case the declaration that the equitable interest of the defendant be held in trust for the plaintiff following the breakdown of their relationship and their joint endeavour. It was entirely by her efforts that their joint equitable interest was maintained.

51 I am prepared to make orders which would convert that equitable interest of the plaintiff, as I find it to be, into a legal interest in the whole of the land upon the defendant being paid out his contribution, which I have valued at 5 per cent of the estimated total contribution of the plaintiff. That would amount to a contribution of rather less than 5 per cent of the total combined contribution to the acquisition, maintenance and improvement of the property of both parties. Bearing in mind the agreed value of the property, in my opinion, the defendant should be paid the sum of $5,000 by way of recompense for his contribution.

52 In the result, the defendant will receive the benefit of a share in the accretion in value of the property, but it is of course only a small share, and I think it is appropriate that there be recompense for the minor extent to which he contributed to the property as it is today. On the other hand, I

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have not endeavoured to make any adjustment for the fact that the overwhelming proportion of the defendant's contribution was made at the very outset of the process of acquisition of the property, some 15 years ago. There has been delay on both sides in resolving the impasse between these parties, the causes of which I need not discuss here. I am satisfied that without necessarily attributing fault to the inaction of the parties, both have been responsible for such delay as has occurred.

53 In the orders which I propose it only remains then that I should bear in mind the need to preserve the interest of HomesWest. The substance of the orders I propose is as follows -

(1) The plaintiff and defendant are beneficially entitled in equal undivided shares to the property at 12 Skelwith Close, Balga, more particularly described as Lot 261 on plan 14352 and being the whole of the land comprised in certificate of title, vol 1656, folio 639.

(2) The beneficial entitlement of the defendant therein is held in trust for the plaintiff.

(3) The State Housing Commission (described as HomesWest if that is now the title of that authority) may be called upon by the plaintiff to transfer the property to her and that transfer shall be registered accordingly, subject to


(a) the plaintiff executing in favour of the Commission a mortgage of the property in the form approved by the Commission to secure the payment of the balance of the purchase price and interest thereon which may be or become due under the contract of sale of the property dated 20 July 1984, and

(b) the payment by the plaintiff to the defendant of the sum of $5,000 or the making of satisfactory arrangements for the defendant to be provided with that sum.


I will hear the parties further upon the final form of the orders which should be made.