Whitehead v Pilgrim

[1999] WASC 25

WHITEHEAD -v- PILGRIM [1999] WASC 25

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 25
Case No:	CIV:1071/1997	Heard:	1,2 & 3 FEBRUARY 1999
Coram:	COMMISSIONER KENNETH MARTIN QC	Delivered:	18/05/99
No of pages:	23	Judgment Part:	1 of 1
Result:	Judgment for plaintiff
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Parties:	NOLA KAYE WHITEHEAD GEOFFREY JOHN PILGRIM
Catchwords:	Equity Resulting trust De facto relationship Constructive trust Joint tenancy Mortgagor obligations Unconscionability Chattels Relief
Case References:	Atkinson & Atkinson v Festic (1990) DFC 95-089 Calverley v Green (1984) 155 CLR 242 Thompson v Winter, unreported; SCt of WA; Library No 950644; 28 November 1995 Thompson v Winter, unreported; SCt of WA; Library No 950710; 20 December 1995 Allen v Snyder (1977) 2 NSWLR 685 Australia and New Zealand Bank Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 Bannister v Bannister [1948] 2 All ER 133 Baumgartner v Baumgartner (1987) 164 CLR 137 Bennett v Taiura 15 FAMLR 317 Charles Marshall Pty Ltd & Ors v Grimsley & Anor (1965) 95 CLR 353 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Gillies v Keogh [1989] 2 NZLR 327 Gissing v Gissing [1971] AC 886 Giumelli v Giumelli & Anor (1996) 17 WAR 159 Grant v Edwards & Anor [1986] 1 Ch 638 Green v Green (1989) 17 NSWLR 343 Guthrie v Millar and Millar v Guthrie, unreported; SCt of WA; Library Nos 960663 and 970552 Hink v Lhenen (1975) 52 DLR (3d) 301 Kais v Turvey (1994) 11 WAR 357 Lipman v Lipman (1989) DFC 95-068 Mushcinski v Dodds (1985) 160 CLR 583 Ogilvie v Ryan [1976] 2 NSWLR 504 Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221 Pettitt v Pettitt [1970] AC 777 Puie v The Public Trustee of Queensland (1986) DFC 95-026 Re Spears (1974) 40 DLR (3d) 284 Sabemo v North Sydney Municipal Council [1977] 2 NSWLR 880 Shephard v Cartright [1955] AC 431 Stinchcombe v Thomas [1957] VR 509 Stowe v Stowe (1995) 15 WAR 363 The Commonwealth v Verwayen (1990) 170 CLR 394 Waltons Stores (Interstate) Ltd v Maher & Anor (1987-88) 164 CLR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WHITEHEAD -v- PILGRIM [1999] WASC 25 CORAM : COMMISSIONER KENNETH MARTIN QC HEARD : 1,2 & 3 FEBRUARY 1999 DELIVERED : 18 MAY 1999 FILE NO/S : CIV 1071 of 1997 BETWEEN : NOLA KAYE WHITEHEAD

Plaintiff

AND

GEOFFREY JOHN PILGRIM
Defendant

Catchwords:

Equity - Resulting trust - De facto relationship - Constructive trust - Joint tenancy - Mortgagor obligations - Unconscionability - Chattels - Relief

Legislation:

Result:

Judgment for plaintiff

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Representation:

Counsel:

Plaintiff : Mr H Moser
Defendant : Mr P Ward

Solicitors:

Plaintiff : Paterson & Dowding
Defendant : Peter Ward

Case(s) referred to in judgment(s):
Atkinson & Atkinson v Festic (1990) DFC 95-089
Calverley v Green (1984) 155 CLR 242
Thompson v Winter, unreported; SCt of WA; Library No 950644; 28 November 1995
Thompson v Winter, unreported; SCt of WA; Library No 950710; 20 December 1995


Case(s) also cited:
Allen v Snyder (1977) 2 NSWLR 685
Australia and New Zealand Bank Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Bannister v Bannister [1948] 2 All ER 133
Baumgartner v Baumgartner (1987) 164 CLR 137
Bennett v Taiura 15 FAMLR 317
Charles Marshall Pty Ltd & Ors v Grimsley & Anor (1965) 95 CLR 353
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Gillies v Keogh [1989] 2 NZLR 327
Gissing v Gissing [1971] AC 886
Giumelli v Giumelli & Anor (1996) 17 WAR 159
Grant v Edwards & Anor [1986] 1 Ch 638
Green v Green (1989) 17 NSWLR 343

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Guthrie v Millar and Millar v Guthrie, unreported; SCt of WA; Library Nos 960663 and 970552
Hink v Lhenen (1975) 52 DLR (3d) 301
Kais v Turvey (1994) 11 WAR 357
Lipman v Lipman (1989) DFC 95-068
Mushcinski v Dodds (1985) 160 CLR 583
Ogilvie v Ryan [1976] 2 NSWLR 504
Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221
Pettitt v Pettitt [1970] AC 777
Puie v The Public Trustee of Queensland (1986) DFC 95-026
Re Spears (1974) 40 DLR (3d) 284
Sabemo v North Sydney Municipal Council [1977] 2 NSWLR 880
Shephard v Cartright [1955] AC 431
Stinchcombe v Thomas [1957] VR 509
Stowe v Stowe (1995) 15 WAR 363
The Commonwealth v Verwayen (1990) 170 CLR 394
Waltons Stores (Interstate) Ltd v Maher & Anor (1987-88) 164 CLR 387

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1 COMMISSIONER KENNETH MARTIN QC: Regrettably this is yet another case where parties to a terminated de facto relationship are forced to litigate in the Supreme Court over a property dispute which raises intricate equitable principles concerning resulting and constructive trusts. The financial value of the claims are, by Superior Court standards, only modest, although they are of course, of vital significance to the parties. The parties have been forced to litigate in the Supreme Court, at significant personal expense, by reason of the continued absence in Western Australia of legislation which regulates in orderly fashion the financial affairs of parties to a relationship other than a relationship of marriage.

2 Nola Whitehead and Geoff Pilgrim, the plaintiff and defendant respectively in this action, are presently the joint registered proprietors of a house and land at 29 Kexby Street, Balcatta (“Kexby Street”). Towards the end of 1990 they commenced a de facto relationship which lasted until early 1996. In July 1992, they took a joint transfer of Kexby Street from the Rural & Industries Bank of Western Australia (“the R & I Bank”) which was exercising its power of sale as mortgagee in respect thereof. The Certificate of Title records that they became registered as co-proprietors on 27 July 1992 and that a first mortgage over the property was registered in favour of the R & I Bank on the same day.

3 Subsequently, that first mortgage to the R & I Bank was discharged on the 4th of February 1994, but replaced on the same day by a new first mortgage in favour of National Australia Bank Limited. There are no other recorded encumbrances against the title. Mr Pilgrim and Ms Whitehead lived at Kexby Street from July 1992 until February 1996, when their relationship ended. Over that period, they shared in all respects a full de facto relationship, occupying the premises in company with Ms Whitehead’s two daughters from prior relationships (Tammy and Chantelle) and Mr Pilgrim’s daughter Erin, from a prior de facto relationship.

4 In these proceedings, both parties seek equitable relief, essentially in relation to the present joint ownership of Kexby Street, but also concerning an array of goods (ie chattels) acquired over the period of the relationship.

5 Mr Pilgrim contends for a resulting trust in his favour in respect of the undivided legal half interest now held by Ms Whitehead as a joint tenant in respect of Kexby Street. His contention relies upon the equitable principle concerning circumstances where parties each legally own

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property, but where one of the parties has in fact contributed the whole, or a significant component, of the purchase price for the acquisition of property.

6 It is convenient for present purposes to summarise this equitable principle by reference to the joint judgment of Mason and Brennan JJ (as their Honours then were) in Calverley v Green (1984) 155 CLR 242 at 255:

“Equity presumes a trust in favour of the person who contributes the whole of the purchase price when the property is conveyed into the joint names of himself and another … though the strength of the presumption varies from case to case … and may be confirmed, rebutted or qualified by evidence of his intention …”

7 One of the situations where a presumption of a resulting trust will not arise, is where the financially non-contributing joint tenant is the wife of the joint tenant who has contributed all or most of the purchase price. This exception is referred to as the presumption of advancement. However, the High Court in Calverley v Green has held by a majority, that in de facto relationships there is no presumption of advancement, as there is in the case of marriage. This point was explained succinctly by Ipp J in Atkinson & Atkinson v Festic (1990) DFC 95-089 at 76,179:

“In other words, the presumption of a resulting trust – where a contribution of the purchase of property is made by one joint tenant alone or where contributions are made in proportions that are not equal – is not rebutted merely by the fact that the joint tenants live together in a de facto relationship.”

The presumption of a resulting trust is itself capable of being rebutted by evidence that one joint tenant intended to give the other joint tenant a beneficial interest in the property; again see Ipp J in Atkinson (supra) at 76,179, and Gibbs CJ in Calverley v Green 155 CLR at p246.

8 In the circumstances of the present case however, any potential presumption of resulting trust would need to be grounded upon showing that there has in fact been an unequal financial contribution made towards the acquisition of property. That is the first issue in the present proceedings.

9 Mr Pilgrim contends that it was he who made the sole or significant financial contribution towards the purchase price of Kexby Street. On the

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other hand, Ms Whitehead contends that her financial contribution towards the acquisition of Kexby Street was essentially equal to that of Mr Pilgrim. On her case, no presumption of resulting trust in his favour could ever arise.

10 But, Ms Whitehead goes further to contend that in any event, her overall continuing contribution throughout the course of their mutual relationship was such that there exists evidence capable of rebutting any presumption of resulting trust in favour of Mr Pilgrim. She contends further and in any event, for a constructive trust in her favour to the extent of a beneficial one-half interest in Kexby Street, or alternatively that under general principles of unconscionability, or unjust enrichment, she has attained rights to an equal one-half interest in Kexby Street and some of its contents.

11 So, the first question is to determine whether the respective financial contributions of the parties toward the acquisition of Kexby Street were equal or unequal, in the eyes of the law.

The Loan from the R & I Bank

12 According to Mr Pilgrim, it was he who first noticed the property at 29 Kexby Street, Balcatta. He says he had noted an advertisement in the Sunday newspaper in 1990 and drove straight around on his own to look at the property. He noted that it needed a lot of work, but could see its potential. He then returned to tell Ms Whitehead that he intended purchasing this property with a view to living there. According to Mr Pilgrim, they both then drove to the property to mutually inspect the house and surrounds. Ms Whitehead gives a somewhat different version of events, but in the view that I take of things, the issue of who saw the property first is irrelevant.

13 Mr Pilgrim’s bank was the National Bank at the Leederville Branch. He says that shortly after seeing Kexby Street, he met with and had a conversation with the Manager, Mr Mackie, with a view to securing finance. Mr Mackie, whilst not rejecting Mr Pilgrim’s foreshadowed home loan application, nevertheless indicated to Mr Pilgrim that there were doubts about whether a loan would be granted. The outcome of the meeting with Mr Mackie was inconsequential. There is also a dispute as to whether Ms Whitehead was present at this meeting, but again, in the view I take of things, that does not matter.

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14 Mr Pilgrim next had a discussion with the estate agent handling the sale of Kexby Street. The agent suggested that Mr Pilgrim approach another bank. Subsequently, this led to Mr Pilgrim approaching the Adelaide Terrace Branch of the R & I Bank. There ensued a typical discussion of Mr Pilgrim’s housing loan needs as well as his business and other financial details. Mr Pilgrim was told that his application was “a little bit tight”.

15 It is not in dispute that Ms Whitehead was present during these discussions with the R & I representative. On Mr Pilgrim’s version of events, a representative to whom they were speaking asked him a question, using words to the effect “What about your girlfriend, does she work?” In response Mr Pilgrim replied “She worked for me.” The R & I Bank representative responded “Well that’s all right put her on the application as well and there will be no problems.” The representative had apparently been aware that Ms Whitehead had been receiving, at the time, payment as an employee of Mr Pilgrim’s business in the amount of $108.99 less tax of $2.99, being $106.00 nett per week.

16 So it was that a joint loan application came to be made to the R & I Bank by both Mr Pilgrim and Ms Whitehead. The loan application was eventually approved.

17 A contract of Offer and Acceptance for the sale and acquisition of Kexby Street was introduced into evidence. That offer appears to have been accepted in early July 1992. The named purchasers are identified to be Mr Pilgrim and Ms Whitehead jointly. The document discloses a purchase price of $82,000, payable by deposit of $8,200, with the balance payable at settlement. That document also indicates that the offer was subject to finance, being a loan from the R & I Bank in the amount of $77,000. Subsequently, it seems that the R & I Bank approved a loan for only $74,000. Nevertheless the transaction went ahead.

18 It is an uncontested fact that R & I Bank’s eventual loan of $74,000, was made not to Mr Pilgrim alone, but rather to Mr Pilgrim and Ms Whitehead jointly. Thus, she was in every legal sense, for this loan of $74,000, as liable in law for its repayment as Mr Pilgrim. Should any default have been made in rendering proper repayment of the loan to the Bank, say for instance, had Mr Pilgrim died, then Ms Whitehead would have been fully exposed to the Bank. Their joint liability to the Bank for repayment of the loan is of significance. It is central to rejecting Mr Pilgrim’s submission that it was he alone who provided the purchase price for the acquisition of Kexby Street.

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19 The present case bears some close similarities to the facts of Calverley v Green. There, a property was acquired in joint names by a de facto couple. As is the case here, some loan money was raised and was secured by a mortgage for which Mr Calverley and Ms Green were both jointly and severally liable to make repayments to the lender. However, it was accepted between them that only Mr Calverley in fact would meet mortgage repayments, as he in fact duly did. Mason and Brennan JJ said of this arrangement at pp257-258:

“It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the mortgage price is borrowed. In this case, the price was $27,250, of which $18,000 was borrowed from the mortgagee by the plaintiff and the defendant jointly. The balance was paid by the defendant out of his own funds, being part of the proceed of the sale of the Mt Pritchard property. Thus the plaintiff and the defendant both contributed to the purchase price of the Balkam Hills property. They mortgaged that property to secure the performance of their joint and several obligation to repay principal and to pay interest. The payment of instalments under the mortgage was not a payment of the purchase price but a payment towards securing the release of the charge which the parties created over the property purchased. We would agree with the view expressed by the English Court of Appeal in Crisp v Mullings [1976] E.G. 730 at p733, a case in which the material facts are not distinguishable from the present: ‘the situation, in our view, is that the defendant does not establish that he alone provided the purchase price, any more than he would have, had the whole price been provided by joint mortgage; and the resulting trust of the whole is therefore not established.’

As both parties contributed to the purchase price, there could not be a resulting trust in favour of the defendant alone. …”

20 So, applying Calverley v Green to the present circumstances, the joint loan funds of $74,000 which were applied towards the acquisition of Kexby Street, are in law, to be treated as an equal contribution by Mr Pilgrim and Ms Whitehead towards the purchase price of $83,000, notwithstanding that, as I find, the burden of meeting the mortgage
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repayments was mutually envisaged to be met (barring unforeseen circumstances) by Mr Pilgrim.

21 During the course of their de facto relationship, this loan from the R & I Bank was repaid in full in early 1994. The mortgage to the R & I Bank was discharged. At the same time, a new joint loan was taken out on 4 February 1994 from the National Australia Bank, this time for some $65,000.

22 Furthermore, in the context of funding improvements to the house at Kexby Street including a large games room, patio, pergola, underground swimming pool and outdoors area, Mr Pilgrim and Ms Whitehead once again approached the National Bank in mid December 1994, seeking an increase in their joint loan by a further $20,000, thus increasing their loan to $85,000. Fresh loan and mortgage documentation was again drawn up, and signed by them both. It recorded their co-equal responsibility as joint borrowers for the repayment of the fresh loan secured by first mortgage over Kexby Street.

23 It was also the case that in 1996, two further loans of $3,000 each (to fund ducted airconditioning and the installation of a solar heater at Kexby Street) were jointly taken out with the National Australia Bank. These further borrowings, of in aggregate $6,000, were, once again, made by Mr Pilgrim and Ms Whitehead jointly. They each took equal legal responsibility for the repayment of these further loans, once again secured against Kexby Street.

24 In essence therefore, the acquisition of Kexby Street took place in July 1992 at a price of $82,000 coupled with the usual acquisition costs such as stamp duty, adjustment of rates and taxes, utilities and the like, amounting to just over $1,000. The acquisition was substantially funded by the joint advance from the R & I Bank in the amount of $74,000. But obviously further purchase monies were needed beyond that loan.

25 In that respect, an amount of $3,000 was obtained and applied towards the purchase of Kexby Street, by (as I find) a loan to both Mr Pilgrim and Ms Whitehead from Ms Whitehead’s long-standing friend Jacqueline Edwards, and her husband. This $3,000 loan was made on an informal basis and was subsequently repaid by contra arrangements pursuant to which Mr Pilgrim did work for or provided motor parts or services in kind from his garage business to the vehicle or vehicles of Mr Edwards. Nevertheless, applying Calverley v Green, the fundamental point is that this loan of $3,000 was also jointly made to both Mr Pilgrim

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and Ms Whitehead. Thus, the contribution of the $3,000 towards the purchase price was again in law, an equal contribution. Thus, of the $83,000 (approximately) needed to initially fund the purchase of Kexby Street, there can be no real issue that, in the eyes of the law, a minimum of $77,000 was by loan funds, provided by the parties as an equal contribution.

26 As to the balance of the purchase price, Mr Pilgrim says, by his statement of evidence, that he had access to $2,000 of his own money, and that he borrowed some monies from his mother to an amount of $7,000. Ms Whitehead puts the matter a little differently by her statement in relation to the loan from Mr Pilgrim’s mother, when she says that “We were able to obtain a loan of approximately $7,000 from Geoff’s mother which was subsequently repaid.” Evidence about the loan from Mr Pilgrim’s mother was sparse. No documentation was produced. On balance, if necessary, I would find that a remaining $6,000 (approximately) towards the initial acquisition cost of Kexby Street (ie of $83,000) was provided by Mr Pilgrim alone. But in the scheme of things however, and more particularly in light of all subsequent repayments and refinancings by further mortgage and the drawing of further loans against Kexby Street, I do not regard a disparity of approximately $6,000 in the initial acquisition cost of Kexby Street as of any real significance. For all intents and purposes, I find that the financial contribution made towards the acquisition of Kexby Street was essentially equal by the parties.

27 From the above, upon facts largely undisputed, it will be seen that this is not a case where it can be concluded in law that Mr Pilgrim solely funded the acquisition of Kexby Street. Since I have found that both parties essentially contributed equally to the acquisition of Kexby Street, there can be no presumption of resulting trust arising against Ms Whitehead’s interest in Kexby Street in favour of Mr Pilgrim. That was the conclusion of Mason and Brennan JJ in Calverley v Green,where of a purchase price of $27,250, some $18,000 had been borrowed by a joint loan, ie, a roughly two-thirds joint contribution. In the face of a disparity (of one-third) in the financial contributions in Calverley v Green, the High Court there found it necessary to consider and apply a further equitable presumption. Their Honours, Mason and Brennan JJ, said this at p258:

“… it was necessary to consider another equitable presumption which arises from the unequitable contribution of the purchase price and which governs the present case unless some opposing presumption displaces it or the other facts of the case rebut or qualify it. Unless an equitable presumption of trust is displaced

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by a counter presumption or it is rebutted or qualified by evidence of the intention of the party paying the purchase price or of the common intention of the parties who contribute that price, the presumption determines the conclusion to be reached; Stewart Dawson & Co (Vict.) Pty Ltd v Federal Commissioner of Taxation; Carkeek v Tate-Jones. Once it was found that both parties had contributed to the purchase price, the conclusion had to conform to the relevant equitable presumption unless it was displaced, rebutted or qualified. When two or more purchasers contribute to the purchase of property and the property is conveyed to them as joint tenants the equitable presumption is that they hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless their contributions are equal: Notes to Lake v Gibson and Lake v Craddock in White & Tudor’s Leading Cases in Equity 9th ed (1928), Vol 2, p882; Rigden v Vallier; Robinson v Preston; Aveling v Knipe; Hill v Hill.”

28 But here, as I have found, unlike the factual circumstances of Calverley v Green, the financial contributions toward the initial acquisition of Kexby Street were essentially equal in amount by the parties. In any event, relatively soon after the acquisition, the initial loan was paid out and re-financed with the National Australia Bank as I have related. Subsequently, even further joint loans were taken out, to an extent of approximately $91,000.

29 Accordingly, it is my view that Mr Pilgrim and Ms Whitehead hold Kexby Street for themselves as tenants in common in equal shares without the imposition of any resulting trust in Mr Pilgrim's favour. This conclusion renders it strictly unnecessary for me to go further and consider additional arguments by Ms Whitehead directed towards rebutting presumptions of resulting trust, or seeking to establish a constructive trust in Ms Whitehead’s favour to an extent of a one half interest in Kexby Street. Nevertheless, as these issues were fully argued, it is appropriate that I address some brief remarks in deference to the arguments that were put to me.

The Nature of the Relationship

30 Nola Whitehead was born in November 1957 in Perth. She has two daughters from prior relationships, namely Tammy, born on the 11th of January 1975, and Chantelle, born on the 13th of October 1982. Tammy lived with Ms Whitehead until 1993. Chantelle still lives with her mother.

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31 In 1990, Ms Whitehead was living with both her daughters at Bunbury. She had been working permanent part-time as a barmaid and was receiving an income supplement from the Department of Social Security. She was also receiving child maintenance payments from Chantelle’s father in the amount of $260 per month. In late 1990, she moved to Perth with her daughters. She rented accommodation at 5 White Street, Osborne Park. At the time, her assets consisted of some household furniture and a Ford Fairlane motor vehicle. She had a small personal loan of $5,000, which she was paying off by instalments. To enable her to meet the rent at White Street, a acquaintance of hers, one Wayne Reid became a co-tenant. At the time, Mr Reid was a friend and employee of Geoff Pilgrim.

32 Geoff Pilgrim had known Ms Whitehead since sometime in the early 1980s. They had occasionally slept together. It was not however, until Ms Whitehead’s move to Perth in 1990, and while she was living at White Street Osborne Park, that a more permanent relationship developed. They had first met through a mutual interest in Speedway car racing which was held in Perth and sometimes at Bunbury. About the time Ms Whitehead moved to Perth in 1990, Mr Pilgrim was having difficulties within another de facto relationship in which he had been living for approximately 12 years. Over that period, he had been living with a Ms Helena Halse. He described the 12 year relationship as then being “shaky”. Mr Pilgrim had moved out of mutually rented accommodation with Ms Halse, and was living at his place of business (garage) premises. His relationship with Ms Halse had produced a daughter, Erin, who by 1990, was eight years old. Coincidentally, Erin was about the same age as Ms Whitehead’s daughter, Chantelle. The deterioration of Mr Pilgrim’s relationship with Ms Halse meant that he was both living at and working from his garage business premises – whilst paying Ms Halse’s rent, utilities as well as child maintenance for Erin.

33 In 1990, Mr Pilgrim’s business was, and had been for some years, that of the operation of a mechanical repair garage which was closely identified with Mr Pilgrim’s prominent car racing activities at Claremont Speedway. Mr Pilgrim kept his Speedway cars on the garage premises, so that he could work on them in his spare time. Over the years, his business had been known by various trading names including Geoff Pilgrim Motors, G J Motors, B P Civic Service Station and more latterly, Geoff Pilgrim Racing. Proprietorship of the business, howsoever called, had always resided in Mr Pilgrim personally. The garage premises were located in Beaufort Street, Inglewood.

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34 Mr Pilgrim began his lifelong association with motor racing at an early age. He had left school after his 14th birthday, to start a mechanics apprenticeship so as to enable him to qualify as a mechanical tradesman. He began his own business whilst aged about 20 or 21, and had operated it continuously thereafter. In the main, the business was profitable.

35 In late 1990, Mr Pilgrim found himself spending more time with Ms Whitehead at White Street, Osborne Park. At about this time, Erin’s mother, Ms Halse, indicated to Mr Pilgrim that she wished Erin to live with him. Residence at a garage was obviously out of the question for both Mr Pilgrim and his eight year old daughter. This caused Mr Pilgrim to look about for suitable rental accommodation for himself and Erin, as well as for Ms Whitehead and her two daughters.

36 On 9 April 1991, Mr Pilgrim (alone) entered into a rental agreement in respect of a property at 34 Glenwood Way, Balcatta. He then took up occupation of those premises with Ms Whitehead together with Tammy, Chantelle and Erin. Mr Pilgrim paid all the expenses of renting, contributing $120.00 per week for food, and paying all utility charges including telephone accounts. There is no dispute that a full de facto relationship existed between Mr Pilgrim and Ms Whitehead at this time. Initially, Mr Pilgrim ran his garage business and Ms Whitehead looked after household duties. This included attending to the needs of Tammy, Chantelle and Erin. Ms Whitehead says, and I accept, that she loved and cared for Erin, as if Erin were her own daughter. She says that they were a “Speedway family”, and that she fully supported and encouraged Mr Pilgrim’s passion for Speedway and the considerable time commitment that this occupied in terms of Mr Pilgrim working on cars in preparation for racing and the like. This encompassed late work for Mr Pilgrim usually two evenings per week, and most of Saturday. During the Speedway season, car racing events were staged on Friday evenings in Perth, and in the “off season”, there was usually some Friday night socialising at Mr Pilgrim’s garage with his friends and colleagues, being persons generally with some interest in Speedway racing.

37 Ms Whitehead was a typist by training, but had not been engaged in that employment at the time she moved from Bunbury to Perth in 1990. Shortly after she commenced her relationship with Mr Pilgrim she began to attend very regularly at his garage, initially to be closer to him during the day. Whilst there, she tried to make herself useful around the garage tidying up, taking messages and running errands. She was not discouraged by Mr Pilgrim from doing so. Initially, she was not paid for work which she did at Mr Pilgrim’s premises. Ms Whitehead says she

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was happy to help because she loved Mr Pilgrim, and wanted to make a contribution to the family relationship which she had established with him. She says that subsequently a woman who had been employed doing clerical work at the business of Mr Pilgrim (Kerry Williamson) left and so, with Mr Pilgrim’s encouragement, Ms Whitehead assumed her clerical duties. It was thought, she says, that she would work only three days per week at the business, but she soon found that she was more constantly called up into the business on her days off and was eventually working full-time. There was a mild issue of disputed fact as to whether Ms Whitehead got on poorly with Kerry Williamson, or whether Ms Williamson merely decided that she wished to leave, so as to move her residence from Perth to Toodyay with her husband. It is unnecessary for me to form a view about this issue. Ms Whitehead did take over the clerical work of Kerry Williamson when she left, and by doing so she undoubtedly did make a valuable contribution as an employee towards the running of Mr Pilgrim’s mechanical repair business. She did the book work, ran errands as required, answered the telephone and generally made herself useful. I find (and it is not really disputed) that these services were freely, indeed gratefully, accepted by Mr Pilgrim.

38 Documentary evidence tendered at trial discloses that the business commenced to pay Ms Whitehead a gross salary of $108.99 per week (net $106 per week) as from the 25th of October 1991. A notation made in the relevant book (Exhibit 1A, p137) records, in the writing of Kerry Williamson, concerning Ms Whitehead that:

“Employed on 21/10/91 as casual clerical. General duties. Equals $12.11 per hour.

($12.11 x 9hrs = $108.99).”

Payment of this salary continued for some two years or so thereafter, until a period when the business began to do rather less well. At that time, she ceased to draw a wage, but was then given “housekeeping” monies of approximately $150.00 per week by Mr Pilgrim.

39 The domestic financial arrangements between them were that Mr Pilgrim “drew” $200.00 per week from the business for himself, but would pass over $150.00 of this to Ms Whitehead for “housekeeping”. During the time that she had been drawing a formal wage from the business of (net) $106 per week, Ms Whitehead says that Mr Pilgrim would “top-up” that net salary by a further $40.00 or so, to make up a figure of approximately $150.00. That sum would then be, in the main, fully expended as the weekly “housekeeping” for the family unit.
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40 After Ms Whitehead ceased to draw a wage from the business, Mr Pilgrim instead would pay over to her a full $150.00 per week. However, Ms Whitehead’s duties and commitment to the garage business on a weekly basis as an employee never really altered in substance. To the “housekeeping” monies of $150.00, Ms Whitehead would add other monies received in respect of the maintenance of Erin (approximately $80.00 per week), as well as Government Family Allowance payments receivable upon the basis of a family unit, comprising as it did at the time, Mr Pilgrim, Ms Whitehead, Erin and Chantelle. From these sources was generated a pool of funds which was expended in the weekly maintenance and running of the household at Kexby Street, Balcatta. It is not suggested that these funds were anything other than fully utilised. There is no suggestion that any party derived any savings, let alone substantial savings, from this pool of monies, which was essentially devoted to meeting household expenses on an ongoing basis.

41 There was some factual dispute raised about the precise number of hours Ms Whitehead actually worked in the garage business on a weekly basis. But it is not in any serious dispute that the contribution she did make at the business was regular, freely received and was of economic benefit to the business.

29 Kexby Street, Balcatta

42 As I have already mentioned, this acquisition occurred in 1992. It was made in a context which suited the domestic needs of all parties. Ms Whitehead undertook household duties including cooking, cleaning, decorating and attending to the needs of Chantelle and Erin. She conveyed the children to school by car, and in the main, picked them up each day from school. I find that she organised the childrens’ extra-curricular activities and spent considerable time each night with Erin assisting her in homework. I find that she made a significant contribution towards Erin’s schooling requirements by helping with homework. She facilitated Erin’s participation in a mathematics enhancement course (Kumon) which Erin took to sharpen her mathematical skills. Some dispute emerged at trial as to whether Erin was a child with “special needs” or not. Again, I do not find it necessary to resolve that issue. I do find that Ms Whitehead dedicated significant time most weekday afternoons to assisting Erin academically with her homework, as well as with Erin's emotional needs and problems. She did so on the basis that she regarded Erin as her own daughter and dedicated herself to assisting her to whatever extent was called for.

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43 I conclude that Ms Whitehead’s contribution to the family unit at Kexby Street was necessary, substantial, economically valuable, not to mention encouraged and freely accepted by Mr Pilgrim. That is not to deny an equally significant contribution by Mr Pilgrim. He made a vital contribution to the relationship as the “bread winner”. It is not in dispute that it was his efforts within his business that generated the funds (ie apart from maintenance payments and Government assistance) which paid the bills for this blended family. Mr Pilgrim’s financial contribution is undeniable as to meeting the rent at Glenwood Way and subsequently in meeting all (mortgage secured) loan payments for Kexby Street, Balcatta. Furthermore, Mr Pilgrim’s energy and effort was responsible for the building extensions and improvements which were ultimately carried out to Kexby Street. Mr Pilgrim’s trade connections through his business, with architects, bricklayers and various other trade persons allowed him to plan, progress and eventually implement most of the work necessary to be undertaken in order to build a large games room extension, a patio and pergola, and an outdoor swimming pool, all of which were progressively installed at Kexby Street after its acquisition.

44 Mr Pilgrim was a busy and diligent worker in his garage business which operated each day from 7.30am to 6.30pm. Furthermore as his hobby, he enjoyed working on speed cars at his garage after business hours. He regularly participated in Speedway racing events, all occupying a significant proportion of his recreation time. The family would, in the main, spend Sundays as a family day, generally choosing an activity which would allow them to spend time with the children. I should observe that Tammy, Ms Whitehead’s elder daughter, moved out of Kexby Street in approximately 1993.

45 To these facts need to be added all the circumstances I have already related whereby the first and ensuing loans to fund the acquisition and improvement of Kexby Street were jointly taken out. Such facts, to my mind, all go to prove a common intention of the parties by inference from their actions and conduct, to share equally in the acquisition and enjoyment of Kexby Street, Balcatta and its contents as a family unit. Such intention can be inferred from the joint acquisition of Kexby Street in the terms of the Offer and Acceptance, and from how all subsequent loan applications were jointly made. Ms Whitehead’s contribution towards the obtaining of the initial loan to purchase Kexby Street, Balcatta from the R & I Bank, was, I find, an essential one. Had it not been for her participating in the loan application with Mr Pilgrim, the acquisition of Kexby Street may not have occurred. Furthermore, I am satisfied on the evidence, that the family unit operating from Kexby

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Street, Balcatta, did so upon the basis of what was essentially a joint venture, in which Ms Whitehead and Mr Pilgrim each made his or her own equally valuable, but distinctly different contributions. Mr Pilgrim’s contribution I have identified, was mainly financial and physical (in relation to the improvement and extension work). Ms Whitehead’s contribution was different in character, but nevertheless of equal importance. She was the “glue” which keep the household running smoothly whilst Mr Pilgrim attended to the demands of his business and Speedway participation. Furthermore, Ms Whitehead contributed economically to the running of Mr Pilgrim’s garage business throughout the period of the de facto relationship. Upon cessation of the formal wage payment to her of $106 (net) per week by the business, she continued to effectively labour in the business as an employee doing the same work for no remuneration, save for a $150.00 “housekeeping” payment per week which was fully expended in the funding of the joint needs of the household. She did so gladly, in the spirit of a mutual endeavour which they then both enjoyed and pursued as a family unit.

46 In my view, the parties' contributions were made in circumstances where the state of the Certificate of Title for Kexby Street was also an accurate reflection of the equitable position between them. I conclude that the value of their contributions towards the acquisition, occupation, maintenance and running of Kexby Street, Balcatta was equal. Furthermore, I find on the evidence that in common parlance both parties orally referred to Kexby Street as “our house”, in speaking of their mutual residence, both as between themselves, and when speaking in the company of friends and third parties.

47 In the circumstances, I find that there was a common intention that 29 Kexby Street be held equally between them. Such a common intention would be sufficient to rebut any resulting trust had it otherwise been found to exist in favour of Mr Pilgrim in different circumstances. Nevertheless, my primary finding is of course, that no such resulting trust can be found on the present facts.

Termination of the Relationship and Chattels

48 According to Ms Whitehead, at the commencement of their de facto relationship in November 1990, she possessed “a house full of furniture and a Ford Fairlane motor vehicle”. She says Mr Pilgrim at the same time, owned only “some personal effects, a number of vehicles, a motor bike, a pool table, an upright freezer, and the business ‘Geoff Pilgrim Racing’”. Ms Whitehead ascribes the ultimate deterioration in the

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relationship to a serious car accident in which they were both involved in March 1994. She says that by late 1995, problems in the relationship were such that she had decided to separate. She initially moved into the back room of the house at Kexby Street whilst she was looking for suitable premises to rent. Once she had done so, she moved out, but shortly thereafter made arrangements to attend at Kexby Street with her sister and Jacquie Edwards to collect her things. It does not appear that she apprised Mr Pilgrim of her intentions in this regard, although he said that he had at the time suspected that she might return to the premises with a view to taking possession of some goods. It was because of this that Mr Pilgrim had, on 3 February 1996, arranged for his sister Judy to be in attendance at Kexby Street. Moreover, he had earlier made arrangements for the locks to be changed, unbeknown to Ms Whitehead.

49 Consequently, when Ms Whitehead arrived at Kexby Street with her friend Ms Edwards and another friend (and a trailer) on 3 February 1996, she was unable to enter the house. Her requests from outside to Judy to allow her entry, were denied. Something of a stand-off arose with Ms Whitehead and her colleagues effectively denied access to the premises, and with Mr Pilgrim’s sister remaining steadfast inside with all doors locked. Shortly afterwards, Mr Pilgrim arrived at the house and a rather tense discussion ensued as to what belongings Ms Whitehead would be permitted to take from the house. It appears from any version of these events that what ensued was stressful and emotional for all concerned.

50 Mr Pilgrim eventually permitted Ms Whitehead to have access to the home, but carefully watched what items were being removed to the trailer which Ms Whitehead and her colleagues had procured to assist in the exercise. According to the statement of evidence of Jacqueline Edwards, the situation was as follows:

“60. A number of items were already lying on the back lawn, the main items being the lounge and the washing machine.

61. Geoff opened up the house and walked around whilst Nola, her sister and I collected a number of things, being Chantelle’s furniture and personal effects, Nola’s bed, an old TV, the fridge, an old microwave and Nola’s personal belongings.

62. Geoff was hovering around telling us what we couldn’t take and abusing us.”

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51 According to Mr Pilgrim, Ms Whitehead took with her a refrigerator (which had been purchased by him using certain credits arising in his favour through an insurance claim), her bedroom suite, kitchen suite, lounge room suite, washing machine, her personal television and video and sound system as well as a computer system valued at about $500, which Mr Pilgrim had paid for, an unused cutlery set which Mr Pilgrim had purchased, a full set of stainless steel pots and pans which Mr Pilgrim had purchased, an oil painting purchased by Mr Pilgrim for $70, most of the good bed linen and an outdoor setting, including a large umbrella valued at about $600.

52 It is not in dispute that Ms Whitehead also kept a Magna sedan motor vehicle which she had purchased from the proceeds of the sale of her Ford Fairlane and which she had retained. During the course of the relationship the Magna sedan was extensively worked on at Mr Pilgrim’s garage and Ms Whitehead acknowledges that she has benefited financially from the addition of work carried out to the Magna, including the addition of power steering, new tyres, a reconditioned gearbox and a reconditioned engine.

53 Her claim in respect of chattels is brought on the basis that, putting the Magna sedan to one side, some 19 items of various chattels are identified by her as having been in one way or another acquired during the course of the de facto relationship. No evidence was adduced as to the value of the majority of these items. Ms Whitehead makes no specific detinue claim in relation to any particular item, but raises a global claim for a payment of $5,000 in respect of chattels.

54 Counsel for Ms Whitehead essentially relied upon a change in the level of the home contents insurance cover taken out by the parties with NZI Insurance over a two year period. In the first insurance period (August 1992 until August 1993), the contents insurance for the “situation of risk” (being identified as 29 Kexby Street, Balcatta) was $30,000. The level of the contents insurance was increased to an amount of $50,000 for the period August 1993 to August 1994. I am invited to infer from the increase of $20,000 as the sum insured for the contends in the respective periods, that the mutual value of the parties’ household contents had increased to a level of $50,000, and I am then asked to go further and infer that Ms Whitehead’s interest in mutually acquired chattels over the period of the de facto relationship would have been valued in the order of half, ie $25,000. I am then asked to conclude that, notwithstanding that no reliable evidence was led as to the value of all the items removed by Ms Whitehead from Kexby Street on 3 February 1996, that not less than $5,000 should be paid by Mr Pilgrim to compensate her for the remaining

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value of her interest in mutually acquired chattels not taken by her from Kexby Street at the termination of the relationship.

55 I find the state of this evidence as to the value of the various chattels to be most unsatisfactory. As I have said, no reliable evidence was supplied as to the value of the chattels removed from Kexby Street by Ms Whitehead. Reliance upon the contrasting the amounts of the “sums insured” in respect of home contents insurance is, in my view, inherently unreliable. That exercise takes no account of the potential for over or under insurance of home contents through this process. No evidence was led as to the basis upon which the estimate of the sum insured for each insurance period was arrived at. In the circumstances, I cannot ascribe any reliability at all, in my view, to such figures. The plaintiff carries the onus to satisfy me, on the balance of probabilities, as to the value of her interest in chattels, and I am really left at the end of this process in a position of being asked to embark upon an exercise in guess work. I am not prepared to accept that invitation. I reject the plaintiff’s claim to a global claim of $5,000 in respect of chattels.

Relief

56 The de facto relationship has now been terminated for some three years. Since that time, Mr Pilgrim has done further improvement and renovation work at Kexby Street including tiling the games room floor, installing a spa, tiling the bathroom, erecting a brick screen wall and paving the back of the house. These are all capital improvements to which Ms Whitehead acknowledges she has not contributed. Furthermore, he has, since separation, met all the mortgage repayments in respect of the joint loans taken out by them.

57 In Atkinson & Atkinson v Festic, Ipp J made a declaration that the plaintiffs and the defendants were tenants in common of the property in equal shares and ordered that the property be sold and the net proceeds be divided between the parties in equal shares.

58 In the present case, counsel for the respective parties have agreed that the value of Kexby Street as at 3 February 1996 was $154,000. Counsel for Ms Whitehead made it plain in opening that the only relief sought in relation to Kexby Street was in respect of one-half of the equity in the house and land as at 3 February 1996, after allowing for the repayment of the secured loan. The specific relief sought by the plaintiff was a declaration of trust in relation to one-half of the equity in the house and land with further consequential orders relating to procuring a

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discharge of Ms Whitehead’s obligations under the presently subsisting joint loans and mortgage taken out in respect of Kexby Street. Counsel for the plaintiff told me that such orders are cast following the lines of orders made by Murray J in Thompson v Winter, unreported; SCt of WA; Library No 950644; 28 November 1995 and Thompson v Winter, unreported; SCt of WA; Library No 950710; 20 December 1995. I am satisfied in the circumstances that in principle, such orders are appropriate, but with some adjustment by way of an equitable charge to secure Ms Whitehead’s interest in Kexby Street for a reasonable period pending, either payment to her of her interest in the property, or its sale. Counsel for the plaintiff also seeks interest for a three year period in respect of the value of the interest held in Kexby Street by Ms Whitehead. Since Ms Whitehead is not claiming the present value of a one-half beneficial interest in the house and land at Kexby Street as at the date of judgment, this is a case where it is, I think, appropriate to award interest, as claimed to compensate for the unrealised potential of the value of Ms Whitehead’s interest in Kexby Street over these years until trial.

59 In Atkinson v Festic, the relief encompassed a declaration as to a beneficial interest as at the date of trial and, so inherently embraced any increase in market value over the period between separation and judgment to date. Mr Moser has eschewed relief of that character, very properly, I believe, on the basis that the parties have indeed been separated for three years and that Mr Pilgrim has since that time met all commitments relating to Kexby Street and has of course made the further capital improvements to which I have referred.

60 As I have concluded that Ms Whitehead held a one-half beneficial interest in Kexby Street as at 3 February 1996, it is appropriate that interest pursuant to the provisions of s32 of the Supreme Court Act be awarded to her to compensate for the denial of her capacity to utilise the capital value of her beneficial interest in the property between a reasonable time after separation and the date of judgment. Thus, I think it appropriate that interest be awarded to commence three months after the date upon which Ms Whitehead removed her chattels from Kexby Street on 3 February 1996. In other words, interest will run from 3 May 1996 until judgment at the rate of eight percent (8%) per annum.

61 As to the value of her equity, the agreed valuation for Kexby Street as at 3 February 1996 was $145,000. The state of the loan to the National Bank as at 3 February 1996 was then $79,856.54 leaving a joint equity of $65,143.46. Fifty per cent of that figure is $32,571.73. I award interest at 8 per cent from 3 May 1996 until judgment.

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62 Subject to hearing counsel for the parties, I would propose to grant the following relief:

(1) Declare and order that:

(a) all that piece of land known as portion of Perthshire Location Au and being Lot 239 on Plan 8934 and being more particularly described in Certificate of Title Volume 1936 Folio 777 and more commonly known as 29 Kexby Street, Balcatta (“Kexby Street”) was as at 3 February 1996 held upon trust for the benefit of the plaintiff and the defendant as tenants in common in equal shares;

(b) an equitable charge does subsist in the plaintiff’s favour to the extent of securing the amount due to the plaintiff as referred to in para 2 of these orders – and which equitable charge shall have priority over all registered encumbrances over Kexby Street bearing a date later than 1 February 1999.


(2) Within 90 days the defendant:

(a) pay the plaintiff the sum of $32,571.73 plus interest at eight percent (8%) per annum as from 3 May 1996 until the date of payment to the plaintiff (“the Amount”); and

(b) procure a discharge of the plaintiff’s loan and mortgage obligations in respect of Kexby Street (more particularly in respect of Mortgage F442982 from the National Australia Bank Limited).


(3) Upon compliance by the defendant with order 2 above, the trust and equitable charge mentioned in order 1 above shall be determined and the property in Kexby Street shall vest in the defendant absolutely, but the plaintiff (at the expense of the defendant), shall take all such steps and sign all such documentation as shall be necessary to enable the interest in the property to be transferred absolutely to the defendant.

(4) In the event that the defendant does not pay to the plaintiff the Amount referred to in order 2 above within 90 days, Kexby Street is to be sold and the proceeds applied after first meeting all secured loan repayment commitments, next payment of the Amount and lastly as to the balance to the defendant, with the defendant bearing all costs of sale.

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(5) Declare and order that all chattel property currently in the possession of the plaintiff and which was removed by her from Kexby Street, Balcatta on 3 February 1996 do vest in her absolutely.

63 I will hear the parties as to the precise terms of the order and as to an appropriate order in relation to costs.