Winstanley v Bower
[2011] VCC 134
•1 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERICAL
FAMILY PROPERTY DIVISION
Case No. CI-10-01747
| KENNETH GORDON WINSTANLEY | Plaintiff |
| v | |
| LAURA JOSEPHINE BOWER | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17,18,19,20 & 21 January 2010 |
| DATE OF JUDGMENT: | 1 February 2011 |
| CASE MAY BE CITED AS: | Winstanley v Bower |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 134 |
REASONS FOR JUDGMENT
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Catchwords: PROPERTY LAW – Relationships Act 2008 – whether the parties entered into a domestic relationship – alternatively whether the defendant held monies on a constructive trust – alternatively a claim for monies had and received: section 45 (1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Jenkins | Huggins McIntyre |
| For the Defendant | Mr I Duffy | Keating Avery |
| HIS HONOUR: |
Introduction
1 Before the Court is a proceeding filed by the plaintiff pursuant to the provisions of the Relationships Act 2008 (“the Act”) by which he seeks a declaration that he entered into a domestic relationship with the defendant and is entitled to an alteration of property interests in his favour pursuant to section 45(1) of the Act.
2 Alternatively, the plaintiff pleaded that if there was no domestic relationship, then the defendant held monies belonging to him on a constructive trust, or as monies held and received.
3 Ms C Jenkins of Counsel appeared for the plaintiff, and Mr I Duffy of Counsel appeared for the defendant.
4 The plaintiff adduced the following evidence:
[1] Mr Gordon explained that the reason why his surname is different from the plaintiff is that he adopted a family name, that is, “Gordon”, and the plaintiff and his sister adopted another family name, that is, “Winstanley”.
• The plaintiff gave evidence and was cross-examined. • The plaintiff called his sister, Mrs S Winstanley, his brother, Mr D Gordon,[1] and his sister-in-law, Mrs D Gordon, who gave evidence and were cross- examined. • The plaintiff tendered his Court Book (“PCB”) comprising a body of documents divided by twenty tabs. 5 The defendant adduced the following evidence:
• The defendant gave evidence and was cross-examined. •
The defendant called Mr J Panlook; Mr R Johanne; Mrs B Mitchell; Mrs Wheeler, and her former husband, Mr M Bower.
• The plaintiff tendered a bundle of photographs: Exhibit 1; •
The defendant tendered her Court Books (“DCB”) comprising a body of documents divided into twenty-six tabs.
The Plaintiff’s Case
6 In the 1980s, the plaintiff was a taxi driver. In the course of undertaking his driving duties in the Albury/Wodonga area, he met the plaintiff. He did not meet the plaintiff again until about November 2004.
7 One day in November 2004, the plaintiff returned to the taxi depot. There was a telephone message left for him. He rang the number on two occasions. There was no answer. He said he later discovered that it was the plaintiff’s telephone number. He said that she had rung him “out of the blue”.
8 Some time in the latter part of 2004, the plaintiff’s second marriage broke down. He negotiated a settlement with his wife which entitled him to a payment of $53,154 . He left that marriage with a car, a caravan and sundry personal belongings. He took up residence in a caravan at a caravan park.
9 The plaintiff moved into the caravan park on 3 December 2004. He made contact with the defendant. It was during that conversation that the defendant offered to allow the plaintiff to move onto her property at 3159 Beechworth Road, Leneva. He took up the defendant’s offer and set up his caravan on the property. That occurred some time between 6 and 11 December 2004.
10 The plaintiff said that almost immediately after moving onto the defendant’s land he entered into a domestic relationship with the defendant. He moved into her house on the property at Leneva. He slept in her bed with her, and commenced a sexual relationship with her. He used his caravan to store his belongings. When asked how it was that a relationship of that kind commenced so rapidly, his only answer was that “it just happened”.
11 It was following the commencement of the domestic relationship that the dwelling became their permanent place of residence. They shared all of the domestic tasks necessary to conduct a household, and in all other respects they behaved as domestic partners.
12 Within a period of three months or so, the defendant informed the plaintiff that she not only owned the property at Leneva, but additionally three other properties which she had purchased with mortgage finance which were rented out. It was not long after that conversation that the plaintiff said that he entered into an agreement with the defendant to contribute his property settlement from his second marriage into a common pool of resource, and to see to whatever maintenance was required on the property at Leneva and the additional three properties. This was to become joint superannuation.
13 The plaintiff said that it was also agreed that if their domestic relationship failed, that the defendant would refund to him $60,000 which approximated to the total of the property settlement and other monies which he contributed to the domestic relationship.
14 The plaintiff said that there were a number of trips which he took with the defendant which were compelling evidence of the fact that they were in a domestic relationship.
15 The first trip which the plaintiff undertook commenced on 9 January 2005. He intended to drive his car and caravan to Queensland. The defendant accompanied him. The trip covered some three weeks.
16 The plaintiff said that they stopped off at the home of his brother and sister-in- law, Mr and Mrs Gordon, on the central coast of New South Wales. They stayed for three nights. They occupied the caravan in the driveway of the Gordon’s property.
17 Mr and Mrs Gordon gave evidence. They described the plaintiff and the defendant behaving as if they were “a couple”. They described the plaintiff and the defendant as being happy, engaging in frivolity, and joining them for meals. Furthermore, the plaintiff said that he travelled with the defendant, staying at the home of the defendant’s daughter for four days at Maroochydore, and at his son’s home in Bundaberg. They returned to the property at Leneva on 29 January 2005.
18 The next trip was to Tasmania. Mrs Winstanley organised a 60th birthday party for the plaintiff. She invited the defendant, although there was some doubt as to whether she sent a separate invitation to the defendant or only an invitation to the plaintiff which extended to the defendant.
19 Mrs Winstanley rented a caravan for the use of the plaintiff and the defendant during the time they were to stay in Tasmania. It was placed in her yard. She said that the plaintiff and the defendant slept in the caravan. They moved about her home during the time they stayed there. She was under the impression that they were a couple because of the way they behaved. Mr and Mrs Gordon attended the birthday party. Their observations of the plaintiff and the defendant were much the same as Mrs Winstanley’s.
20 Mr and Mrs Gordon travelled to the property at Leneva during a trip which they took along the Great Ocean Road. They travelled by car, towing their caravan. They both said that the plaintiff and the defendant moved in and out of the dwelling freely. They saw the plaintiff in the dwelling, using the facilities in the dwelling and moving about it in a fashion consistent with him living in the dwelling. They also saw him assisting in the preparation of meals. Mrs Gordon said that she saw the plaintiff and the defendant walk in and out of the master bedroom on two occasions. Mr Gordon said that on one occasion after he got up one morning he was aware that the plaintiff was still in bed in the master bedroom. Both Mr and Mrs Gordon said that they observed the plaintiff in the house, and on occasions sitting in a lounge room watching television where they also sat with the plaintiff and the defendant.
21 The next occasion when Mr and Mrs Gordon visited the property at Leneva was when they joined up with the plaintiff and the defendant in about March 2008 on their way to Mildura where they were all invited to attend a surprise birthday party for Mrs Winstanley on a houseboat.
22 Mr Gordon said that he had a conversation with the plaintiff on one of those two occasions when he and his wife visited the property at Leneva, and during that conversation he said that the plaintiff informed him that he had never been so happy. The clear inference which Mr Gordon drew from that conversation was that the plaintiff’s state of happiness was connected to his domestic relationship with the defendant.
23 Mr and Mrs Gordon said that on one of those two occasions the plaintiff took them on a tour of the dwelling, pointing out work which he said that he had undertaken on the dwelling. They both referred to the plaintiff being particularly proud of the construction of a bar he had made from a wine barrel. It was constructed with the doors and had a fridge inside it.
24 Mr and Mrs Gordon said that prior to heading off to Mildura they shopped together with the plaintiff and the defendant for supplies for the trip. They also stopped overnight on the way, occupying their respective caravans during that stop.
25 Mr and Mrs Gordon said that provision was made for the plaintiff and the defendant to occupy a lounge area on the houseboat. The lounge contained a double bed made up of separate beds joined together. Over the five days that the partygoers were on the houseboat, the plaintiff and the defendant occupied the lounge.
26 It was the evidence of Mr and Mrs Gordon that the plaintiff and the defendant behaved as a couple in all respects. They made physical contact with each other. They touched one another and gave each other hugs. The photographs produced by the plaintiff showed the plaintiff and the defendant wearing costumes as ‘Ma and Pa Kettle’, with the plaintiff sitting on the defendant’s knee, the defendant behind the wheel of the houseboat, then the plaintiff, the defendant and others sitting at a dinner table. Each photograph showed the defendant to be smiling, and in particular, in the photographs showing the plaintiff sitting on the defendant’s knee and at the dinner table.[2]
[2] PCB, tab 20
27 Mrs Gordon and Mrs Winstanley conversed with the defendant on the houseboat. One conversation which stuck in their minds was when they said the defendant was seriously affected by alcohol and commented on the plaintiff’s virility and his capacity to engage in sexual intercourse. They both said that she said something like “Kenny can’t get it up”. Otherwise they said that she was moody and disruptive, often interrupting while others were speaking, particularly during the course of a party game. They believed that her poor behaviour overall was due to her heavy consumption of alcohol.
28 Mrs Winstanley said that she rang to speak to the plaintiff about every six weeks while he was residing at the property at Leneva. The defendant often answered the phone. They engaged in conversations which were always amicable. The substance of the conversations often involved what the defendant and the plaintiff were doing. She said that whenever she rang she was able to get the plaintiff on the phone.
29 Mrs Winstanley said that she sent an invitation to the 60th birthday party in Tasmania to both the plaintiff and the defendant. She said that if the plaintiff and defendant were not in a domestic relationship then she would not have included the defendant.
30 After the plaintiff arrived in Tasmania and took up residence in his caravan on Mrs Winstanley’s land, Mrs Winstanley said that the defendant rang on two occasions. The first occasion was to enquire about the plaintiff and whether he had arrived and was alright. The second occurred when the telephone was put on loudspeaker, which Mrs Winstanley said enabled her to hear the conversation. She said that the defendant began enquiring after the plaintiff and at one stage said words to the effect, “I do not care whether you commit suicide. Have a nice Christmas”.
31 The plaintiff said that the domestic relationship soured through the latter part of 2007. The plaintiff said that it was because the defendant had developed a drinking problem of such magnitude that she was difficult to live with. Things came to a head in about April 2008 when the plaintiff said he overheard a conversation between the defendant and Mrs Wheeler. The plaintiff said that the defendant told Mrs Wheeler that she wanted to get out of the domestic relationship with the plaintiff, but did not want to share the proceeds of the superannuation agreement with him.
32 Upon hearing what the defendant said to Mrs Wheeler, the plaintiff said that he left the bedroom and moved into his caravan. The caravan was initially adjacent to a shed on the property at Leneva. The plaintiff moved the caravan further away from the dwelling onto land then owned by the Wodonga Development Corporation. It was land which the defendant purchased on terms by a deposit of $1,700 of a total purchase price of $17,000.
33 The plaintiff moved the caravan to a shed on that land which had a power supply. He connected up his caravan and commenced living in it until August 2008. At that stage he packed up most of his belongings and left in his car with his caravan and went to Tasmania, where he now lives on the property owned by Mrs Winstanley.
34 Subsequent to April 2008, the relationship between the plaintiff and the defendant soured dramatically as a result of a number of incidents. The first incident occurred in about May 2008. The defendant went to the St George bank in Albury for the purpose of cancelling the card which was in the possession of the plaintiff which entitled him to have access to the defendant’s banking account at that bank.
35 The plaintiff arrived at the bank. He intervened in a transaction which the defendant was undertaking. He informed a bank teller not to cancel the card. There was some degree of altercation between the plaintiff and the defendant.
36 The next incident involved an acknowledgement by the defendant of a debt owed to the plaintiff. The plaintiff referred to a Statutory Declaration made by the defendant dated 2 July 2008, in which she agreed to pay the plaintiff $60,000 by instalments of $4000 forthwith, and a payment of the balance by 1 July 2009.[3]
[3] PCB, tab 4
37 The next incident involved a disagreement on 18 July 2008 between the plaintiff and the defendant regarding the sale price of a Camry car. The plaintiff attended the defendant’s office in Wodonga and requested that the defendant provide him with transfer papers relevant to that car. There was a disagreement about whether they had agreed that the sale price was $2,000 or $3,000. The plaintiff said that the agreed price was $2,000. When he attended the defendant’s office, she demanded $3,000 from him. The plaintiff told her he would attend the police and inform them of what happened. He did so. Nothing seems to have eventuated from his visit to the police station.
38 The next incident occurred on 19 July 2008. Mr J Panlook approached the plaintiff at the property at Leneva. The plaintiff said that he stood nose to nose with the plaintiff and accused the plaintiff of stealing from the defendant. He said that Mr Panlook’s behaviour was intimidating. He said he told him to move on “now”. The plaintiff described Mr Panlook as a “hitman” engaged by the defendant. He later described him as being somewhat more of a “standover man”. In any event, it was clear to me that what the plaintiff intended to convey was that it was his belief that the defendant had engaged or encouraged Mr Panlook to confront him and get him to leave the property at Leneva.
39 The plaintiff called the police. After the police arrived they spoke to the plaintiff and the defendant. It was following that incident that the defendant applied for an Intervention Order pursuant to the Family Violence Protection Act 2008. It would appear that the application form is dated 23 July 2008.
40 The plaintiff referred to the form during his evidence, in particular to paragraph 7a, in which the defendant crossed two boxes which asked her to identify the degree of relationship which she shared with the applicant. Two boxes were crossed. One reads “Former girlfriend” and the other “Other-please specify” and beside it in a box is handwriting which reads “Member of Household”. He said that it was an acknowledgement by the defendant that they were in a domestic relationship.[4]
[4] Section 5 (1) defines “family violence” as “behaviour by a person towards a family member of that person”
41 On the return of the application, consent orders were entered into which provided that the plaintiff would vacate the property at Leneva by 14 August 2008, and that the defendant would pay him two sums of $1,400 and then $2,500 which were described as sums of money to assist the plaintiff in relocating.
The Plaintiff’s Financial Contributions
42 During the period from December 2004 to August 2008, the plaintiff said that he contributed not only lump sums, but also his receipt of wages.
43 There was agreement that the plaintiff received a property settlement of $53,154 and a further lump sum on the sale of a caravan of $7,000. For convenience sake, the two figures were rounded down and referred to as $60,000 by both Ms Jenkins and Mr Duffy. The sum of $60,000 was deposited into an account with the St George Bank known as a portfolio loan account. It was an account standing in the name of the defendant. It was an account which both the plaintiff and the defendant had access by use of a card.
44 There was also agreement that the plaintiff deposit the majority of his wages into the account received from his occupation as a taxi driver, and also from the worker’s compensation payments he became eligible to receive some time in 2006.
45 The defendant kept records, which she said disclosed that the wages which the plaintiff deposited into the account amount to $70,136. However, Ms Jenkins submitted the amount was more like $83,000. She submitted that the defendant conceded that the figure was more like $74,000. Additionally, Ms Jenkins submitted that the plaintiff received a taxation refund of about $2,000 which he said he deposited in to the account; that he paid $2,300 to the defendant as a lump sum to be paid off a credit card, and a $5,000 loaned to him by his brother, Mr Gordon, which was also deposited in the account. The defendant conceded the foregoing.
46 For convenience sake, the plaintiff and the defendant worked off two schedules prepared by the defendant. The first schedule was prepared by the defendant to demonstrate the drawings made by the plaintiff using the card, reducing the income he deposited into the account to a negative balance.[5] The second schedule was prepared by the defendant to demonstrate the drawings made by the plaintiff, again using the card, reducing the lump sum of $60,000 to a negative balance.[6]
[5] DCB, tab 26. It is attached to these reasons and marked with the heading “Tab 26”
[6] DCB, tab 27. It is attached to these reasons and marked with the heading “Tab 27”
47 There was considerable debate centred on the second schedule and whether the values placed upon various items by the defendant were fair and reasonable. I will return to this subject later in these reasons.
48 The plaintiff also said that he knew in a short time after he moved onto the property at Leneva that the defendant not only owned that property, but also three investment properties.
The Defendant’s Case
49 The defendant’s evidence was in dramatic, stark and staggering contrast to that of the plaintiff. Apart from some agreement about the general interaction between them, there was no agreement about what the plaintiff alleged was the substrata of a domestic relationship consistent with his evidence.
50 The plaintiff said that she did not ring the defendant “out of the blue”. She said that she recalled coming across the plaintiff in the late 1980s. She had no contact with him thereafter until about November 2004 when, coincidentally, he pulled up in a taxi outside the office of a firm of accountants she had visited, known as Salisbury’s in Albury/Wodonga.
51 The plaintiff spoke to the defendant. She said they remembered one another. The exchange was a friendly one. She remarked to the plaintiff how much he had changed. She said that the plaintiff told her of his marriage breakup, that he was living in a caravan park, and that he was depressed. They exchanged telephone numbers.
52 The plaintiff and the defendant spoke to each other by telephone on at least two occasions subsequently. On one of those occasions, the plaintiff said that she offered to allow the defendant to move his caravan and belongings onto the property at Leneva. She said that nothing was said about how long he could stay; however, she said that it was her intention to allow him to stay there until he “got on his feet”.
53 The defendant accepted the plaintiff’s offer and moved his caravan and belongings onto the property at Leneva. The plaintiff said that he placed his caravan near a shed and connected it to a power source available from the shed. She said that from that time on he lived in the caravan. She said that they had agreed to share the cost of outgoings.
54 The defendant said that she had conversations with the plaintiff about money. She said that the plaintiff asked her for assistance in handling his money. The plaintiff said that she offered her assistance, following which an arrangement was arrived at consistent with the plaintiff’s evidence where the lump sums and his wages were deposited into the plaintiff’s St George Bank account. She said that the defendant told her that he hated handling money, and that he was also concerned to accept the defendant’s offer because he wanted to hide his money from his former wife just in case she came after him for financial assistance.
55 The plaintiff said that she assisted the defendant to tidy up his financial affairs by intervening on his account with the taxation office to help him establish a plan to pay off a taxation debt of some $16,176 and also a credit card debt of just over $2,500. She said she rang the Taxation Department and organised for payment arrangement to be entered into, and similarly with the National Australia Bank, which is the bank where the plaintiff had a credit card which was seriously overdrawn.
56 At the commencement of the trial of this proceeding, the defendant produced two schedules and a breakdown of spending attributed to his day-to-day living expenses,[7] and his purchase of chattels.[8]
[7] Tab 26
[8] Tab 27
57 The defendant said that she and the plaintiff lived entirely separate lives. She said that he did not live in the dwelling. He entered the dwelling to use the shower and bathroom. He did not cook, watch television or otherwise use the dwelling in any other way. He cooked and watched television in his caravan.
58 The defendant said that the plaintiff did not undertake any maintenance or renovation work on the dwelling or on any of the investment properties. She said that she had engaged Elders to manage the investment properties. Whenever maintenance work was required on the investment properties, Elders would organise to have the work undertaken on her behalf.
59 The defendant admitted that she had travelled with the plaintiff to Queensland; to Tasmania for his 60th birthday and to Mildura to celebrate Mrs Winstanley’s 60th birthday. She admitted that they occupied a caravan when travelling to Queensland, Mildura and around Tasmania. When they were in Mildura they occupied the lounge in the houseboat; however, they were in separate single beds.
60 The plaintiff denied the allegations made by Mr and Mrs Gordon and Mrs Winstanley that there was any touching or embracing on any occasion consistent with she and the plaintiff being a couple. She said that the trips were very enjoyable. My impression was that there was some degree of contact conceded by the defendant, but falling well short of that described by Mr and Mrs Gordon and Mrs Winstanley, and also by the plaintiff.
61 The defendant also denied having telephone contact with Mrs Winstanley to the extent which Mrs Winstanley described. She said that the plaintiff had a mobile phone which she assumed he used to make telephone calls. She admitted that she telephoned the plaintiff on one occasion after he arrived in Tasmania, but that was to enquire about the health of the horses which the plaintiff took with him from the property at Leneva.
62 The defendant denied that she had any conversations with Mrs Gordon or Mrs Winstanley about the plaintiff’s virility or his capacity to engage in sexual intercourse. She said there were no such personal conversations about herself or the plaintiff.
63 The defendant said that the arrangement she had with the plaintiff began to sour dramatically in the latter part of 2007 and into 2008. She said that in early 2008, the plaintiff was becoming aggressive and was often in an agitated state. She said he reacted in that way particularly when she raised the subject of when he was intending to leave the property at Leneva. She said that he often responded by saying “in a little while” and other occasions by saying “when I am ready”. She said she first asked him about when he was intending to leave in about July 2007.
64 The defendant admitted that she had a conversation with Mrs Wheeler in about April 2008 concerning when the plaintiff was likely to leave the property at Leneva. However, she said that it was impossible for the plaintiff to have overheard the conversation because it occurred on a veranda at the dwelling. The plaintiff was not in the dwelling. He was somewhere around his caravan. It was around this time that the defendant described the plaintiff’s behaviour as being unfriendly. They were not speaking.
65 The defendant admitted that there was an altercation in the bank in about May 2008 at a time when she was attempting to cancel the plaintiff’s card access to the account. She said that he took her by the arm. She described his behaviour as aggressive and domineering. She did not cancel the card as a result of his intervention.
66 The plaintiff admitted that she signed a Statutory Declaration in which she admitted owing the plaintiff $60,000. She said she provided the Statutory Declaration because the plaintiff was persistently at her about her owing him that sum of money. She was fearful of him at that time. She decided the only way to calm him down was to sign the Statutory Declaration. She said that at no time did she believe she owed him that sum of money.
67 The defendant admitted that the plaintiff went to her office on 18 July 2008. She said that he barged into her office in the presence of a client she was seeing. She asked him to leave. He left and stood across the road with his arms folded. After the client left, the plaintiff returned, at which time there was a conversation regarding the provision of transfer papers relevant to the purchase of a car which the plaintiff wanted to purchase from the defendant. The plaintiff provided the defendant with the transfer papers.
68 The defendant admitted that there was a confrontation between Mr Panlook and the plaintiff at the property at Leneva on 19 July 2008. She said that Mr Panlook was a client of hers who was paying her a social visit. Mr Panlook’s version of what occurred is vastly different from the plaintiff’s version.
69 Mr Panlook gave evidence. He said that he was a mechanic by occupation, and the proprietor of a mechanical workshop in the Albury/Wodonga area. He said he had known the defendant since about 2001. He engaged her as both his bookkeeper and office manager. He said that between 2004 and 2008, he had visited her at the property at Leneva on about a dozen occasions. On some occasions he had stayed for between one to two hours. He said the plaintiff was a very friendly person. He said he had no doubt about her integrity and honesty.
70 Mr Panlook said that on some occasions he visited the defendant at night. The plaintiff was never in the dwelling. He saw the lights on in the caravan, and assumed that the plaintiff was in the caravan. He said he made those observations in 2006 and 2007.
71 Mr Panlook said that on the occasions when he visited the plaintiff he observed the plaintiff to be around his caravan or in the shed adjacent to the caravan. He never saw the plaintiff in the dwelling on the occasions when he visited. He never saw any physical contact between the plaintiff and the defendant on those occasions.
72 Mr Panlook said that the defendant had introduced him to the plaintiff. She told Mr Panlook that the plaintiff was living on the property. He invited the plaintiff to one of his Christmas functions. He said the reason why he did that was because he regarded the plaintiff as being a loner and he felt some sympathy for him.
73 On 19 July 2008, Mr Panlook made a social visit on the defendant. He said that the defendant told him that she was afraid of the plaintiff. He said that the defendant asked him whether he would approach the plaintiff and ask him when he was going to leave. Mr Panlook did as he was requested. He said that when he asked the plaintiff when he was going to leave, the plaintiff responded by accusing Mr Panlook of standing over him. The plaintiff then called the police.
74 The police attended and essentially stood between the plaintiff and the defendant. Mr Panlook said that he stood back because he considered what was happening was no longer any of his business. He said that he observed the plaintiff become very upset. He threw a folder containing papers up in the air and showed considerable agitation. He was told by the police to settle down. Mr Panlook said that he did not return to the property at Leneva for some time as a result of that incident.
75 Mr Robert Johanne gave evidence. He said he was a retired plasterer. He had known the defendant for about five to six years. When he was working as a plasterer, she kept his books of account. He estimated that they became friendly in about 2004.
76 Mr Johanne visited the defendant at the Leneva property. He said that the defendant introduced him to the plaintiff. He said that on that occasion the plaintiff said hello and then went about work he was doing near his caravan and the shed. He said that he saw no interaction between the plaintiff and the defendant on any of the occasions he visited the defendant. On occasions when he was in the dwelling having a cup of coffee with the defendant, the plaintiff was never in the dwelling. He said that he saw an electrical lead from the shed to the caravan.
77 Mr Johanne was asked whether he had done some plastering in the dwelling after the plaintiff had done some renovation work. He said he had never done any plastering work for the defendant, and none at the request of the plaintiff.
78 Mr Johanne said that the defendant told him that she wanted the plaintiff to leave the property at Leneva.
79 Mrs Barbara Mitchell gave evidence. She said that she was retired, and a housewife living in Wodonga. She said she met the defendant about ten years ago, and that they became close friends about five to six years ago. She said she clicked with the defendant. Their relationship grew to being like sisters. They became very sociable. She and her husband attended the Leneva property on a number of occasions to have dinner or to drop in and say hello.
80 Mrs Mitchell said that the defendant told her how the plaintiff came to be living in his caravan on the property at Leneva. She said that the defendant told her that she was frightened of the plaintiff. She said that conversation occurred some time in 2007. She said that the defendant expressed increasing fear of the plaintiff in 2008. She said that the defendant had called her at night, describing the plaintiff as being aggressive.
81 Mrs Mitchell said that she spoke to the plaintiff. She said that the plaintiff said that he “owned the place”, referring to the property at Leneva, and that it was “my bloody place”. The impression I gained from the evidence of Mrs Mitchell is that she had spoken to the plaintiff on a number of occasions, at which time he made very much the same kind of responses.
82 Mrs Mitchell said that on no occasion when she and her husband had meals at the property at Leneva were they ever joined by the plaintiff. She said that about six months before he left she observed the plaintiff one evening at the caravan with his head extending out from the door of the caravan. She said that the plaintiff seemed to have no friends and was a loner.
83 Mrs Mitchell said that after the plaintiff left the property at Leneva she helped the defendant to clean up the property. She said that she and her husband collected three sacks of discarded bourbon and Coke cans from around where the plaintiff had set up his caravan. She said that he left the property in a disgraceful mess.
84 Mrs Wheeler gave evidence. She said that she was employed as a communications officer. She met the defendant when they both worked at Ericssons in Broadmeadows about thirty-seven years ago. They were in the habit of speaking about once a fortnight. She visited the plaintiff about every six months on her way to visit her relatives in Sydney. On those occasions she would stay in the dwelling.
85 Mrs Wheeler said that the defendant told her how the plaintiff came to be living in his caravan on the property at Leneva. She said that she saw no interaction between the plaintiff and defendant, and nothing to suggest that they were living as man and wife. She said that on the occasions when she stayed overnight, the plaintiff did not stay in the dwelling. She said that she saw that the caravan was hooked up to a power source from the shed.
86 Mrs Wheeler said that she had a conversation with the defendant in about April 2008 on the veranda of the dwelling about when the plaintiff was going to leave. She said that he could not possibly have overheard the conversation because he was not in the dwelling at the time.
87 Ms Jenkins asked Mrs Wheeler whether the plaintiff had undertaken work on the blinds of her home, and whether he was in the habit of playing golf with her former husband. Her demeanour changed visibly when she was asked those questions. She gave me the clear impression that she was astonished that suggestions of that kind were made. She emphatically denied that he ever did any work at her home, and that he ever played golf with her former husband.
88 Mr Michael Bower gave evidence. He said that he is the former husband of the defendant. He met her forty years ago. They were married for about ten years. He had maintained contact with her. They spoke every couple of months. He had visited the property at Leneva on two or three occasions on weekends to celebrate the children’s birthdays.
89 Mr Bower said it was his impression that the plaintiff was living in a caravan at the back of the property. He spoke to the plaintiff. It was also his impression that the plaintiff and the defendant were good friends. He said that he never saw any sign of affection exhibited by the plaintiff and the defendant toward one another. He never saw the plaintiff invited into the dwelling to have a meal. He said that he had “had a couple of beers” with the plaintiff on one occasion.
90 The defendant’s witnesses all described her as being a charitable well- meaning person and a very good friend. Indeed, Mr Bower said that if she was a friend to someone then she was a really good friend.
A Domestic Relationship
91 The evidence which was common to both the plaintiff and the defendant was as follows:
• The plaintiff was invited to live on the property at Leneva. • The plaintiff resided on the property between December 2004 and August 2008. • The plaintiff deposited his wages and two lump sums into an account in the name of the defendant, and used a card to gain access to the account. • The defendant accompanied the plaintiff on three trips to Queensland, Tasmania, and Mildura, occupying the same sleeping compartment on each occasion. 92 The foregoing, together with the plaintiff’s evidence, do create an impression that there was more between the plaintiff and the defendant than merely a charitable arrangement promoted by the generosity of the defendant in helping out the plaintiff when he was in a parlous situation financially and emotionally.
93 The evidence of Mr and Mrs Gordon and Mrs Winstanley also suggests that the plaintiff and the defendant were in a domestic relationship. The way in which they were observed together, in the absence of any explanation by either of them to the contrary, gave Mr and Mrs Gordon and Mrs Winstanley the impression that the plaintiff and the defendant were in a wholesome domestic relationship.
94 However, the defendant sought to explain the trips she had away with the plaintiff, saying that they were simply trips which they both went on as companions rather than evidence of anything more. She relied upon the evidence of Mr Panlook, Mr Johanne, Mrs Mitchell, Mrs Wheeler and Mr Bower to demonstrate that there was very little between them. Rather, that it was more a matter of the defendant suffering the presence of the plaintiff on her land with a growing sense of apprehension about him, and a desire to have the plaintiff move on consistent with her initial intention to give the plaintiff a chance to get back on his feet.
95 It is trite to say that the plaintiff bears the onus of proof to satisfy me on the balance of probabilities that he was in a domestic relationship with the defendant. After giving due consideration to the evidence called by the plaintiff and the defendant, I am not satisfied that the plaintiff has discharged the onus which he bears.
96 The starting point is the evidence of the plaintiff that within a day or so of arriving at the property at Leneva he became involved in a domestic relationship which bore every element of what one would expect would constitute a domestic relationship.
97 The plaintiff chose to describe how the domestic relationship began by saying “it just happened”. I asked him to describe how the relationship developed so quickly and what it was that led to the development of the domestic relationship. The plaintiff was unable to answer that question despite the fact that I put it to him on two occasions, except to repeat that “it just happened”.
98 Mr Duffy cross-examined the plaintiff and asked him to describe whether there was any courtship, but once again the plaintiff’s answer was the same as the answer he gave to me.
99 There are many odd aspects to the arrangement which developed between the plaintiff and the defendant. The development of a domestic relationship, according to the plaintiff, in such a rapid time at such a sophisticated level, is one of those oddities.
100 I do not accept that the relationship “just happened”. I accept the evidence of the plaintiff’s witnesses that she was, and probably still is, a very charitable well-meaning woman who felt some real sympathy toward the plaintiff when she had a chance meeting with him outside the office of an accountant. I accept that she was moved by the change in his appearance, and also by his parlous situation, living in a caravan park on his own and experiencing depression, to make the offer to allow him to move onto the property at Leneva.
101 I accept the evidence of the defendant’s witnesses that on no occasion did they observe any sort of interaction between the plaintiff and the defendant which one would have expected if they were in a domestic relationship. On their evidence, the plaintiff was basically nowhere to be seen on the occasions when they visited the defendant. Their strong impression was that he was residing in the caravan.
102 It might be said that Mr Panlook, Mr Johanne, Mrs Mitchell and Mrs Wheeler have an inherent bias in favour of the defendant because of their undoubted friendship with her. However, I consider that the evidence of Mr Panlook, Mr Johanne and Mrs Wheeler to have the ring of accuracy about it in all respects. I considered that they gave their evidence in an entirely believable fashion without demonstrating any palpable bias in favour of the defendant.
103 However, I was less impressed by the evidence of Mrs Mitchell, who obviously had little time for the plaintiff. She was aggressive and extremely critical in her characterisation of behaviour of the plaintiff. She described the plaintiff as saying that he owned the property which was not the evidence given by the defendant. If the plaintiff had uttered statements of that kind to Mrs Mitchell, then it is unlikely that the plaintiff would not have heard him say those things.
104 I am inclined to think that Mrs Mitchell had her view of the plaintiff tarnished by what she perceived to be the threat which he posed to the defendant, and that she had a tendency to exaggerate her descriptions of the plaintiff’s behaviour. I am only prepared to accept her evidence to the extent that it is corroborated by other evidence. What I do accept of her evidence is that she saw no interaction of any kind between the plaintiff and the defendant, and made observations of the plaintiff consistent with him residing in the caravan.
105 The evidence which I found most compelling is that of Mr Bower. He gave his evidence in a rather positive way, that is, neither singing the attributes of the plaintiff or the defendant, but rather stating what he saw in a straightforward an entirely believable way. It was his impression that the plaintiff and the defendant were good friends.
106 However, what I found most telling in his evidence was that he did not observe any interaction between the plaintiff and the defendant of any kind consistent with a domestic relationship, and that the plaintiff was living in the caravan.
107 At first I was inclined to disbelieve the defendant, that going on the trips and her interaction with the plaintiff were as platonic as she said. However, I accept that it is more likely than not that her evidence is true, essentially for two reasons. Firstly, because I accept the evidence of her witnesses of their direct observations of the plaintiff and the defendant at the property at Leneva. Secondly, on the basis of a submission made by Mr Duffy that if the plaintiff’s witnesses were aware of the truth of the relationship of the plaintiff and the defendant, then they would not have regarded their behaviour on the trips to Queensland, Tasmania and Mildura as evidence of a domestic relationship, but more as two independent adults sharing accommodation and enjoying the fruits of a trip away.
108 Of course the foregoing means that I do not accept the evidence of Mr and Mrs Gordon and Mrs Winstanley. They are all closely related to the plaintiff. They were at various times very critical of the defendant, and in particular, Mrs Winstanley. Toward the end of her evidence, I detected a serious level of dislike for the defendant which I think was colouring her evidence.
109 The bias which I considered was evident in the evidence of Mrs Winstanley was not so evident in the evidence of Mr and Mrs Gordon; however, neither of them observed the plaintiff and the defendant actually in a bed together. None of them gave any evidence of admissions by the defendant that she was in a domestic relationship with the plaintiff. Their evidence was based upon their impressions of the defendant being the plaintiff’s companion, some indirect observations of the plaintiff and the defendant occupying the same compartment when they went away on trips, and Mr Gordon’s evidence that the plaintiff said to him that he had never been any happier. I was expected to draw an inference that it was an expression by the plaintiff that he was happily entrenched in a domestic relationship with the defendant.
110 Whilst I acknowledge the considerable difficulties in unravelling actually what occurred, and that the observations I have made about the evidence of Mr and Mrs Gordon and Mrs Winstanley may well be met by the plaintiff and by those witnesses as being uncharitable, their evidence does not compare at all favourably with the evidence of the defendant’s witnesses who I think gave their evidence without any palpable bias, save for Mrs Mitchell. Overall, I considered the case put by the defendant in answering the allegations made by the plaintiff to be a far more compelling case, and to that end I am not satisfied that the plaintiff has discharged the onus of proof which he bears to prove that a domestic relationship existed.
111 I should add that I do not accept that the fact that the defendant assisted the plaintiff in sorting out his financial affairs and allowing him to deposit his monies into her account really advances the plaintiff’s case very much. Again, it was an unusual arrangement, and on one view more consistent with a domestic relationship, but it seems to me to be more consistent with the charitable well-meaning nature of the defendant. I am fortified in that view because the plaintiff did not dispute the proposition put by the defendant that he asked the defendant to help him sort out his financial affairs, and that he was quite happy for the arrangement to prevail, knowing that he was to be held responsible for outgoings which could be attributed to his residence on the property at Leneva.
A Constructive Trust
112 Inherent in the conclusions which I have reached is a rejection of the evidence given by the plaintiff that, firstly, there was a domestic relationship; and secondly, that there was any agreement reached between himself and the defendant that they would pool their resources to create some sort of superannuation fund.
113 In Cressy v Johnson (No 3),[9] Kaye J extensively reviewed a number of authorities relevant to what is constituted by a constructive trust. In summary his Honour made the following observation:
“In other words, the remedy of a constructive trust is not a response by equity to a perceived unfairness where, on the termination of a personal relationship, the legal arrangements between the parties do not reflect the commitment and contributions of each party to that relationship. Rather, the equitable remedy of a constructive trust is available to adjust the legal interests in property of a party or parties to a relationship, where, during and on the basis of the continuation of the relationship, one party has made a contribution to the acquisition, maintenance or improvement of the property, such that it would be unconscionable for the other party, on the failure of the relationship, to insist strictly on his (or her) legal rights without an appropriate adjustment commensurate with the contribution made by the former party to the property. Accordingly, in order to be entitled to an interest under a constructive trust, the plaintiff must establish that the contribution, on which she relies, was not simply directed to advancing the welfare of the defendant, and of the family unit of which he was then a part. Rather, the contribution of the plaintiff, on which the constructive trust is to be based, must have been directed to the acquisition and maintenance of the assets in respect of which the plaintiff claims an interest under the constructive trust.” [10]
[9] [2009) VSC 53
[10] Paragraph 197
114 Inherent in the conclusion I have reached in relation to the claim that there was a domestic partnership is a rejection that the plaintiff undertook any maintenance or renovation on the dwelling and the defendant’s investment properties. I accept the defendant’s evidence without exception that she had an agreement with Elders to not only manage the investment properties, but also to deal with items of maintenance as they arose.
115 If the plaintiff did undertake any work at the dwelling then it was modest in nature. His witnesses referred extensively to the wine barrel being turned into a bar, which was denied wholesale by the defendant. She said that the wine barrel is sitting in her kitchen and is a wine barrel without doors or a fridge inside it.
116 In any event, it was for the plaintiff to satisfy me that the maintenance he performed created improvement in the dwelling and the investment properties which were not only palpable, but capable of some estimation in monetary terms. I am not satisfied that he has discharged the onus to prove such a case.
Monies Had and Received
117 On the evening of the third day of the proceeding, I informed Ms Jenkins that the pleadings disclosed a claim under the Act, but that there was no pleading consistent with the relief sought for monies had and received, or indeed, for any of the other causes of action for which relief sought.
118 On the following day, Ms Jenkins sought my leave to file and serve an Amended Statement of Claim pleading a claim under a constructive trust for other money claims. After some debate, Ms Jenkins was content to rely upon the proposed amendment raising a claim under a constructive trust and monies had and received. I granted leave for the plaintiff to file and serve the Amended Statement of Claim.
119 The claim for monies had and received is based upon an accounting exercise undertaken by Ms Jenkins intended to demonstrate that the defendant retained monies of the plaintiff over and above the plaintiff’s expenditure during the period when he resided in the caravan at the property at Leneva. I have already referred to those figures in paragraph 43 above.
120 I accept the submission made by Ms Jenkins that the plaintiff contributed, by way of wages, of approximately $83,000, not the $70,136 initially contended for by the defendant.
121 However, it was not my impression that the plaintiff seriously contended that any of the expenditure referred to in tab 26 was seriously challenged. That being so, Ms Jenkins submitted that it must therefore be the case that there is approximately $13,000 unaccounted for and standing to the credit of the plaintiff.
122 In relation to tab 27, Miss Jenkins submitted that there were a number of items which the plaintiff contested. I do not intend to repeat each and every submission made by Ms Jenkins regarding tab 27, but rather to address those which stand out as requiring some investigation. For convenience sake, the defendant numbered each of the items in tab 27. I will follow the same numbering and associated description.
123 Item 1 – Four-Wheel Drive. The plaintiff contended that the vehicle was purchased for $2,200. The difference is $3,404.
124 Item 2 – Motorbike. The plaintiff contended that the motorbike was purchased for $2,000 not $2,634. The difference is $634.
125 Item 2 – Buggy. The plaintiff contended that the buggy was purchased for $2,500, not $3,000. The difference is $500.
126 Item 4 – Buggy Trailer. The plaintiff contended that the buggy trailer was purchased for $900 not $2,809. The difference is $1,909.
127 Item 5 – Float. The plaintiff contended that the float was purchased for $3,500 not $6,000. The difference is $1,500.
128 Item 6 – Jedda's car. The plaintiff contended that the agreement to purchase the car from the defendant was $2,000 not $3,000. The difference is $1,000.
129 Item 7 – The Retiree Group. The plaintiff contended that the purchase of something akin to a franchise was the defendant’s idea, and that he had nothing to do with it. The defendant contended the opposite.
130 The defendant produced an agreement with an organisation known as Heartlink in the name of the plaintiff which required a payment of $20,000 for the purchaser to be entitled to 15 per cent of gross sales in the designated area, which was described on the distribution agreement as “Wodonga and surrounding areas as discussed”.[11]
[11] DCB, tab 27
131 The defendant said that the plaintiff wanted to purchase the distribution rights because he was keen to get out of taxi driving. The plaintiff gave evidence that he had been assaulted while undertaking work as a taxi driver. Although there was little evidence of the assaults or the injuries he suffered, it would appear that the assaults gave rise to a psychiatric injury for which the plaintiff was ultimately entitled to weekly payment of compensation which he received in 2006 and which continued until some time in 2010.
132 Therefore, there is not only a distribution agreement bearing the plaintiff’s name, but also evidence that he wanted to get out of taxi driving. At that stage the defendant had an established business as a bookkeeper and would probably not have had the opportunity to personally see to a business of that kind.
133 I find that the distribution agreement was negotiated by the plaintiff for his benefit alone and that the monies used to purchase the distribution rights came from his monies. The distribution agreement provides that if the plaintiff desired to resell the distribution rights they would be offered back to Heartlink for the original price of $20,000, in other words, he is eligible to recoup the monies he spent in purchasing the distribution rights.
134 Items 9 and 14 refer to tools. There was some confusion whether the items were duplication or represented different tools. I reject the defendant’s evidence that they are purchases made by the plaintiff. The evidence points to the two items being a duplication. However, like much of the plaintiff’s evidence relevant to tab 27, it was unsatisfactory. He said that the tools were valued at $400, but at the same time I found that the defendant’s description of the tools said to be of such significant value, to be without foundation.
135 Item 11 – Caravan and Float Fit-out. The plaintiff contended that the fit-out amounted to $800. The difference is $1,952.
136 Item 15 – Garage Sales. The plaintiff contended that he purchased no more than $200 at garage sales. The difference is $1,300.
137 Item 16 – Compressor. The plaintiff said that he had never purchased a compressor. The plaintiff was unable to describe what this item is. Its value is $450.
138 Item 17 – Horses. The plaintiff contended that he spent $250 on horses. The difference is $250.
139 I am not satisfied that the plaintiff has discharged the onus of proof he bears in relation to most of the items in contest. The plaintiff quite plainly had no documentary evidence in his possession to verify the evidence he gave as he was taken through each of them by Ms Jenkins in his evidence-in-chief. I considered it to be a most unsatisfactory way of dealing with each of these items, and I gained the impression from the way in which the plaintiff gave his evidence that he was simply proffering figures different from those of the defendant without any real justification.
140 The reference to items 1 and 2, as examples, do not take into account the money spent by the plaintiff in undertaking repairs on the two vehicles. The same can be said for a number of the other items when regard is had to the schedule prepared by the defendant of the expenditure and the verification of the expenditure from receipts attached to the schedule in tab 27.
141 However, I am satisfied that the tools are a duplication. I am not satisfied that the plaintiff purchased a compressor. I am also satisfied that the plaintiff did contribute a larger sum by way of wages and capital, amounting to approximately $13,000.
142 Therefore, I am satisfied on the balance of probabilities that the defendant retained monies of the plaintiff by way of wages and capital amounting to approximately $13,000. In relation to the tools and the compressor, all I have is an assertion by the defendant of two items relating to tools totalling $6,500 and $450 for a compressor. Her evidence on that score was very unsatisfactory, indeed, it was unsupported by any corroborative evidence.
143 In the end, I am satisfied that the sum of $19,500 is monies had and received by the defendant on account of the plaintiff.
Conclusion
144 The plaintiff instructed Ms Jenkins to open his case very ambitiously. His case was that he had made direct and indirect financial contributions not only to the dwelling, but also with respect to the three investment properties, with the result that he was entitled to an alteration of property interests based upon the net value of all of those properties when added together.
145 The plaintiff has substantially failed to prove his case. He has succeeded rather modestly on the basis of the monies had and received’ claim to the tune of $13,000 and in relation to some chattels which he is said to have purchased.
146 I propose to order that each party bear their own costs. My reasons for doing so are that the plaintiff has substantially failed in the case which he opened; he did not plead his case adequately to plead monies had and received until I indicated to Ms Jenkins where I saw the shortcomings in the pleadings, and subsequently permitted an amendment to the pleadings; he could have, but did not identify the claim for monies had and received at all adequately which resulted in the defendant not giving the plaintiff an opportunity to debate that claim with him before or during the trial; and lastly, the vast majority of time which occupied the trial was directed to the principal claim of the existence of a domestic partnership; alternatively, a constructive trust.
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TAB 26 TAB 27
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