Telford v Telford

[2022] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000054 [2022] NZHC 1412

UNDER

Part 18 of the High Court Rules 2016

IN THE MATTER OF

Constructive trust, resulting trust, express trust

BETWEEN

WILLIAM JAMES TELFORD and EILEEN TELFORD

Plaintiffs

AND

WILLIAM JAMES TELFORD and TESSA EVE MARTIN

Defendants

Hearing:

30-31 May 2022

Counsel:

P A Depledge for Plaintiffs

M A Dempster for Defendants

Judgment:

16 June 2022

INTERIM JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 16 June 2022 at 2 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Clyde Law, Hamilton.

McKenna King Dempster Ltd, Hamilton. P A Depledge, Hamilton.

TELFORD v TELFORD [2022] NZHC 1412 [16 June 2022]

A note to readers

[1]    This judgment is written primarily for the parties. It avoids technical language when possible. As two parties share the same name—William James Telford—I use common names: Billy and Jamie. To be consistent, I use Christian names for the remaining parties.

The dispute and difficulties with its determination

[2]    Billy and Eileen sue their son, Jamie, and his partner, Tessa, in relation to 629A Hakarimata Road, Ngaruawahia. I call this the property.

[3]    Billy and Eileen say the property is theirs even though Jamie and Tessa are recorded as owners on the certificate of title. Billy and Eileen say Jamie and Tessa bought the property on their behalf because the bank would not lend Billy and Eileen money to buy it.

[4]    Jamie and Tessa accept they bought the property on behalf of Billy and Eileen—with a significant qualification. Jamie and Tessa say they did so on the understanding all four parties would have equal shares in the property. Jamie and Tessa say it was agreed they would contribute to the property financially and otherwise in return for a half share.

[5]    Billy and Eileen acknowledge Jamie has helped make the property what it is: a landscaped, four-bedroom home on 8.44 hectares. But, they say his contributions comprise not more than 10 percent of the property’s value. Jamie and Tessa say their contributions are much greater than this, in accordance with what everyone agreed when the property was bought.

[6]    No one recorded in writing what was intended in relation to the property. No documents cast light on what was intended either.1 Despite this, or perhaps because of it, everyone believes strongly in the correctness of their position.

1      Save one document in relation to the deposit. I come to this later.

[7]    Key events occurred years ago. The property was bought in (late) 2014. Passage of time appears to have hardened positions at the expense of memory.

[8]    Other fact-finding impediments exist too. The parties filed joint affidavits: one of Billy and Eileen; a second of Jamie and Tessa; and a third of Billy and  Eileen    (in reply). All were couched in broad terms, with detail a casualty. A one-day trial was allocated on the assumption this would be sufficient. Unsurprisingly, it was not.2 The trial was not without incident either; the  parties were  repeatedly  disruptive.  On the third occasion, I expelled Eileen from the courtroom. She acknowledged she could not contain herself “when the other side was telling lies”.3 The lawyers did not put their closing submissions in writing. And, their brief (oral) submissions did not grapple with whose account should prevail. In these circumstances I have done what any Judge must do: their best in accordance with law.

Background

[9]    In 2006, Billy, Eileen and Jamie came to New Zealand from Northern Ireland. Billy and Eileen bought a home in Hamilton. I call this the Hamilton home. Jamie lived with Billy and Eileen at the Hamilton home.

[10]   In approximately 2008, Jamie met Tessa. She later moved into the Hamilton home. All four parties lived there together until it was sold (in early 2015).

[11]   In 2014, Billy discovered the property on TradeMe. In October, he negotiated its purchase for $280,000, including a deposit of $80,000. No agreement was signed at this time. Terms were by handshake.

[12]   Billy then suffered misfortune. He had an accident at work, lost his job and became an ACC beneficiary. Billy still wanted the property though. He and Eileen could not buy it, at least in their names, until they sold their Hamilton home.

2      A last-minute adjournment of another case meant the trial could spill into a second day.

3      This occurred during Tessa’s evidence (at 2:15 pm on day one). I allowed Eileen to return to hear closing submissions the next day.

[13]   On 21 October 2014, Billy and Eileen transferred $95,000 to Jamie and Tessa. Jamie and Tessa later paid $80,000 to the vendor as a deposit.

[14]   On 28 October 2014, Jamie signed the sale and purchase agreement in relation to the property. He later nominated himself and Tessa as purchasers.

[15]   On 23 January 2015, Jamie and Tessa borrowed $200,000 from the bank to complete the purchase. I call this the first loan. Settlement occurred 23 January too.

[16]   On 10 March 2015, Billy and Eileen sold the Hamilton home. Net proceeds were $312,369.46. Billy and Eileen transferred $200,000 to Jamie and Tessa the same day.

[17]   On 11 March 2015, Jamie and Tessa repaid the first loan using the money transferred from Billy and Eileen. About this time, the parties began building a home on the property. They lived together during construction on the property.

[18]   Jamie is a bricklayer. The home on the property is brick. Jamie contributed labour to the construction. How much is contested. Tessa worked at Mitre 10. She obtained a discount on building supplies (bought from Mitre 10) for the property.

[19]   On 28 September 2016, Jamie and Tessa borrowed $180,000 from the bank to complete construction. I call this the second loan.

[20]   The home was finished in or about November 2016. The parties continued to live together at the property.

[21]   At an unspecified time, Jamie developed a methamphetamine habit. He and Tessa were convicted of growing cannabis plants at the property. Tessa served her sentence of home detention at her parents’ home, then returned to the property. Jamie served his sentence (of home detention) at the property.

[22]   In September 2018, Jamie and Tessa increased the second loan by $30,000 so Billy and Eileen could buy a truck for that amount.4

[23]   In 2020, Billy and Eileen’s adult daughter, Shelley, moved into the property. Their relationship with Jamie and Tessa broke down the same year. Jamie and Tessa moved out in or about May 2020.

[24]On 6 April 2022, the property was valued at $1.3 million by a registered valuer.

Pleadings and issues

[25]   Billy and Eileen allege a constructive or resulting trust exists in relation to the property.5 They say the constructive trust involves a common intention or is based upon reasonable expectations. Jamie and Tessa acknowledge they hold the property on trust, albeit as co-owners in equal shares with Billy and Eileen. Jamie and Tessa also acknowledge Billy and Eileen have a reasonable expectation of an interest in the property.6 Again, they say that interest is confined to 50 percent.

[26]   The parties’ lawyers, Mr Depledge and Ms Dempster, agree related law is uncontentious and the issues reduce to four:

(a)What was the common intention in relation to the property?

(b)What were the parties’ contributions to the property?

(c)What is the extent of the plaintiffs’ interest in the property?

(d)What relief should the Court order?

What was the common intention in relation to the property?

[27]This question concerns when the property was bought, not later.

4      A tractor was also mentioned in evidence in reference to the same transaction.

5      Their lawyer, Mr Depledge, abandoned at trial a pleading alleging an explicit trust. He was right to do so. An explicit trust must be in writing, hence its name. No such document exists.

6      Their lawyer, Ms Dempster, filed a statement of issues 17 May 2022. It acknowledged Billy and Eileen have a reasonable expectation of an interest in the property.

[28]   Billy and Eileen say everyone agreed Jamie and Tessa would buy the property on behalf of Billy and Eileen; Billy and Eileen would sell the Hamilton home, repay the first loan and build a home on the property; and Jamie and Tessa would then transfer the property to Billy and Eileen.

[29]   Jamie and Tessa say everyone agreed Billy and Eileen would repay the first loan from the sale of the Hamilton home; Jamie and Tessa would get the second loan to help pay for construction of a home on the property; and Jamie would help build that home and do other property-related work. In this way, all four parties would be equal co-owners.

[30]   As observed, no documents help determine what the parties intended. Their accounts conflict. Billy and Eileen are adamant the property was bought as theirs alone, albeit in Jamie’s and Tessa’s names.7 Jamie and Tessa are equally adamant the property was bought to share equally. Five points stand out.

[31]   First, Billy and Eileen had substantially more assets than Jamie and Tessa, as would be expected of an older generation. Jamie and Tessa had been living with Billy and Eileen for several years as they could not afford to buy a home of their own.8

[32]   Second, Billy found the property and negotiated, exclusively, its purchase. He was the driving force for the property’s acquisition. No one suggested otherwise.

[33]   Third, to have agreed to equal ownership of the property with Jamie and Tessa could have been unfair to Billy and Eileen’s daughter, Shelley. And fair or not, an agreement of equal ownership could well have caused conflict with Shelley, or between her and Jamie and Tessa.

[34]   Fourth, though much better off financially, Billy and Eileen needed Jamie and Tessa’s help to buy the property. The vendor wanted settlement to occur before Billy and Eileen sold their Hamilton home. Unsurprisingly, most of Billy and Eileen’s

7      Subject to Jamie’s contributions of not more than 10 percent.

8      Jamie said he believed he and Tessa had saved enough money to buy a home of their home, at least by the time the property was acquired. No financial evidence was adduced to support this proposition. Moreover, it is reasonable to assume Jamie and Tessa’s decision to live with Billy and Eileen reflected circumstance over choice.

money was in that home. Billy’s accident left him and Eileen in a difficult position. They could not get a bank loan. So, the purchase could not be completed unless Jamie and Tessa got the first loan to pay the balance of the purchase price: $200,000.9 Relatedly, the property had to be in their names.

[35]   Fifth, despite Billy’s contrary testimony, everyone must have known he and Eileen did not have enough money to build a home unless Jamie and Tessa agreed to help financially and otherwise. Sale of the Hamilton home and repayment of the first loan left $112,369.46. This amount or anything like it (bearing in mind Billy and Eileen could not know what their Hamilton home would sell for when they bought the property) could not fund construction of a home, let alone the planned four-bedroom home.10

[36]   This  mix  implies  the  common  intention   is   not   that   advanced   by Billy and Eileen, nor that advanced by Jamie and Tessa. The same mix implies the true position lies between the competing accounts. I find Billy, Eileen, Jamie, and Tessa agreed or understood Jamie and Tessa would buy the property on behalf of Billy and Eileen on two broad conditions: (a) Billy and Eileen would be the primary or majority owners; and (b) Jamie and Tessa would be the secondary or minority owners, through contribution of money and labour to the property.

[37]   I pause to record Billy says Jamie got the first loan because “that is what children do for their parents”. Apart from this being a questionable proposition given the nature and seriousness of the obligation, the explanation does not address Tessa’s interests.

[38]   Again, the common intention I find existed lies between the parties’ accounts.11 It reflects their interests and circumstances, and necessarily, what they intended in relation to the property. For completeness, I make explicit what is implicit. I am satisfied Billy, Eileen, Jamie, and Tessa had a common intention as against none. That there has been conflict does not reflect differing understandings; rather, it reflects the

9      I address the deposit shortly.

10     Plans approved by the Waikato District Council 27 January 2015 show a four-bedroom home, with study, of 207.65 square metres.

11     And pleadings.

open-ended nature of the common intention, the many questions it left unanswered (including how much, exactly, was each party’s share to be?), the parties’ failure to document what they agreed, and as observed, passage of time.

What were the parties’ contributions to the property?

[39]This table records what Billy and Eileen say they contributed:

Date	Contribution	Amount
21.10.2014	Deposit for the property	$80,000
21.10.2014	Additional    transfer    to    Jamie    and    Tessa    for conveyancing costs and loan associated costs	$15,000
10.3.2015	Repay $200,000 mortgage for land	$200,000
25.1.2016	Zip invoice	$6,460.66
7.3.2016	PR Building Services Ltd invoice	$5,606.25
26.3.2016	PR Building Services Ltd invoice	$5,255.50
31.3.2016	JD Consulting Engineers invoice	$862.50
1.4.2016	GA Hughes and Associates Ltd invoice	$2,334.50
1.4.2016	The Floor Store invoice	$6,114.87
30.4.2016	Rylock invoice	$22,474.78
9.5.2016	JD Consulting Engineers Ltd invoice	$451.95
26.5.2016	PR Building Services Ltd invoice	$18,754.20
31.5.2016	Door Solutions Ltd invoice	$4,638.33
31.5.2016	Metal Craft invoice	$9,669.50
9.6.2016	Al Electrical invoice	$9,611.25
26.10.2016	Iremonger Plumbing Ltd invoice	$5,940.90
15.11.2016	Plain and Fancy Kitchens invoice	$7,788.50
Aug/Sept 2020	Driveway	$20,000
28.11.2018– Aug 2020	Weekly  loan  repayments  at  $200  per   week   – 92 payments	$18,400
9.8.2019    – 19.5.21	Identified rates payments	$3,051.35
Nov 2016 – present	Utilities	Unquantified
Total	$442,415.04

[40]This table records what Jamie and Tessa say they contributed to the property:

Contribution	Amount
Deposit for the property	$80,000
Second loan	$180,000
Labour in relation to the property	$143,777.90
Rates and insurance	Unquantified
Total	$403,777.90

[41]The shaded rows are contentious.  I address these in this part of the decision.

Billy and Eileen’s contested contributions

[42]   As will be apparent from the two tables, Billy and Eileen say they contributed the $80,000 deposit, whereas Jamie and Tessa say they contributed it. It is common ground the $80,000 came from Billy and Eileen. They transferred the money to Jamie and Tessa 21 October 2014 (in the higher amount of $95,000; the extra $15,000 was to cover transactional costs). Jamie and Tessa then paid the $80,000 deposit to the vendor.

[43]   Jamie and Tessa say Billy and Eileen gave them the $80,000 deposit. They rely on a short letter from Billy, which says:

To whom it may concern

I, Billy Telford give my son Jamie Telford a gift for a deposit to buy some land at 629a Hakarimata Road the amount was 80,000 dollars.

Yours, William Telford

[44]   Billy says the letter does not reflect the true position. He says the $80,000 came from his Belfast pension and represented some of his life savings; he could not afford to gift the money “to anybody”. Billy says he wrote the letter for the bank to ensure the deposit reached the vendor, and to ensure Jamie could get the first loan in relation to the property.

[45]   Tessa said the bank needed a letter to explain the transaction, and it had to “be written down as a loan or a gift”. She said Billy chose a gift. In response to a question from me, Tessa said this was why she believed the $80,000 was a gift.

[46]   I do not doubt Billy’s evidence, for the reasons he gave. I find the money was not a gift.12 Ms Dempster says I should not reason this way as it endorses Billy’s lack of candour with the bank and reflects poorly on his credibility. I acknowledge the point but remind Jamie and Tessa of the dangers of the proverbial glasshouse given their misadventures in relation to controlled drugs.

[47]   In summary, I find the $80,000 deposit was contributed by Billy and Eileen, not Jamie and Tessa.

[48] Billie and Eileen paid six invoices in relation to the home’s construction between 25 January and 1 April 2016; see shaded rows 4 – 9 at [39]. These total

$26,634.28. In closing, Ms Dempster raised for the first time the possibility Jamie and Tessa reimbursed Billie and Eileen for these invoices by transferring money to their bank account at about the same time. Ms Dempster noted bank records (in the common bundle) supported this possibility.

[49]   The argument suffers two related difficulties. First, it is speculative. Second, it is so because Ms Dempster did not put the point to Billy or Eileen during cross- examination, as she ought.13 This may explain why Billy began waving from the public gallery when Ms Dempster made  the  submission,  saying  he  wanted  to “pop back into the witness box”. (I did not allow this.)

[50]   I treat the payments totalling $26,634.28 as contributions by Billy and Eileen to the property.

[51] The next item concerns Billy and Eileen’s weekly loan repayments of $200 per week totalling $18,400; see row 19 of the first table at [39]. Ms Dempster says this item cannot be a contribution to the property as it concerns the truck Billy and

12     Reasoning of this nature is permissible, even in the absence of an express pleading of a sham, as the recent decision of the Court of Appeal in Chinappa v Narain [2022] NZCA 183 illustrates.

13     Contrary to s 92 of the Evidence Act 2006.

Eileen bought for $30,000. As will recalled, this amount was added to the second loan (which was for the property). Billy and Eileen paid $200 per week to repay the

$30,000 added to the loan for the truck. The total of $18,400 was, therefore, directed exclusively at that.

[52]   Ms Dempster’s argument is unanswerable. The amount of $18,400 is not a contribution to the property.

Jamie and Tessa’s contested contributions

[53]   Jamie and Tessa say the $80,000 deposit was their contribution. I have already held otherwise.

[54]   The next item concerns the second loan. For reasons that will become apparent, I deal with this item later. This brings me to Jamie’s alleged labour in relation to the property, to the value of $143,777.90.

[55]   To support this figure, Jamie and Tessa put forward a one-page document from Jamie’s employer, BDC Bricklaying Ltd. It reads:

SALESPERSON		JOB	PAYMENT TERMS		DUE DATE
Brad Eketone		629A Hakarimata Road	Due on receipt
QTY	DESCRIPTION			UNIT PRICE		LINE TOTAL
Brickwork			35,712.90
Lintel bars			2,604.00
Block work			26,555.00
Retaining wall			6,000
Boundary fence			43,206.00
Exterior plastering			10,000
Electricity trench			1,200
Drive Way			5,000
Foundation			6,000
Pink batts			6,000
Land Scaping			1,500
SUBTOTAL		$143,777.90
SALES TAX
TOTAL	$143,777.90

[56]   Jamie and Tessa did not call a witness to speak to the document, expert or otherwise.14 Jamie said he believed the document identified what his employer would charge for the labour he carried out. Materials, therefore, would be additional.

[57] Billy and Eileen say Jamie did not do all the work identified in the document. For example, they say most of the property was already fenced, so it is not possible Jamie provided fencing labour to the value of $43,206. They say Jamie was busy working on other (paid) jobs during the week, and it is not possible he provided the labour identified in the table during weekends. They say others helped too: friends of Jamie and their teenage grandson. Billy and Eileen estimate $30,000 as the total value of Jamie’s labour. Finally, Billy says Jamie helped as his son; not because of an understanding his labour would count towards a share of the property. This point I have already rejected. Jamie’s labour was an incidence of the common intention; see [36].

[58]   Jamie is adamant he did all of the work in the table, to the value identified. He says he spent “two years” building the house and it would not have been completed had he not helped.

[59]   I am not able to make detailed findings in this area given the “he said, he said” nature of the evidence and associated absence of specificity. But, two points can be quickly addressed. That Jamie’s friends helped is beside the point. Had they not done so, Billy and Eileen would have needed to pay for that labour. That much of the work might have been conducted at weekends is not terribly informative; the build began March 2015 and ended in or about November 2016. In other words, it took time.

[60]   I do not doubt Jamie did much of the work alleged. It cannot be a coincidence Jamie is a bricklayer and the house is built of brick.15 Moreover, while Billy said he helped build the home, his injury must have compromised him in some way (given he became an ACC beneficiary). Billy and Eileen’s budget also meant they must have

14 Beyond commenting on it themselves. Ms Dempster said Jamie and Tessa had difficulty accessing the property after their departure. If Billy and Eileen had been obstructive in relation to access, including for an expert, Jamie and Tessa could have given evidence about that. They did not.

15 This is true irrespective of how many lintels there are in the home. Billy initially said none existed, then he said there were two. Jamie said there were “like seven”. Photographs would presumably be decisive. None were adduced other than those in a market valuation report. These do not assist.

been heavily reliant on Jamie to provide labour. On the other hand, Jamie’s methamphetamine habit and cannabis interest suggest distraction and unreliability, hence the conclusion he did much of the work rather than it all.

[61]   This leaves valuation of that work. The document from Jamie’s employer has obvious failings. It lacks independence and detail and, most significantly, a witness. Its figures present as high, albeit Jamie denies this. I place no weight on the document for these reasons.16

[62]I fix Jamie’s labour contribution (including labour provided by his friends) at

$70,000. I acknowledge an element of impression here. Again, the evidence does not admit any other approach.

[63]   This brings me to the second loan. Jamie and Tessa say the full amount of the second loan should be treated as a contribution to the property. This because all of the money was used towards the property, and they have been responsible for all repayments. They continue to bear related risk.

[64]   Billy and Eileen say Jamie and Tessa agreed to the second loan on the basis related repayments would be a substitute for rent. So, Billy and Eileen argue, the second loan should not be treated as a contribution to the property.

[65]   I do not accept Jamie and Tessa agreed to the second loan on the condition identified by Billy and Eileen. They were part owners, albeit secondary or minority ones (in accordance with the common intention). It is thus awkward to consider Jamie and Tessa liable for rent. But, I do not accept the full amount of the second loan should be treated as a contribution. The reason is elementary: while the loan was applied to fund construction, little of it has been repaid.

16     Doubt attaches to the admissibility of the document in any event. It is plainly hearsay.

[66]   Ms Dempster said if I reached this conclusion, Jamie and Tessa’s contribution in relation to the second loan should be valued at $82,909.96. This is what they have paid under that loan, as to which see this table:

Date	Contribution	Amount
30.1.2015– 11.3.2015	Loan repayments	$1,721.46
May–Sept 2016	Interest on flexi home loan	$687
1.10.2016– 27.9.2017	47 loan repayments at $204.63	$9,617.61
1.10.2017– 28.9.2018	52 loan repayments of $250	$13,000
1.10.2018– 27.11.2018	Nine loan repayments of $282.23	$2,540.07
28.11.2018– 27.11.2019	52 loan repayments of $460	$23,920
4.12.2019– 1.4.2020	18 loan repayments of $485.23	$8,734.14
8.4.2020– 21.10.2020	29 loan repayments of $217.37	$6,303.73
6.1.2021– 20.10.2021	42 loan repayments of $220.78	$9,272.76
27.10.2021 – 30.3.2022	23 loan repayments at $229.23	$5,272.29
1.4.2022– present	Eight repayments at approximately $230	$1,840
Total	$82,909.06

[67]   Through Mr Depledge, Billy and Eileen argue only the payments made from around the time Jamie and Tessa left the property should be treated as contributions, hence the contentious shaded rows higher in the table. Stripped to its essence, the argument is one I have already rejected: earlier loan payments should be treated as the equivalent of rent.

[68]   There is good reason to treat all payments in the table as contributions to the property. But for the second loan, the house could not be completed. Jamie and Tessa

carry risk in relation to the loan.17 And, I have already concluded everyone agreed Jamie and Tessa would have a secondary or minority interest in the property according to their contributions, including financial ones.

What is the extent of the plaintiffs’ interest in the property?

[69]   Billy and Eileen have established contributions totalling $424,015.04. Jamie and Tessa have established contributions totalling $152,909.06. Some (modest) adjustment must be made for Jamie and Tessa’s risk associated with the first loan; their unquantified payments of rates; and their exclusion from the property. I round their contribution to $160,000.

[70]   This means Billy and Eileen have a 73 percent interest in the value of the property; Jamie and Tessa a 27 percent interest. The conclusion is entirely consistent with the identified common intention. That said, it matters not whether the claim is analysed as a common intention constructive trust, a reasonable expectation constructive trust, or a resulting trust. The outcome would not change. Mr Depledge and Ms Dempster did not argue otherwise.

[71]   Mr Depledge and Ms Dempster cited many cases.18 It is not necessary to analyse them. In this area, facts are everything.

What relief should the Court order?

[72]   Billy and Eileen want to remain at the property. Mr Depledge said they could afford to buy Jamie  and Tessa’s  share  of the  property if it  were  not  more  than  10 percent. He said the finding of a greater share would probably require the financial involvement of Shelley to buy out Jamie and Tessa. This risks history repeating: yet more litigation between family members. Sale can be ordered under s 339 of the Property Law Act 2007, provided it is warranted under s 340 of that Act.

17 So too, of course, Billy and Eileen given their interest in the property.

18 Cossey v Bach [1992] 3 NZLR 612, [1992] NZFLR 673, (1992) 9 FRNZ 300; Lankow v Rose  [1995] 1 NZLR 277, [1995] NZFLR 1, (1994) 12 FRNZ 682; Taylor v Watson CA271/01, 6 August 2002; Bunyan v Parish [2016] NZHC 2225; Holster v Grafton (2008) 9 NZCPR 314 (HC); Goldstar Insurance Co Ltd v Gaunt [1998] 3 NZLR 80 (CA); Coffey v Coffey [2012] NZHC 1749; Parkins v Parkins [2022] NZHC 606; Lo v Lo [2021] NZCA 693; and Woolf v Kaye [2018] NZHC 2191, [2019] 3 NZLR 93.

[73]   I make no determination about relief for now. The parties’ submissions about relief were hurried. Moreover, with time and reflection, agreement about relief may be possible. I, therefore, issue this judgment as an interim one, with relief to be determined in the event agreement about relief cannot be reached.

Result

[74]The constructive and resulting trust causes of action succeed insofar as:

(a)Billy and Eileen have a 73 percent beneficial interest in the property.

(b)Jamie and Tessa hold the property on trust for the benefit of Billy and Eileen to the extent of (a).

[75]   Relief remains to be determined in the event agreement about it cannot be reached within a reasonable time.

[76] The Registrar is to convene a telephone conference in a month or so to address progress in relation to [75].

Costs

[77]   This may be a case in which costs should lie where they fall. Everyone has had a measure of success. If agreement is not reached about costs, I will impose a timetable. This can be discussed at the telephone conference too.

……………………………..

Downs J