Woods v McKinlay (No 3)

1. [1]

   In November 2021, following the trial in these proceedings, I delivered reasons for judgment setting out my conclusions on the parties’ claims: Woods v McKinlay (No 2) [2021] NSWSC 1510. I concluded that the plaintiff had made out her case for the imposition of a constructive trust over the property which is the subject of the proceedings. I also set out my view, which was subject to further submission from the parties, on the form of the account which would take place under the constructive trust.

2. [2]

   The parties did not, following delivery of my decision, proceed to have the Court make formal declarations and orders to give effect to the conclusions that I had reached. Nor did they make further submissions on that question. Instead, they embarked themselves on an informal process of conducting the account. The property was sold and as a result of consent orders between the parties some funds were distributed to either side. What now remains is to finalise the distribution of the proceeds. For that purpose, the parties have managed to agree all of the outstanding accounting issues expect for one, which is the subject of this judgment.

3. [3]

   The judgment assumes familiarity with my November 2021 judgment, paragraphs of which I will refer to as “J2”. As in my November 2021 judgment, I will, for convenience and without disrespect, refer to the parties by their given names.

4. [4]

   The plaintiff (“Antoinette”) and the first defendant (“Orlene”) are sisters. The second defendant (“David”) is Orlene’s son. The proceedings concern a residential property at Telopea, near Parramatta. The property was purchased in the names of Orlene and David in 2001 but, on my findings, it was purchased as a home for Antoinette.

5. [5]

   The chronology of the key events is set out at J2 [17]-[59]. I concluded that the failed joint endeavour doctrine, as described by the High Court in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137, was applicable: see J2 [227]-[261]. Given this conclusion, the appropriate remedy was the imposition of a remedial constructive trust for the sale of the property, the repayment of the parties’ respective contributions, and the division of the proceeds between them: see J2 [262]-[290].

Indexation of joint endeavour contributions

1. [6]

   One of the issues debated between the parties following the trial was whether it was appropriate to make an order to impose a constructive trust which would result in the surplus resulting after the repayment of the parties’ contributions being divided equally. I was of the view that it should. I stated (at [275]-[277]):

2. [7]

   This reasoning applied to the contributions made by both parties (Antoinette on the one hand and Orlene and David on the other). But Orlene and David had borrowed the monies which they used to purchase the property. The loan was still outstanding and was to be discharged from the proceeds of sale of the Telopea property. Accordingly, I contemplated that only Antoinette’s contribution would be indexed (J2 [278]).

3. [8]

   After delivering my November 2021 judgment, and while the parties were engaged in the process of sale of the property and the informal accounting, I dealt with another similar case. In that case, I likewise concluded that the circumstances warranted the imposition of a constructive trust as a result of a failed joined endeavour which had involved an acquisition by the defendant of a residential property for the plaintiff to live in. In that case, unlike the present, I made final orders following the delivery of my principal judgment. Those orders defined the terms of the trust to be imposed and the nature of the accounting to be undertaken to determine the parties’ contributions: Makaritis v Makaritis (No 3) [2023] NSWSC 409.

4. [9]

   The question of indexation of contributions was one of the issues which arose in formulating the final orders. Referring to J2, I stated (at [30], [32]-[33]):

5. [10]

   In the present case, the calculations presented on Antoinette’s behalf applied an indexation rate for her capital contributions which was based on the actual increase in capital value of the property. The property was sold last year for 265% of its original purchase price. Spread over 21 years, this represents a 6.46% compound return, and this was the indexation rate which was applied to the figures presented on Antoinette’s behalf.

6. [11]

   My comments about indexation in my November 2021 judgment were preliminary, and counsel for Orlene and David contended that Antoinette’s capital contributions should not, after all, be indexed. Counsel did not argue that indexation was wrong in principle, or invite me to reconsider my decision to index both parties’ contributions in Makaritis. Rather, counsel submitted that the decision was distinguishable.

7. [12]

   As counsel noted, in my November 2021 judgment I expressed the view that Antoinette’s contribution should be indexed, whereas in Makaritis (quoted at [9] above) I spoke of the parties’ contributions being indexed. Furthermore, counsel pointed out that, in Makaritis, one of the objectives of the joint endeavour was to provide the plaintiff with rent-free accommodation if possible. In the present case, counsel contended, Antoinette was given exclusive occupation of the Telopea property in return for her agreement to cover the holding costs: see J2 [283]. In these circumstances, to allow indexation in Antoinette’s favour would be a form of “double-dipping”. Antoinette had, in counsel’s submission, already received a benefit from her capital contributions in the form of a reduction of the ongoing interest costs.

8. [13]

   Counsel also observed that, if no indexation was applied, the parties’ shares of the surplus on sale of the property after repayment of the capital amount of the contribution would be approximately equal. Counsel did not suggest that there was any contribution by Orlene or David which could, or should, be indexed. But counsel submitted that an equal division of the surplus after return of Antoinette’s contributions would reflect the real justice of the case: see J2 [270]-[275].

9. [14]

   I do not accept these submissions. In the first place, I am not sure that Makaritis is really distinguishable. It is true that I only proposed in my November 2021 judgment to index Antoinette’s contribution, but that is because there was no relevant contribution by Orlene and David to index. If they had made any capital repayments on the loan, or made separate contributions outside the loan, then those contributions would be indexed at the same rate as Antoinette’s. Nor is there a difference between the joint endeavours in the two cases which is as clear as counsel suggested. In Makaritis, it was hoped to derive income from renting out other rooms in the property to third parties. Nonetheless, in both cases, borrowing was part of the joint endeavour, the cost of which would, if necessary, be underwritten by the party occupying the property.

10. [15]

    Counsel for Orlene and David conceded that Antoinette would recover her capital contributions before division of the surplus. Given that concession, in my view, indexation becomes necessary to ensure that Antoinette receives full restitution for the actual economic value of the capital contributions she made. Denying indexation would result in an inflation-generated windfall in favour of Orlene and David.

11. [16]

    Nor, I think, does indexation result in some sort of double-dipping between Antoinette on the one hand and Orlene and David on the other. Paying off the loan in part reduced the interest, and this was, in a sense, to Antoinette’s benefit. But it did not cost Orlene and David anything.

12. [17]

    There was no dispute that, if (as I have concluded) Antoinette’s contribution should be indexed, then the rate of 6.46% per annum should be used. Accordingly, it should now be possible for the parties to agree on the calculation of the final distributions to be made from the funds remaining from the sale of the Telopea property.

Orders

1. [18]

   The proceedings will be adjourned to allow the parties an opportunity to make the necessary calculations, and reach agreement, if possible, on costs. If costs cannot be agreed, then I will hear further submissions in due course.

2. [19]

   The orders of the court are:

   1. (1)

      Adjourn the proceedings to 9:30am on 12 May 2023 or such other date or time as may be arranged with my Associate.

   2. (2)

      Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.