Macdonald v Whitelaw

1. [1]

   The plaintiff, Ms Macdonald, was once the de facto partner of Mr Thomas. That relationship commenced in 2005. They had 4 children together. In 2012, while they were together, a property was purchased at Narellan. It was purchased in Mr Thomas’s name in 2012. Their first child, Zara, was born with substantial disabilities and died aged 6 in 2013. From about mid-2013, the relationship between Ms Macdonald and Mr Thomas faltered. They had periods of separation before agreeing to separate on a final basis in about mid-2014.

2. [2]

   Ms Macdonald had another child, Amity, who was born in January 2015. Mr Thomas was not Amity’s father.

3. [3]

   Mr Thomas died, aged 37 in June 2016. By his will, his estate was left to his 3 surviving children, Koby, Jaxson and Brayden. His sister, Ms Whitelaw, is his executrix. She holds the estate for the benefit of those children, who are minors.

4. [4]

   For some years, after Mr Thomas died, Ms Macdonald lived in the Narellan property with her 4 children. She moved to Queensland, initially on a trial basis, in April 2022. The Narellan property was sold in January 2025. Ms Whitelaw’s solicitors hold the proceeds of sale, which stand at approximately $1,050,000.

5. [5]

   By these proceedings, Ms Macdonald claims that Ms Whitelaw holds the proceeds of sale of the Narellan property subject to either: (a) a common intention constructive trust; (b) a joint endeavour constructive trust; or (c) a resulting trust, in favour of Ms Macdonald. She claims a beneficial interest in 50% of the proceeds.

6. [6]

   Ms Whitelaw denies Ms Macdonald’s trust claims and also contends that relief should be denied because of delay.

7. [7]

   For the reasons set out below, Ms Macdonald’s claim for relief on the basis of a joint endeavour constructive trust succeeds. Her claims based on a common intention constructive trust or a resulting trust fail. Ms Whitelaw’s laches defence fails.

The claims for a constructive trust

1. [8]

   Ms Macdonald submitted that she “claims a common intention constructive trust or alternatively a failed joint endeavour constructive trust”.

2. [9]

   The circumstances that give rise to a common intention constructive trust were outlined by Ward CJ in Eq in Bassett v Cameron [2021] NSWSC 207 as follows:

3. [10]

   The principles are set out in greater detail in Shepherd v Doolan [2005] NSWSC 42 at [34]-[42] (White J), which his Honour repeated in Galati v Deans at [54]. His Honour observed that the relevant intention may be established in various ways. His Honour remarked that a common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture. His Honour held that the intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose.

4. [11]

   In King v Fister [2022] QCA 47, Davis J (Sofronoff P and Mazza AJA agreeing) held at [25] that:

5. [12]

   I note that in Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336, Leeming JA, sitting at first instance, observed that there seems to be a large question, about whether the doctrine of common intention constructive trust survives, following developments in Australian law in the previous 35 years. His Honour did not express a concluded view but remarked at [119] that: “it may be that this form of trust no longer survives in Australian law as an institution separate from an entitlement in estoppel”. Kirk JA (Mitchelmore JA agreeing) referred to “some controversy” about this form of trust in Li v Ye [2025] NSWCA 227 at [39]. I do not need to address this question because there was no argument before me that the doctrine of common intention constructive trust no longer survives. Moreover, the decision in Galati v Deans supports its survival.

6. [13]

   Ms Macdonald must establish that it was Mr Thomas’s and her intention that Ms Macdonald should have some form of proprietary interest in the Narellan property. For the reasons set out below, I do not accept that she has established that fact.

7. [14]

   It is necessary to pay regard to the facts leading up to the acquisition of the Narellan property.

8. [15]

   After Zara was born, a claim was pursued on her behalf against the hospital in negligence following complications at birth. Ms Macdonald and Mr Thomas also pursued claims for nervous shock. Those claims were resolved in about November 2010, with a payment for Zara’s benefit of about $5.3m. Perpetual Trustee Company Limited was appointed as financial manager to manage Zara’s compensation payment. Ms Macdonald and Mr Thomas also settled their claims for about $200,000 and $30,000 respectively.

9. [16]

   In late 2010, Ms Macdonald submitted a claim to Perpetual for past gratuitous care of Zara. The claim was approved and she received $202,602.90 from Perpetual on about 5 September 2011.

10. [17]

    Beginning in about early 2011, after the settlement of Zara’s claim, Ms Macdonald and Mr Thomas had discussions about steps to be taken to accommodate Zara and the family’s needs. Ms Macdonald (understandably) could not recall the exact words spoken during specific conversations. Her evidence is that the thrust of various conversations was that she and Mr Thomas discussed and agreed:

11. [18]

    Her evidence is that she suggested, and Mr Thomas agreed, that they use about $100,000 of the proceeds from her past gratuitous care claim as a deposit and part-payment for the interim home and try to get a loan for the balance of the purchase price.

12. [19]

    There is evidence from Ms Macdonald, supported by a diary note, that she and Mr Thomas had a meeting with a mortgage broker on 22 September 2011 at 4pm. Her evidence is that she cannot recall the words spoken but the effect of the discussion included the following elements:

13. [20]

    Ms Macdonald’s evidence about her conversations with Mr Thomas and with the broker were not the subject of any real attack in cross-examination. Ms Macdonald confirmed that she had a particular recollection that the broker advised that the property should go into Mr Thomas’s name for tax reasons because she was not working.

14. [21]

    Ms Macdonald’s diary note includes a record for 30 September 2011 stating: “house loan approved”. Her evidence is that Mr Thomas said that to her.

15. [22]

    Ms Macdonald’s evidence is that she and Mr Thomas inspected houses on 1 and 8 October 2011. Her diary supports that evidence. Her evidence is that they learned that the Narellan property was for sale in mid-October 2011 and that she and Mr Thomas inspected it together and both said that they liked it.

16. [23]

    She gave evidence of a second inspection about a week later. She says she told Mr Thomas that she really liked the house and, in response, he said words to the following effect:

17. [24]

    I recognise that care needs to be taken in how I treat Ms Macdonald’s evidence of conversations that took place in 2011. Mr Thomas is not here to contradict her version of the conversations and there is a significant risk that the passage of time means that her recollection is unreliable, even if she is striving to be truthful (which I accept to be the case). In weighing her evidence, I look to corroborating, objective contemporaneous evidence and the objective probabilities.

18. [25]

    The payment of $100,000 by Ms Macdonald and use of that money by Mr Thomas in the purchase could be relevant to showing a common intention (but also to prove other elements, such as detriment). There are banking records that go some way to establish the movement of funds. But the trail is incomplete because the relevant financial institutions no longer maintain a complete set of transaction records. Ms Whitelaw relies on this as part of her laches defence, to which I will come.

19. [26]

    There are records from Perpetual showing that it paid $202,602.90 to Ms Macdonald on 5 September 2011. Banking records of the National Australia Bank show $200,561.74 as an amount brought forward as at 17 September 2011 into Ms Macdonald’s NAB account (the 5816 account). Ms Macdonald’s evidence is that the amount in the 5816 account reflects the payment of money from Perpetual. That cannot be proved by banking records, but it is plausible and is likely to be correct. Ms Macdonald’s 5816 bank statement shows an internet transfer out of $189,000 on 22 September 2011. Her evidence is that this money was transferred (directly or indirectly) into another NAB account in her name (the 0932 account). The transfer of funds into that account cannot be verified by banking records.

20. [27]

    Ms Macdonald’s evidence is that she transferred $100,000 to Mr Thomas from her 0932 account with a view to him using those funds as part of the purchase price to acquire the Narellan property. That cannot be verified from her banking records. However, Mr Thomas’s banking records show a deposit into his NAB account of $100,000 on 13 October 2011. The only particulars shown on his bank statements record: “cash”. This banking record provides some objective support for Ms Macdonald’s evidence that she transferred $100,000 to Mr Thomas but does not establish every step in the transfer of funds.

21. [28]

    On 13 October 2011, Mr Thomas signed an application for a loan of $380,000 from the ANZ bank. The application includes a statement of financial position, which records total assets of $265,000, comprising: (a) bank account - $100,000; (b) contribution paid to deposit on property - $100,000; (c) motor vehicle - $15,000; and (d) home contents - $50,000. The reference in the application to 2 amounts of $100,000 is difficult to understand. It was submitted for Ms Macdonald that it was a mistake and that the same $100,000 had erroneously been included twice. Some support for this comes from the fact that at the date of the application no deposit had been paid and to say that there was $100,000 as a “contribution paid to deposit on property” on any view seems to be an error. It would be an extraordinary coincidence if Mr Thomas paid $100,000 in respect of a deposit and had exactly the same amount in a bank account. I am not prepared to place any weight on the application in these circumstances.

22. [29]

    ANZ approved the loan on 14 October 2011, subject to conditions. One of the conditions required confirmation that 2 GO credit cards had been closed. One of those cards was in Ms Macdonald’s name.

23. [30]

    There is objective evidence that Mr Thomas entered into a contract for sale of the Narellan property on 15 November 2011. The purchase price was $485,000 and the deposit was $48,500. Ms Macdonald’s evidence is that Mr Thomas told her that he paid the deposit using the $100,000 that she transferred to him. There is no direct, objective and contemporaneous evidence of this.

24. [31]

    On 15 November 2011, Mr Thomas made an application for a First Home Owner Grant from the NSW Government. The form, signed by Mr Thomas, stated that only one person would have an interest in the property. It also stated that Mr Thomas did not have a “spouse/partner”. It is not clear why that second statement was made because there is no doubt that Mr Thomas and Ms Macdonald were in a de facto relationship at that time.

25. [32]

    The property settlement occurred on 25 January 2012. The settlement documentation indicates that the amount due on settlement was $437,066.48 and that ANZ provided funding of $386,590.40. The balance of $50,476.08 and the deposit of $48,500 is just under $100,000. This indicates that Mr Thomas had access to $100,000 that did not come from ANZ.

26. [33]

    There was some independent evidence supporting the proposition that Ms Macdonald contributed $100,000 to the purchase price of the Narellan property. Ms Macdonald called evidence from Mr Wallace who had been a close and longtime friend of Mr Thomas. His evidence was that Mr Thomas spoke to him more than once about getting money from Ms Macdonald, including that Ms Macdonald “is putting in $100,000 from the Court settlement to the purchase of the property”. Mr Wallace has had very few communications with Ms Macdonald since Mr Thomas’s death. He gave no impression of seeking to do anything other than to tell the truth. His cross-examination showed some confusion about dates and what is likely to be a mix-up between the exchange of contracts and settlement. But his evidence provides some independent support for the proposition that Ms Macdonald contributed $100,000 to the purchase price.

27. [34]

    There is evidence that after the drawdown on the ANZ loan in January 2012, Mr Thomas made weekly payments in respect of interest and principal. By 8 January 2015 (when the loan was discharged – see further below), he made payments totalling nearly $75,000. For much of this time, he and Ms Macdonald were living together in a relationship and she was caring for their children on a full-time basis.

28. [35]

    In December 2012, land at Bingara Gorge was acquired by Perpetual (as Zara’s trustee) with a view to constructing a house that was suitable for Zara. This is consistent with the conversations Ms Macdonald says she had with Mr Thomas in 2011.

29. [36]

    Zara died on 27 March 2013. Letters of administration on intestacy were granted to Ms Macdonald and Mr Thomas on 4 July 2013. The property at Bingara Gorge was sold for $360,000 on 17 April 2014. The net proceeds of sale were $353,437.35. It is common ground that Ms Macdonald and Mr Thomas were each entitled to 50% of those funds (and to all of the amounts that had been paid to settle Zara’s compensation claim).

30. [37]

    In September 2013, Ms Macdonald and Mr Thomas obtained a financial plan from Perpetual Private. It records as a “personal goal and objective” that “over time, you wish to establish a Trust Fund to show Zara has looked after her siblings”. Ms Whitelaw relied on this as evidence indicating that there was an intention to look after Zara’s then living siblings (noting Amity had not been born). I do not place weight on this aspirational statement as a reliable statement of intention as to the Narellan property. It says nothing of the intention at the time of purchase. It points to an objective as at September 2013. It is not the only objective. The document also identifies as an objective a wish “to live comfortably in the future without worrying about money”. I do not consider that the financial plan provides helpful evidence about Mr Thomas and Ms Macdonald’s intention as to the ownership of the Narellan property.

31. [38]

    On 1 May 2014, Mr Thomas gave a written instruction to the conveyancer who held the proceeds to “deposit the full amount … into our ANZ home loan account, in my name Nicholas Thomas”. That is what occurred. The $353,437.35 was paid into the ANZ home loan account on 5 May 2014, leaving an outstanding balance of $19,170,12. This is evidence that Mr Thomas regarded the ANZ loan as being a loan for the benefit of both himself and Ms Macdonald. It also is evidence that $176,718.67 (half of the $353,437.35) in funds that were held for Ms Macdonald were used to discharge part of Mr Thomas’s ANZ loan.

32. [39]

    As I have noted already, from about mid-2013 the relationship between Ms Macdonald and Mr Thomas began to breakdown. They had periods of separation. They agreed to separate on a final basis in about mid-2014.

33. [40]

    Ms Macdonald gave evidence that in about October or November 2014, Mr Thomas told her that there was about $20,000 left on the loan and she asked him to let her know how much he needed from her to pay off the rest. On 20 November 2014, Ms Macdonald drew a bank check for $23,000 using her own funds. On the same day, $23,000 was deposited into Mr Thomas’s ANZ account. There is no dispute that this payment came from Ms Macdonald. That payment did not discharge the loan because Mr Thomas had been making redraws on the account, but a final amount was paid to discharge the loan on 8 January 2015.

34. [41]

    The fact that Ms Macdonald made significant payments to assist to discharge the ANZ loan lends further support for the contention that she contributed $100,000 at the outset. Contributing to discharge the loan is consistent with having contributed to the purchase price in the first place.

35. [42]

    Given the objective support for Ms Macdonald’s evidence that she transferred $100,000 to Mr Thomas for the purpose of paying the deposit and part of the purchase price of the Narellan property, I am satisfied that she did make that payment and also that Mr Thomas used the funds for those purposes.

36. [43]

    Mr Thomas died in June 2016 and had been unwell in the months leading up to his death. In that time, Mr Thomas and Ms Macdonald spoke of resuming their relationship. Ms Macdonald was regularly visiting Mr Thomas at the Narellan property and sometimes stayed overnight. Ms Macdonald gave evidence under cross-examination that Mr Thomas said at one stage that he “wanted to actually basically adopt Amity”.

37. [44]

    With those factual findings, I return to the question of whether Mr Thomas and Ms Macdonald agreed, or it was their common intention, that Ms Macdonald should have some proprietary interest in the Narellan property.

38. [45]

    It was submitted for Ms Whitelaw that the common intention was to provide a roof over the heads of their children and not for themselves. Ms Macdonald gave evidence that Mr Thomas said to her many times: “I wish to ensure that the children have a roof over their heads”. In my view, a statement by Mr Thomas that he wanted to provide a roof over the heads of their children does not mean that he did not also wish to have a roof over his own head, or that of his de facto partner and mother of the children. It does not seem to me that a wish to have a roof over the head of the children says anything of significance about the question of whether or not there was a common intention that the property would be owned, in some fashion, by them both.

39. [46]

    What is significant is that the reason the property was put into Mr Thomas’s name was to seek to achieve an effective tax structure, given that it was anticipated that the property would become an investment property and Mr Thomas would be working while Ms Macdonald cared for the children. The advice that the property be placed in Mr Thomas’s name must have anticipated that the expenses to hold the property could exceed the rental return, so that the net annual loss on the investment would reduce Mr Thomas’s taxable income. This strategy may have failed if Ms Macdonald held an interest in the property pursuant to an institutional constructive trust created by a common intention that the property would be held by both of them from the time of purchase. I noted above that there is appellate authority that a common intention constructive trust is an institutional constructive trust. If the property was held by Mr Thomas as to 50% pursuant to an institutional constructive trust for the benefit of Ms Macdonald, then the outcome could have been that for taxation purposes, she was a 50% owner of the property: see MacFarlane v Commissioner of Taxation (Cth) (1986) 13 FCR 356 at 367-368. That would be inconsistent with the objective that was intended.

40. [47]

    I accept that when Mr Thomas and Ms Macdonald took the advice that the property should be put into Mr Thomas’s name, it was their common intention that Mr Thomas would be the sole owner of the property. They intended that he would be the owner of the property, and she would not be an owner. They made that decision because they believed that would be the most tax effective way for the property to be held. When Mr Thomas applied for the First Home Owner Grant and stated that only he would have an interest in the property, that was true. He and Ms Macdonald expected that the house would serve as the family home and then as an investment property for the benefit of the family. But that is not inconsistent with Mr Thomas being the sole owner of the property.

41. [48]

    For these reasons, Ms Macdonald has not made out her case for a common intention constructive trust.

42. [49]

    Ms Macdonald relied in the alternative on an alleged joint endeavour constructive trust. In NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86; [2022] NSWCA 225 at [62] Mitchelmore JA (Basten and Griffiths AJJA agreeing) adopted the distillation of relevant principles by Parker J in Woods v McKinlay (No 2) [2021] NSWSC 1510 at [231], as follows:

43. [50]

    In Baumgartner v Baumgartner (1987) 164 CLR 137 at 149; [1987] HCA 59, Mason CJ, Wilson and Deane JJ held:

44. [51]

    In King v Fister, Davis J held at [27] that a failed joint endeavour constructive trust is a remedial constructive trust. Equity will intervene to prevent one party to the failed joint endeavour from asserting or retaining against another an ownership of property to the extent that it would be unconscionable for the first party to do so: Muschinski v Dodds (1985) 160 CLR 583 at 620 (Deane J); [1985] HCA 78.

45. [52]

    While the facts in this case, which I addressed above, do not lend themselves to the conclusion that there is a common intention constructive trust, they do support the conclusion that the elements for the imposition of a constructive trust by reason of the failed joint endeavour are satisfied.

46. [53]

    The joint endeavour involved the acquisition of the Narellan property, first to provide a home for the family and then to provide an investment property to benefit the family. The joint endeavour involved the property being acquired by Mr Thomas, in the anticipation that he would earn income while Ms Macdonald cared for their children (which was especially burdensome given Zara’s disabilities). It was anticipated that ownership of the property by Mr Thomas would have taxation advantages because the expenses of owning the property could be tax deductible once the property became an investment property. The property was acquired by Mr Thomas pursuant to that joint endeavour.

47. [54]

    Consistently with the joint endeavour, Ms Macdonald and Mr Thomas both contributed to the purchase price: Ms Macdonald by contributing $100,000 from her own resources and Mr Thomas contributing $380,000 from money borrowed from ANZ. Ms Macdonald subsequently contributed $176,718.67 and then $23,000 to assist in discharging Mr Thomas’s ANZ home loan (meaning that overall, her financial contributions to the acquisition of the property exceeded those of Mr Thomas). Pursuant to the joint endeavour, she also cared for their children while Mr Thomas earned income and made payments to meet his mortgage obligations. This non-financial contribution was significant in particular because of Zara’s special needs.

48. [55]

    The joint endeavour was prematurely terminated. It faltered when Ms Macdonald and Mr Thomas separated. It was possible, however, that even after that time the property could have been used to generate income or financial benefits to assist in the living expenses and financial security of the family. There was evidence that Mr Thomas suggested that they buy another investment property together in November 2014, even after they had separated. The joint endeavour came to a definite and permanent end when Mr Thomas died in June 2016. From that point, there would never be an opportunity for Mr Thomas to claim property expenses as a tax deduction against his income.

49. [56]

    I am satisfied that Mr Thomas and Ms Macdonald did not intend that in the event the joint endeavour failed, Mr Thomas would be entitled to continue to own the land beneficially, notwithstanding Ms Macdonald’s contribution to the joint endeavour. Given Ms Macdonald’s considerable financial and non-financial contributions to the joint endeavour, it is unconscionable for Ms Whitelaw, as Mr Thomas’s executrix, to assert that the estate has an interest in the proceeds of the sale of the Narellan property to the exclusion of Ms Macdonald now that the joint endeavour has prematurely failed.

50. [57]

    The claim advanced at trial was that Ms Macdonald should have an equal share in the property with Mr Thomas. That is appropriate. There is no reason why her share of the beneficial interest should be any less than 50%. The joint endeavour should be seen as an endeavour between equals. There is no good reason why Ms Macdonald’s interest should be less than 50%. I do not regard the fact that the beneficiaries of the estate are 3 of Ms Macdonald’s 4 children as a sound reason to strengthen Ms Whitelaw’s assertion that the estate should have any more than a 50% interest in the proceeds.

51. [58]

    I am fortified in this conclusion by the evidence that in March 2016, Mr Thomas took steps towards changing his will to provide that Ms Macdonald would receive half of the Narellan property. He had instructed his solicitors to draw a new will to bring about that change but died before any change was made. This indicates a recognition on Mr Thomas’s part that it would be fair and appropriate that half the property go to Ms Macdonald in the event of his death. That instinct reflects what conscience demands in the circumstances of this case.

52. [59]

    It was submitted for Ms Whitelaw that the appropriate remedial response, if there was to be a remedy, would be repayment of the money that Ms Macdonald contributed. I do not think that is appropriate in this case. It would not properly reflect Ms Macdonald’s considerable non-financial contributions. Ms Macdonald should get the benefit of the increase in the value of the Narellan property, particularly in light of her significant financial and non-financial contributions to the joint endeavour. In any event, given the magnitude of Ms Macdonald’s financial contributions, if interest were taken into account there may be little difference between payment of 50% of the sale proceeds and the repayment of Ms Macdonald’s financial contribution.

The claim for a resulting trust

1. [60]

   Ms Macdonald also contends, in the alternative, that there is a resulting trust. The pleaded case is that the proceeds of sale of the Narellan property were held on a resulting trust “in proportion to her contribution to the acquisition thereof”.

2. [61]

   I have held that Ms Macdonald contributed $100,000 towards the purchase price of the property. This could lead to a presumption that Mr Thomas held the property upon resulting trust in those shares: see Calverley v Green (1984) 155 CLR 242 at 246-247 (Gibbs CJ); 258 (Mason and Brennan JJ) and 266-267 (Deane J); [1984] HCA 81. There could then be consideration of whether the intention was that the whole of their respective contributions, including to discharge the mortgage, would be reflected in their respective interests in the property: see Bloch v Bloch (1981) 180 CLR 390 at 402 (Brennan J); [1981] HCA 56.

3. [62]

   However, the claim for a resulting trust fails for the same reason that the claim for a common intention constructive trust fails. The presumed intention yields to the actual intention: Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34 at [13] (Kiefel CJ and Gleeson J). I am satisfied that there was a deliberate joint strategy to put the property into Mr Thomas’s name. He was to own the property outright because he and Ms Macdonald believed that would be the most sensible ownership structure for taxation purposes.

Laches

1. [63]

   Ms Whitelaw contended that Ms Macdonald should be denied relief because of what she called “gross laches”. She relied heavily on the reasons of Deane J in Orr v Ford (1989) 167 CLR 316 at 340-346; [1989] HCA 4. In that judgment, his Honour observed at 340-341 that the label “gross” was intentionally imprecise and did little to aid in the identification of circumstances in which the defence of laches will preclude relief. His Honour said that the ultimate test of the defence of laches was whether the plaintiff, by inaction and standing by, has placed the defendant or a third party in a situation in which it would be inequitable to place if the remedy were afterwards to be asserted.

2. [64]

   There was some delay in the commencement of these proceedings. Mr Thomas died in June 2016 and the proceedings were not commenced until February 2024. However, the delay needs to be seen in context.

3. [65]

   The appropriate starting point is precise identification of the substantive nature of the claim to which laches is said to constitute a bar: Orr v Ford at 342. Relevantly, the claim for laches arises as a defence to the claim that there should be relief by way of a constructive trust because Ms Whitelaw refuses to recognise any interest of Ms Macdonald in the proceeds from the sale of the Narellan property.

4. [66]

   Ms Macdonald gave evidence that she attended a meeting with Mr Thomas’s solicitor and Ms Whitelaw shortly after Mr Thomas’s death. Her evidence was that the solicitor said that Mr Thomas was in the process of changing his will to give 50% of the Narellan property to Ms Macdonald and that Ms Whitelaw said to her that the property should be in Ms Macdonald’s name. That evidence was not challenged. Ms Whitelaw’s evidence was that she could not recall the exchange, but she did not deny it. I accept that there was a conversation along those lines. Ms Macdonald was entitled to proceed on the basis that Ms Whitelaw’s view was that the property should be in Ms Macdonald’s name.

5. [67]

   Ms Macdonald moved into the Narellan property on a full-time basis shortly after Mr Thomas’s death and lived there, looking after her children, until April 2022. From June 2016, Ms Macdonald knew all of the relevant facts that would support her claim for a joint endeavour constructive trust. However, she would also have reasonably supposed that Ms Whitelaw would not dispute her claim to the property. Following Mr Thomas’s death, there was little contact between Ms Macdonald and Ms Whitelaw. Ms Whitelaw did not demand that Ms Macdonald pay any rent, even though, on her case in these proceedings, she was entitled to do so. This is also consistent with Ms Whitelaw adopting a position that was consistent with a recognition that Ms Macdonald should have a proprietary interest. For the most part, all outgoings for the property were paid by Ms Macdonald, although there is evidence that at times she fell into default and Ms Whitelaw covered the payments. Ordinarily, one would expect the owner of the land to be responsible for outgoings such as rates.

6. [68]

   Ms Macdonald gave evidence that she delayed in bringing proceedings in circumstances where she had been dealing with the grief of losing a child and then losing the father of 3 of her surviving children; she was raising her children on her own, dealing with grief, trauma, loss and post-traumatic stress. This provides some context for the delay and I take it into account in the weighing of considerations.

7. [69]

   Ms Macdonald appears to have first raised concerns about the property being in Ms Whitelaw’s name in correspondence with her solicitor in July 2021. It seems that the title of the property was causing practical problems, including enrolling her son at high school. It appears that she first asserted, through her solicitors, a proprietary interest in the Narellan property in March 2022.

8. [70]

   There was a text exchange between Ms Macdonald and Ms Whitelaw on 13 February 2023. Ms Whitelaw referred to a letter from a debt collector for rates payable on the Narellan property and raised as a possibility that she would pay the rates herself and obtain reimbursement when the house was sold. Ms Macdonald reacted strongly to a suggestion that the house would be sold and complained that the ownership had not been transferred to her and her sons. Ms Whitelaw responded: “…I have no interest in the house and I have no intention to sell it. I realise half is yours and half is theirs…”

9. [71]

   The following features of this case (some drawn in contradistinction to the facts in Orr v Ford) tell against a laches defence:

10. [72]

    The prejudice to which Ms Whitelaw points is that bank records are no longer available to determine conclusively that Ms Macdonald paid $100,000 to Mr Thomas in 2011 for the purchase of the Narellan property and whether (if so) Mr Thomas used the $100,000 for that purpose.

11. [73]

    While I accept that there is some prejudice to Ms Whitelaw, and hence to Ms Macdonald’s 3 eldest children, because she is unable to obtain access to banking records that may have disproved the use of $100,000 of Ms Macdonald’s funds to help purchase the property, I do not consider that this is sufficient to give rise to a laches defence. Even apart from the payment of the $100,000, the evidence supporting the contention that there is failed joint endeavour is strong. The circumstantial objective evidence supporting the conclusion that Ms Macdonald provided the $100,000 to Mr Thomas is also strong. In all the circumstances, I do not consider that Ms Macdonald’s failure to move more swiftly to assert her rights should deny her the opportunity to assert them.

Result

1. [74]

   Ms Macdonald’s claim based on a joint endeavour constructive trust is successful.

Costs

1. [75]

   My provisional view about costs is that:

2. [76]

   I will hear from the parties if they wish to advance a different position.

Orders

1. [77]

   The orders of the Court are:

   1. (1)

      Declare that the defendant holds the net proceeds of sale of the land comprised in Certificate of Title folio identifier XXX/XXXXXX and situated at XX Fairway Place Narellan in the State of New South Wales (Narellan Property) on constructive trust for the plaintiff in the proportion of 50%.

   2. (2)

      Order that 50% of the net proceeds of sale of the Narellan Property be paid to the plaintiff or at her direction within 21 days.

   3. (3)

      If the parties are unable to agree on appropriate costs orders, they are to provide to my Associate submissions in support of their respective positions (limited to 5 pages) by 4 pm on 23 January 2026 and a decision will be made on the papers. If no submissions are received, orders will be made consistently with [75] above.