Application of Burns

The plaintiff in these proceedings, Kristy-Lee Burns, is the executor of the estate of the late Elizabeth Teresa McLoughlin (the deceased) who died on 21 November 2024. Probate of the last will of the deceased, dated 26 July 2023 (the 2023 Will), was granted to the plaintiff on 24 July 2025 (the Grant).

I will refer to family members and relevant others by their first names, without intending any disrespect or overfamiliarity.

Clause 2 of the 2023 Will appointed the directors at the time of the deceased’s death of Owen Hodge Lawyers (OHL) to be her executor and trustee. The plaintiff is one of three directors of OHL at the time of the deceased’s death. The other two directors have renounced their appointment as executor and trustee under the 2023 Will.

The Inventory of Property attached to the Grant indicated that the main asset of the deceased’s estate at the time of her death was a property at Unit X, X-X X Street, Strathfield (the Property) with an estimated value of $775,000. As at February 2026, the market value of the Property is said to be between $755,000 and $830,500. The other assets of the deceased’s estate were said to be the contents of two bank accounts which totalled $11,753.13.

By way of background, the deceased was born in Brampton, England, in the United Kingdom. When aged 17, the deceased married Richard Sergeant in Ramsgate in the UK. The deceased and Richard divorced at some point, however the evidence is not clear as to when this occurred. The deceased had been living in Australia for 38 years at the time of her death.

The deceased and Richard had two children:

The deceased had two great grandchildren, being Jonathan and Katie, the children of Liam. Both Jonathan and Katie are under 18 years of age and live in New Zealand.

David predeceased the deceased. David’s (de facto) widow is Michelle Nixon. David and Michelle were the principal beneficiaries of a will made by the deceased on 27 July 2010, soon after the purchase of the Property (the 2010 Will). Jonathan and Katie are, subject to reaching 18 years of age, the only beneficiaries of the 2023 Will.

Noting the terms of the Inventory of Property, the Property comprises the substance of the estate of the deceased.

By Summons filed on 4 November 2025, the plaintiff seeks relief by way of judicial advice. A number of orders were sought in the Summons, and others still again in a draft of Short Minutes of Order (SMO) handed up at the hearing. The SMO included the following orders (bolding in original):

Only the two orders set out above were ultimately pressed (TR P47-49).

The hearing of the Summons took place on 18 February 2026 on an ex parte basis, with Mr FFF Salama of counsel and Ms GI Adams of counsel appearing for the plaintiff. There is no defendant.

At the commencement of the hearing, counsel for the plaintiff foreshadowed a potential application to file an Amended Summons, however that application was ultimately not pressed (TR P9 L31-34).

The Statement of Facts (SOF) elaborated on the primary order sought in the Summons (being Order 1 from the SMO), and at [32] set out a “Question for opinion, advice or direction” in the following terms:

The question to be addressed had originally also included a reference to a “purchase money resulting trust”, however this inclusion was abandoned in the course of the hearing (TR P46 L1-8, P49 L9-15, see also P6 L3-47).

In making the application, the plaintiff relied on the following evidence and documents:

The affidavits contained all of the evidence upon which the confidential advice was based.

In relation to the confidential advice, after the hearing and whilst my decision was reserved, it became apparent that the confidential advice had not been formally tendered into evidence and marked as an Exhibit. I note, however, that it was the clear intention of the plaintiff to have the confidential advice before the Court. I note this because the plaintiff sought a confidentiality order in relation to it (TR P7 L22-42).

Accordingly, I propose to accept the tender into evidence of the confidential advice and mark it as Exhibit F, as effective from the date of the hearing pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.4(3). I also propose to make the confidentiality order as sought (TR P7).

For the reasons set out below, I am satisfied, firstly, that I am empowered to give the judicial advice sought because the application before me is comfortably one which raises a question respecting the management or administration of trust property and, secondly, that I ought to give the judicial advice as sought.

The background facts as set out below are predominantly taken from the SOF, as supported by the evidence in the affidavits, and as summarised in the POS.

In 2009 David and Michelle travelled to Australia and visited the deceased at her rental property in Croydon. Michelle observed that the property was unsuitable for the deceased because, amongst other reasons, there were 15 to 20 steep stairs to get to the front door.

Consequently, David and Michelle offered to purchase a suitable property for the deceased to live in. Michelle said words to the following effect to the deceased:

Michelle said that the deceased responded with words to the following effect:

In oral submissions, counsel for the plaintiff referred to this exchange as “the perfection of the common intention as between Ms Nixon, David, her partner, and the deceased” (TR P29 L43-44).

The deceased had a sister, Anne-Marie Bowers (Aunt Marie), who lived in the United Kingdom. In about October 2009, David spoke with Aunt Marie and asked her to fly out to Sydney to help the deceased look for an apartment. David offered to pay for Aunt Marie’s flight and accommodation to travel to Sydney to assist the deceased to find a new home. Aunt Marie then did come to Sydney to assist the deceased, though the evidence does not disclose when Aunt Marie arrived. It appears that Aunt Marie and the deceased had found “a great flat” for the deceased to live in by 12 January 2010, as recorded in an email update Aunt Marie provided to Michelle and David that day. While the address of the property being talked about is not specified in the email, it is clear enough from the surrounding emails that the property being discussed is the Property. In this email, Aunt Marie had described the Property has a “good investment”, and also recounted discussions had with “the solicitor” about “how to protect your [David’s] gift”.

In a further update email sent on 13 January 2010 (late in the evening of 12 January 2010 in the United Kingdom), Aunt Marie answered some questions David had about the property. After setting out some of the strata expenses for the Property, Aunt Marie wrote that “you are not losing money as property is going up every minute!”

On 5 March 2010, the Property was transferred into the name of the deceased. The purchase was allegedly funded by David and Michelle, with funds from their joint bank account. Of the total purchase price including bank cheque fees and penalty interest, the deceased herself is said to have paid only $1,203.26. The evidence for the deceased’s contribution is an email from Aunt Marie to Leo Giampietro (Mr Giampietro) who acted for the deceased during the purchase and transfer of the Property. In that email, Aunt Marie said “Elizabeth will bring the balance of 1203.26 that is required on Tuesday morning and hopefully that will complete the sale”.

At the time of the purchase, David and Michelle lived overseas in the United Kingdom. David and Michelle apparently visited Sydney in or about February 2010 to inspect the Property.

On 22 April 2010, the month following the purchase of the Property, David sent an email to Mr Giampietro. In that email, David wrote the following:

On 23 April 2010, Mr Giampietro sent an email to David in response to David’s email from the following day, which contained responses to David’s queries. That email reads as follows:

Some four months after the purchase of the Property, on 27 July 2010, the deceased instructed a solicitor at Owen Hodge Legal (OHL), James Kelly (Mr Kelly), to prepare a new will for her. She instructed Mr Kelly that she wished to divide her estate equally between David and Michelle, and that if neither David nor Michelle survived her, she wished for her estate to be left to her friend Nicholas Losasso (Mr Losasso). These instructions are recorded in a Will Instruction Sheet dated 27 July 2010.

The 2010 Will was executed on the same day as the instructions were apparently provided. The deceased also jointly granted David and Michelle an enduring power of attorney, executed on either 28 April or 28 September 2010 (the EPOA). The uncertainty of what month the EPOA was executed is attributable to ambiguous handwriting: POS [9], TR P39 L7-30. Nothing turns on it.

On 25 October 2013, the deceased revoked the EPOA.

On 4 March 2014, around four years after the 2010 Will was executed, David died.

Michelle is the executor and sole beneficiary of David’s estate pursuant to a joint will dated 3 February 2011, made in London. A Reseal of the UK Estate of David Charles Sergeant from this Court was granted on 10 December 2025.

In about April 2014 (7 April 2014, according to a will instruction sheet which was in evidence), the deceased met again with Mr Kelly. During this meeting, the deceased instructed Mr Kelly to replace the 2010 Will with a new will, leaving her whole estate to Mr Losasso (or, if he predeceased the deceased, Marjorie Losasso). A will in these terms was subsequently executed on 7 April 2014 (the 2014 Will).

In about December 2015, the deceased met Mr Kelly to give him the original Certificate of Title for the Property to be placed in safe custody. During the meeting, Mr Kelly and the deceased had a conversation to the following effect, in relation to the Property and Michelle:

In relation to the December 2015 meeting, Mr Kelly says the deceased informed him that Michelle believed she owned the Property but also that she (the deceased) advised Mr Kelly this belief was incorrect as the Property was registered in the deceased’s name.

During the meeting, Mr Kelly recorded the deceased’s instructions in a handwritten note. Amongst various other notes, Mr Kelly had written the following:

On or about 10 December 2015, Michelle registered a caveat over the Property. The deceased did not respond by lodging a notice of lapsing caveat due to an alleged lack of funds. Michelle nevertheless swore an affidavit on 22 December 2016 (Michelle’s Affidavit) in anticipation of receiving such a notice.

The plaintiff noted that the contents of Michelle’s Affidavit comprise evidence that is relevant to the application before the Court. Accordingly, Michelle’s Affidavit was annexed to the Affidavit of Kristy-Lee Burns sworn on 4 November 2025.

Between about 2015 to 2019, Liam was in what the plaintiff submitted was “close contact” with Michelle via text message. Copies of the various text messages sent by Liam and Michelle to each other were in evidence – they had been provided voluntarily by Liam. There were 159 pages of screenshots of these text messages. In one of those messages, sent on 20 August 2019, Michelle made the following comments about the Property (the text message has been reproduced as it was originally drafted, including the ellipsis):

On or about 12 October 2019, Michelle purportedly sent an unsigned letter to the deceased in which Michelle appears to acknowledge the arrangement for the Property to be left to David and herself while also suggesting that the deceased may do otherwise (ie, arrange for the Property to pass to Liam, his sister, or the deceased’s great grandchildren). The letter reads as follows:

The plaintiff notes this letter was forwarded to OHL in an email dated 19 November 2025 by Liam, being the father of Johnathan and Katie, who are minor beneficiaries.

On 26 July 2023, the deceased executed the 2023 Will, whereby she left the whole of her estate to Jonathan and Katie.

Liam does not acknowledge that the Property is held on trust for David and Michelle. As father to Jonathan and Katie, however, Liam is on notice of these proceedings (TR P2 L47) and has not sought to participate.

For her part, Michelle is represented by solicitors Carroll & O’Dea Lawyers, but has not been joined as a party to these proceedings. As part of the evidence relied on by the plaintiff, a bundle of documents was tendered comprising email correspondence from Michelle’s solicitors, which I marked as Exhibit D.

The documents comprising Exhibit D disclose that Michelle is aware of the listing date of the application and only sought that matters raised in an email from 22 January 2026 be brought to the attention of the Court. That email, and surrounding emails, formed the core of Exhibit D, and were indeed brought to the Court’s attention by counsel for the plaintiff (TR P8 L9-18). In general, I note that the application before the Court is broadly consistent with the contentions of Michelle, save that Michelle’s solicitors claim that the legal basis of Michelle’s entitlement is of that of a resulting trust.

Given the findings of the Court in relation to the common intention constructive trust issue, I consider that nothing turns upon the decision of the plaintiff not to rely on this form of trust in making this application.

This is an application for judicial advice under s 63 of the Trustee Act 1925 (NSW) (Trustee Act). The applicable legal principles in relation to applications for judicial advice under that provision are well settled. Those principles are briefly stated by McGrath J in Application of Glenwillow Investments Pty Ltd [2023] NSWSC 1517 at [11]-[17], which I gratefully adopt. For convenience, I will reproduce those paragraphs of his Honour’s judgment below:

Relevantly, s 5 of the Trustee Act contains the following definitions:

In this, it is clear that executors and, relevantly, administrators, are able to make applications under s 63 of the Trustee Act.

In addition to s 63 of the Trustee Act, the jurisdiction of the Supreme Court to provide judicial advice to a trustee (which relevantly includes executors and administrators) is further provided for in r 54.3 of the UCPR.

I cited and applied those principles in the Estate of Wilson [2025] NSWSC 1056.

The approach to be taken by the Court in applications of this kind is also well settled, and was recently considered by Hammerschlag CJ in Eq in Application by Justin McCarthy and The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation [2026] NSWSC 303 at [11], where his Honour said:

The paragraph of the judgment of the High Court of Australia in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 referred to by Hammerschlag CJ in Eq, being paragraph [79] of the reasons of Gummow ACJ, Kirby, Hayne and Heydon JJ, provides (footnote omitted):

In applying these principles, I do not propose to make findings in relation to factual matters, but rather, give advice on the basis of facts either proved by affidavits or alleged in a written statement.

In Harvey v Harvey [2024] NSWSC 623 (Harvey) at [23]-[25], Peden J summarised the relevant principles for a common intention constructive trust to arise, which I respectfully adopt:

I will also briefly elaborate on authority surrounding the principles of common intention constructive trusts as they are relevant to the dispute before me.

The parties in this matter, particularly in 2010, do not appear to be parties who transacted with an acute awareness of trusts law. I therefore also consider it appropriate to bear in mind what Kunc J said in Dimitrovski v Boland (No 2) [2025] NSWSC 17 (Dimitrovski v Boland), about how a Court might determine whether parties have the requisite intention to create a trust where those parties do not expressly employ the language of trusts. Noting his Honour’s observations at [142]-[143] were made in the context of ascertaining whether an express trust existed in the case before his Honour, I will reproduce those paragraphs just mentioned as the ideas underlying his Honour’s observations are useful to keep in mind in this case:

I also acknowledge that some “questions have been raised” about whether the doctrine of common intention constructive trusts survives in Australian law as an institution separate from the law of proprietary estoppel: see, eg, Galatidis v Kallidis [2025] NSWSC 1555 at [68] (Brereton J); Macdonald v Whitelaw [2025] NSWSC 1542 at [12] (Brereton J); Harvey at [21] each referring to, inter alia, Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 (Leeming JA) (see especially at [116]-[118]). However, like Leeming JA, Brereton J, and Peden J, I simply note these questions. No debate was had before me about the continuation of “common intention constructive trusts” as a separate legal institution. I will proceed on the basis that it remains so, observing that the principles between these two doctrines are sometimes considered relevant to each other.

Notwithstanding that uncertainty, in Galatidis v Kallidis [2025] NSWSC 1555 at [69] Brereton J observed that in the proceedings before his Honour, the parties were content to proceed on the basis that a “common intention constructive trust claim is to be determined according to the principles applicable to equitable proprietary estoppel.” Expanding, then, on what reliance means in equitable estoppel, Brereton J quoted Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 at [37]-[39]. Relevantly to this case, at [39], Gageler CJ, Gordon, Edelman and Beech-Jones JJ wrote the following on what is necessarily to establish reliance (footnotes omitted):

Given the above legal principles, together with the terms of the Summons and background facts, the following issues arise for consideration:

For abundant clarity, the Court has not considered, and was not asked to consider, whether this factual matrix may have otherwise satisfied the elements of a resulting trust.

In order for the Court to be empowered to give the advice sought under s 63(1) of the Trustee Act, the Court must be satisfied that the question to be addressed is in relation to “management or administration of the trust property”.

As noted above, the expression “management or administration of property” in s 63(1) of the Trustee Act refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions. As part of this, the Court has a broad jurisdiction and power to advise and direct trustees, including executors and administrators.

I am satisfied that the application before me is one which raises a question respecting the management or administration of the estate of the deceased, accepting that the subject of the judicial advice forms one step in a process that allows for the administration of the estate, including considerations as to proper distribution.

The plaintiff has provided the Court with the evidence she had available to her in forming the view she did in relation to the existence of a common intention and seeks an order that she is justified in acting on the basis that a common intention constructive trust exists in David and Michelle’s favour.

I will address in turn each of the sub-questions I identified in [64(2)(a)-(c)].

In considering whether a common intention constructive trust exists for the benefit of David and Michelle, the plaintiff relies on the evidence contained in Michelle’s Affidavit, submitting it carries probative weight as to the strength of Michelle’s claim against the deceased’s estate (TR P26 L9-10). The plaintiff, in POS [24(a)-(e)], emphasises certain facts as being of significance in establishing a common intention between the deceased, David, and Michelle, being matters which occurred before or at the time of the relevant transaction. Those facts are those which I have set out at [22]-[24], [26] and [29] (specifically the fact David and Michelle visited Sydney in February 2010).

Additionally, at POS [24(f)], the plaintiff relied upon the evidence in Michelle’s affidavit that she and David paid $33,000 towards renovations at the Property. However, the plaintiff points out that in relation to this latter evidence from Michelle, there was no additional supporting evidence of the relevant costs paid.

On a similar note, the plaintiff has pointed out that while it appears, based on the assertions in Michelle’s affidavit, that David and Michelle had previously owned an investment property in Australia and that David paid for Aunt Marie to come to Sydney to help the deceased buy a new home, there is no further evidence supporting those assertions (POS [23(c) and (d)]).

In relation to consideration of the account of the conversation set out above at [23]-[24], which was recounted seven years after it took place, the plaintiff cited the often-cited statement by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 319 (POS [25]):

Having regard to what is said in Watson v Foxman, the plaintiff submits at POS [26] that Michelle’s recollection in 2016 of the conversations that she and David had with the deceased in February 2009 may be scrutinised for the reasons stated by McLelland CJ in Eq. I accept this submission, noting the importance of documentary evidence supporting Michelle’s recollections.

The plaintiff also relies on the terms of the 2010 Will itself, submitting that within a short period of time from the acquisition of the Property that the deceased engaged her longstanding solicitor, Mr Kelly, to “put on a will” which “gave effect to in essence the arrangement between the parties”, which she executed (TR P18 L45-50).

The plaintiff also submits that the alleged understanding held by the deceased that the Property would ultimately be returned to David and Michelle was recorded in near contemporaneous documents. Two such documents in evidence and relied upon by the plaintiff at POS [27]-[28] were the emails between David and Mr Giampietro on 22 April and 23 April 2010, which I have set out at [30]-[31] of these reasons for judgment.

The plaintiff submitted that this email chain strengthens the probability of a common intention between David, Michelle and the deceased, that the Property would “essentially be held on trust for Michelle and David”, acknowledging the emails are dated two months after the settlement of the Property. The plaintiff says about these emails, “Mr Giampietro states that he received direct instructions from the Deceased to essentially create a testamentary trust arrangement in favour of David and Michelle, as well as control of the Property to David and Michelle through estate documents such as a will and a joint power of attorney” (POS [29]).

Michelle’s Affidavit annexed further near contemporaneous documents created in 2010. The plaintiff submits those documents similarly reflect, first, David and Michelle’s intention that the Property would return to them upon the deceased’s death, and secondly, that “their equitable interest in the Property would be ‘effected’ through the deceased’s will and power of attorney documents” (POS [31]). One of those documents was an email from Aunt Marie to David dated 12 January 2010, stating (POS [31(a)]), from which the plaintiff extracted the following passages (emphasis added by plaintiff):

The plaintiff also relied on a copy of a card sent by the deceased to David and Michelle (and “Bertie”, who the plaintiff has presumed is the deceased’s sister: TR P38 L10) dated 30 July 2010 (the 2010 card), dated some three days after the execution of the 2010 Will. The terms of the 2010 card include the following:

Of the 2010 card, the plaintiff submitted that “this crystalises their detrimental reliance because it perfected the detriment having been secured in their favour” (TR P38 L13-14). In relation to being provided with a copy of the 2010 Will by the deceased soon after its execution, the plaintiff submitted, “they [Michelle and David] get it, they rely on it and they sit back and say well, we’re protected including we know where we are now, but that’s been a change of position” (TR P38 L20-23).

Acknowledging the principle referred to by Peden J in Harvey at [25](5), that apart from admissions against interest, the only evidence relevant and admissible as to the parties’ objective intention is their acts and declarations before or at the time of the transaction or “or shortly after the relevant events”, it is my view that the near-contemporaneous 2010 evidence qualifies as evidence of acts and declarations before or at the time of the relevant transaction, or shortly after the relevant events. The 2010 evidence post-dating the formal transfer of the Property to the deceased involves continuing discussions with the deceased’s solicitor on how to effect an equitable interest, and a thank you letter from the deceased directly about the transaction, and should thus be considered as part of the relevant transaction or shortly after.

The plaintiff also referred to the evidence of Mr Kelly from his interaction with the deceased around 2015, which suggests that by 2015 the deceased still recognised that at least David had purchased the Property. By this time, however, the deceased referred to her receipt of the Property as a “gift”. The plaintiff submitted that the weight to be given to the deceased’s belief at that time, as evidenced through Mr Kelly, should be “decided carefully”. It was noted that the deceased was not legally trained and would be unaware of the concepts of constructive or resulting trusts (POS [32]), in that the deceased could not be expected to know that, just because the Property was in her name, it did not mean that she did not hold that property on trust for David and Michelle.

I accept this submission, bearing in mind what Kunc J said at [142]-[143] in Dimitrovski v Boland, that when dealing with parties unaware of the subtleties of equity, a court may more readily find informal oral declarations of trust and precise formal or technical words are not required. Here, we are of course not dealing with declarations of an express trust. However, the underlying idea of what his Honour accepted is that technicalities and formalities are not a necessary prerequisite to finding an intention to create a trust where parties might not be expected to express themselves in such language. Acknowledging that concept gives me comfort in accepting that the deceased’s own statement that the property “would come back to you” points strongly towards an intention to create a trust notwithstanding its lack of technical language. I also accept that, in the reverse, given the deceased is not aware of the subtleties of equity, the use of precise formal or technical words like gift should not be presumed to be used within its precise legal meaning.

Quite properly, the plaintiff in her submissions also raised for the Court’s consideration the existence of evidence that may be seen to go against a finding of a common intention (POS [40]). In particular, the plaintiff drew the Court’s attention to a different part of the email from Aunt Marie to David sent on 12 January 2010 to which reference was made earlier. The part of the email the plaintiff says may be evidence against a common intention was in the following terms (emphasis added by plaintiff):

I do not think too much can be made of this paragraph. Even within the extracted portion of the email, the reference to the Property as a “gift” is undercut in several ways. Firstly, as I accepted above, given Aunt Marie is not aware of the subtleties of equity, the use of precise formal or technical words like “gift” should not be presumed to be used within its precise legal meaning. Secondly, Aunt Marie refers to the taking out of a power of attorney so that David would be “in charge of the flat” and so “no-one could do anything without [his] permission”. Aunt Marie also suggested David should take care of the “deeds” (which realistically must be a reference to a Certificate of Title, given the system of registration of land ownership in this State), including by having the deeds “sent” to him. Aunt Marie’s statements are consistent with David (at least) retaining a measure of control over the Property. The “gift” Aunt Marie describes seems to be one with conditions. Aunt Marie does not appear to be contemplating a world where the deceased would have complete control over the Property. While I do not need to make and am not making any findings on what Aunt Marie meant when she used the word “gift” in this extracted portion of the email, I would venture to suggest the “gift” is really the gift of enabling the deceased to live in a better environment than she was living in. I do not consider Aunt Marie’s reference to a “gift” in this email, understood in context, to be inconsistent with any common intention between David, Michelle and the deceased.

Additionally, as the plaintiff submitted, elsewhere in the relevant email, Aunt Marie had referred to the Property as being a “good investment for you”, meaning for David and Michelle, such that a single reference to a “gift” should not be taken too far. Further, and as the plaintiff also submitted, given Aunt Marie talks about “safeguarding” the “gift”, in context that is likely to mean the Property is being safeguarded for David, such that Aunt Marie is recognising David’s intention the Property would go to David or David and Michelle (POS [41]).

Of the evidence from Aunt Marie, and her understanding of the intention of the parties (including that the Property was intended as an investment for David and Michelle), the plaintiff made the following submissions in response to a question from the bench (TR P33 L49 to P34 L26):

In general, I accept the submission made by the plaintiff as to the use that may be made of evidence of Aunt Marie’s state of mind in relation to the common intention (see above), as well as detrimental reliance.

I also draw attention to the evidence already referred to at paragraphs [43] and [44] (the 2019 representations), which on their face may be said to constitute a disclaimer or surrender of Michelle’s proprietary interest in the Property. The plaintiff made two submissions as to why these statements alone or together do not constitute a disclaimer or surrender (POS [34]).

First, the plaintiff submitted that any disclaimer or surrender of a proprietary interest must be in writing and signed by Michelle by reason of s 23C of the Conveyancing Act 1919 (NSW). The text messages are obviously not signed. As for the “unsigned” letter, while there is clearly no signature in the traditional sense, or even a clearly marked electronic signature of some sort, in light of s 23C(3), I am not sure that the fact the letter ends with “Michelle Nixon” can simply be dismissed as not a signature. However, this question need not be considered at even a cursory level of depth in light of the plaintiff’s second submission, namely, that neither the text message nor the letter actually amount to a surrender or disclaimer of any interest Michelle might have. I accept the plaintiff’s submissions that the 2019 representations convey Michelle’s intention, at least in 2019, to arrange for the Property to potentially pass to Liam and his children, but do not effect a formal surrender of her interests.

Considering the evidence as a whole, the plaintiff drew a distinction between the contemporaneous and near contemporaneous evidence from around the time of the purchase of the Property (the 2010 evidence), as opposed to the evidence of Mr Kelly in 2014 and 2015, and the later evidence of Liam and in relation to the 2019 representations (the later evidence). The plaintiff submits that the 2010 evidence is uncontradicted and that it supports what Michelle says in relation to the trust claim and agreement (TR P25 L25-27). She submits the later evidence should be given “very little weight”, noting “the relevant time” is when the “arrangement was struck” which is 2010 (TR P25 L40). That submission accords with the summary of principles by Peden J in Harvey at [25(5)], namely that that, apart from admissions against interest, the only evidence relevant and admissible as to the parties’ objective intention is their acts and declarations before or at the time of the transaction or “or shortly after the relevant events”.

I accept the submission that the 2010 evidence is contemporaneous and largely uncontradicted (TR P34 L38-45). The 2010 evidence is supportive of the following, which I consider inherently probable and logical having regard to the evidence as a whole:

The only piece of contemporaneous evidence which could contradict there being a common intention between David, Michelle and the deceased is the email where Aunt Marie referenced the “gift”, extracted earlier. However for the reasons articulated at [86]-[87], I considered that the reference to a “gift” in Aunt Marie’s email should be given little weight. I accept that, overall, the terms of the email are consistent with a recognition that the Property beneficially belonged to David and Michelle.

I therefore accept that there is evidence of significant weight surrounding the transaction in 2010 that David, Michelle and the deceased agreed, or had a common intention, that David and Michelle would have a beneficial interest in the Property.

I also accept the submission made by the plaintiff that the later evidence should be given little weight.

With respect to later evidence that the deceased may have come to believe that the Property was a gift, and believed that she owned it because her name was on it (see [37]-[39] above), I firstly observe that this is not an admission against the deceased’s interest, and thus this evidence is likely not relevant.

The deceased’s later perspective that she owned the Property does not derogate from the events of 2010. The plaintiff submitted that any conversations between the deceased and Mr Kelly around that time, which is when the evidence first discloses the deceased believed the Property was a gift to her, must be considered in the context of the deceased having recently fallen out with Michelle, where the deceased stated that Michelle had “harassed” her, and where the deceased no longer wanted Michelle to benefit from her estate. In this context, I accept the submission that the deceased’s comments to Mr Kelly reflected her belief as at that time, and not at the time the Property was purchased.

In relation to the 2019 representations, I note they are relevant and admissible in that they could be interpreted as admissions against interest. However, for the reasons explained earlier, I accept the submission from the plaintiff that the 2019 representations do not themselves amount to a surrender or disclaimer of any equitable interest she may hold but rather convey her mere intention to try to arrange for the Property to pass to Liam, his sister, or the deceased’s great grandchildren when the deceased died.

With the balance of the evidence before me, I accept the sound evidentiary basis of the conclusion of the plaintiff that David, Michelle and the deceased had a common intention that David and Michelle would have a beneficial interest in the Property.

The plaintiff submitted that Michelle is entitled to “the net proceeds realised upon the sale of the property… less any contribution to the purchase price made by the late Elizabeth Teresa McLoughlin”. However, the plaintiff observed that “there is no evidence that the Deceased paid $1,203.26 or any other amount towards the purchase of the Property” (POS [44]).

In Harvey, Peden J at [25(8)] said that “the quantum of interest is whatever the parties agreed or commonly intended. If this cannot be established, the maxim that equity is equality applies. However, the maxim should be departed from where the parties have made disproportionate contributions, including non-financial contributions, towards acquisition of the property.”

The evidence makes clear that David, Michelle and the deceased agreed the whole property would be returned to David and Michelle. As the quantum of the interest in the common intention is clearly established, there is no need to look to the disproportionate contributions of the parties towards the acquisition of the property.

I am therefore satisfied that the common intention of David, Michelle and the deceased was that David and Michelle would share the full beneficial interest in the Property.

Submissions were also made by the plaintiff in relation to detrimental reliance. The plaintiff’s primary submission was that the relevant detriment suffered by David and Michelle was the loss of funds they applied for the deceased’s purchase of the Property in reliance on receiving an equitable interest in it (POS [35]). Consistent with this, the plaintiff said that in the event the Property was not bequeathed to them in the deceased’s will, that is the essence of the detriment: they cannot secure their acquisition costs and so “they’ve lost. They’ve lost the entire purchase price” (TR P35 L12-14).

In Green v Green (1989) 17 NSWLR 343 (Green) at 354, Gleeson CJ aptly observed that “[i]n the case of expenditure of money by a spouse or de facto partner in respect of land, title to which is held by another, it may be easy to point to conduct which can be identified as acting to a person’s detriment in the belief that by so acting the person was acquiring a beneficial interest in land.” Whilst his Honour’s observation was made with respect of spouses, it seems to me clear that it is similarly “easy to point to conduct which can be identified as acting to a person’s detriment” in a case of expenditure of money to buy land where title is held by a family member.

In her submissions, at various points the plaintiff notes that some of Michelle’s affidavit evidence, particularly in relation to the evidence of payment of the purchase price, is not supported by documents. For instance, documents identifying the source of the funds in the UK that were the subject of the payments in Australia were not provided.

However, the plaintiff submitted that there is “solid evidence of payment” of the purchase price by David and Michelle that is “uncontradicted” (TR P35 L26-27). In relation to the purchase price payments, the documentary evidence before the Court discloses that the total purchase price was $397,000, and that payments were made by David. The deceased’s solicitor also provides evidence that the deceased acknowledged that it was David who paid the purchase price.

There is also evidence the deceased may have made a contribution of some $1,203.26.

Of course, it is Michelle’s evidence that the purchase price monies paid were from both herself and David, which I note is consistent with the 2010 evidence.

Notwithstanding that the plaintiff raised the issue of the putative lack of documents, it seems to me the plaintiff was of the view, in any event, that evidence in the form of the source documents was not essential to the plaintiff forming the view that a common intention trust existed, and that there had been detrimental reliance. I accept that the plaintiff was right to take this approach.

The issue of the potential significance of the putative lack of source documents was taken up by Michelle’s solicitors in correspondence marked Exhibit D, wherein it was stated (at page 3): “If this issue was raised earlier we are advised our client would have had more time to locate other documents”.

As the lack of documentation does not appear to have had a consequence in relation to the plaintiff positively forming the view she did, I do not consider that the comments made by Michelle’s solicitor need to be taken further.

As an aside, I pause to observe that even if the plaintiff had only been satisfied that the purchase price monies were paid by David alone, and that any common intention trust arose only between David and the deceased, the ultimate outcome would be the same, in that any beneficial ownership of the Property on the part of David would form part of David’s estate, of which Michelle is the sole beneficiary. Of this theoretical alternative (that was not pleaded or pressed) counsel for the plaintiff stated, “It’s a different way to get there but it’s the same destination, a different journey” (TR P36 L3-15).

I therefore accept from the affidavit evidence that Michelle and David suffered a detriment in paying the purchase price for the Property.

Additional to the purchase price, the plaintiff has cited as detriment that David and Michelle paid for the renovation of the Property, which at the time was a total of about $33,000. The plaintiff submitted evidence of email chains concerning the renovation of the apartment and payment arrangements for the renovation and refers to this evidence as “uncontradicted” (TR P36 L42). I accept this is also a detriment suffered by Michelle and David.

The plaintiff also submitted that the payment by David and Michelle of the cost of flying Aunt Marie from the UK to Sydney to support the deceased in relation to finding the Property, together with the cost of the accommodation whilst in Sydney, was a detriment incurred (TR P31 L16-32). The only evidence before the Court for this submission is the following conversation recounted by Michelle:

Whilst I acknowledge that evidence in the form of the source documents is not essential to forming the view that there had been detrimental reliance, I do not consider this conversation to be sufficient evidence that David and Michelle did in fact pay the cost of flying Aunt Marie from the UK to Sydney. This evidence is only of an offer to fly Aunt Marie to Sydney, not that it was accepted by Aunt Marie, and no evidence of the actual payments is provided. I reject this submission noting that that “any act” done by a party to their detriment referable to a common intention is sufficient to establish detriment (Green at 357), so it is sufficient to say that detriment is established by the payment of funds.

As to whether the detriment was suffered in reliance on the common intention, I note that, according to Kramer v Stone, it must usually be shown that the reliance on the common intention “made a difference” to the course of action or inaction taken by the promisee.

With respect to this detriment being incurred in reliance on the common intention or agreement, the plaintiff submitted “the evidence at its highest is that there is detrimental reliance because but for the representation or the agreement reached she would not have agreed to David and herself funding the acquisition of the property” (TR P33 L28-31).

One piece of evidence supporting this submission from the plaintiff is in Michelle’s Affidavit, when she describes the poor relationship between David and the deceased, in the following terms:

Michelle again notes “David was reluctant to buy the property for Elizabeth to live in”. The poor relationship between David and the deceased suggests that the detriment of buying a house was not incurred purely out of familial love but is instead attributable to the common understanding that the property would return to David and Michelle.

Another piece of contemporaneous evidence supporting the plaintiff’s contention that the detriment incurred by David and Michelle was in reliance on the common intention is the emails from Aunt Marie dated 12 and 13 January 2010. Aunt Marie notes, in updating David and Michelle about the purchase of the Property, that “you are not losing money as property is going up every minute!”. Also cited are Aunt Marie’s descriptions of the Property as being “your investment”, or “your acquisition” (TR P32 L5-7). Additional reference should be made to the end of Aunt Marie’s first email of 12 January 2010, where she refers to the Property as a “good investment for you two”. These reassurances reinforce the importance of the Property being an investment which is to return to David and Michelle as a key reason why David and Michelle decided to purchase the Property. It would make no sense for Aunt Marie to have repeatedly referred to the Property as an investment if she was not already aware of David and Michelle’s view that the Property was only being acquired with the ultimate aim of being returned to them.

For the same reasons, I accept that David and Michelle also paid for the renovation of the Property in reliance on the common intention that the Property would return to them.

I therefore accept the submissions on detrimental reliance, being that there is a sound evidentiary basis for the plaintiff to have accepted that there had been detrimental reliance by David and Michelle on the common intention or agreement with the deceased.

On the issue of unconscionability, the plaintiff, being the executor of the estate of the deceased, made the following submissions (TR P43 L26-29; P 44 L5-23):

In making this application for judicial advice to the Court, the plaintiff seeks an order that she would be justified in acting on the basis that a common intention constructive trust existed in favour of Michelle (or strictly speaking, in favour of David and Michelle). In already having formed the view she has, it cannot be said that the plaintiff has, or proposes to, act unconscionably.

I do accept, however, that it would be unconscientious if the plaintiff were to deny the existence of a trust in David and Michelle’s favour. I accept this given all of the evidence supporting the existence of a common intention, as well as evidence of detrimental reliance, and the plaintiff’s awareness of this interest. Therefore, I find that it would be unconscionable for the plaintiff, as executor of the estate of the deceased, to deny that beneficial interest.

Having regard to all of the circumstances, including the facts set out in the Statement of Facts, together with the confidential advice, and the evidence otherwise referred to above, I am satisfied that I ought to exercise the discretion of the Court and provide judicial advice as sought. That is, that the plaintiff would be justified in acting on the basis that a common intention constructive trust exists for the benefit of David and Michelle by distributing to Michelle the net proceeds realised upon the sale of the Property.

In this, I am satisfied that it will be in the best interests of the deceased’s estate for this advice to be provided.

For the reasons set out above, I make the following notation and orders: