Spink v Flourentzou

1. [1]

   The plaintiff in these proceedings is Mrs Rickie Spink, and the defendants are Mrs Spink's daughter, Dianne Flourentzou and her husband Mario Flourentzou.

2. [2]

   Mrs Spink has two other children, Denise Taylor and Troy Spink. As is customary, and without meaning any disrespect, I will for convenience call Mrs Spink's children, and her son-in-law Mario, by their first names.

3. [3]

   Dianne and Mario are the registered proprietors of a property at Casula in this State (the Casula property). A three-bedroom home with separate one-bedroom accommodation is erected on the Casula property.

The issues

1. [4]

   The question in these proceedings is whether, by reason of payments made by Mrs Spink to Dianne and Mario at about the time of the completion of the contract by which they acquired the Casula property, Mrs Spink has an interest in the Casula property or some other right to compensation, and, if she has, what is its nature and value, and by what means can that value be recovered by Mrs Spink.

2. [5]

   There was an arrangement between the parties that Mrs Spink would be able to live at the Casula property indefinitely. The precise nature of that arrangement is in issue in these proceedings. The relationship between the parties broke down. Mrs Spink was required to leave the property by the defendants. At the time of the hearing, Mrs Spink was dependent upon the pension and the goodwill of friends and acquaintances for accommodation. She was on a waiting list for public housing.

3. [6]

   Mrs Spink filed her statement of claim on 30 June 2017, and Dianne and Mario filed a defence on 18 August 2017.

4. [7]

   The parties have agreed the issues for determination by the Court in these proceedings. Those issues are, using the language of the parties, as follows (Issues):

5. [8]

   While this is a useful list of the issues, although perhaps not complete, it will be convenient in these reasons to consider the main forensic contests between the parties, rather than to deal with the issues identified by the parties one by one.

6. [9]

   The Arrangement (as referred to in Issue 3) was pleaded by Mrs Spink in her statement of claim as follows:

7. [10]

   Paragraph 60 of the statement of claim, referred to in Issue 4, contains the following allegation: "…the defendants made representations to the plaintiff in terms of the Arrangement pleaded at paragraphs 7 and 8 above ("the House Representations")”. This allegation forms part of a claim that, by reason of Mrs Spink paying Dianne and Mario $150,000 in the belief that she would enjoy the right to reside in the Casula property for her lifetime, which right has been denied to her, Mrs Spink is entitled to a remedy based upon the principles of estoppel. The reference to $150,000 is not an error, as Mrs Spink’s case was that Dianne and Mario initially told her that she would need to contribute $100,000, but that was subsequently increased to $150,000.

8. [11]

   It will be convenient to make a number of observations concerning the allegations in pars 7 to 9 of the statement of claim.

9. [12]

   Dianne and Mario won an auction for the Casula property on 15 September 2012, and signed the contract for sale on that date. The price was $462,000. Settlement of the purchase took place on 15 November 2012. Although Mrs Spink alleges that the so-called Arrangement was proposed by Dianne and Mario in and from June 2012, it seems likely on the evidence that the alleged Arrangement was initially suggested somewhat earlier, no later than early 2012. The actual date does not matter, save to the extent that, if Mrs Spink is in error in her recollection, that may tend to undermine the credibility of her evidence.

10. [13]

    There is no doubt on the evidence, and there was no contest between the parties, that they entered into some oral arrangement that involved Dianne and Mario buying the Casula property in their names, and that after suitable renovations were carried out, including by making a one bedroom area with sitting room and kitchen suitable for sole occupancy by Mrs Spink, Mrs Spink would in fact live with Dianne and Mario's family indefinitely at the property. Mrs Spink moved into the Casula property in early January 2013 and vacated it on 28 October 2016, following a demand made by Dianne and Mario that she do so. In the intervening period, the relationship between Mrs Spink on the one hand and Dianne and Mario on the other broke down. The parties accepted at the hearing that neither side bore any relevant responsibility for the collapse of the relationship, or the consequences of the relationship ending.

11. [14]

    The significance of these observations is that most of the allegations in pars 7 to 9 of the statement of claim are not significantly in issue. What is in issue are the claims made by Mrs Spink that it was part of the arrangement that the parties "…should purchase a house together" (par 8(a)), and that Mrs Spink "…would have an interest in the house which would on her death pass to her two daughters being [Dianne] and Denise Taylor" (par 8(f)). An issue that arises consequentially is whether Dianne confirmed "…that she would provide her sister Denise Taylor with an amount equal to half the plaintiff's share of the property pursuant to the arrangement on the death of the plaintiff" (par 9(d)).

12. [15]

    Mrs Spink's primary case was that she made an explicit oral agreement with Dianne and Mario, which she has called the Arrangement because of its lack of contractual force, that the parties would buy what turned out to be the Casula property together, so that Mrs Spink would have a right to reside in the Casula property for her lifetime and, on her death, would have an interest in the Casula property that would pass equally to Dianne and Denise.

13. [16]

    Dianne's and Mario's response was to deny these assertions and to say that Mrs Spink did not have an interest in the Casula property because there was no agreement that the property would be purchased "together", but rather that Mrs Spink voluntarily contributed the amount that she paid as an explicit gift, representing Dianne's inheritance conferred prematurely.

14. [17]

    There are a number of intermediate positions between the two contended for by Mrs Spink and by Dianne and Mario, which I will address in due course.

15. [18]

    The relationship between Mrs Spink and Dianne and Mario in relation to the Casula property was a domestic one, although of a somewhat more complicated and unusual nature than a relationship between a cohabiting couple. When a claim is made by one party to a domestic relationship to have a beneficial interest in the property in which the parties to the relationship have lived that is different to the interest that arises out of the legal title, complicated questions may arise. Those questions involve issues concerning the intent of the parties at the time the property was acquired, the respective contributions in money and kind, whether the parties have agreed the consequences of a breakdown in the relationship, and what consequences should flow in the absence of any such agreement, if the party with legal title seeks to enforce exclusive ownership. The law in this field has developed in relatively recent times. Various legal principles may provide the means for properly resolving disputes of this kind, which essentially involve the existence of trusts, but the principles subtly overlap and slight differences in factual findings may have significant consequences to the selection of the principles that are properly to be applied.

Background

1. [19]

   Mrs Spink purchased a property at The Esplanade, Sylvania Waters (the Sylvania Waters property), with her second husband, Ronald Spink, in 1984. That property was transferred to Mrs Spink on 30 June 1989 as part of a divorce settlement.

2. [20]

   Mrs Spink sold the Sylvania Waters property for $580,000 on 30 January 2002 and, on 12 February 2002, she purchased a property at Anzac Avenue, Engadine (the Anzac Avenue property), for $370,000.

3. [21]

   In 2003, Mrs Spink made gifts of $15,000 each to Denise, Dianne and Troy after she sold the Sylvania Waters property.

4. [22]

   On 29 April 2003, Mrs Spink purchased a property at Railway Parade, Engadine (the Railway Parade property), as an investment with Troy. The transfer shows that Mrs Spink held 30% and Troy held 70% of the legal interest in the property. Mrs Spink and Troy jointly borrowed the money necessary to purchase the property. Mrs Spink supplied the deposit from money that she had saved from the sale of the Sylvania Waters property. Mrs Spink said that she acquired the property with Troy because she was trying to help him and thought it would be good for him to have an investment. The property was rented in order to help pay the mortgage. Mrs Spink said that she paid one third and Troy paid two thirds of any extra expenses.

5. [23]

   From 2004 to 2009, Mrs Spink operated a dress shop called "Just Perfect". She closed the shop because of the consequences of the Global Financial Crisis.

6. [24]

   For about a year, in 2007, Dianne and Mario lived with Mrs Spink at the Anzac Avenue property. They did not contribute to any rent, and the evidence is that their cohabitation with Mrs Spink was not problematic.

7. [25]

   On 5 February 2008, Dianne and Mario purchased a townhouse at Newbridge Road, Moorebank (the Moorebank property). Dianne and Mario made that property the home for themselves and their then family.

8. [26]

   Mrs Spink sold the Anzac Avenue property for $460,000 on 29 August 2008, and moved into the Railway Parade property. Mrs Spink said that she used most of the money from the sale of the Anzac Avenue property to reduce the loan for the Railway Parade property.

9. [27]

   In about 2009, Mrs Spink made a payment to Troy to assist him to purchase a mechanics business (according to Mrs Spink the amount was $100,000, and according to Troy it was $120,000). The parties are at issue as to whether this payment was a loan or a gift. I will return to this issue separately below.

10. [28]

    In July 2010, Dianne's and Mario's third child was born. He suffered from significant health problems, and Dianne also developed health problems including depression.

11. [29]

    Mrs Spink regularly made the round trip from Engadine to Moorebank to help look after Dianne and her three children. This became a gruelling exercise. The evidence is not clear as to the frequency with which Mrs Spink made the trip, but it may sometimes have been up to three times a week. The parties accepted that a primary motivation for Mrs Spink deciding to pay money towards the acquisition by Dianne and Mario of a new, larger residence, to accommodate their growing family, and also to accommodate Mrs Spink, was her desire to avoid the tiring necessity to frequently travel between Engadine and Moorebank.

12. [30]

    Mrs Spink, Dianne and Mario inspected the Casula property in early August 2012.

13. [31]

    On 12 September 2012, Mario and Dianne signed a home loan contract for $252,000 with the Bank of Cyprus. The loan was a refinance of their existing loan on the Moorebank property, as Dianne and Mario wanted to retain that property, as well as to acquire a bigger home, so that the Moorebank property could be an investment for the long-term benefit of their children. Part of the money borrowed on the security of the Moorebank property was used to finance the deposit under the contract for the purchase of the Casula property.

14. [32]

    Dianne and Mario succeeded at the auction for the Casula property with a bid of $462,000 on 15 September 2012, and entered into a contract for the purchase of that property on that date.

15. [33]

    On 8 October 2012, Mrs Spink and Troy entered into a contract to sell the Railway Parade property for $396,000.

16. [34]

    Dianne and Mario signed a home loan contract with the Bank of Cyprus for $369,600 on 29 October 2012 to finance the purchase of the Casula property.

17. [35]

    I will set out below the evidence concerning the payments that Mrs Spink made to Dianne and Mario in relation to the purchase of the Casula property and its renovation. Dianne and Mario say that, in September 2012, Mario's parents made a gift to him and Dianne of $70,000 in cash to assist with the purchase of a new house.

18. [36]

    Settlement of the contract for the purchase of the Casula property occurred on 15 November 2012.

19. [37]

    Settlement of the contract for the sale of the Railway Parade property took place on about 18 December 2012. Troy said that, notwithstanding that he and Mrs Spink held title to the Railway Parade property in the proportion 70% to 30%, it was agreed between them that $25,000 of the sale price for the property would be treated as Troy's share, and as between them it would be treated as a reduction of the loan that Mrs Spink had made to Troy to enable him to purchase his mechanics business. Troy said that this was an amicable arrangement between himself and his mother, as Mrs Spink had repaid most of the mortgage.

20. [38]

    Mrs Spink moved into the Casula property in early January 2013.

21. [39]

    On 4 July 2015, Dianne and Mario sold the Moorebank property for $475,000. Part of the motivation for Dianne and Mario to sell the Moorebank property, contrary to their original intention, was that Mario had built up a debt to the Australian Taxation Office of approximately $87,000. Additionally, Dianne and Mario had been in default under the loan agreement secured over the Moorebank property for a considerable period. It had originally been intended that Dianne and Mario would help finance the loan by renting out the property, but, apparently, for some time Mario's parents were allowed to live in the property without paying any rent. None of the proceeds of sale of the Moorebank property was used to reduce the mortgage over the Casula property. Apparently, some part of the proceeds of sale was paid to Mario's parents.

22. [40]

    Gradually, the relationship between Mrs Spink and Dianne and Mario soured, and, according to Mario, they stopped communicating with Mrs Spink in about late January 2016.

23. [41]

    Mrs Spink lodged a caveat claiming an interest in the Casula property on 21 July 2016. Eventually, that caveat lapsed. The parties' solicitors entered into correspondence.

24. [42]

    Mrs Spink vacated the Casula property on 28 October 2016 after being required to leave by Dianne and Mario.

25. [43]

    It will be convenient to deal now with a number of separate factual issues contested by the parties.

What payments did Mrs Spink make to Dianne and Mario?

1. [44]

   The evidence establishes that Mrs Spink deposited the following amounts into the joint account of Dianne and Mario: $40,000 on 1 November 2012, $30,000 on 6 November 2012, $7,000 on 6 November 2012, and two amounts of $30,000 on 3 and 4 January 2013. The total of those amounts is $137,000. I have taken these facts from the agreed chronology of significant facts provided by the parties to the Court. The chronology also records that, on 27 December 2012, Mrs Spink gave $10,000 in cash to Dianne and Mario. The total amount paid by Mrs Spink to Dianne and Mario is $147,000.

2. [45]

   The references to the evidence given in the agreed chronology do not appear to entirely support the supposed agreed facts, and there is some measure of disagreement in the evidence.

3. [46]

   First, Item 36 in the agreed chronology records that Mrs Spink deposited $7,000 cash into the joint account of Dianne and Mario on 6 November 2012.

4. [47]

   Paragraph 51 of Mrs Spink's primary affidavit asserts that the amount of cash deposited was $10,000.

5. [48]

   Paragraph 60 of Mario's affidavit asserts that the amount paid was $7,000. Mario included in the exhibit to his affidavit a bank statement for his joint account with Dianne that appears to confirm that the amount paid into the account was $7,000.

6. [49]

   The parties did not deal with the dispute concerning the amount of cash that was paid into the account in cross-examination and, on the basis of the evidence before the Court, the better view is that the amount paid was $7,000, not the $10,000 claimed by Mrs Spink in her primary affidavit.

7. [50]

   The second issue is that the parties agreed, in Item 39 of the agreed chronology, that, on 27 December 2012, Mrs Spink gave $10,000 in cash to Dianne and Mario. Mrs Spink said, in par 59 of her affidavit, that she paid Mario $10,000 in cash. Mario said, in par 67 of his affidavit, that Dianne had informed him that Mrs Spink gave the $10,000 in cash to her. In these circumstances, it is appropriate for the Court to find, relying upon the agreed chronology, that, irrespective of the person to whom Mrs Spink handed over the cash, it was intended to be a payment to both Dianne and Mario.

8. [51]

   Apart from determining that the total amount paid by Mrs Spink was $147,000, these findings establish a number of other significant matters. First, the payments were not made to the vendor of the Casula property. Secondly, the payments were not made to Dianne, Mrs Spink’s daughter, but rather they were all made to Dianne and Mario jointly. This will be significant to the determination of Dianne’s and Mario’s reliance on the presumption of advancement. Thirdly, as the purchase of the Casula property was completed on 15 November 2012, Mrs Spink paid $77,000 before completion and $70,000 after completion. This may raise an issue concerning the determination of Mrs Spink’s proportional share in the beneficial ownership of the Casula property, if she establishes an entitlement to such a share.

How was the $147,000 paid by Mrs Spink applied?

1. [52]

   Mrs Spink alleged, in par 21 of her statement of claim, that Dianne and Mario “…expended the $80,000 provided by the plaintiff on the Casula Property.” I have found above that the amount paid was, in fact, $77,000. This allegation is not precise as to how the money was “expended”. Mrs Spink then alleged, in par 27, that Dianne and Mario “…applied the amount provided by the plaintiff to the acquisition or renovation of the Casula Property…”, and gave particulars in a general way by referring to the completion of the purchase for $462,000 and the carrying out of renovations. Again, Mrs Spink was not specific as to what happened with the money.

2. [53]

   In their defence, Dianne and Mario responded to par 27 of the statement of claim by alleging that none of the $147,000 was used for the purchase of the Casula property and that they expended the $147,000 “…on renovations to the Casula property, repayment of the Casula loan and general living expenses.”

3. [54]

   Mrs Spink gave evidence that she was told by Dianne that she and Mario needed $60,000 from her to assist in paying the deposit for the Casula property (primary affidavit par 48). Mrs Spink did not have that money, and borrowed $40,000 from her friend, John Caronna, and a further $40,000 from her sister-in-law. Mr Caronna confirmed in par 8 of his affidavit, that Mrs Spink told him that she needed to borrow money from him “…to pay for the deposit on this house in Casula…”.

4. [55]

   Mario’s reply to Mrs Spink’s evidence at par 116 of his affidavit was that he did not recall Dianne saying that they needed $60,000 for the deposit. Dianne at par 71 of her affidavit denied that she made the statement to Mrs Spink concerning the need for a deposit of $60,000.

5. [56]

   In fact, as referred to at [31] above, Dianne and Mario refinanced their Moorebank property on 12 September 2012, by signing a home loan contract for $252,000. That loan enabled them to pay the deposit under the 15 September 2012 contract for the purchase of the Casula property, by payments of $11,500 on 15 September 2012 and $23,100 on 2 October 2012.

6. [57]

   Mrs Spink borrowed the total of $80,000, and, as stated above, she paid $77,000 into Dianne and Mario's joint account in three payments between 1 and 6 November 2012, after Dianne and Mario exchanged contracts on 15 September 2012.

7. [58]

   Although Dianne and Mario pleaded that none of the $147,000 was used for the purchase of the Casula property, the final Internal Memo of the Bank of Cyprus before completion, dated 16 October 2012, showed that, in addition to the money to be loaned by the Bank, Dianne and Mario would require further funds described as: “Less client funds: $77,080 (to be provided by Mario F & Ms [Rickie] Spink)”. The officer of the Bank who dealt directly with Dianne and Mario, Ms Ellen Hiripis, gave evidence in cross-examination that they required an additional $77,000 to the money to be advanced by the Bank.

8. [59]

   As I understand the evidence in pars 60 to 64 of Mario’s affidavit, after Mrs Spink had paid $77,000 into the joint account, and a further $47,000 bank cheque from the Commonwealth Bank of Australia (CBA) had been deposited into the joint account, that account held about $103,000, out of which Dianne and Mario paid $77,927.79 at settlement.

9. [60]

   Dianne and Mario submitted (outline of submissions par 9(c)) that, of the $77,927.79, $52,055 came from funds provided by Mrs Spink and the balance of $25,872 came from their funds. They relied for evidence of this submission on the Bank of Cyprus’ 16 October 2012 Internal Memo, to which I have referred above. That document contains a statement:

10. [61]

    I interpolate that, on the evidence, Mrs Spink did not then have $60,000 in her bank account, and the statement was apparently made in anticipation of Mrs Spink borrowing the money from her sister-in-law and Mr Caronna referred to above. It is also odd that Mario said that he held $20,000 that had been set aside to assist in renovations, given his evidence in par 22 of his affidavit that, in about September 2012, his parents gave him $70,000 in cash, which he ultimately spent on renovations.

11. [62]

    The evidence relied upon by Dianne and Mario does not appear to prove, in any precise way, how the $77,927.79 was made up. Whatever may have been the expectation on 16 October 2012, before completion of the contract Mrs Spink paid $77,000 into Dianne’s and Mario’s joint account.

12. [63]

    Although, as will be seen, Mrs Spink was only required to provide to the Bank a statutory declaration that she would provide Dianne and Mario with $60,000 before settlement, I have taken the view that the full $77,000 should be treated as having been paid by Mrs Spink to Dianne and Mario as a contribution towards the purchase price. This finding will depend upon an issue that I will deal with below concerning the purpose for which Mrs Spink made the payments to Dianne and Mario. I am satisfied that the payments made by Mrs Spink to Dianne and Mario before completion were for the purpose of assisting them to pay the purchase price. Therefore, it should not matter whether Dianne and Mario elected to pay part of the $77,000 from their own money and to use part of the payments made by Mrs Spink for other purposes.

13. [64]

    The sale of the Railway Parade property was completed on 18 December 2012 and, as stated above, Mrs Spink gave $10,000 in cash to Dianne and Mario on 27 December 2012, and deposited two amounts of $30,000 into their joint bank account on 3 and 4 January 2012. The last three sums were not needed to assist in funding the purchase of the Casula property.

14. [65]

    Dianne and Mario submitted that the $70,000 that they received after settlement of the purchase of the Casula property was applied in the following way (outline submissions par 7(b)). First, $57,500 was used to pay off the mortgage against the Moorebank property, not the Casula property, in January 2013. They relied for evidence on a single page (5 of 7) of a statement from an unidentified bank account number 06 2204 10313661 which was part of the exhibit to Mario’s affidavit. In par 67 of his affidavit, Mario described this document as an excerpt from a Commonwealth Bank of Australia bank statement which showed the receipt of payments by Mrs Spink of $30,000 on each of 3 and 4 January 2013. The extract shows payments of $10,000 on 8, 9 and 10 January 2013 described as “Transfer to other Bank NetBank home loan”. The relevant home loan is not identified. The total is $30,000, not $57,500.

15. [66]

    Secondly, Dianne and Mario submitted that $10,000 of Mrs Spink’s money was used on renovations. Dianne said, in par 36 of her affidavit, that she kept the $10,000 in cash that Mrs Spink had given her on 27 December 2012 and used it to pay for renovations.

16. [67]

    Overall, the evidence does not allow for precise findings to be made as to what was done with the final $70,000. Dianne and Mario gave evidence that Mario's parents gave them $70,000 in cash to go towards the purchase of the Casula property. Other than the oral evidence given by Dianne and Mario, there is no evidence of the receipt of these funds. Dianne's and Mario's evidence was that they used Mario’s parents’ cash to make payments towards the renovation of the Casula property after its purchase. In par 22 of his affidavit, Mario said only that: “…I spent this money on renovations to the Casula Property.”

17. [68]

    The evidence is not complete concerning what these renovations involved and what they cost. It is not objectively clear whether, and if so how much, of the $70,000 in cash allegedly given by Mario's parents, and the amount of $70,000 paid by Mrs Spink after settlement of the Casula property contract, was paid for the renovation of the Casula property.

18. [69]

    In pars 94 and 95 of his affidavit, Mario gave evidence that there was a lot of work to be done and that the couple undertook constant renovations. However, he only attempted to give comprehensive evidence of the amounts spent on renovations to the downstairs area where Mrs Spink lived, or other work that was specifically done to improve the utility of Mrs Spink’s use of the separate accommodation. The total, on my calculation, was $45,715. Mrs Spink did not challenge this evidence in cross-examination. However, apart from giving evidence of the total cost of gyprocking and tiling the house ($16,750 and $16,620 respectively), Mario did not provide comprehensive evidence of the cost of the renovations paid for by him and Dianne. At par 20 of their outline of submissions, Dianne and Mario submitted that they “…paid at least $64,300 (if not more) towards renovations…”

19. [70]

    The absence of satisfactory evidence of the cost of the renovations paid for by Dianne and Mario may cause difficulty if it becomes necessary to take into account the amounts paid by the parties for the renovation of the Casula property in determining their proportionate entitlements to the beneficial ownership of the property.

20. [71]

    It seems to be a consequence of the fact that Mrs Spink gave her money directly to Dianne and Mario that they mixed it with their own money, to some unknown extent, and applied that money in various ways. Dianne and Mario seem to submit that any exercise that must be carried out to determine the relative proportionate shares in the beneficial ownership of the Casula property should be carried out by attempting to trace the extent to which Mrs Spink’s money was actually applied for the purchase or renovation of the Casula property. It may be that the correct approach is, if it can be done, to determine the purpose for which Mrs Spink gave Dianne and Mario the money, rather than to have regard to how Dianne and Mario chose to spend money that was a mixture of their own and the money given to them by Mrs Spink.

21. [72]

    However, that is a subject that is best deferred until I have determined whether Mrs Spink is entitled to a remedy, and if so, what that remedy should be. How much did Mrs Spink pay towards the renovation of the Casula property?

22. [73]

    Mrs Spink claims that she paid a total of $18,314.26 of her own money for renovations to the Casula property, some of which related to the improvement of the area in which she was going to live, but some of which concerned the renovation of the property generally (such as the electrical switchboard).

23. [74]

    Dianne and Mario acknowledged in their outline of submissions (par 19) that Mrs Spink paid for work on the property, although they say that they were unaware of the cost.

24. [75]

    Mrs Spink gave evidence of the payments that she made in pars 67 to 69 of her primary affidavit, some but not all of which were supported by receipts. This evidence was not challenged in cross-examination. Given that the total amount asserted by Mrs Spink is not substantial having regard to a review of the items paid for, I will accept Mrs Spink’s evidence.

Did Mrs Spink make a gift to Troy?

1. [76]

   Dianne and Mario attempted to prove that the payment of $120,000 that Mrs Spink made to Troy in 2009 to enable him to purchase the mechanics business was a gift. They submitted that if that was so, it was more likely that Mrs Spink intended to make a gift of the $147,000 to them so that Dianne would be treated more or less equally with Troy.

2. [77]

   I consider the logic of this argument to be dubious. There is no evidence that Mrs Spink preferred any of her children over the others, and the argument does not explain why Mrs Spink would have made gifts to Troy and Dianne in amounts that did not leave enough over for her to make a comparable gift to Denise.

3. [78]

   In any event, even if Mrs Spink made a gift to Troy as claimed, that would not establish some tendency to make gifts that would make it substantially more likely than it otherwise would have been that Mrs Spink intended to make a gift of $147,000 to Dianne and Mario. Mrs Spink's financial circumstances were significantly better in 2009 than in 2012, as Mrs Spink had enough money after she had paid the $120,000 to Troy to be able to house herself by her own means. A gift of $147,000 to Dianne and Mario at the end of 2012 would have deprived Mrs Spink of the independent means to provide herself with suitable accommodation.

4. [79]

   Mrs Spink and Troy both gave firm evidence that the payment of $120,000 was not intended as a gift. Mrs Spink expressly insisted, and Troy agreed, that, at the time the payment was made, it was a loan and was required to be repaid to Mrs Spink when Troy's business was sufficiently established to enable him to do that.

5. [80]

   Both Mrs Spink and Troy explained the fact that Troy had not been able to repay Mrs Spink, notwithstanding her present dire financial straits, by saying that the business was not sufficiently profitable to permit repayment, and that Troy had suffered events in his life, such as divorce, which had undermined his ability to repay Mrs Spink.

6. [81]

   Troy produced a book that purported to have in it a record of the loan repayments made by Troy to Mrs Spink: see Exhibit PD. The document is handwritten and is headed "RICKIE/MUM MONEY OWED". The opening balance, as at 1 January 2013, is $95,000. The contract for the sale of the Railway Parade property was completed on 18 December 2012. Mrs Spink and Troy said that they agreed that $25,000 of the price received from this sale would be attributed to Troy and treated as a repayment of the loan. That explains the opening balance of $95,000. There is then a list of payments and balances at various dates up to 20 August 2017, when the balance was $89,359. There is a column that gives a brief description of the nature of the payment. Most of the amounts seem to reflect work done by Troy as a mechanic on Mrs Spink's car. Apparently, Mrs Spink and Troy decided that he would commence to repay the loan by providing services in kind. There are columns for Troy and Mrs Spink to sign the document to acknowledge the transactions.

7. [82]

   It was put to Mrs Spink and Troy in cross-examination that the document was concocted sometime in 2017 in order to support Mrs Spink's claim that the payment made by her to Troy was a loan, in order to support her case that she had not made a gift to Dianne and Mario.

8. [83]

   Dianne and Mario relied on the form of the document and, in particular, that the column of signatures by Troy and Mrs Spink looked, from the similarity of the signatures, to have all been written at the same time.

9. [84]

   Both Mrs Spink and Troy steadfastly denied that they concocted the document in the manner that was suggested, and they said that it was prepared generally at the time of the individual transactions, although Mrs Spink said that there were occasions when, for convenience, a number of recent transactions were entered into the document at the one time.

10. [85]

    The evidence does not warrant the Court making a finding that the document was concocted by Mrs Spink and Troy. I am satisfied that the Court should accept their evidence, both in respect of the circumstances in which the document was prepared, and as to the fact that the payment of $120,000 made by Mrs Spink to Troy was not intended to be a gift.

11. [86]

    The claim made by Dianne and Mario was based upon mere supposition, as they were not privy to the actual arrangements made between Mrs Spink and Troy. I do not consider that there is anything particularly unusual about the nature of that arrangement, and, at the time that it was made, it did not create an undue burden on Mrs Spink's financial circumstances.

12. [87]

    In par 16 of his affidavit, Mario gave the following evidence that positively supports a finding that the payment made by Mrs Spink to Troy was a loan:

13. [88]

    In cross-examination, at T 162.50, Mario gave an affirmative answer to the question: "And you knew that was a business loan?" This question was referring to the payment made by Mrs Spink to Troy.

Did Mrs Spink inform Ms Hiripis that she would make a gift?

1. [89]

   Dianne and Mario alleged that Mrs Spink expressly admitted to Ms Hiripis, in connection with Dianne's and Mario's loan applications to the Bank of Cyprus, that she would make a gift of $150,000 to Dianne and Mario.

2. [90]

   Ms Hiripis gave evidence that, in the period from January 2012 to about late March 2012, she saw Dianne and Mario socially at the Moorebank property on about five or six occasions. She said that, on at least four of those occasions, Mrs Spink was also present. According to par 18 of Ms Hiripis’ affidavit, on one occasion either Dianne or Mario said to her words to the following effect:

3. [91]

   On one occasion, when at the Moorebank property, Ms Hiripis made notes of the discussion and a calculation of the amount of the loan that was required, as well as the ability of Dianne and Mario to service it. Ms Hiripis said that she could not recall the date, but that it was before late March 2012, and that she recalled that Dianne, Mario and Mrs Spink were present during that discussion.

4. [92]

   In calculating the amount that Dianne and Mario would need to borrow, Ms Hiripis made an allowance for a "$150,000 gift". At par 11 of her affidavit, Ms Hiripis said:

5. [93]

   Subsequently, on 27 March 2012, Ms Hiripis prepared a Credit Submission Memorandum for the Bank in respect of an application by Dianne and Mario to borrow $600,000. One of the line items in the calculation of the amount that they required read:

6. [94]

   In a later Credit Submission Memorandum dated 15 August 2012, Ms Hiripis included the earlier line item concerning the $150,000 gift, and also included the following reason for her recommendation that a $580,000 home loan facility be approved:

7. [95]

   Ms Hiripis made a similar reference to a non-refundable gift of $150,000 in an Internal Memo dated 16 October 2012.

8. [96]

   Ms Hiripis explained the source of the information that led her to include the line item as follows (T 122.27-122.31):

9. [97]

   Ms Hiripis gave oral evidence in chief of her recollection of what Mrs Spink said to her, which prompted me to intervene to clarify the language that Ms Hiripis had used, as follows (T 113.19-113.29):

10. [98]

    This is a significant clarification. The word "gifting" is generally taken to mean an outright gift, while the word "giving" is apt to apply to both the making of a gift and the transferring of property more generally. The latter word is capable of more than one meaning, and can properly refer to the making of a transfer that is not intended to assign title for no consideration.

11. [99]

    Ms Hiripis gave the following evidence in cross-examination concerning the source of her belief that Mrs Spink had offered to make a non-refundable gift of $150,000 to Dianne and Mario (T 131.11-132.19):

12. [100]

    She gave the following further evidence (T 137.37-138.10):

13. [101]

    Ms Hiripis thus steadfastly maintained her evidence that Mrs Spink was present when Ms Hiripis was given instructions that Mrs Spink would make a gift of $150,000, in circumstances that caused Ms Hiripis to believe that the payment was “non-refundable” in the Bank’s terms. Had Ms Hiripis not had that belief, she would not have assessed the loan application in the way that she did.

14. [102]

    I have mentioned above, in the context of considering what Dianne and Mario did with the $70,000 that Mrs Spink paid into their account after the completion of the purchase of the Casula property, the Internal Memo dated 16 October 2012. That document recorded:

15. [103]

    There was no issue between the parties concerning the general accuracy of the facts stated in this document. The contract for the sale of the Railway Parade property from which Mrs Spink intended to pay the $150,000 ‘fell through’, so Mrs Spink could only expect to receive her share of the sale price of that property following the making of a new contract and its completion, which could only take place after the scheduled date for completion of the contract to purchase the Casula property.

16. [104]

    Ms Hiripis said that she asked Mrs Spink personally to make a statutory declaration to confirm that she would make a non-refundable gift of $60,000 to Dianne and Mario. She said that she initially asked Mrs Spink to refer to a $150,000 gift, but that Mrs Spink informed her that she currently only had $60,000 in her bank account. In fact, as I have mentioned above, Mrs Spink only had a small sum in her bank account, and intended to raise the money by borrowing from a friend and her sister-in-law.

17. [105]

    The statutory declaration that Mrs Spink made on 29 October 2012 contained the following statement:

18. [106]

    The statutory declaration did not refer to Mrs Spink making any gift in terms, let alone a non-refundable one (ignoring the tautological aspect of a non-refundable gift). It only said that Mrs Spink would "be providing" the money.

19. [107]

    Mrs Spink said, at par 6 of her affidavit in reply to Ms Hiripis' affidavit, that she denied that Ms Hiripis was present at any conversation between her and Dianne and Mario about the purchase of the new home or any arrangement about her providing money. She said that she did not agree "…to gift $150,000 to Dianne and Mario…", as was recorded in the memoranda prepared by Ms Hiripis. Mrs Spink said further at par 6, in reference to the statutory declaration, that she denied that she met with Ms Hiripis at the Bank or that Ms Hiripis handed her the blank statutory declaration form. Mrs Spink said that Dianne and Mario said to her either at Moorebank or Engadine: "We need you to give us a statutory declaration to say that you will be putting in $60,000 towards the purchase of Casula so we can get the bank to lend us the money".

20. [108]

    Mrs Spink gave the following evidence in cross-examination concerning the circumstances in which she made the statutory declaration (T 42.39-43.7):

21. [109]

    I am satisfied that, initially, Ms Hiripis genuinely believed that Mrs Spink had offered to make a gift of $150,000 to assist Dianne and Mario to purchase the new property. In Ms Hiripis’ terms, this gift was to be non-refundable. Ms Hiripis was confident in her evidence that, on at least some occasions, Mrs Spink was present when Ms Hiripis was given the information that led her to believe that the gift would be made. The Internal Memos prepared by Ms Hiripis provide firm, contemporaneous support for her evidence. Furthermore, the calculations that Ms Hiripis made to show her colleagues that Dianne and Mario could service the loans sought clearly depended upon Dianne and Mario receiving an additional contribution in the form of the payments from Mrs Spink. Ms Hiripis persuasively explained in her evidence that she could not have justified the proposed loans to her colleagues in the manner that she did, if she did not believe both that Dianne and Mario would receive the additional funds from Mrs Spink, and that the money would not be repayable.

22. [110]

    I will return to this subject below, after I have resolved all of the material factual disputes and given consideration to the credibility of the witnesses. For the present, I will only make the following observations.

23. [111]

    First, as between the members of a family the choice may not be limited to the binary one of a payment being a gift on the one hand, or a loan on the other. It is possible that Mrs Spink may have understood that the proposal was that she would pay the money to Dianne and Mario, and that she would not have a right to demand it back if she wished to do so, but that she retained some rights that meant that the payment was not entirely a gift.

24. [112]

    Secondly, whatever the character of the intended payment of $150,000, the evidence of Ms Hiripis and the contemporaneous documents that she prepared support that the money was intended to be paid as a necessary component of the funds needed by Dianne and Mario to buy the new property, and not for other personal purposes of Dianne and Mario.

25. [113]

    Thirdly, there is no evidence that Mrs Spink was told that, as a result of the unexpected delay in the sale of the Railway Parade property, Dianne and Mario would not ultimately need all of the $150,000 to fund the purchase of the new property. True it is that part of the money could only be paid over by Mrs Spink after completion of the purchase, but, on the evidence, Mrs Spink was entitled to continue in the belief that, in one way or another, the $150,000 was needed by Dianne and Mario to fund the purchase or the renovation of the Casula property.

Did Mrs Spink receive the statutory declaration form personally?

1. [114]

   Dianne and Mario made an attack on Mrs Spink's credit arising out of the circumstances in which Mrs Spink signed the statutory declaration on 29 October 2012, in connection with the loan application that Dianne and Mario made to the Bank of Cyprus.

2. [115]

   The issue relevant to Mrs Spink's credibility is that both Dianne and Ms Hiripis said that Mrs Spink attended the Bank's office with Dianne, was handed the blank statutory declaration form personally by Ms Hiripis, and was given an instruction as to what it should say. Mrs Spink was then said to have taken the document away, completed it, and signed it in the presence of her stepson. Mrs Spink was adamant that she did not go into the Bank's office, but left Dianne to conduct her own business with the Bank, saying "…when she went in and I looked at shops…” (T 71.42), and that she did not speak to Ms Hiripis at the Bank (T 74.9). Ms Hiripis specifically said that she actually remembered Mrs Spink coming into the Bank with Dianne (T 141.14). Dianne gave evidence to the same effect (T 212.16).

3. [116]

   I do not consider this dispute to be of great significance to Mrs Spink's credibility. The detail of how Mrs Spink was physically given a copy of the blank statutory declaration form is the sort of inconsequential event that could well be incorrectly remembered by even highly credible witnesses. I am inclined to favour the evidence given by Ms Hiripis and Dianne over that given by Mrs Spink, although the issue of which version should be preferred is relatively finely balanced. Dianne's evidence on the subject appeared to me to be somewhat equivocal, and, although Ms Hiripis was an independent witness, she was relying upon her recollection of an inconsequential event, and there may be some reason to doubt her recollection. That doubt arises because Ms Hiripis said that she told Mrs Spink what wording was required for the statutory declaration (T 144.4), which was to the effect that Mrs Spink would make a non-refundable gift of $60,000 to Dianne and Mario, but then Ms Hiripis accepted a completed statutory declaration that did not contain the statement required.

Application for finance completed by Mrs Spink

1. [117]

   Dianne and Mario made an attack upon Mrs Spink's credit related to the entirely unconnected circumstances in which Mrs Spink had provided financial information to a prospective lender to enable her to purchase a new car.

2. [118]

   Exhibit D1 is a loan application made by Mrs Spink to the St George Bank in respect of the proposed purchase of a vehicle from a dealer called Tynan Motor Group. The amount of the loan was $11,123.30.

3. [119]

   The application contained a statement of assets and liabilities above a declaration signed by Mrs Spink in the following terms: "I…Declare that the details in this application are true and correct and are not by omission, or otherwise misleading”.

4. [120]

   Relevantly, the statement of Mrs Spink's assets was as follows:

5. [121]

   The only liability shown was a CBA credit card of $2,000. Mrs Spink's total assets were stated as $469,000, and her net position was therefore $467,000.

6. [122]

   Mrs Spink recorded her monthly income as being her pension of $1722.06, which I understand was correct.

7. [123]

   Mrs Spink did not record as her assets any loan by her to Troy, or any interest in the Casula property.

8. [124]

   On the other hand, her assets were stated to include house contents of $300,000 and superannuation of $160,000, neither of which was accurate.

9. [125]

   In cross-examination, Mrs Spink gave the following evidence at T 62.27-64.25:

10. [126]

    Mrs Spink gave the following evidence concerning her failure to list the amount owing to her by Troy or her claimed interest in the Casula property as assets, at T 67.4-67.49:

11. [127]

    I am satisfied from observing the way in which Mrs Spink responded in cross-examination to questions about the statement of her assets in the finance application that she was genuinely surprised about the information contained in it. She appeared to be genuine when she said: "…Why would I have said that?" to the statement that her house contents were worth $300,000. One might reasonably wonder how many people who do not have a house and who do not pay rent have $300,000 worth of house contents and $160,000 in superannuation. On the face of it, the statement of Mrs Spink's assets and liabilities in the finance application is improbably bizarre.

12. [128]

    Even if that be so, no explanation has been provided of why Mrs Spink signed the finance application containing the statement of assets and liabilities. The Court has no basis for believing that the document was signed in blank by Mrs Spink and subsequently made up by a representative of the dealer. It is perplexing as to why such false information would have been included in the finance application, given that Mrs Spink disclosed that her only income was the pension, and it appears that she only sought to borrow $11,123.30.

13. [129]

    The fact that the finance application contained false information requires the Court to treat Mrs Spink's conduct as being unsatisfactory. I have not concluded that Mrs Spink consciously sought to mislead the bank but, at the least, her conduct shows that she was careless in her approach to the transaction.

14. [130]

    Mrs Spink's explanation for why she did not record the debt owed to her by Troy and her interest in the Casula property as assets was, in effect, that she did not think that she should list the debt "…as an asset because I did not have it…", and that she did not have her name on the "deed" for the Casula property. I accept that there is some logic in a person in Mrs Spink's position not claiming to be entitled to an asset unless her entitlement was clearly established and readily enforceable. For different reasons, neither the debt owed by Troy nor Mrs Spink's claimed interest in the Casula property satisfied such a test. On the other hand, Mrs Spink's explanation becomes somewhat dubious in the light of the fact that she did claim to be entitled to house contents and superannuation when those assets did not exist at all.

15. [131]

    The most favourable explanation that I can arrive at for Mrs Spink's conduct concerning the finance application is that she was careless about the information that she supplied to the dealer's representative, and as to the contents of the finance application that she signed. Consequently, while I do not accept that Mrs Spink has been wholly discredited by this incident, it does undermine the reliability that the Court should accord to her evidence.

Did Mrs Spink acquire an interest or make a gift?

1. [132]

   Mrs Spink gave the following evidence in her primary affidavit concerning what she described as the Arrangement:

2. [133]

   Later, after the parties had inspected the Casula property, they had a conversation that Mrs Spink related as follows:

3. [134]

   The significant aspect of this evidence is the discussion in terms that the parties would "…buy a place together…" (par 36) and that Mrs Spink said that she "…agreed to buy a house with them…" (par 38). Mrs Spink also made it known that she considered that it would be "…a long term thing…" (par 39). Mrs Spink also said that, before the purchase of the Casula property, there was an agreement that, upon her death, her "…share of the property…" (par 41) would be split evenly between Dianne and Denise. Finally, it was part of the Arrangement, according to Mrs Spink, that there would be specified renovations to make the downstairs area suitable for her as separate accommodation, as well as unspecified renovations to the part of the house that Dianne and Mario would use (par 48).

4. [135]

   The concept of parties buying a house together is inherently ambiguous. It can mean that the parties intend to own the property together. It can also mean that the parties will, in a practical way, live together in the one house, without dealing with formal ownership. Mrs Spink's evidence was that the parties did not specifically address fundamental long-term issues concerned with ownership (for example, at par 42).

5. [136]

   Mario gave the following affidavit evidence regarding his initial conversation with Mrs Spink concerning the proposal:

6. [137]

   Mario said that, on at least five or six occasions, Mrs Spink was present during the discussions that he and Dianne had with Ms Hiripis (par 35).

7. [138]

   Mario continued:

8. [139]

   Mario gave evidence that Mrs Spink did not attend the auction, the contract for sale was signed by Mario and Dianne, and that he never had any discussion with Mrs Spink about her going on the title or signing the contract (see pars 49-50).

9. [140]

   Mario specifically denied Mrs Spink's evidence in par 36 concerning the original conversation about the proposal (par 105) and said that all he said to Mrs Spink was: "Me and Dianne will buy a place. Come live with us…" He also denied (par 107) that Mrs Spink ever spoke to him in terms that they would "buy a house together" or that she "agreed to buy a house". Mario said (par 108) that Mrs Spink never spoke to him about it being "a long-term thing", and nor did they talk about the property being a "forever house".

10. [141]

    At par 110, Mario denied Mrs Spink's evidence in par 41 about her share of the property being divided between Dianne and Denise when she died. It is of some significance that, in par 113, Mario denied the evidence in Mrs Spink's par 44, and said that he denied that Mrs Spink ever said yes to buying a house with Mario and Dianne. He continued by saying: "…By the time that Rickie decided to put the Railway Parade unit up for sale, Dianne and I had already purchased the Casula Property at auction."

11. [142]

    Mario also denied (par 116) that he said that Mrs Spink would need to put in $150,000, and he did not recall Mrs Spink saying "$150,000 will be my full share."

12. [143]

    Thus, it was Mario’s case that there was no talk of the trio buying a house together. Rather, Mario alleged that he and Dianne simply made an offer that they would buy a house that had a space for Mrs Spink to live in. Significantly, Mario’s position was that Mrs Spink’s offer to give the $150,000 gift was made after the decision in principle to buy the new home, and was separate from that decision.

13. [144]

    It may be noted that, from as early as Ms Hiripis’ 27 March 2012 Credit Submission Memorandum, she mentioned that Mrs Spink would be providing a gift of $150,000 to Dianne and Mario. The only source for that money on the evidence would have been the sale of the Railway Parade property. Ms Hiripis’ Credit Submission Memorandum dated 15 August 2012, on page 5 par 4 (extracted above), noted that the $150,000 gift was to be "…provided from the sale proceeds for the sale of her unencumbered unit located at 12/7-9 Railway Pde Engadine NSW".

14. [145]

    In pars 14, 16, 17 and 18 of her affidavit, Dianne gave evidence of being present at conversations involving Mrs Spink that was to the same effect as the evidence given by Mario. In particular, she said in par 18 that she had a conversation at the Moorebank property at which Mrs Spink said: "I have decided that I want to give you $150,000." Dianne also made specific denials of the aspects of Mrs Spink's evidence that I have dealt with when considering Mario's affidavit, substantially in the same terms as Mario's evidence.

15. [146]

    Mrs Spink was cross-examined about the reason why she did not insist upon going on the title to the Casula property (T 33.45-34.34):

16. [147]

    Further, at T 36.34-37.11:

17. [148]

    Mrs Spink gave the following evidence as to her understanding of the effect of the arrangement that she had with Dianne and Mario (from T 43.34):

18. [149]

    She also said, at T 49.50: "…I was putting the 150,000 into the purchase of [the] Casula property which was going to be my home and theirs". Further, Mrs Spink said, at T 82.37: "I did not give Troy money. I loaned Troy money. I never told Dianne and Mario that I was just giving the money. I was contributing to an agreement that we were purchasing a house together which was going to be my home as well is [sic] theirs".

19. [150]

    Denise gave the following evidence of what she had been told by Mrs Spink concerning what should happen when Mrs Spink passed away (T 93.21-.38):

20. [151]

    This evidence is of some significance, as it suggests that Mrs Spink's understanding was that Dianne would have a personal obligation to pay to Denise half of the value of Mrs Spink's share in the Casula property.

21. [152]

    In cross-examination, Mario adhered to his evidence that he never said to Mrs Spink: "We should buy a place together" (T 167.28), and that, instead, he said that he and Dianne were going to buy a property and: "We want you to move in with us" (T 167.35).

22. [153]

    Mario, however, gave the following evidence concerning his understanding of the effect of Mrs Spink giving Mario and Dianne the money (T 171.39-172.2):

23. [154]

    This evidence seems to be an acceptance by Mario that the payment and the opportunity for Mrs Spink to live in the new house were linked.

24. [155]

    Dianne also denied that Mrs Spink said: "We should buy a place together" (T 204.19).

25. [156]

    On the issue of the length of time that Mrs Spink would be entitled to live with her, Dianne said (T 206.4): "As far as long-term being in the same property, no. We never committed to that being a forever home, but long-term, I was happy to have her live with me. I did not see a problem with that." Dianne also accepted that she never had in her mind that Mrs Spink would live with her only as long as Dianne decided (T 206.26).

26. [157]

    Dianne gave the following evidence concerning her understanding of the essence of the Arrangement (T 209.9):

27. [158]

    Further, at T 210.15-.25:

28. [159]

    Thus, Dianne also appeared to accept that the payment by Mrs Spink of the $150,000 was in return for the agreement that she could live indefinitely with Dianne and Mario.

29. [160]

    I will conclude my consideration of the effect of any arrangement made between Mrs Spink and Dianne and Mario, after I have made some observations concerning my conclusions as to the credit-worthiness of the witnesses.

Credibility of the witnesses’ evidence

1. [161]

   I am satisfied that all of the witnesses in this case gave their evidence in the witness box with a genuine intent to be candid. I consider all of the witnesses to have given their oral evidence in a satisfactory way. There was nothing in the demeanour of any of the witnesses or in the way that they responded to the questions that were asked of them that caused me any concern about whether the witnesses were being truthful.

2. [162]

   However, it does not always follow from the fact that a witness gives evidence from the witness's recollection with a genuine intent to tell the truth that the evidence given is in accordance with the facts that actually happened. The recollections of all witnesses are prone to be fallible, particularly where the subject matter of the evidence is a matter of considerable self-interest to the witness, a substantial period of time has passed since the relevant events have occurred, and the witness has had time since the dispute arose to dwell upon the facts and the grievances that have arisen.

3. [163]

   In the present case, I have concluded that Denise, Troy and Mr John Caronna were sufficiently disinterested witnesses such that their evidence should be taken at face value. This is so notwithstanding that Denise and Troy are Mrs Spink's children, who expressed some horror at the way Mrs Spink had been treated by Dianne and Mario, and notwithstanding that Mr Caronna is a long-time friend and former dancing partner of Mrs Spink.

4. [164]

   I am also satisfied that Ms Hiripis was a genuine and largely reliable witness. That is so notwithstanding that Ms Hiripis conceded that she had formed a friendship with Dianne and Mario as a result of her many dealings with them. My qualification concerning the credibility of Ms Hiripis’ evidence arises only out of the fact that the relevant events occurred in the course of Ms Hiripis’ day-to-day work as an officer of the Bank, and she did not have detailed file notes of all of her dealings. Ms Hiripis' affidavit was made on 2 February 2018, which was some five years or so after the relevant events occurred. There is therefore a residual basis for doubting the precision of Ms Hiripis’ evidence, arising out of the ordinary fallibility of memory.

5. [165]

   Dianne and Mario attacked the credibility of Mrs Spink in a number of specific ways.

6. [166]

   Mrs Spink candidly conceded that it was difficult for her to remember precisely all of the relevant events. She said, at T 35.7-.20:

7. [167]

   At T 38.11, Mrs Spink accepted that "I do not know the exact time, no" as to when she first had the discussion with Dianne and Mario about whether she should sell the Railway Parade unit.

8. [168]

   Mrs Spink was also candid about her inability to be sure about the fate of an informal will that she said she prepared on a piece of paper, acknowledging that she was "…quite upset at the time…" she was evicted from the property, and, at T 75.38:

9. [169]

   I consider these responses to be honest and not unexpected in the circumstances, but they do throw light upon the fact that Mrs Spink was naturally extremely upset about being evicted from the Casula property, and she has had considerable time to dwell upon events since that happened.

10. [170]

    Dianne and Mario claimed that Mrs Spink made a gift to Troy of some $120,000 to enable him to purchase a mechanic's business in 2009. They say that Mrs Spink gave false evidence in-so-far as she claimed that the payment was a loan, in circumstances in which she has never insisted upon the money being repaid by Troy.

11. [171]

    In this context, Mrs Spink and Troy relied upon a book produced by Troy which became Exhibit BD, and which purports to be a record of repayments made by Troy, showing a balance, as at 20 August 2017, of $89,359.27. Dianne and Mario put it to both Mrs Spink and Troy that this document was a fabrication prepared by them at some time in 2017 in order to create false evidence in support of their claim that the payment made by Mrs Spink to Troy was a loan.

12. [172]

    As I have explained above, I reject this basis of Dianne’s and Mario’s attack on Mrs Spink’s credibility.

13. [173]

    I have also not placed significant weight on the probable circumstance that Mrs Spink’s recollection that she did not go into the Bank with Dianne and did not receive the pro forma statutory declaration from Ms Hiripis was in error.

14. [174]

    As I have explained above, I have not accepted the submission that the errors contained within Mrs Spink’s application for finance to the St George Bank are a proper basis for rejecting her evidence on the ground that she should not be treated as an honest witness. However, that evidence must undermine the reliability of Mrs Spink’s evidence, particularly as to matters of detail.

15. [175]

    Putting aside issues of detail, I do have a more fundamental concern about aspects of the evidence given by Mrs Spink, Dianne and Mario.

16. [176]

    Notwithstanding that I do not have any significant difficulty in accepting the evidence given by Mrs Spink on the one hand, and Dianne and Mario on the other, concerning most of the events relevant to this dispute, I do have a concern about the accuracy of their recollections in relation to the fundamental terms and nature of the arrangement that they made in respect of the purchase and renovation of the Casula property, and the basis upon which Mrs Spink would be permitted indefinitely to reside at the property.

17. [177]

    All three witnesses asserted and stood by the version of events that was most favourable to their cause. This is a matter of great self-interest to Mrs Spink, as she does not have sufficient money to house herself properly, and is on a waiting list for public housing. This dispute is also a matter of great self-interest to Dianne and Mario, as, if Mrs Spink is found to be entitled to a substantial share in the beneficial ownership of the Casula property, they may not be able to finance the payment of the value of the share to Mrs Spink, and their ability to continue to house their family in a home that they own may be severely jeopardised.

18. [178]

    In my view, it is significant that the proposed arrangement was discussed a considerable number of times during 2012, and perhaps earlier. In her primary affidavit, Mrs Spink gave evidence of a number of conversations that she says took place between herself, Dianne and Mario, but she only relates parts of single conversations when the different aspects of the arrangement were discussed. That gives the appearance that the components of the arrangement were only discussed once, albeit over a number of conversations. The reality was closer to what was alleged in the statement of claim. That is, that the parties discussed the proposal numerous times over a considerable period. The evidence does not extend to the substance of what was said in all of the conversations. That may be understandable, given the difficulty and expense involved in attempting to relate all of the conversations. However, the effect is that the evidence given is each party’s distillation of the substance of a great many conversations spread over a period of months. Almost inevitably, evidence given in this manner will reflect the particular witness' view or appreciation of the effect of the conversations. That understanding will be reached through the prism of the witness' self-interest and reflection upon what the witness believes was said, or must have been said, after a significant period of reflection on the consequences of the events that subsequently occurred. Unsurprisingly, the evidence given in response by Dianne and Mario took a similar structural form.

19. [179]

    The same problem arises in relation to the evidence given by Ms Hiripis, as she said that there were many meetings that she had with Dianne and Mario, and that Mrs Spink attended a number of those meetings. Although Ms Hiripis’ evidence is corroborated to some extent by her notes and memoranda, her evidence of what was said in Mrs Spink’s presence is in reality a distillation, into a small number of statements, of the effect of many conversations in conjunction with Ms Hiripis’ recollection that Mrs Spink was present at many of those conversations.

20. [180]

    The most well-known extract from the authorities relevant to the proof of statements and arrangements made orally is probably the following, taken from the judgment of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (in the context of whether alleged statements were misleading and deceptive):

21. [181]

    The problem that McLelland CJ in Eq so perceptively explained is amplified where the reality is that the same subject was discussed frequently by the members of a family, at a time of family unity, in different locations where, as the evidence shows was true in the present case, the parties were initially reluctant to make the arrangement, but persuaded themselves over time that it was safe and prudent for them to do so. It is almost certain that the proposal was put in different ways by the different parties using different words over the period, and that the proposal may have evolved in its substance and in the way that it was described by the participants. The participants were not contemplating making a clear, formal agreement that would be enforceable at law. It is likely that the participants used expressions intending those words to have a particular meaning and assuming that the others participating understood the intended meaning.

22. [182]

    In these circumstances, the Court is presented with limited and distilled evidence from the perspective of the individual witnesses which is said to have given rise to an arrangement, whether that alleged in the paragraphs of the statement of claim, or that which is implied in the defence.

Effect of the arrangement between Mrs Spink, Dianne and Mario

1. [183]

   It will now be appropriate to gather the threads of the discussion above, regarding the forensic issues in contest between the parties, and set out my conclusions concerning the nature and terms of the arrangement between the parties.

2. [184]

   The parties gave little attention to legal formalism in their discussions concerning the consequences of Mrs Spink's agreement to contribute $150,000 (ultimately $147,000) to Dianne and Mario in connection with the acquisition of the Casula property. It is appropriate to start by identifying, as far as possible, the elements of the arrangement or understanding that developed between the parties up to the point when the Casula property was acquired.

3. [185]

   It seems to be agreed that the suggestion that the parties could live together was originally made by Dianne and Mario. The immediate cause for the proposal was Mrs Spink's dissatisfaction with the need to make regular round trips between Engadine and Moorebank, in order to provide help to Dianne with the care of the children. I am satisfied that Dianne was also unwell, and that Dianne and Mario needed Mrs Spink's help. It is also possible that Mrs Spink had become dissatisfied with living in the Railway Parade property.

4. [186]

   Dianne and Mario needed a bigger home following the arrival of their third child. All of the parties must have understood that Dianne and Mario would need a bigger home as their long-term family home.

5. [187]

   It is probable that Dianne and Mario thought in terms of their becoming the owners of the new home. They were the owners of the Moorebank property, albeit subject to a mortgage. It is probable that Mrs Spink also understood that the objective of the proposal was that Dianne and Mario would acquire a new home for the purposes of their family.

6. [188]

   There seems to be no dispute in the evidence that the parties had many conversations about the proposal. That is almost certainly true, given its unusual nature. Both Mrs Spink and Dianne said that, initially, they were dubious about the suitability of the proposal. The proposal was discussed within the family, and Troy and Denise expressed openly their reservations about the ability of Mrs Spink and Dianne to live together on a long-term basis.

7. [189]

   As I have observed above, the Court only has in the evidence distillations of what must have been said many times over, in different contexts, in different words and with different shades of meaning. Mrs Spink on the one hand, and Dianne and Mario on the other, have, in my view, provided distillations of the many conversations which put the effect of those conversations in the best light to their own cases.

8. [190]

   Whether or not Mario initially suggested to Mrs Spink that she should contribute $100,000, it is clear that, by no later than the 27 March 2012 date of Ms Hiripis’ Credit Submission Memorandum, there was a proposal that Mrs Spink would contribute $150,000. Ms Hiripis understood that the payment would be a gift in the true sense.

9. [191]

   I reject Mario's claim that the proposed payment of the $150,000 was unrelated to the acquisition of the Casula property, in the sense that the promise to pay the money was made after Dianne and Mario had agreed to buy the Casula property, and in consequence of Dianne's and Mario's agreement that Mrs Spink should live with them long-term, and that it was unconnected with the sale of the Railway Parade property. The payment of the $150,000 was initially needed to enable Dianne and Mario to retain the Moorebank property and to acquire the new property. That is clear from the way in which Ms Hiripis calculated the ability of Dianne and Mario to service the new loans. Ms Hiripis said that she would not have recommended the loans in the manner that she did, if she did not believe that Mrs Spink would contribute a non-refundable amount of $150,000. Given the many discussions between Ms Hiripis and Dianne and Mario, the latter must have understood that the payment of the $150,000 was to be made to enable them to retain the Moorebank property and ultimately to acquire the Casula property.

10. [192]

    Ultimately, because the first attempt by Mrs Spink to sell the Railway Parade property fell through, Dianne and Mario were required to increase the amount that they borrowed from the Bank of Cyprus, but they still needed $60,000 of Mrs Spink's money to complete the purchase. She was obliged to borrow from her friend and her sister-in-law in order to fund that payment. If Dianne's and Mario's submissions are to be accepted (and I am not sure that this was proved by the evidence), they used $57,500 of the $70,000 paid to them by Mrs Spink after completion of the purchase of the Casula property to reduce the mortgage on the Moorebank Property. If so, that was their choice. They could have reduced the mortgage on the Casula property. Either way, the amounts given to them by Mrs Spink were largely used to increase the value of the properties owned by Dianne and Mario.

11. [193]

    I find that Mrs Spink could only have raised the $150,000 by selling the Railway Parade property. The consequences of the first contract for selling that property falling through make that fact obvious. Dianne and Mario must have known that Mrs Spink could only pay them the $150,000 from the proceeds of sale of the Railway Parade property.

12. [194]

    I also find that Dianne and Mario must have understood that, so long as they retained the $147,000 that Mrs Spink actually paid to them, Mrs Spink would not have sufficient funds to independently pay for adequate alternative accommodation in her own name, if the arrangement that she live with Dianne and Mario broke down.

13. [195]

    Although it was denied by Mrs Spink, on balance I find that she was present at some of the conversations with Ms Hiripis at which the subject of her giving $150,000 to Dianne and Mario was discussed. In making this finding I prefer the evidence of Ms Hiripis and Mario. The manner in which the Moorebank property was to be retained and the new property funded must have been discussed during those meetings.

14. [196]

    I accept that words such as "give" and "provide" must have been used during the conversations in Mrs Spink's presence, in a context that meant that such words could reasonably have been taken to mean that Dianne and Mario would not be required to pay back or service the amount of $150,000 to be provided by Mrs Spink. The discussions at least excluded that the money would be provided as a loan.

15. [197]

    I am not satisfied, however, that the conversations necessarily or clearly conveyed to Mrs Spink that the payment was to be a gift in the strict sense, that is an absolute transfer of the money subject to no countervailing obligation on the part of Dianne and Mario.

16. [198]

    Ms Hiripis' notes and memos were true from the Bank's perspective. Mrs Spink would provide the money that would be used to pay part of the price for the new house. Mrs Spink would have no expectation of repayment. Only Dianne and Mario would be on the title. The Bank's mortgage would be a first registered mortgage granted by the registered proprietors. Dianne and Mario, and perhaps even Mrs Spink, may have been aware that, to make the proposal feasible, the Bank had to believe that Mrs Spink would provide the $150,000 with no strings attached.

17. [199]

    I accept that the parties did not specifically address the term of Mrs Spink's entitlement to reside at the Casula property. The intention, as expressed in many conversations, must have been that the term was indefinite. The parties ultimately persuaded themselves that they could trust the continuation of family bonds. Mrs Spink came to believe that the new property would be her "forever house", and the conduct of Dianne and Mario justified her in forming that belief.

18. [200]

    On the other hand, Dianne and Mario did not, in any express or implied way, bind themselves to live in the Casula property forever. There must have been a suppressed premise to the arrangement that, if Dianne and Mario chose to leave the Casula property, then some new, appropriate arrangement would need to be reached to accommodate Mrs Spink's need for a secure home (perhaps by finding a new property with the same configuration as the Casula property).

19. [201]

    I have found it difficult to decide what the substance of the conversations between the parties was concerning the $150,000 being part of Dianne's inheritance. I find, from the evidence given by both sides, that the subject was discussed. I am not confident that I can make a sound finding as to when it was discussed, as Mrs Spink's evidence that it was discussed before the Casula property was acquired was a mere assertion. On balance, I do not accept the evidence of Dianne and Mario that Mrs Spink said that the whole $150,000 was in effect an early payment of Dianne's inheritance. It may be that Mrs Spink said, in some general way, that the money that was paid would be Dianne's inheritance. However, I find that the significance of any such statements made by Mrs Spink more went to the indefinite nature of the arrangement, in that Dianne would not need to give any money back to Mrs Spink during her lifetime. I am satisfied that Mrs Spink's affection for each of her three children was equal. I accept that Mrs Spink had said to Troy that, if she passed away, he could keep the balance of the loan that he owed to Mrs Spink that was then outstanding. The problem with accepting Dianne's and Mario's version of the conversations concerning inheritance is that it only left for Denise whatever was 'left over'. There is no reason, on the evidence, to believe that the parties understood that there was any real likelihood that Mrs Spink, on her death, would have additional property to go to Denise that would have value reasonably comparable to a gift of $147,000.

20. [202]

    It is important that it be understood that the Court is not called upon to decide positively what the arrangement was concerning the relationship between the payment of the $147,000 and the inheritance expectations of Mrs Spink's children. That is not an issue raised on the pleadings in this case. It is not an issue that will now ever arise. If Mrs Spink succeeds on her case, she may receive some money that she can do with as she pleases. If the case fails, she will get nothing.

21. [203]

    The evidence that I am most prepared to accept is the evidence given by Denise, when she said in her oral evidence that Mrs Spink told her that, when Mrs Spink passed away, "Dianne was to pay me out of [Mrs Spink's] portion of what [Mrs Spink] had placed of her funds into that property". That is a likely thing for Mrs Spink to have said to Denise, and it lends weight to the position that Mrs Spink was unlikely to have told Dianne and Mario that the whole of the $147,000 should be treated as an early receipt of Dianne's inheritance.

22. [204]

    More significantly, the statement made by Mrs Spink to Denise is, on the evidence, telling as to what she understood the arrangement with Dianne and Mario to be. Dianne was to have a personal obligation, on Mrs Spink's death, to pay half of Mrs Spink's contribution to the purchase of the Casula property to Denise. That personal obligation would be inconsistent with an arrangement entitling Mrs Spink to call for the sale of the property at any time, and would contemplate that the property would remain Dianne's and Mario's. Assuming that Mrs Spink was able to live at the property for the remainder of her lifetime, the only obligation on Dianne on her death would be to pay half of Mrs Spink's share to Denise. Although Mrs Spink’s share was not specifically identified, it probably was intended by Mrs Spink as referring to the amount that Mrs Spink gave to Dianne and Mario.

23. [205]

    I consider it to be highly likely that, in some of the many conversations between the parties, there was talk of them buying a home together, as Mrs Spink said. However, that is an essentially ambiguous expression that could apply to the practical circumstance of the parties acquiring a home in which they intended to live together, and does not necessarily connote that they would all become legally recognised owners. I am satisfied, on balance, that whatever expression was used, it was not intended or understood by the parties to be an actual agreement that all of the parties would become owners of the new property.

24. [206]

    On the other hand, I find that, even though the proposal was that Mrs Spink would give the money to Dianne and Mario, either in cash or by paying it into their joint account, Mrs Spink's intention and understanding was that the whole of the money would be paid as part of the price of the Casula property, or applied towards the renovations to which the parties had agreed before Dianne and Mario entered into the contract to acquire the property. Although the finance arrangements changed because Mrs Spink's contract to sell the Railway Parade property fell through, and that may have caused Dianne and Mario to change their intentions as to how they would use the money provided by Mrs Spink, there is no evidence that Mrs Spink was told anything inconsistent with her understanding that the money she paid would go towards the capital value of the new property.

25. [207]

    I am also satisfied that there was a mutual expectation between the parties, created by their words and conduct, that, on the one hand, the new property would remain the family home for Dianne and Mario indefinitely, but, on the other, that Mrs Spink would have an indefinite right to live in the separate part of the property that would be created for her benefit. Provided that this right was upheld, Mrs Spink would not have any right during her lifetime to require Dianne and Mario to repay her any part of the $150,000 and, for that purpose, to sell the property. Dianne and Mario would not have any right exercisable at their discretion to require Mrs Spink to leave the property, at least without Dianne and Mario undoing by some appropriate means the effect of Mrs Spink contributing to the purchase and renovation of the Casula property in a manner that made the purchase possible.

26. [208]

    The parties did not contemplate or discuss the issue of Mrs Spink paying rent as, irrespective of how the law might treat the effect of the arrangement, Mrs Spink's contribution to the purchase of the property was sufficient to cause the parties to take it for granted that she was entitled to be treated as an owner for this purpose.

27. [209]

    There was no question of Mrs Spink contributing to mortgage repayments, as the loan raised by Dianne and Mario on the security of the Casula property was understood by the parties as being their contribution to the purchase of the property.

28. [210]

    The most significant aspect of the evidence which speaks to the issue of who the parties intended to be the true owners of the property is the fact that Mrs Spink allowed Dianne and Mario to be the only parties to the contract for the purchase, and for the transfer to be in the sole names of Dianne and Mario.

29. [211]

    In my view, it is generally understood by intelligent members of the community, and was so understood by Mrs Spink, that the persons who the law recognises as the owners of property are the persons who contract to buy it and into whose name the property is transferred and registered as owners. Mrs Spink recognised this in her observations on the consequences of her not being "on the deed". I do not suggest that ordinary laypeople have no concept that equity may recognise forms of ownership that are inconsistent with the title to property as determined by law, but in a broad way they understand the significance of being the registered owner. A decision by a party not to insist upon being a registered owner has meaning, as it is an indication that the person does not believe that the effect of a proposed transaction will be to give that person an ownership interest in the property.

30. [212]

    I am satisfied that Mrs Spink understood at all times that, whatever rights she may have had, in not insisting that she be registered as an owner, she was conceding that the true owners of the Casula property would be Dianne and Mario.

31. [213]

    I do not accept Mrs Spink's explanation that she did not insist upon becoming a registered owner because the parties only learned of the opportunity to buy the property three days before the auction, and that, for unexplained reasons, the parties did not get around to causing her to be a party to the contract or a transferee. Mrs Spink had previously been the registered owner of a number of properties, and was registered on the title to the Railway Parade property with Troy. I do not accept Mrs Spink's explanation that she understood that she was only required to be a registered proprietor of the Railway Parade property because the money to purchase the property had been borrowed in her name as well as Troy's. I find that Mrs Spink understood that, if the real intention of the transaction was that she was to be a part owner, then the natural way to implement that intention was that she would become a registered proprietor.

32. [214]

    The fact that Mrs Spink did not take steps to join in contracting to buy the Casula property is, in my view, powerful objective evidence, in all of the circumstances of this case, that there was a positive understanding between the parties that Dianne and Mario would be the real owners of the property.

33. [215]

    However, that understanding is not inconsistent with a common understanding by the parties that Dianne and Mario would not exercise their rights as owners in a manner that was inconsistent with the fundamental basis upon which Mrs Spink provided the $147,000 to them, which had the elements that I have set out in these reasons for judgment.

Consideration

1. [216]

   In the light of these findings, it is necessary to determine the respective rights of the parties to these proceedings in relation to the Casula property.

2. [217]

   The highest case that Mrs Spink makes is that she is entitled to an order that Dianne and Mario hold the legal title to the Casula property on trust for the parties in proportion to their respective contributions to its purchase and renovation, where the contributions to be taken into account are the monies paid by each from their own resources. This approach would not give Dianne and Mario credit for the money that they borrowed from the Bank of Cyprus to fund the purchase of the property.

3. [218]

   The present estimated market value of the Casula property is said to be approximately $800,000. At the time Dianne and Mario purchased the Casula property, they borrowed $369,600 from the Bank of Cyprus on the security of a first mortgage. The amount outstanding on the mortgage is apparently $392,116.96. Mrs Spink's case is that she contributed a total of $168,314.26, comprising payments to Dianne and Mario totalling $150,000, and a further $18,314.26 that she paid from her funds to renovate the property. Mrs Spink asserts that the most that Dianne and Mario contributed was $64,300, being amounts that they paid for renovations to the property. There are some issues as to the validity of these figures, but for the moment I am only using them in order to illustrate the ambit of the difference in the positions adopted by the parties.

4. [219]

   Mrs Spink asserts that, accordingly, she is entitled to 62% and Dianne and Mario 38% of the equity in the Casula property, after repayment of the outstanding mortgage.

5. [220]

   Rounding the figures slightly, the value of the parties' equity in the Casula property is $408,000 (being $800,000 less $392,000). 62% of the equity is $252,960 and 38% is $155,040.

6. [221]

   It will be convenient to state immediately that I reject Mrs Spink's submission that the amount borrowed by Dianne and Mario on mortgage should not be treated as a contribution by them to the purchase price for the Casula property. The decision of the High Court in Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 establishes that, in this context, money paid towards the acquisition of property by one party, which is borrowed on mortgage and which that party is the only one who is liable to repay, is to be treated as a contribution.

7. [222]

   Mrs Spink's first alternative basis for her claim accepted that Dianne and Mario would be treated as having contributed the amount that they borrowed from the Bank.

8. [223]

   As I understand Mrs Spink's calculation of the respective entitlements of the parties (see submissions par 84), her contribution remains $168,314.26, but Dianne and Mario are treated as having contributed the $369,600 amount of the mortgage (for which they alone were responsible), stamp duty of $16,300, fees of $5,331.82, and their $64,300 contribution to the renovations, giving a total of $455,531.82. It is not clear why Mrs Spink has credited Dianne and Mario for the stamp duty and fees in the alternative, but not for the purposes of her primary claim. Mrs Spink claims, on this basis, that the Casula property is held on trust by Dianne and Mario in the proportions 37% as to Mrs Spink and 63% as to Dianne and Mario. The proportions I get using these numbers are, respectively, 27% and 73%, rather than the proportions calculated by Mrs Spink.

9. [224]

   On the proportions that I have calculated, Mrs Spink would be entitled to roughly $216,000 of the $800,000 value of the Casula property, and Dianne and Mario would be entitled to roughly $584,000, out of which they would have to repay the $392,000 amount outstanding on the mortgage, giving them about $192,000 left over.

10. [225]

    Mrs Spink’s second and final alternative basis for her claim is what she described as an estoppel based upon the principle in Morris v Morris [1982] 1 NSWLR 61, in that Dianne and Mario encouraged an expectation in Mrs Spink that she could live with them as a member of their family, Mrs Spink spent money on the acquisition and renovation of the Casula property in reliance on that expectation, and the expectation has been defeated by the occurrence of events which were not in contemplation when the money was spent.

11. [226]

    Mrs Spink submitted that the minimum appropriate remedy would be for the Casula property to be charged with an amount to return her financial contributions, being $168,314.26 plus interest (see submissions par 102), but she also submitted that she should be entitled to a greater amount than this minimum to reflect the increase in the value of the Casula property since it was acquired.

12. [227]

    Dianne's and Mario's case is that Mrs Spink made an unqualified gift to them of the $147,000, and that her payment of $18,314.26 in renovating the Casula property should be balanced against the fact that she lived rent-free for the period that she resided at the property. They say that Mrs Spink is not entitled to any interest in the Casula property and that they owe no liability to her.

13. [228]

    As I have already rejected Mrs Spink's primary claim, the alternatives are that she will be entitled to about $216,000 of the $800,000 value of the Casula property, or that she will be entitled to the return of her financial contribution plus interest, or that she will not be entitled to any moneys. Mrs Spink claimed that her financial contribution was $168,314.26, but I have found that it was $3,000 less than that amount. It is likely that the difference between the first two alternative remedies will not be substantial.

14. [229]

    Mrs Spink rests her case primarily on the principles established by the High Court decisions of Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59. It will be convenient to start with an analysis of those decisions.

15. [230]

    An important objective of this analysis, and the justification of the detail in which it will be undertaken, will be to determine the circumstances in which the remedy granted should take the form of a beneficial interest in the subject property that is proportionate to the parties’ contributions, and when it should take the form of an entitlement to the return of the parties’ contributions, perhaps with interest and secured by a charge over the property, and what adjustments, if any, should be made.

16. [231]

    The first of these decisions was a case in which a man and woman contracted to buy a property on which they intended to live and run a commercial enterprise. The contract to purchase the property was in the joint names of both. The woman provided the whole of the purchase price, and agreed that the property would be put in both names, on the basis of an agreement by the man to renovate a cottage and construct a house on the property. The property was transferred to both parties in equal shares as tenants-in-common. The relationship broke down without the man having renovated the cottage or built the house.

17. [232]

    The courts below found, and the High Court upheld, that the presumption of a resulting trust did not apply in this case, so that the man did not hold his half-interest in the property on trust for the woman. The courts found that the woman intended the man to have a beneficial half-interest in the property, and that she accepted his promise in return to renovate the cottage and to build the house.

18. [233]

    Mason J at 598 agreed with Deane J. Gibbs CJ, at 596, held that although the man did not hold his interest on trust for the woman, she was entitled to an equitable accounting on the sale of the property. At 598, the Chief Justice held that, as both parties had been jointly liable under the contract for the purchase of the property, but the woman had paid the whole of the purchase price, she was entitled to an equitable contribution from him, and an equitable charge over the property to secure that right. The Chief Justice agreed, at 598, with the orders proposed by Deane J.

19. [234]

    Brennan J, at 607, and Dawson J, at 624, in dissent, held that the woman did not have a proprietary interest in the property, but that she would have been entitled to the personal remedy of equitable compensation against the man for his failure to perform the condition upon which he had been given the half interest in the property, had the woman sought that remedy.

20. [235]

    History has shown that the most significant judgment in Muschinski v Dodds is that given by Deane J.

21. [236]

    The following two passages from the judgment of Deane J set out the basic principle upon which his Honour's decision was based.

22. [237]

    At 618-619, Deane J said:

23. [238]

    Then, at 619-620, his Honour added:

24. [239]

    In Baumgartner v Baumgartner, Mason CJ, and Wilson and Deane JJ said at 147-148 in relation to the latter passage in Deane J’s judgment in Muschinski v Dodds:

25. [240]

    Toohey J at 152, and Gaudron J at 155, in substance agreed with the reasons of the plurality.

26. [241]

    Consequently, the general principle stated by Deane J in Muschinski v Dodds has been accepted into the law of this country.

27. [242]

    Before I return to a more detailed consideration of Deane J's reasons, it will be necessary to consider the facts in Baumgartner v Baumgartner and the approach adopted by the High Court in determining the dispute in that case.

28. [243]

    As summarised in the headnote, the parties were in a de facto relationship and pooled their incomes for living expenses and fixed commitments. They lived at first in a unit owned by the man, which he sold when they acquired a house solely in his name. The house was purchased with the aid of a mortgage in the name of the man, who also contributed the net proceeds of the sale of the unit. The parties' aggregate earnings were pooled in the proportions roughly equal to 55% by the man and 45% by the woman. They later separated and the man asserted that the land was his sole property.

29. [244]

    After adopting Deane J's statement of general principle, Mason CJ and Wilson and Deane JJ said, at 148-149:

30. [245]

    Then, at 149, their Honours continued:

31. [246]

    Their Honours then proceeded to determine the terms of the constructive trust. Their Honours reached the following conclusion, at 149-150:

32. [247]

    It is significant that their Honours made the following observation concerning the complexity of the factual inquiries that are warranted in determining the respective contributions of the parties, at 150:

33. [248]

    Having stated the principles, the plurality then determined the adjustments that should be made on the facts of the case before them.

34. [249]

    It will be appropriate now to return to a consideration of the reasons of Deane J in Muschinski v Dodds, particularly having regard to the form of relief that his Honour concluded was appropriate in that case.

35. [250]

    After Deane J set out the basic principle that may be found in the extract from his reasons above, his Honour said the following at 621:

36. [251]

    The enquiry is therefore centred on whether, and to what extent, reliance by one party on his or her ownership of the property would be unconscionable conduct.

37. [252]

    At 621, Deane J said that, if the venture had merely been a commercial one, the man's conduct in seeking to assert and retain the full benefit derived by him from the woman's contribution, without making any allowance to compensate her for the disproportion between those contributions, would have given "…little room for argument…" and then said:

38. [253]

    Deane J then continued, at 621-622:

39. [254]

    In essence, Deane J said that the position in equity would have been clear if the relationship had solely been commercial, but because it was a mixture of the commercial and the personal, it may require different treatment, particularly if the personal relationship had survived for years after the collapse of the commercial venture. Deane J allowed for the possibility that, over time, the personal aspect of the relationship may predominate, so that it would become appropriate to treat the parties as having contributed, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In that case, the contributions may include not only direct contributions in money or labour, but also indirect contributions in other forms such as support, home-making and family care. However, in the case before the Court, the personal relationship had also failed.

40. [255]

    Deane J, at 622, described the nature of the man's unconscionable conduct in the following terms:

41. [256]

    Consequently, his Honour concluded, at 622-623:

42. [257]

    According to Deane J, the party's rights had to be adjusted to compensate for the disproportion between their contributions to the purchase and improvement of the property. "At the least…", the parties were required to be proportionately repaid their respective contributions.

43. [258]

    Then, Deane J considered the possibility that there would be a surplus after the discharge of joint debts and the repayment to the parties of their respective contributions. In that regard, equity only qualifies the legal entitlement to the extent that it positively appears that it would be unconscionable for one party to assert or retain the benefit of property contributed by the other party. There may be circumstances where the party who has made the major contribution should be entitled to a correspondingly greater share of any surplus.

44. [259]

    His Honour concluded, at 623, that the woman had failed to establish that it would be unconscionable conduct for the man to assert his entitlement to retain the one-half share in the residue "…to which his legal entitlement and the consensual arrangement between…" the parties otherwise entitled him.

45. [260]

    The fact that, when the property was initially acquired by the parties, they intended that each would be beneficially entitled to an equal half interest, which was reflected in how the legal title was held, had the practical effect that, after the Court had decided that each party was entitled to be repaid their respective contributions, a determination had to be made as to whether equity would adjust the proportionate entitlement to the residue. This may be a very significant question in times of substantial inflation in property values. Deane J did not act upon the basis that the beneficial ownership of the property should prima facie reflect the proportionate contributions of the parties. On the contrary, his Honour found that the woman had not made out a case that the agreed ownership shares should be displaced.

46. [261]

    Deane J then, at 623, explained why the parties should hold the title to the property on trust for their respective interests:

47. [262]

    Relevantly, Deane J concluded as follows at 623:

48. [263]

    This final aspect of the judgment underscores the remedial nature of the particular constructive trust that Deane J found should be declared.

49. [264]

    I have engaged in this detailed analysis of the two High Court decisions, because it is relevant to whether the beneficial interest in the Casula property should be held in proportion to the parties' contributions, or whether Mrs Spink should only be entitled to repayment of her contribution plus interest. The outcome in Muschinski v Dodds would be consistent with Mrs Spink only being entitled to the return of her contribution (although Deane J allowed for the possibility that the entitlement to the residue should also be proportionate to the contributions). The Court in Baumgartner v Baumgartner found that there was an entitlement to equality of beneficial ownership, after making adjustments for some disproportionate contributions.

50. [265]

    The reasoning of Deane J in Muschinski v Dodds started with equitable principles that apply in a commercial context, particularly that of partnership, and extended those principles so that they might apply in a context that was wholly or partly domestic. His Honour concluded that the basic right of the parties upon the collapse of the venture, in the circumstances considered by his Honour, was the return of contributions.

51. [266]

    As Brereton J (as his Honour then was) said in McKay v McKay [2008] NSWSC 177:

52. [267]

    In the present case, the parties did not suggest that the proper remedy would be to make good the assumption upon which Mrs Spink made the payments to Dianne and Mario, as all agreed that it was no longer possible for the parties to live in close proximity.

53. [268]

    In my view, Baumgartner v Baumgartner accepted what Brereton J described as the "fundamental principle", and did not, in finding that equality of beneficial ownership was the starting position in determining the proportionate entitlements of the parties, intend to detract from that fundamental principle. Baumgartner v Baumgartner was, in a sense, a special case in which the purely domestic nature of the relationship, and the pooling of funds for the purpose of establishing and maintaining a joint home for the indefinite future, justified the conclusion that it was unconscionable for the man to assert his sole legal ownership of the property, without allowing the woman equal beneficial ownership, subject to limited adjustments based upon their disproportionate contributions.

54. [269]

    Baumgartner v Baumgartner was a case that not only recognised and applied the observation by Deane J in Muschinski v Dodds that there could well be circumstances in which equity would require the party who has made the major contribution to obtain a correspondingly greater share of any surplus, but by reason of the nature of the relationship and the pooling of funds concluded that the Court should go further and start from an assumption that good conscience on the part of the man required equality of beneficial ownership as the starting point.

55. [270]

    An important question may be whether, and in what way, it is necessary to take into account what the legal and beneficial ownership was at the time the parties first acquired the property. In principle, that issue arises in the present case, as the parties have contested whether a partial resulting trust arose in favour of Mrs Spink, or whether her intention was to make an absolute gift in favour of Dianne and Mario.

56. [271]

    The original shares in the legal and beneficial ownership of the property were significant in Muschinski v Dodds. After Deane J held that the parties were entitled to the return of their respective contributions, the question became whether the woman, having initially intended that the man would become beneficially entitled to half ownership of the property, had established that he should hold his half of the residue on some trust that recognised her initial disproportionate contribution. She failed to establish that good conscience on the part of the man required that result. Deane J would have declared the constructive trust only from the time of the publication of the reasons for judgment. Up to that time, the parties were equally entitled to the legal and beneficial ownership of the property.

57. [272]

    The situation was different in Baumgartner v Baumgartner. In that case, the nature of the relationship and the joint venture between the parties was such that the High Court found that the man held the legal title to the property on trust for the parties equally, subject to some adjustments to reflect their disproportionate contributions. The High Court declared that the man held his interest in the property on trust for himself beneficially as to 55% and for the woman beneficially as to 45%, subject to such further adjustments as should be made in accordance with the reasons for judgment. The High Court said that it would be necessary to remit the matter to the Supreme Court, if the parties could not agree upon the quantification of the adjustments that the Court found should be made.

58. [273]

    There may, therefore, be a question in each case as to whether it is necessary for the Court to start by determining what the respective beneficial entitlement of the parties was at the time of the initial acquisition of the property. There will be no difficulty in determining the legal title, as that will be established either by the register or by instruments of title.

59. [274]

    As a matter of judicial practice, it is not desirable for a Court to have to determine this question if the outcome is immaterial because the circumstances warrant a determination in the same manner as occurred in Baumgartner v Baumgartner.

60. [275]

    The initial condition of the beneficial ownership of the property will be material in a case that requires the approach in Muschinski v Dodds, provided that there will be a residue after the payment of joint debts and the return of the parties' respective contributions, given the extended meaning of that term in this context. The initial proportionate beneficial entitlement to the property will apply to the residue, unless one party propounds an equitable basis for adjusting the initial proportionate beneficial ownership.

61. [276]

    The initial proportionate beneficial ownership may also be determinative in cases where it is not appropriate for the Court to start with an assumption of an equal proportion of beneficial ownership, and if there are significant forensic difficulties in the parties establishing what their individual contributions were.

62. [277]

    The initial proportionate legal and beneficial ownership will also be significant when questions of competing proprietary interests arise as between the parties and third parties: see the discussion by Ward J (as her Honour then was) in Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 at [146]-[168].

Application of principles

1. [278]

   In the present case, it will be necessary to decide first whether the principle in Muschinski v Dodds applies, as that has been put in contest by Dianne and Mario. If it is found that the principle does apply, it will then be necessary to consider whether the return of Mrs Spink's contribution will be the appropriate remedy, or whether she should in addition be entitled to a share of the residue.

2. [279]

   I respectfully accept the following statement by Ward J in Australian Building & Technical Solutions Pty Ltd v Boumelhem as to the criteria that must be established to prove an entitlement to this form of constructive trust:

Existence of joint relationship or endeavour

1. [280]

   Dianne and Mario submitted that the first criterion was not established because they and Mrs Spink were not in the same sort of relationship as a de facto couple, and there was no real pooling of funds of the type that had occurred in Baumgartner v Baumgartner.

2. [281]

   I reject that submission. First, the principle may apply where the relationship is between a parent and child and a child's partner: see Kriezis v Kriezis [2004] NSWSC 167, Malsbury v Malsbury [1982] 1 NSWLR 226, Sirtes v Pryer [2005] NSWSC 1082, McKay v McKay [2008] NSWSC 177, and Nolan v Nolan [2015] QCA 199. This is unsurprising, given that, as explained by Deane J in Muschinski v Dodds, the source of the principle was the equitable treatment of the cases where a commercial enterprise terminates without there being in effect an agreed arrangement for dealing with the consequences of the termination, which demonstrates that the principle applies in much wider cases than arrangements between couples.

3. [282]

   Further, the application of the principle does not depend upon there being a pooling arrangement between the parties. It is sufficient if, as here, the parties make individual contributions to the collective venture. That is what the parties contemplated in Muschinski v Dodds, although the relationship broke down before the man had made his contribution. In any event, in the present case there was a pooling of funds, albeit by the making by Mrs Spink of only seven payments in cash or transfers to Dianne's and Mario's joint account. The special type of day-to-day pooling for the general purposes of the relationship that occurred in Baumgartner v Baumgartner may justify the special result in that case, but it is not necessary for the application of the Muschinski v Dodds principle.

4. [283]

   In my view, the present case is on all fours with a significant number of cases in which a parent has made a contribution to the acquisition of a residential property by children on the basis that the parent would have an indefinite right to live in the property, and for that reason the first criterion is satisfied.

End of endeavour without attributable blame

1. [284]

   The parties joined in accepting that the second criterion, being that the substratum of the joint endeavour has prematurely terminated "without attributable blame", is satisfied. There was little evidence of the real reasons for the breakdown in the relationship, and it appears that both sides took the view that the conduct of the other was the cause. Although Mario required Mrs Spink to leave the Casula property, that was only because the relationship between the parties had already broken down to the extent that it was untenable for them to live together. The parties' acceptance that there was no attributable blame between them is well-founded, given the following statement of principle: "The concept of attributable blame must be understood and applied with some tolerance; in my view it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable…": see Bennett v Horgan (NSWSC, 3 June 1994, unreported), as approved in Kriezis v Kriezis at [23], Hill v Hill [2005] NSWSC 863 at [35], and McKay v McKay at [16].

Was there unconscionability?

1. [285]

   I am also satisfied that the third criterion, that there must be the requisite element of unconscionability, is satisfied in the present case, unless Dianne and Mario establish their claim that Mrs Spink intended to make an absolute gift to them of the money that she contributed. I will return to consider the gift issue below.

2. [286]

   Subject to consideration of whether Mrs Spink made a gift to Dianne and Mario, I would hold that it would be unconscionable for Dianne and Mario to assert their legal ownership of the Casula property, without making any proper allowance for the contributions made by Mrs Spink.

What is the appropriate remedy?

1. [287]

   The question that then arises is: what is the appropriate nature of the remedy to be granted? Should Mrs Spink be entitled to an order for the return of her contributions plus interest, secured if necessary by an equitable charge over the cash or property? If so, should Mrs Spink be entitled additionally to a share in the residue after allowing for the contributions made by Dianne and Mario, having regard to the appreciation in the value of the property? Should the Court start from the proposition that the parties in this case should be entitled to beneficial ownership in proportion to their respective contributions, after making appropriate allowances for differences in contributions?

2. [288]

   As a first step to answering these questions, I would not equate the relationship between the parties in this case to that which was the subject of Baumgartner v Baumgartner. The parties did not in any real way pool their resources for the purpose of jointly acquiring a home, in a manner that would justify the starting point that good conscience would require that they have beneficial interests in the Casula property that are proportionate to their different contributions. The joint endeavour in the present case went little further than the making of contributions for the purchase and renovation of the Casula property, so that all parties could live on the one property, though separately. While the closeness of the separate living areas would generate subsidiary benefits, such as Mrs Spink enjoying the benefit of services paid for by Dianne and Mario, and Mrs Spink being able to help out with childminding and the like, the arrangement did not contemplate that the parties would live together in a joint household.

3. [289]

   It is important to consider how the intention of the parties may have a residual influence on how the principle in Muschinski v Dodds should be applied.

4. [290]

   In West v Mead, Campbell J said:

5. [291]

   Additionally, in my view, the parties' intention as to how the joint endeavour would end if it was implemented to fruition may have a proper bearing on the relief that should be given.

6. [292]

   In the present case, I have found that it was Mrs Spink's intention, and Dianne's and Mario's expectation, that, if the relationship between the parties continued, any obligation that Dianne and Mario owed to Mrs Spink would terminate on her death, at which time Dianne would be personally obliged to pay half of Mrs Spink's share of the money contributed for the purchase and renovation of the Casula property to Denise. Mrs Spink understood that Dianne and Mario would become the registered proprietors, and intended that nothing would disturb their beneficial entitlement to the property, provided that they complied with the expectation that Mrs Spink would be allowed to reside in her part of the property indefinitely.

7. [293]

   That aspect of the arrangement, in my view, militates in favour of the conclusion that the appropriate remedy is that Mrs Spink be entitled to the return of her contribution to the acquisition and renovation of the property, plus interest, secured by an equitable charge over the property. That would be consistent with Mrs Spink's original expectation that, on her death, Dianne and Mario would be entitled to the benefit of any appreciation in the capital value of the Casula property. It is consistent with the view, adopted in many cases, that the Court should aim at granting the minimum remedy that is consistent with correcting an unconscionable reliance upon ownership of the property. It is consistent with the outcomes in Kriezis v Kriezis, Sirtes v Pryer, McKay v McKay, and the decision of Pembroke J in Tadrous v Tadrous [2010] NSWSC 1388.

8. [294]

   At [72] above, I deferred the resolution of the dispute as to whether Mrs Spink’s entitlement should be calculated by reference to the total amount that she paid on the basis that it would be used for the acquisition and renovation of the Casula property, or whether it should depend on the amount that can actually be traced as having been applied for those purposes. It is clear, in my view, that the former approach is the correct one. If Dianne and Mario received money from Mrs Spink for the particular purpose of applying it towards the acquisition and renovation of the Casula property, they cannot be heard as against Mrs Spink to say that they used it for some other purpose, which does not give Mrs Spink a proprietary interest in the property.

Significance of initial legal and beneficial ownership

1. [295]

   It is now necessary to return to consider whether the interests in the Casula property to which the parties became respectively entitled at the time of its acquisition require the Court to come to a different conclusion than that which is expressed in the preceding paragraphs.

2. [296]

   The first contention of Dianne and Mario was that Mrs Spink made an absolute gift to them of the moneys that she paid, and that, to the extent that she paid additional money for the renovation of the property, that amount should be set off against the fact that she enjoyed rent-free accommodation for the period that she lived at the property.

3. [297]

   In accordance with the findings of fact that I have set out above, I reject the submission that Mrs Spink made an absolute gift of the moneys that she paid to Dianne and Mario. Her intention was more subtle than the making of an unqualified gift. Further, I find that Dianne and Mario were aware of the conditions upon which the money was paid over. Mrs Spink's intention was that her payments would ultimately take effect as a gift, but that this would occur on Mrs Spink's death. It was a condition of Dianne and Mario becoming free from any obligation to Mrs Spink that she be allowed to live in her part of the Casula property indefinitely, and Dianne was required to pay half of Mrs Spink's share to Denise following Mrs Spink's death. Those conditions were inconsistent with the payments being an unqualified gift to Dianne and Mario.

4. [298]

   Dianne and Mario then said that a presumption of advancement applies, and that the Court should find on that basis that Mrs Spink intended that Dianne and Mario would enjoy the full beneficial ownership of the Casula property.

5. [299]

   If a presumption of advancement applied, the finding that I have made as to the true intention and understanding of the parties would rebut the presumption.

6. [300]

   However, in any event, I am not satisfied that, as a matter of law, the presumption of advancement arose in this case. The payments that Mrs Spink made were not made solely to her daughter, Dianne. As I have found, all of the payments were made to Dianne and Mario jointly.

7. [301]

   The High Court, in Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25, held that a presumption of advancement arises against a mother, even in favour of an adult daughter.

8. [302]

   However, as noted by the learned editors of Jacobs' Law of Trusts in Australia (8th edition) at [12-12], the presumption of advancement does not arise where the purchase is taken in the name of a son-in-law or daughter-in-law, citing respectively Knight v Biss [1954] NZLR 55 and Z v Z (2005) 34 Fam LR 296 at [145].

9. [303]

   It is necessary to consider what the rule is when property is transferred into the names of a child and that child’s spouse jointly.

10. [304]

    All of the Justices in Nelson v Nelson held that the relationship of mother and child was one that gave rise to a presumption of advancement, even in the case of adult children: see Deane and Gummow JJ at 548-549, Dawson J at 576, Toohey J at 585 and McHugh J at 601. There had previously been some doubt about whether the presumption of advancement arose as between mother and child or only father and child, for historical reasons that were dispelled in a number of cases culminating in this State by the decision of the Court of Appeal in Brown v Brown (1993) 31 NSWLR 582.

11. [305]

    While the reasons given by all of the Justices in Nelson v Nelson are consistent, it will be convenient, with respect, to set out the following extract from the judgment of Toohey J at 585, 586 (footnotes omitted):

12. [306]

    What is the position where the payment is made by a mother jointly to a daughter and son-in-law for the purpose of acquiring and renovating a property in their joint names?

13. [307]

    As both the receipt of the money and the acquisition of title were joint, it seems to me to be inconsistent with principle to apply a presumption of advancement as to half of the money in favour of Dianne, but a presumption of a resulting trust against Mario. At least in a case such as the present, where there is no basis in fact for finding that Mrs Spink had a different intention vis-a-vis Dianne and Mario, and good reason to find that she only had the one intention that applied to both of them, the possibility should not be countenanced that Mrs Spink could be found to have inconsistent intentions concerning the payments to Dianne and Mario, arising out of limitations in the evidence and the vagaries of which of the presumptions can be rebutted. In my view, the presumption of advancement must either arise or not.

14. [308]

    The preferable and most logical course is to hold that the presumption of advancement should only arise where all of the joint recipients of the money or property are in a relationship with the payer that is of a category that gives rise to the presumption. If that is true, then the presumption of advancement does not arise in the present case.

15. [309]

    I should repeat, for completeness, that this is a case in which a mother has made a payment for the benefit of an adult daughter and son-in-law for the purchase and renovation of a family residence, which was also intended to be the residence for an indefinite period of the mother. These are circumstances which make the decision as to whether the presumption of advancement should, or should not, apply difficult.

16. [310]

    A consideration of the rationale for the existence of the presumption of advancement, as it has historically evolved, and has been explained in Nelson v Nelson and other cases, does not make the proper decision obvious.

17. [311]

    While it may be, as noted by Toohey J in the extract set out above, that although "…in the case of many adult children, the statutory obligation cast on parents may have no practical consequences, the obligation is there…", that obligation may be less justified in circumstances in which the child is married and the married couple have their own obligations to each other and their children to provide a home for the family.

18. [312]

    Ultimately, the proper explanation in principle may simply be that the presumption of advancement arises where the relationship between the payer and the joint transferees falls within an established category, and it has not been shown that the relationship between parent and child and the child's spouse jointly is such a relationship.

19. [313]

    The next question is whether the Court should hold that, when the Casula property was first acquired, Mrs Spink became entitled beneficially to an interest in the property that was proportional to her contribution.

20. [314]

    The finding that I have made above as to Mrs Spink's real intention is sufficient to rebut the presumption of a resulting trust. It was not Mrs Spink's intention that she would in any sense immediately become an owner of the property.

21. [315]

    It is therefore not necessary for the Court to consider what otherwise may have been difficult questions arising out of the circumstances that part of the contribution by Mrs Spink was paid after the acquisition of title to the property, Mrs Spink's contributions were paid jointly to Dianne and Mario rather than the vendor, part of Mrs Spink's contribution was used for renovations and for purposes unconnected with the Casula property, and that Mrs Spink's contribution was mixed with the general funds of Dianne and Mario.

22. [316]

    Further, Mrs Spink’s contribution to the cost of the renovation would, in my view, have added to the capital value of the property. Mrs Spink will not receive any share in any increase in the capital value of the property. The evidence also suggests that, at least while the relationship between the parties was relatively civil, Mrs Spink assisted Dianne and Mario by minding the children on occasion. As the plurality in Baumgartner v Baumgartner said, the Court should not pursue complicated factual inquiries which will result in relatively insignificant differences in contributions. I am satisfied that the sum of $18,314.26 that Mrs Spink paid for the renovation of the Casula property should be treated as part of her contribution, notwithstanding that she was not required to pay any rent or contribute to outgoings during the time that she lived at the property.

Remedy based upon the principle of estoppel

1. [317]

   It may be that the same result could be reached in the manner adopted by McLelland J in Morris v Morris [1982] 1 NSWLR 61. Mrs Spink relied upon this decision in the alternative to her reliance upon Muschinski v Dodds. In that case, the plaintiff father entered into an arrangement with his son and his son’s wife that he would sell his unit and reside with the defendants in their house, and that the proceeds of sale of the unit would be used to pay for the construction of a second-storey extension to the house which, on completion, would be occupied by the father. The arrangement was that the father would become part of the defendants' family unit, eat with the family, perform household chores and assist the defendants with their business activities, and have no responsibility for rates or taxes or other household outgoings. There was no discussion between the parties as to the duration of the arrangements, or as to what was to happen if their relationship broke down, or if the defendants wanted to sell the house. Following the divorce of the defendants, the relationship between the plaintiff and the son's wife deteriorated so that he could no longer live in the house.

2. [318]

   McLelland J relied upon the principle "analogous" to that stated by the Privy Council in Chalmers v Pardoe [1963] 1 WLR 677 at 681-682. That case applied the principle that is now known as proprietary estoppel based upon the decision of Plimmer v Wellington Corporation (1884) 9 App Cas 699, 714 PC.

3. [319]

   McLelland J said, at 64:

4. [320]

   Although relief in the present case may be supported on the principle adopted by McLelland J, on the particular facts of this case I consider the principle in Muschinski v Dodds to be a more satisfactory basis for the relief.

5. [321]

   In Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, the plurality said, at [77] (footnote omitted):

6. [322]

   There may be a question in cases such as the present as to whether parties in the position of Dianne and Mario are resiling from an expectation that they have created, given that the collapse in the substratum of the joint endeavour has arisen through no attributable fault of either party, and given that the practical reality is that the parties can no longer live together. Regardless, that is an issue that need not be determined in this case.

Conclusion

1. [323]

   For the reasons given above, I find that Mrs Spink is entitled to be repaid her contribution to the acquisition and renovation of the Casula property, where her contribution was $147,000 plus the payment of $18,314.26 for renovations. She is also entitled to pre-judgment interest as provided for in the Civil Procedure Act 2005 (NSW). Mrs Spink is entitled to an equitable charge over the Casula property to secure payment to her of the amount to which she is entitled.

2. [324]

   Given that this is the remedy that the Court will grant to Mrs Spink, the issue of the amounts that the parties proportionately contributed for the purpose of the purchase and renovation of the Casula property is not material.

3. [325]

   Mrs Spink is also entitled to an order that Dianne and Mario pay her costs of the proceedings.

4. [326]

   I will give the parties an opportunity to consider the orders that should be made, and to submit draft short minutes of order to my Associate. That should be done within 14 days and, if that timetable cannot be met, the parties should arrange with my Associate for the matter to be relisted for further consideration. It will be necessary for the parties to determine the amount of interest that is payable. The parties should also give attention to the manner in which Mrs Spink will be paid the amount to which she is entitled. That will require consideration of whether Dianne and Mario are able, within a reasonably short time, to borrow the money necessary to pay out Mrs Spink, or whether appropriate orders will need to be made to enforce the equitable charge to which Mrs Spink is entitled.

5. [327]

   I will hear Mrs Spink if she wishes to make an application for a special costs order. In that event, Mrs Spink should inform my Associate of the position within 14 days, together with suggested directions so as to enable the parties to deal with any outstanding costs issues themselves such that the matter can be decided on the papers in chambers.