Treichel & Anor v Treichel [2022] QDC 181 (12 August 2022)

Last Updated: 5 September 2022

DISTRICT COURT OF QUEENSLAND

CITATION:	Treichel & Anor v Treichel [2022] QDC 181
PARTIES:	NIGEL RENE TREICHEL (First Plaintiff) AND LEANNE TREICHEL (Second Plaintiff) v LESLIE ARTHUR TREICHEL (Defendant)
FILE NO/S:	155/21
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	12, 13, 14, 15 July 2021
JUDGE:	Rinaudo AM DCJ
ORDER:	The plaintiffs’ claim is dismissed. The caveat registered by the plaintiffs as caveators over Lot 3 on RP 165739 with Title Reference 15908035 (“the property”) be removed. Judgment be entered for the defendant on the counterclaim, with the plaintiffs to pay to the defendant the sum of $41,377.96. The defendant recover possession of the property from the plaintiffs on or before 13 December 2022, by the delivery of vacant possession. The plaintiffs pay the defendant’s costs as agreed, or to be assessed on the standard basis.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – where the defendant is the father of the first plaintiff – where it was alleged that the defendant holds his interest in the property on constructive trust for the first and second plaintiffs – where it is argued that the plaintiffs undertook extensive renovations to the property – where it is argued that the improvements to the property contributed to its increase in value – where it was alleged that there is a common intention supported by the representations and conduct by the defendant which gave rise to an expectation that they would be the owners of the property – whether a constructive trust should be imposed over the property, to reflect the plaintiff’s alleged contribution – whether there was detrimental reliance by the plaintiffs on such a common intention
LEGISLATION:	Civil Proceedings Act 2011 (Qld), s. 58 Property Law Act 1974 (Qld), s. 59 Social Security Act 1991 (Cth), ss. 11, 14, 1070C
CASES:	Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 Commonwealth v Verwayen (1990) 170 CLR 394 Evans v Evans [2011] NSWCA 92 Irvine v Scaysbrook [2005] NSWSC 565 Giumelli v Giumelli [1999] HCA 10; (1990) 196 CLR 101 McBride v Sandland [1918] HCA 32; (1918) 25 CLR 69 Muschinski v Dodds (1984) 169 CLR 583 Nolan v Nolan [2014] QSC 218 Shepherd v Doolan [2005] NSWSC 42 Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315
COUNSEL:	T. Nielsen for the plaintiffs G. Barr for the defendant
SOLICITORS	Black Bear Legal for the plaintiffs Greenhalgh Pickard Solicitors for the defendant

Overview

• [1] By amended statement of claim filed 27 January 2021, the first plaintiff (Rene) and the second plaintiff (Leanne) claim:

(a) A declaration that the defendant holds his interest in the real property located at 7 Melaleuca Street, Kuluin Queensland on constructive and/or implied and/or resulting trust for the first and second plaintiffs;

(b) Further or alternatively, that the defendant pay to the first and second plaintiffs damages and/or equitable compensation in a sum to be determined by the Court;

(c) Interest pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld);

(d) The plaintiffs’ costs of and incidental to the proceedings;

(e) Any other order the Court deems fit.

• [2] By the third amended defence filed 28 January 2021, the defendant (Leslie) claims:

(a) The sum of $38,900.00 pursuant to the rental agreement;

(b) Alternatively:

(i) equitable compensation and/or restitution in a sum to be determined by the Court; and

(ii) an order charging the property with the obligation to pay such sum as is determined to be payable as compensation or restitution;

(c) Interest pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld);

(d) Costs.

History

Summary

• [3] Rene and Leanne resided in a de-facto relationship between 1995 and 2003. In 2003, they married. They have three children together. Rene and Leanne finally separated in March 2017. Leslie is the father of Rene.
• [4] Leslie purchased a property at 7 Melaleuca Street, Kuluin (the “property”) in 1990 for $105,000.00. Leslie had borrowed money from Westpac bank for the purchase of the property (and later for renovations in 2010), which was secured by a mortgage over the property.
• [5] Rene and Leanne allege that, in or about late April 1998, they entered into an oral agreement with Leslie for the sale of the property (the “property agreement”). The property agreement is defined at paragraph [6] of the amended statement of claim as follows:

6. In or about late April 1998, the First Plaintiff, the Second Plaintiff and the Defendant had a conversation on the patio at the Property as follows:

(a) The Defendant offered to sell the Property to the First and Second Plaintiff for a sum of $120,000.00;

(b) The First and Second Plaintiff accepted the Defendant’s offer;

(c) The parties discussed that some paperwork involved in respect to the agreement, but that pending the paperwork being “sorted out”, the First and Second Plaintiff could pay the said sum off by way of weekly payments of $125.00 per week;

(d) The Defendant told the First and Second Plaintiff to treat the Property as their own...

• [6] It is submitted that, understood objectively, Rene and Leanne would pay Leslie $120,000.00 for the property, but pending completion of the “paperwork”, weekly payments of $125.00 would be made, which would go towards satisfying the agreed sale price when the paperwork was completed. The sum of the weekly payments is disputed. More on that later.
• [7] Rene and Leanne further plead that there was a common intention that:^[1]

(a) Leslie would transfer beneficial ownership in the property to Rene and Leanne;

(b) In exchange, Rene and Leanne would pay $120,000.00;

(c) The total sum would be paid by instalments of $125.00 per week until the sum was paid in full; and

(d) “Paperwork”, including a formal transfer, would be completed at a later time.

(the “common intention”)

• [8] Further or alternatively, Rene and Leanne allege that Leslie represented to them that he would transfer beneficial ownership of the property on the terms identical to the common intention.^[2]
• [9] Rene and Leanne contend that they acted in accordance with the common intention evidenced by the property agreement, and relied upon the representations, by:^[3]

(a) Making payments;^[4]

(b) Conducting improvements;^[5] and

(c) Continuing to reside at the property, instead of finding another property on the Sunshine Coast, the likely consequence of which would have been substantial capital growth from 1998 to date.

• [10] A statement of agreed facts was tendered at trial.^[6] Many of the agreed facts are incorporated elsewhere in these reasons, however, it is worth noting the following for context:

(a) The subject of conversations in or about April 1998 between the parties is in dispute;

(b) The subject of a further discussion in late 2018 is in dispute; and

(c) The reason that Renee and Leslie attended a meeting with a lawyer (to either discuss the possible sale of the property or effecting the property agreement) is in dispute.

• [11] It is agreed that from June 1998 to 2019, Renee and Leanne paid to Leslie regular payments on an almost monthly basis totalling $167,180.00.
• [12] From June 1998 to 2019, Leslie has paid monetary amounts to Westpac in respect of the repayment of a mortgage totalling $189,543.55, including an increase to the mortgage for renovations.
• [13] The monthly payments from Renee and Leanne to Leslie changed from time to time as follows:

(a) From in or about June 1998 to September 1998 - $540.00 per month;

(b) From September or October 1998 to about August 2010 - $500.00 per month.

(c) From about August or September 2010 to August or September 2014, Renee and Leanne paid Leslie $860.00 per month;

(d) From September or October 2014 to February 2016, Renee and Leanne paid to Leslie $810.00 per month;

(e) Between March 2016 and August or September 2018, Renee and Leanne paid to Leslie $1,200.00 per month;

(f) In November 2018 and December 2018, Renee and Leanne paid Leslie $1,400.00.

• [14] The market rental value of the property was at the relevant times:

(a) As at April 1998 - $200.00 per week;

(b) As at July 2010 - $350.00 per week;

(c) As at October 2011 - $420.00 per week;

(d) As at June 2020 - $520.00 per week.

• [15] The market value of the property was at the relevant times:

(a) As at April 1998 - $135,000.00;

(b) As at July 2010 - $355,000.00;

(c) As at October 2011 - $450,000.00;

(d) As at June 2020 - $565,000.00.

• [16] The defendant refuses to acknowledge that Renee and Leanne have a beneficial interest in the property.
• [17] It is pleaded that whilst legal title in the property remains vested in Leslie, he acted unconscionably by failing to acknowledge Rene and Leanne’s beneficial interests in the property, pursuant to the common intention and representation.^[7] Further or alternatively, it is pleaded that Leslie is estopped from denying their equitable interests in the property in accordance with the common intention and representation.^[8]
• [18] In response to the allegations set out at paragraph [5] above, the defendant asserts that, in late April 1998, the parties only discussed renting the property (the “rental agreem[9]nt”),⁹ and that such rental payments would be applied to paying off the loan[10]o Westpac.¹⁰ The defendant responds[11]s follows:¹¹

2. As to the allegations contained in paragraph 6 of the SOC, Leslie:

(a) admits that in late April 1998, he did have a conversation on the patio of the Property with the first plaintiff (Nigel) and the second plaintiff (Leanne);

(b) otherwise, denies the allegations and believes them to be untrue because the true account of what occurred during the conversation referred to in sub-paragraph (a) above is as follows:

(i) Leslie offered to rent the Property to Nigel and Leanne at a heavily reduced rent;

(ii) Nigel and Leanne accepted Leslie’s offer to rent the Property;

(iii) It was agreed that the applicable rent would be $125 per week.

(c) says that whilst selling the Property to Nigel and Leanne was not discussed during the conversation referred to in sub-paragraph (a) above, it was later discussed in a conversation that took place in late 1998 between Leslie and Nigel at Leslie’s property located at 35 Kocho Road, Image Flat, Queensland;

(d) says that during the conversation referred to in sub-paragraph (c) above:

(i) Nigel requested that Leslie consider selling the Property to him and Leanne;

(ii) Leslie told Nigel that he was willing to consider selling the Property but also told Nigel that they should meet with a legal advisor first to obtain advice regarding the requirements and costs of selling the Property;

(e) says that in or about late 1998 or early 1999, Leslie and Nigel met with a solicitor for the purposes of discussing the possible sale of the Property;

(f) says that during the meeting referred to in sub-paragraph (e) above, the solicitor advised that there would be substantial costs associated with any sale of the Property to Nigel and Leanne, including (but not limited to) transfer duty, registration fees, capital gains tax and legal/bank fees;

(g) in light of the legal advice referred to in sub-paragraph (f) above, Leslie and Nigel:

(i) agreed that the sale of the Property to Nigel and Leanne was not viable (for either Leslie or Nigel and Leanne) because of the costs associated with legal fees, stamp duty, transfer duty, registration fees and capital gains tax;

(ii) did not discuss the sale of the Property any further.

(h) in any event or alternatively, the oral agreement that was alleged to have been reached with respect to the sale of the Property fails to meet the requirements of s 59 of the Property Law Act 1974 (Qld) and is therefore prima facie unenforceable.

• [19] The defendant argues that neither a property agreement was made, nor a common intention or representation existed, in April 1998 or any other time, that the defendant would transfer the property to the plaintiffs in exchange for payment by them of $120,000.00 in instalments of $125.00 per week.^[12]

Events prior to the property agreement

• [20] Prior to Rene and Leanne taking over the property as tenants, Leslie had leased the property to three families,^[13] each of whom paid $170.00 per week in rent. The last tenants did not leave the property until on or about 18 April 1998. Leslie engaged BM Property Management to manage the property and paid a property management fee of $40.00 to $60.00 per month.^[14]
• [21] Prior to moving into the property, Rene and Leanne had rented a small duplex unit, with two small bedrooms and no laundry room, in Maroochydore for $120.00 per week for three years. They were intending to start a family and sought larger accommodation.^[15]
• [22] It is not disputed that Leslie expressed concerns to at least Rene about the condition in which the previous tenants left the house. In Leslie’s own words, “the house [was] basically left...in a pretty poor state” by the last group of tenants.^[16] More specifically, Leslie told Rene that previous tenants did not always pay rent on time^[17] and that the last group owned a dog which damaged the flyscreen and left rubbish on the property.
• [23] Leslie testified to having discussions with Rene, when he and Leanne moved into the property, about what improvements could be done to the property to make it more liveable. Leslie spent approximately $10,000.00 on these improvements, distributed by two cheques: one for $1,809.00 and the other for $8,191.00.^[18] In evidence, Leslie said:^[19]

Rene was prepared to do the work and I was prepared to fund the work, in terms of providing materials and the costings for it. And for that purpose I gave him two cheques, I can recall, a total of $10,000 at the time, to actually upgrade the kitchen. He had discussions with us in relation to what – what was required – what he thought was required. The only part of it we weren’t too – we weren’t agreeable with, I think, was flooring – the flooring they wanted to put in from the kitchen leading the corridor to the laundry area. My wife had discussions with Leanne in regards to that. Leanne wanted a certain type of flooring and my wife ---

• [24] A significant feature of this case (and one that distinguishes it from the cited cases) is that the defendant owned the property, subject to his obligation to discharge the mortgage, for approximately eight years before the alleged property agreement with the plaintiffs occurred and had rented to tenants under commercial arrangements.^[20]

The property agreement

• [25] As outlined above, the property agreement is said to have occurred after Rene and Leanne took possession of the property on or about 18 April 1998. The pleaded case is that the discussion from which the agreement arose occurred in April 1998. Although it was suggested in evidence that the property agreement discussion occurred later, it can be accepted that it occurred less than three months after Rene and Leanne took possession of the property.^[21]
• [26] Rene and Leanne recalled a conversation with Leslie on the patio of the property. It is accepted that Leanne was present at the beginning of the conversation, but left the table to get a coffee because she felt an atmosphere of confrontation and awkwardness.^[22]
• [27] The defendant submits that, looked at objectively, it is peculiar why Leanne might feel awkward during a conversation between Rene and Leslie (who were then on good terms) about buying the property.^[23] The plaintiffs say that this submission should be rejected because, as I had the opportunity to observe the parties at trial, I should conclude that their individual personalities were entirely consistent with the plaintiffs’ version that there was a degree of awkwardness in relation to the property discussions.^[24] In my respectful view, the defendant’s submission has force, particularly in light of Leanne’s evidence that “we all had a good relationship” ^[25] with Leslie at the time, and the indulgence granted to the plaintiffs by the reduced rental payments.
• [28] Rene gave evidence that he and Leslie continued their discussions, and that Leslie agreed to sell the property for $120,000.00.^[26] It was also alleged that they discussed that Rene and Leanne might not be able to obtain a loan straight away and that Rene suggested a “rent-to-buy” scheme, a concept that he discovered from television advertisements.^[27] Although no meaningful evidence was put before the Court as to what such a scheme involved, it was Rene’s understanding that he and Leanne “would make payments to [Leslie] that would pay off the $120,000”.^[28] It can be said that the scheme bears some similarities to an instalment contract.
• [29] By the time Leanne returned to the table, it is alleged that an agreement for sale had already been struck.
• [30] Rene and Leanne recall Leslie saying that they could “treat the property as [their] own” on more than one occasion.^[29] Leslie, however, only remembers telling Rene and Leanne what he told all previous tenants. In examination-in-chief, he said:^[30]

I can’t recall saying it, but I wouldn’t be surprised if I did say it – to say, “Care for – care for the property as you would your own.” I might have said, “Treat the property as you would your own.” It was words to that effect that I would have shared with them.

[underlining added]

• [31] In the plaintiffs’ closing submissions, it is submitted that Leslie conceded that the words used resembled “an admonishment of an errant tenant, rather than something that would be used as a word of encouragement for his son”.^[31]
• [32] There is a fine distinction between the two versions. In my view, it matters little what was said. Even if the words “treat the property as your own” was said, it is a question of whether Leslie meant to convey that he was entering into an agreement whereby Rene and Leanne would become the beneficial owners of the property. For the reasons set out herein, I do not accept that that was what Leslie meant by whatever words he used.
• [33] If Leslie was intending to make Rene and Leanne comfortable living in the property as tenants, either version is something one might say.
• [34] Indeed, cross-examination was as follows:^[32]

MR NIELSEN: I’m sorry. I might have mistaken. Treat the property ---?---As you would your own.

---as you would your own. Okay. Thank you?---Take care of it as you would your own.

Okay?---Or look after it as you would your own.

Right?---Whatever.

So that phrase, can I suggest, and – is a – it’s a warning to the tenants, isn’t it? That if they don’t do that then there might be consequences?---Well it – it – it was an expectation. My expectation of any tenant.

And it wouldn’t surprise me if you looked at them the way you’re looking at me now in a stern fashion. It’s a stern thing to say?---It would be fairly stern threat.

Yes. And you used to be a school principal, so – well, I’ll leave that there. But, you didn’t use that phrase with Rene and Leanne, did you?---I didn’t use that phrase with Rene and Leanne? I believe I did.

Well, I’d suggest to you what you said to Rene and Leanne, because they were family, “Treat it as your own”. Do you agree or disagree with that?---I cannot comment whether I did or didn’t.

All right. And I suggest that you ---?--- That was most likely, may I add? Most likely that I did.

Most likely that you?---That I would’ve said that.

• [35] Obviously, the evidence is equivocal at best, but ultimately, as I have said, either way it is the type of thing a landlord might say to a tenant, whether as a stern warning or a benevolent comment.

Dispute over rental amount

• [36] I now turn to the question of the rental payments.
• [37] The rental agreement gave rise to a tenant-landlord relationship between the plaintiffs and the defendant on the basis that the plaintiffs would pay the defendant $540 per month.^[33] This amount was subsequently reduced to $500, the reasons for which are disputed.^[34] Whilst it is true that certain aspects of the relationship between the plaintiffs and the defendant differed from the usual, arms-length tenancy relationship, such differences can be explained away by the family dynamic between the parties.^[35]
• [38] It is accepted that Leslie asked Rene and Leanne whether they would be prepared to look after his dog whilst he and his wife (Betty) went on an around-Australia trip.^[36] Leanne insisted that the conversation about the sale was the reason the payments were reduced from $135 to $125 per week.^[37] Leslie gave evidence that the discussion about change in rent occurred when he delivered the dog to the plaintiffs to be looked after.^[38]
• [39] In cross-examination, he said:^[39]

---I did agree in the terms of $500 a month for rent; the reason being they agreed to look after this dog for which I – they – you will recall that the initial rent was $135 which was equivalent to 540 per month, and we dropped it to 500, and the reason it was dropped was because they had agreed to look after the dog, it was for the dog’s food, it was which for them to visit Kocho Road, my home, attend a swimming pool, pick up the mail and all those sorts of things.

[underlining added]

• [40] Leslie also gave evidence that Rene performed work around Leslie’s farming property at Kocho Road, Nambour. In cross-examination, it was put to Leslie that the rent was not reduced because Rene and Leanne looked after his dog:^[40]

And so – but – and I’d suggest that looking after the dog is something that family members do for each other without needing to be paid - - -?---Not – not - - -

- - - isn’t it?---Not this family.

Okay. But just thinking about it, so over the years Rene has done an extraordinary amount of work on the farm, hasn’t he?---He has.

Was he paid for that?---No.

He built a pergola at the dam, he did, didn’t he?---He did.

He built a retaining wall around the house?---He did.

Built the car port from a pre-pack set?---He did.

And he wasn’t paid for those?---No.

So I’d - - -?---He didn’t ask to be paid for those.

Well, he didn’t ask to be paid for the dog, did he?---Okay.

Did he ask to be paid for the dog?---No, he did not.

And I’d suggest to you that the reason you reduced the payments is because you agreed to match them with what your mortgage payments were?---Incorrect.

• [41] It is submitted that I should reject the explanation advanced by Leslie for why rent was reduced because:^[41]

(a) The plaintiffs cared for the dog for a short period of time and payments did not increase after the dog was returned to Leslie; and

(b) There was no reimbursement for the work Rene performed at the Nambour property: why would there be an agreement that there would be reimbursement for something as mundane as caring for a dog?

• [42] This evidence, in my view, suggests a tenant-landlord relationship, rather than a rent-to-buy relationship. For whatever reason, the rent was reduced. This is not something that was likely to have been done if the property was ultimately to become the plaintiffs’ property.

Events subsequent to the property agreement

• [43] Rene and Leanne gave evidence that a year after they moved into the property, there was a discussion at the defendant’s farm about the property being transferred into their names: that is, finalising the paperwork regarding the transfer, pursuant to the property agreement.^[42]
• [44] Leanne appeared to have a good recollection of the conversation. Prior to the conversation, she and Rene had agreed that Rene would speak to Leslie about completing the paperwork. She was with Betty when Leslie and Rene walked down near the water tanks on Leslie’s farm property. When they returned, she recalled Rene whispering to her “now isn’t the time”. She was later told about a visit to see a solicitor, but she was not present for that meeting.
• [45] Rene also recalled that the discussion occurred near the water tanks at the farm. His evidence was that Leslie suggested that they should go and see a lawyer about the issue, because he was worried about capital gains tax and the effect on his pension.^[43]
• [46] Leslie’s recollection of the alleged second meeting differed in many respects. He could not recall any discussion beside a water tank on his property in relation to seeing a solicitor,^[44] but he did remember communicating to Rene that his main priority was his wife’s health. In examination-in-chief, he said he told Rene:^[45]

--- I want you to always remember that your mother – your mother’s health, her welfare – is always going to remain my top priority. And if your circumstances or my circumstances or our circumstances change and there becomes a need to sell this property or otherwise tenant it, then I will undertake to compensate you or reimburse you for any capital works expenditure you put into it in the meantime.

...

Son, if this property remains in the midst of our estate, at the time of our passing – that’s your mother’s passing and my passing – in the process of you negotiating your one-quarter share for the children in this family, your one-quarter share of your inheritance entitlements, then you would have the opportunity or there would be an option there for you to secure the property at that time.

[underlining added]

• [47] The plaintiffs contend that the underlined passage does not make sense, and that Leslie confused this discussion with another discussion that took place after the plaintiffs separated in 2017.^[46]

Meeting with a solicitor

• [48] It is pleaded that Leslie and Rene met with a solicitor in late 1998 to early 1999. The plaintiffs claim that the purpose of the meeting with the solicitor was to discuss how the transfer of the property was to occur, not to discuss the possible sale of the property.^[47]
• [49] The parties are at odds about the purpose of the meeting with the solicitor. According to Leslie, the meeting was the first occasion of any discussion about $120,000.00. Rene denies this, and recalled that, at the meeting, Leslie told him “not yet” to the transferring of the property.^[48]
• [50] It is common ground that the solicitor advised that transfer of the property would incur substantial costs, and that neither party was able to afford these costs. Leslie said that for those reasons, the parties agreed that a sale of the property would not be viable and abandoned any prospect of an agreement to that effect.^[49]
• [51] The defendant invited me to reject the plaintiffs’ proposition that the result of the solicitor’s advice was that the transfer of the property would be made once it could be undertaken financially by each party.^[50]
• [52] It is contended that it would be unlikely that a solicitor, in the circumstances alleged, would make “no recommendation as to documentation of the terms upon which a future transfer was to be mandated if an agreement for the same had been reached but the parties were not then ready to complete it”. This is particularly the case where the parties agreed that the plaintiffs would make payments in instalments (the so-called “rent-to-buy” scheme) that would be credited against the agreed purchase price.^[51]
• [53] The defendant submitted that his evidence about such matters ought to be preferred: that is, the solicitor advised that any potential sale was not viable and therefore no further legal work was necessary.^[52]

Leslie’s mortgage

• [54] The plaintiffs argue that the payments they made to the defendant were consistent with the defendant’s mortgage repayments, to which I refer at paragraph [4][3]. It was submitted that the plaintiffs were “paying off a loan to the bank which was ‘their loan’, but in the name of Leslie” and that “all of the mortgage payme[53]s were covered”.⁵³
• [55] The pleadings do not contain any allegation that the property agreement involved the plaintiffs “taking over” and then “paying off” the defendant’s mortgage with Westpac. Rather, what is pleaded is that the parties entered into an agreement for the purchase of the property for $120,000.00, to be paid off in instalments, and a further loan in 2010 of $68,460.00, to be paid off over time.^[54] Rene also gave evidence that Leslie determined the amount that the plaintiffs were required to pay and that he did not know what Leslie’s loan repayments were.
• [56] I agree with the defendant’s submission that such evidence does not permit a finding that the defendant’s loan somehow became the plaintiffs’ loan.^[55]

Rental assistance

• [57] During the period since 1998, the plaintiffs, or the second plaintiff alone, received a rent assistance payment from Centrelink.
• [58] In evidence, Leanne claims that she provided information to Centrelink about her accommodation arrangements. She claims to have provided this information orally and described the “rent-to-buy” arrangement to a Centrelink officer who informed her that she was able to receive rent assistance benefits. The defendant submits that this evidence must be viewed with a degree of caution.^[56]
• [59] A person qualifies for rent assistance if the person:^[57]

(a) is not an aged care resident;

(b) is not an ineligible homeowner;

(c) pays, or is liable to pay, rent (other than government rent) in Australia; and

(d) pays fortnightly rent more than the rent threshold amount.

• [60] A homeowner is defined in s. 11(4) of the Social Security Act 1991 (Cth) as:

(a) a person who is not a member of a couple is a homeowner if:

(i) the person has a right or interest in the person's principal home; and

(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home; and

(b) a person who is a member of a couple is a homeowner if:

(i) the person, or the person's partner, has a right or interest in one residence that is:

(A) the person's principal home; or

(B) the partner's principal home; or

(C) the principal home of both of them; and

(ii) the person's right or interest, or the partner's right or interest, in the home gives the person, or the person's partner, reasonable security of tenure in the home; and

(c) a person (whether a member of a couple or not) is a homeowner while:

(i) the whole or a part of the proceeds of the sale of the person's principal home are disregarded under subsection 1118(2); or

(ii) the value of a residence, land or a structure is disregarded under subsection 1118(2).

• [61] An ineligible homeowner is defined in s. 13 of the Act as a homeowner other than:

(a) a person who is a homeowner by virtue of paragraph 11(4)(c); or

(b) a person who:

(i) is absent from the person's principal home, in relation to which the person is a homeowner; and

(ii) is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary's opinion is likely to need, that level

(iii) has been absent from the principal home for less than 2 years while providing care as described in subparagraph (ii); or

(c) a person who is in a care situation but is not residing in a retirement village; or

(d) a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person's principal home; or

(e) a person who pays amounts for the right to moor a vessel that is the person's principal home.

• [62] Assuming that the plaintiffs are homeowners, the question is whether they are also ineligible homeowners. The plaintiffs would fall within the definition of ineligible homeowners, as sub-sections (a) to (e) do not apply, and therefore, they would not meet the common requirement in s. 1070C(b) that they not be ineligible homeowners.^[58]
• [63] The defendant submits that it would be unlikely that Centrelink would have assessed the second plaintiff as eligible to receive rent assistance if she told them that she and her husband had an interest in their home as buyers under a purchase contract that they were paying off by instalments. He submits that the more likely story is that the second plaintiff told Centrelink that she and her husband were living in rented accommodation, in order to obtain rent assistance.^[59]
• [64] Leanne admits to signing a rent certificate document that described the payment of rent at the property in 2016, and says that she gave it to Leslie to sign and that he was described as “landlord”. She claims, however, that she never submitted the form.^[60]
• [65] I accept the defendant’s submission that the plaintiff told Centrelink that they were living in rented accommodation which she knew to be the true state of affairs.

Improvements to the property

• [66] Between 1998 and 2010, the plaintiffs undertook various works on the property, including, inter alia, removing, extending and rebuilding the patio, re-shaping and re-concreting the driveway, applying for development approval and removing a large tree, installing a three-level tiered garden bed to the front of the property, fixing numerous plumbing problems, replacing the laundry cupboard doors, bench and sink, building a permanent children’s cubbyhouse in the garden and children’s sandpit, installing a security system, and removing and installing new light and electrical fixtures and fittings.^[61]
• [67] Rene and Leanne incurred expenses as set out below, as agreed in Exhibit 4:^[62]

DATE	AMOUNT	PAYEE	COMMENT
6/09/2002	$ 47.66	Modern Security	per month for 36 months $1,613.97
17/04/2007	$ 880.00	Maroochy Shire Council	Tree Removal
3/11/2009	$ 215.00	U-Haul Trailer Hire	-
5/03/2010	$ 97.75	Bunnings	Clothes Line
4/06/2010	$ 16.03	DERM	-
TOTAL	$1256.44 $2,607.75 AGREED TOTAL $1,727.75

• [68] In 2010, Rene and Leanne undertook major renovations to the property, which included adding a second level to the property to incorporate three bedrooms.^[63] Rene utilised his skills as a carpenter to conduct some of these renovations.^[64] It is common ground that Leslie advanced $68,460.00 towards the costs of those renovations.^[65] The renovations in 2010 were said to improve value of the property by $95,000.00.^[66] However, what is significant is the value of the improvements that have been made, rather than the cost of them.^[67] According to the defendant, the value of improvements to the property, over and above the $68,460.00 paid by the defendant, was $25,000.00.^[68]
• [69] It is agreed that the plaintiffs expended monies in respect of the 2010 renovations. As set out in Exhibit 4, that amount is agreed at $24,122.04. This expenditure would have contributed to the value of the property.
• [70] Rene and Leanne incurred expenses as set out in paragraph [24](a) and (b) of the amended statement of claim, as agreed in Exhibit 4.
• [71] Between 2011 and 2018, the plaintiffs undertook maintenance, renovations and improvements to the property, including inter alia, installing a new solar system, outdoor lighting, a new hot water system and a new oven and rangehood.^[69]
• [72] Rene and Leanne incurred expenses as set out below, as agreed in Exhibit 4:^[70]

DATE	AMOUNT	PAYEE	COMMENT
1/11/2011	$ 110.96	Melco	-
19/04/2018	$ 50.00	SCPG	Oven installation
19/04/2018	$ 450.00	CASH – Oven	-
21/12/2018	$ 449.75	WLE Electrical	Hot water system installation
?	$ 99.00	?
TOTAL	$1159.71 AGREED TOTAL $810.71

• [73] Between September 2010 and September 2014,^[71] and between October 2014 and February 2016,^[72] the plaintiffs paid rates and water charges for the property.
• [74] The defendant concedes that the plaintiffs also paid a total of $9,733.48 for UnityWater charges and water as evidenced in Exhibit 4 tendered at trial, and submitted that the utilities paid by the plaintiffs are irrelevant to the issue of equitable compensation, given that they were paid in recognition of the below market rent payments.^[73]
• [75] The plaintiffs sought to make something of the proposition that they were able to obtain “mates rates” for some of the work that was done, however, the defendant submits that that is something of a “red herring”.^[74]
• [76] There is no other evidence that Rene and Leanne did anything else to the property that had the effect of improving its value. It is submitted that much of the work done to the property was either for the plaintiffs’ specific benefit and their everyday enjoyment of the property, or was paid for either entirely or substantially by the defendant.^[75]
• [77] It is also submitted that any monies spent by the plaintiffs on the property were not spent with the expectation of repayment and were intended to be “an in-kind recognition” of the substantially-reduced rent they were paying the defendant compared to market rates.^[76]
• [78] I take the following matters into account:^[77]

(a) In 1990, the defendant paid $30,000.00 towards the purchase of the property;

(b) Between 1990 and 1998, the defendant paid principal and interest repayments starting at an interest rate of 17.15%;

(c) Between 1998 and 2019, the defendant paid $189,543.55 to Westpac in respect of the property;

(d) Between 1998 and 2021, the amount of rent paid by the plaintiffs totalled $155,595.00 less than the amount the defendant would have received if he charged at the usual market rent;

(e) Between 1998 and 2020, the defendant paid for rates and water charges in the sum of $37,995.71;

(f) The defendant made financial contributions towards renovations in the sum of $19,674.91;^[78]

(g) In 2010, the defendant paid for asbestos removal in the sum of $1,540.00;

(h) The defendant paid for installation of air-conditioner in the sum of $2,550.00; and

(i) The defendant paid for one-half of the cost of installation of a solar electricity system in the sum of $5,000.00.

• [79] In my view, the work done by the plaintiffs is referable to their occupation of the property and does not indicate an intention that they have a beneficial interest in it, a conclusion that can more readily be drawn as the parties were in a family relationship.^[79] It does not appear that the plaintiffs were motivated to undertake the works to improve the value of the property, nor did they have any obligation under the property agreement to do so.

2010 loan agreement

• [80] The plaintiffs alleged that a loan of $68,460.00 was advanced to them in 2010 to enable them to undertake a significant renovation to transform the one-storey two-bedroom house into a two-storey three-bedroom house. There was no written loan agreement.^[80]
• [81] It was not submitted that this agreement varied the original property agreement in any way or impacted upon the common intention of the parties. Rather, it is said to be a stand-alone loan agreement.^[81]

Leanne’s diary note

• [82] In early 1998, Leanne kept a diary in which she recorded a variety of personal matters, appointments and observations.
• [83] Amongst the diary entries, Leanne wrote on 17 April 1998, “Give notice to Real Estate!(2 wks)”. In evidence, she explained that this served as a reminder of the date by which she and Rene had to give written notice to their landlord of their intention to vacate their rental property in anticipation to move into Leslie’s property. The next entry reads, “Kuluin tenants move out” and was made on 18 April 1998, the date by which Leanne understood Leslie’s last tenants would move out.
• [84] Contemporaneous diary entries represent the best recollection of what a witness actually observed. I must bear in mind that the conversation which is pleaded is said to have occurred some 20 years ago. Recognition must therefore be given to the fallibility of human memory. This was addressed by McClelland CJ in Watson v Foxman,^[82] where his Honour made the following observation:^[83]

[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

• [85] Regrettably, there was no diary note of the conversation that is said to have constituted the property agreement. The plaintiffs argue that this is explicable on the basis that when they moved into the property, following the initial rental agreement, the diary was placed in a box and lost. I do not accept this explanation.^[84] As the alleged property agreement occurred sometime after they moved into the property, it may be concluded that the diary was not in use at the time.
• [86] The defendant submits that the absence of a record of the conversation asserted by the plaintiffs is peculiar, in light of the other matters that Leanne recorded in her diary. The defendant contends that it is objectively unlikely that Leanne would not have written a note about a conversation in which an agreement was purportedly reached for the purchase of the defendant’s property for $120,000.00 by instalments, if such a conversation in fact occurred.^[85]
• [87] This begs the question: what evidence of the property agreement, apart from the plaintiffs’ oral testimony, exists?

Legal issues

• [88] The property agreement is pleaded to arise from a conversation. No paperwork is pleaded, nor was tendered in evidence.
• [89] This is significant, as a defence under s. 59 of the Property Law Act 1974 (Qld) arises.^[86] Section 59 provides:

59 Contracts for sale etc. of land to be in writing

No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.

• [90] When challenged about why the property agreement was not formalised in writing, Rene said it is “a family personal agreement. I thought everything would be kosher”,^[87] and that he assumed paperwork “would have to be filled out”.^[88] Leanne gave evidence that she wanted paperwork completed and that she discussed this with Rene many times.^[89]
• [91] An exception to the defence under s. 59 exists if there are sufficient acts of part performance to establish the existence of the purported contract. The case law sets out that an act of part performance “must be unequivocally and in its own nature referable to some such agreement as that alleged”^[90] and “done under the terms of that agreement by force of that agreement”.^[91]
• [92] The defendant submits that the payments made by the plaintiffs to the defendant are not unequivocal evidence of the property agreement, because they are entirely consistent with the rental agreement alleged by the defendant.^[92]
• [93] Accordingly, I find, consistent with the defendant’s submission, that the plaintiffs can neither prove the alleged property agreement by writing or sufficient acts of part performance.

The trial

• [94] At trial, the plaintiffs made the following concessions:^[93]

(a) If it is found that rent is payable, then the sum of $47,300.00 would be payable in respect of unpaid rent by the date of trial;

(b) If a beneficial interest is found to exist, then the plaintiffs concede that:

(i) The plaintiffs agreed to purchase the property for $120,000.00;

(ii) The plaintiffs received a further $68,460.00 from the defendant;

(iii) The total payable to the defendant is therefore $188,460.00;

(iv) In fact, the plaintiffs have paid a total of $167,180.00;

(v) Therefore, the amount due and payable by the plaintiffs to the defendant is $21,280.00.

• [95] The trial involved four days of evidence. It is convenient to set out the account of each of the three witnesses.

Rene’s evidence

• [96] The plaintiffs invite me to find Rene’s evidence as authentic and truthful, as he made appropriate concessions regarding the reduction of rent in 1998 below market rate.^[94]
• [97] The defendant submits that Rene’s evidence was unreliable and often bore striking similarities to some of the surprising revelations made by Leanne, such as her having left the table to make coffee when the parties started to discuss a possible sale. It is submitted that such evidence suggests collusion between the plaintiffs.^[95]
• [98] The defendant further contends that the discussion near the water tank at the defendant’s farming property should be rejected and that any assertion by Rene about the conversation occurring should be considered a concoction to support the plaintiffs’ case.
• [99] Rene gave evidence that he asked Leslie whether it would be possible to finalise the sale, but recalled that Leslie wanted to receive advice from a financial adviser about a large sum of money coming in at the time. There was no evidence, however, of a change in financial position of the plaintiffs at that time. The defendant asks: How then might they have paid a large sum of money to the defendant?^[96]
• [100] Rene also gave evidence that he approached Leslie to transfer the property on more than one occasion, but did not provide details of these attempts. The defendant submits that his evidence on this issue is unconvincing, and that no prior attempts are pleaded in the statement of claim. I was asked to view such claims with scepticism and reject the evidence as recent invention or as unreliable.^[97]
• [101] Rene’s evidence on this issue was unconvincing. I accept the defendant’s submission that this is a recent invention by Rene.

Leanne’s evidence

• [102] Leanne often became emotional and upset in evidence. She also gave evidence that she was diagnosed with anxiety and was medicated.^[98]
• [103] The defendant submits that Leanne lacked credibility and appeared to fabricate things as she went along.^[99] Whilst she claimed to be “geeky at keeping a ledger of things”,^[100] it is submitted that there was an overwhelming absence of persuasive evidence about the expenses sought to be claimed. She also claimed that proof of payments dating back to 1998 would be found in her bank statements, however, no such bank statements were disclosed.^[101]
• [104] She also gave evidence about a conversation between the first plaintiff and the defendant in 1999, in which she recalled that the first plaintiff intended to approach the defendant to “ask if he could buy the property outright”.^[102] The defendant submits that such a discussion is consistent with the defendant’s case that there was no actual sale agreement.^[103]
• [105] Leanne asserted that it was only after a conversation with Betty in 2018 that Leslie started making assertions about a rental relationship. The defendant contends that this assertion is “demonstrably wrong”, in light of the email correspondence from him on 1 February 2016.^[104]
• [106] Although Leanne testified to not being able to recall receiving that email, her actions following the email are consistent with her having received it. For instance, she paid the increased payment in March 2016 as requested in the email. She also advised Centrelink of the increase in rent and received a rent certificate, completed and signed it, and returned it to Leslie. It is submitted that her evidence regarding rental assistance was unconvincing.^[105]
• [107] There were also times where Leanne’s evidence conflicted with the proven facts. For example, she testified that the conversation giving rise to the property agreement was the reason for which payment in rent was reduced, yet she also insisted that the conversation occurred in May 1998. The facts show that no rental payments were made until June 1998 and any reduction did not occur until October that same year.^[106]
• [108] The plaintiffs submit that Leanne’s evidence was clear and without embellishment.^[107]
• [109] Leanne’s evidence was largely self-serving and unconvincing. Unfortunately, her acrimonious separation from Rene, and the subsequent breakdown in the relationship with Leslie, who is the grandparent of their children, causes me to view her evidence as unreliable. This deterioration in the relationship is clearly evidenced in the recent unfortunate emails between Leslie and Leanne. Of course, the emails were also motivated by the litigation itself.

Leslie’s evidence

• [110] Leslie often had a patchy and incomplete memory of the events. He gave answers, approximately 23 times, where he did not recall various conversations, precise dates and locations. The plaintiffs helpfully summarise these instances at paragraph [117] of their closing submissions. Relevantly, he could not recall:

(a) any discussion of mates rates regarding repayments;

(b) the precise words he told Rene, but suggested that he likely said words to the effect “care for the property as you would your own”.

(c) when he discussed selling the property with Rene and Leanne, the specific content of the discussions, and whether Leanne was present (but could recall Rene being present);

(d) when the patio was done (but could recall that smaller works were done);

(e) when they saw a lawyer; and

(f) when Leanne came to his place to demand money.

• [111] The defendant submits that I should find his evidence to be honest and reliable. The sequence of events described by the defendant is as follows:^[108]

(a) In early 1998, the plaintiffs agreed to rent the defendant’s property at a monthly rental that was below the market rent.

(b) Later that year, the first plaintiff told the defendant that he and the second plaintiff would be interested in purchasing the property. From that discussion, it was apparent that the defendant was prepared to consider a sale, but that advice would need to be obtained first. No conclusive agreement was reached, nor was there any discussion about a purchase price.

(c) Even later that year or early 1999, the first plaintiff and the defendant saw a solicitor to obtain advice about the costs of a sale. They were advised that the costs would be too high for either party to proceed with a sale.

(d) After seeing the solicitor, the rental agreement continued.

(e) The plaintiffs and defendant never discussed the sale of the property again.

(f) There was some suggestion made by the defendant that the first plaintiff may obtain an interest in the property as part of his share of the estate, if the property remained in their estate mix at the time. There was otherwise a prospect of some reimbursement of capital expenditure.

• [112] The defendant submits that he gave persuasive and compelling evidence on each point.^[109]
• [113] Having observed Leslie, I found that he did his best to recall what he could, having regard to the significant time that has passed. It makes no logical sense for Leslie to agree to transfer the property to the plaintiffs in the way they contend, as there was no observable benefit to him whatsoever. In this regard, I accept his evidence that the property was an investment property for his retirement and that the plaintiffs’ contribution to the property would be a matter for his estate after both he and Betty had died.
• [114] I note the plaintiffs’ contention that the rental payments “were paying off the loan, which is entirely consistent with what had been agreed between the parties”. This is, in my view, illogical. If I am to accept this argument, I must accept that the defendant purchased the property, as he says as an investment, but then agreed to sell it with no discernible benefit to himself. Anyone with a rental property is hoping the rent will pay some or all of the repayments including interest, with the benefit coming in the future when the property is fully paid off and/or sold for a capital gain.

Legal principles and analysis

• [115] In the statement of claim, the plaintiffs seek relief which includes orders in the nature of a constructive or resulting trust. The plaintiffs also claim that it would be unconscionable for the defendant not to recognise their beneficial interest in the property in accordance with the common intentions (namely, the property agreement) and the representations made. Alternatively, they claim that the defendant should be estopped from denying them a beneficial interest in the property for the same reasons.

Constructive trust

• [116] A constructive trust is a “flexible solution”,^[110] imposed to prevent the inequitable assertion of beneficial title of property. A useful starting point may be found in Muschinski v Dodds (1984) 169 CLR 583, where Deane J observed at 619:

Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct (cf. Story, Commentaries on Equity Jurisprudence, l2th ed. (1877: Perry), vol. 2, par.1316; Legione v. Hateley, at p 444). The circumstances giving rise to the operation of the principle were broadly identified by Lord Cairns L.C., speaking for the Court of Appeal in Chancery, in Atwood v. Maude, at p 375: where ‘the case is one in which, using the words of Lord Cottenham in Hirst v. Tolson ((1850)) 2 Mac. and G. 134 [1850] EngR 313; (42 ER 52), a payment has been made by anticipation of something afterwards to be enjoyed (and) where ... circumstances arise so that future enjoyment is denied’. Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do (cf. Atwood v. Maude, at pp 374-375 and per Jessel M.R., Lyon v. Tweddell [1881] UKLawRpCh 150; (1881) 17 ChD 529, at p 531).

[underlining added]

• [117] A constructive trust may be imposed upon a legal entitlement to property in order to prevent a person from asserting or exercising, in an unconscionable way, his or her legal right in respect of that property.^[111] It arises by operation of law, often regardless of the actual or presumed intentions of the parties, and indeed, without the requirements as to writing being satisfied.^[112]
• [118] I respectfully adopt the principles set out by the High Court in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137:

His Honour pointed out (at p 614) that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle"...In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged (at p 616) that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.

• [119] The following are examples of distinct types of informal property sharing arrangements, each giving rise to the imposition of a constructive trust:^[113]

(a) Where the parties have agreed to share a common intention that a beneficial interest in the property would be conferred on one of the parties, and that party relies, to their own detriment, on that common intention.^[114]

(b) Where parties have made contributions to the property, pursuant to a joint endeavour, which has, as its object, that the property be owned by them.^[115]

(c) Where the legal owner’s conduct has encouraged the other party to believe, or has induced the other party to assume, that an interest in the property would be conferred on it, such that it would be unjust for the legal owner to be allowed to depart from it.^[116]

• [120] Category (b) reflects ‘joint endeavour’ cases. A good example of this is Muschinski v Dodds.^[117] In that case, Mrs Muschinski and Mr Dodds had been living together in a de-facto relationship for three years. They decided to purchase a block of land, upon which a dilapidated cottage had been built. They wanted to undertake numerous renovations on the property. It was agreed that Mrs Muschinski would pay the full purchase price and Mr Dodds would make labour and financial contributions; however, over time, the joint endeavour relationship deteriorated through no attributable blame.
• [121] The High Court recognised that it could impose a constructive trust after the failure of the joint venture between the parties, regardless of the parties’ intentions, as it would be unconscionable for Mr Dodds to assert his legal entitlement in the property without accounting for the significant financial input from Mrs Muschinski. It is not contended, by either party, that the present case is one of joint endeavour.
• [122] Category (c) corresponds with equitable proprietary estoppel, whereas Category (a) corresponds with the common intention constructive trust. A common intention constructive trust, which is alleged to arise in this case, is a category of constructive trust that derives from an agreement or common intention formed after acquisition of the relevant property.
• [123] The following elements must be satisfied before a common intention constructive trust can be established:

(a) A common intention between the legal owner of the property and the person who purports to have a beneficial interest in the property. Such an intention is to be inferred from the words or conduct of the parties.

(b) Detrimental reliance on the faith of the common intention.

(c) It would be unconscionable for the party holding legal title to assert that the other person does not have a beneficial interest in the property.

• [124] The New South Wales Supreme Court in Shepherd v Doolan^[118] considered the question of determining whether or not parties share a common intention sufficient to warrant the imposition of a constructive trust. Their Honours held:

[34] Where a constructive trust is imposed, based upon the parties’ common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue. (Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777 at 804, 810, 816-817; Gissing v Gissing [1970] UKHL 3; [1971] AC 886 at 900, 902, 905-909; Allen v Snyder [1977] 2 NSWLR 685 at 690, 698, 701).

...

[37] The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law. (Allen v Snyder at 691; Green v Green at 355). A common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture. (Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1970] UKHL 3; [1971] AC 886 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342).

[underlining added]

• [125] The defendant drew my attention to the decision of the New South Wales Supreme Court in Irvine v Scaysbrook,^[119] which involved the question of whether there was a constructive trust based on the common intention of the parties. Mr Irvine and his wife sued his mother, Mrs Scaysbrook, and her husband, on the basis that there was an agreement that they would purchase a property, but that the Irvines would live in it, and pay the rates on the property and make all the mortgage payments. White J found that the payments made by Mr Irvine were properly characterised as rent payments, not mortgage payments, and the fact that the rent was less than the rent that the Irvines were then paying was a benefit which they derived from the arrangement.^[120] Although they paid rates for the property, that in itself was not persuasive, as the Court could find no evidence that the monthly payments plus rates would have resulted in them paying more than would be a fair market value of the property.^[121]
• [126] White J also found that there was no common intention that the Irvines would be beneficial owners of the property or have a proprietary interest in it.^[122] His Honour went onto observe that detrimental reliance requires the conduct to be such that the plaintiffs could not reasonably have been expected to have embarked upon it unless they would have an interest in the property.^[123] No estoppel could therefore be established, as the Irvines could not demonstrate that they did not get a fair return for what they did through their occupation of the property.^[124] As to the existence of a constructive trust, the Irvines failed to show that the additional expenditure outweighed the value of the accommodation to them.^[125]
• [127] As I have already explained, a constructive trust is a flexible remedy, with an ability to be moulded to fit the particular circumstance it seeks to remedy. In my respectful view, I cannot reach the conclusion that the plaintiffs have a beneficial interest in the property.
• [128] First, there was no common intention between the parties, at any time, that a beneficial interest in the property would pass to the plaintiffs. I accept the defendant’s submission that it was not his intention to transfer the property to the plaintiffs in exchange for $120,000.00 paid in instalments of $125.00 per week until the total sum was paid, but that it was his intention to rent the property to the plaintiffs at substantially below market rent. The familial relationship between the parties supports this conclusion.
• [129] Second, there is negligible detriment suffered by the plaintiffs. Although the plaintiffs spent their own money on improving the property, many of the improvements were for their own benefit and enjoyment, and not for the purpose of enhancing the value of the property, though, I acknowledge that some of the improvements made could have a lasting impact on the value of the property. Further, it is conceded that the defendant had spent a substantial amount of his own money on improvements, which would not be logical if he had agreed to sell the property to the plaintiffs.
• [130] The plaintiffs were under no strict obligation to live on the property or to work on it, and the defendant continued to bear the risk of paying out the mortgage if the plaintiffs decided to leave. As in Irvine v Scaysbrook, the plaintiffs have failed to show that they did not get a fair return for what they did through their occupation of the property.
• [131] Third, I do not consider it to be unconscionable to find against the plaintiffs’ beneficial interest in the property. Despite their numerous and extensive improvements to the property and their committing to a loan repayment of approximately $70,000.00, they had the benefit of living on the property for 21 years at a significantly reduced rent, and there is no evidence to suggest that the money they spent was out of proportion to the value of accommodating them. Further, the plaintiffs made no attempts to perfect a legal transfer of the property in that period of time.
• [132] In the circumstances, I find that there was no constructive trust between the parties.

Resulting trust

• [133] I will now deal with the plaintiffs’ claim for orders in the nature of a resulting trust.
• [134] A resulting trust arises where a person has purchased property in the name of another, or provided funds for such a purpose, for no consideration and in circumstances where the other person does not have some claim of generosity to the transferor (a presumed resulting trust), or where a person transfers property to another on express trust, but fails to do so in whole or in part (an automatic resulting trust).
• [135] The High Court in Calverley v Green^[126] provided the following useful explanation of the concept of a resulting trust:

Where a person purchases property in the name of another or in the name of himself and another ... it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put in the name of one only, there is ... presumed to be a resulting trust in favour of the other or others.

• [136] I am satisfied that this is not a case in which a resulting trust arises in favour of the plaintiffs. Leslie owned the property for over eight years prior to any payments made by the plaintiffs, and the plaintiffs did not contribute in any way to the purchase of the property.

Principles of equitable estoppel

• [137] The plaintiffs also allege equitable estoppel, particularly promissory estoppel, founded on their expectation that they would obtain future ownership of the property.^[127] A constructive trust may also arise based upon promissory estoppel resulting from a common intention or representation, even if the expectation induced in the plaintiff contains elements that would not amount to a valid contract.^[128] The New South Wales Court of Appeal in Evans v Evans considered the application of proprietary estoppel, finding no necessity in distinguishing between proprietary and promissory estoppel.
• [138] In Waltons Stores,^[129] the Court held that a person whose conduct creates an assumption by another that he or she will obtain an interest in the first person’s land, and on the basis of that expectation, alters his position or acts to his detriment, then that conduct may bring into existence an equity in favour of the second person.^[130]
• [139] Their Honours helpfully analyse the principle of equitable, and more specifically promissory, estoppel as follows:^[131]

This brings us to the doctrine of promissory estoppel ... promissory estoppel certainly extends to representations (or promises) as to future conduct: Legione at P.432...

...

One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has ‘played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it’: per Dixon J. in Grundt, at p 675; .... Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.

...

Because equitable estoppel has its basis in unconscionable conduct, rather than the making good of representations, the objection, grounded in Maddison v Alderson, that promissory estoppel outflanks the doctrine of part performance loses much of its sting. Equitable estoppel is not a doctrine associated with part performance whose principal purpose is to overcome non-compliance with the formal requirements for the making of contracts. Equitable estoppel, though it may lead to the plaintiff acquiring an estate or interest in land, depends on considerations of a different kind from those on which part performance depends. Holding the representor to his representation is merely one way of doing justice between the parties.

...

The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required. Humphries Estate suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party.

• [140] The plaintiffs contend that where the estoppel arises from a representation made by the defendant that property will be conveyed to the plaintiff, then unless it is unjust, the remedy will compel the defendant to make good the representation.^[132]
• [141] In Commonwealth v Verwayen, Deane J observed:^[133]

There is clear support in the cases and learned writings for the view that, in this as in other fields, equitable relief must be moulded to do justice between the parties and to prevent a doctrine based on good conscience from being made an instrument of injustice or oppression. That being so, it should be accepted that the prima facie entitlement to relief based on the assumed state of affairs must, under a doctrine which is of general application in a system where equity prevails, be qualified if it appears that that relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party. In some such cases, an appropriate qualification may be a requirement that the party relying upon the estoppel do equity (see, e.g., Texas Bank, at pp 108-109). In other cases, the relief to which the party relying upon the estoppel would be entitled upon the assumed state of affairs will merely represent the outer limits within which the jurisdiction of a modern court to mould its relief to suit the circumstances of a particular case should be exercised in a manner which will do true justice between the parties (cf. Hamilton v. Geraghty [1901] NSWStRp 60; (1901) 1 SR(NSW) Eq. 81, at pp 87-88). In some such cases the appropriate order may be one which places the party entitled to the benefit of the estoppel "in the same position as (he or she was) before" (cf. Birmingham, at p 286). In others, the appropriate order may be an order for compensatory damages.

• [142] His Honour went onto explain:^[134]

Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all circumstances of the case including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.

• [143] I now turn to consider whether the following elements have been met:

(a) A representation or assurance by the defendant which led to the expectation;

(b) A reasonable reliance on that assurance; and

(c) Detriment to the plaintiff.

• [144] The plaintiffs’ claim for estoppel is founded on the fact that they expected that the property would be formally transferred into their names, as tenants in common, upon the finalisation of paperwork, but that until such time, they would pay $125.00 per week in instalments until the discharge of the total sum pursuant to the property agreement. For the reasons articulated in paragraph [128] above, I am not satisfied that there is sufficient evidence that would have led them to an expectation that they would take over actual legal ownership of the property from the defendant. I am not satisfied on the balance of probabilities that there was any assurance at all. Accordingly, it cannot be said that the plaintiffs reasonably relied on an assurance or that they suffered an[135]etriment.¹³⁵
• [145] In those circumstances, the plaintiffs’ claim fails.

Orders

1. The plaintiffs’ claim is dismissed.
2. The caveat registered by the plaintiffs as caveators over Lot 3 on RP 165739 with Title Reference 15908035 (“the property”) be removed.
3. Judgment be entered for the defendant on the counterclaim, with the plaintiffs to pay to the defendant the sum of $41,377.96.
4. The defendant recover possession of the property from the plaintiffs on or before 13 December 2022, by the delivery of vacant possession.
5. The plaintiffs pay the defendant’s costs as agreed, or to be assessed on the standard basis.

---

^[1] Amended Statement of Claim filed 27 January 2021 at [7].

^[2] Ibid at [8].

^[3] Ibid at [40]-[41].

^[4] These payments are particularised at [39](c)(i) of the Amended Statement of Claim.

^[5] See [12]-[16], [20]-[24], [25]-[29] of the Amended Statement of Claim.

^[6] Exhibit 1.

^[7] Amended Statement of Claim at [44].

^[8] Ibid at [45].

^[9] In the plaintiffs’ Second Amended Reply filed 11 February 2021 at [2](c), it is contended that such an agreement was reached in March 1998. Diary notes kept by Leanne indicate that the rental agreement likely occurred earlier than that. The defendant invited me to accept that the discussions about rental occurred as early as January 1998. The defendant also suggested that discussions about rental may have occurred in very late December 1997, however, nothing turns on this, as the critical point is that the rental agreement was reached at least by early January 1998.

^[10] See Defendant’s Outline of Submissions at [29].

^[11] See Third Amended Defence filed 28 January 2021 at [2].

^[12] Defendant’s Outline of Submissions at [186].

^[13] TS3-53.45 to 54.1 (Leslie’s evidence). See also TS3-5.44 (Rene’s evidence).

^[14] TS3-54.5.

^[15] Defendant’s Outline of Submissions at [52].

^[16] TS3-54.1.

^[17] TS3-6.14 to 6.18 (Rene’s evidence).

^[18] See Exhibit 15, page 1, item (i).

^[19] TS3-57.16 to 57.24.

^[20] Defendant’s Outline of Submissions at [29], [167].

^[21] TS3-58.35 to 58.43.

^[22] TS1-19.25 to .27 and TS-93.7 (Leanne’s evidence).

^[23] Defendant’s Outline of Submissions at [19].

^[24] Closing Submissions of the First and Second Plaintiff at [25]-[26].

^[25] TS1-93.16 to .17.

^[26] TS3-9.45 to .47.

^[27] TS3-10.6.

^[28] TS3-10.42 to .43.

^[29] TS2-77.32 to .33; TS2-80.29 to .32 (Rene’s evidence).

^[30] TS3-57.35 to .38.

^[31] Closing Submissions of the First and Second Plaintiff at [29].

^[32] TS4-10.24 to 11.4.

^[33] There were between five to 10 rent certificate forms submitted to Centrelink between 2000 and 2018.

^[34] Defendant’s Outline of Submissions at [20].

^[35] Defendant’s Reply Submissions at [3].

^[36] TS3-58.26 to .33.

^[37] Defendant’s Outline of Submissions at [20].

^[38] TS3-59.20 to .22.

^[39] TS4-13.5 to .12.

^[40] TS4-13.38 to 14.16.

^[41] Closing Submissions of the First and Second Plaintiff at [33].

^[42] Ibid at [41].

^[43] Ibid at [44].

^[44] TS4-22.45 to .46.

^[45] TS3-63.8 to .13; .14 to .19.

^[46] Closing Submissions of the First and Second Plaintiff at [46]-[47].

^[47] Second Amended Reply at [4](a).

^[48] Closing Submissions of the First and Second Plaintiff at [50].

^[49] Defendant’s Outline of Submissions at [40].

^[50] Ibid at [41].

^[51] Ibid at [41].

^[52] Ibid at [43].

^[53] Closing Submissions of the First and Second Plaintiff at [11].

^[54] Defendant’s Reply Submissions at [6]-[7].

^[55] Defendant’s Reply Submissions at [10].

^[56] Defendant’s Outline of Submissions at [95].

^[57] Social Security Act 1991 (Cth) s. 1070C.

^[58] Defendant’s Outline of Submissions at [101].

^[59] Ibid at [103].

^[60] Ibid at [104].

^[61] Amended Statement of Claim at [12]. See Third Amended Defence at [7](b).

^[62] Ibid at [16].

^[63] Ibid at [20]. See Third Amended Defence at [13](a).

^[64] Ibid at [21]. See Third Amended Defence at [14](a).

^[65] Exhibit 4 at page 5.

^[66] Defendant’s Outline of Submissions at [194], referring to Exhibit 1 at paragraph 24(b) and (c) where the value of the property immediately before the renovation was $355,000 and after the renovation was $450,000.

^[67] Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 at 509. See also Lexane Pty Ltd v Highfern Pty Ltd [1985] 1 Qd R 446 at 455.

^[68] Defendant’s Outline of Submissions at [195], [197].

^[69] Amended Statement of Claim at [25].

^[70] Ibid at [29].

^[71] Ibid at [31]. See Third Amended Defence at [19](b).

^[72] Ibid at [33]. See Third Amended Defence at [21](b).

^[73] Defendant’s Outline of Submissions at [199].

^[74] Ibid at [128].

^[75] See Defendant’s Outline of Submissions at [190].

^[76] Ibid at [191].

^[77] Ibid at [206].

^[78] See Third Amended Defence at [7](c); Exhibit 15.

^[79] See Irvine v Scaysbrook [2005] NSWSC 565 at [65].

^[80] Closing Submissions of the First and Second Plaintiff at [66]-[67]. The figure in the plaintiffs’ submissions appears to be incorrect.

^[81] Defendant’s Outline of Submissions at [82].

^[82] (1995) 49 NSWLR 315.

^[83] Ibid at 319.

^[84] Defendant’s Outline of Submissions at [48].

^[85] Ibid at [48].

^[86] See also Third Amended Defence filed 28 January 2021 at [2](h).

^[87] TS3-11.37 to .42.

^[88] TS3-16.22 to .23.

^[89] Defendant’s Outline of Submissions at [47].

^[90] McBride v Sandland [1918] HCA 32; (1918) 25 CLR 69 at 78.

^[91] Ibid at 79.

^[92] Defendant’s Outline of Submissions at [49].

^[93] Exhibit 2.

^[94] Closing Submissions of the First and Second Plaintiff at [114]-[115].

^[95] Defendant’s Outline of Submissions at [70].

^[96] Ibid at [71]-[72].

^[97] Ibid at [74].

^[98] TS1-120.34.

^[99] Defendant’s Outline of Submissions at [62].

^[100] TS1-61.23.

^[101] Defendant’s Outline of Submissions at [63]-[64].

^[102] TS1-113.21 to .22.

^[103] Defendant’s Outline of Submissions at [65].

^[104] MFI B.

^[105] Defendant’s Outline of Submissions at [67].

^[106] Ibid at [68].

^[107] Closing Submissions of the First and Second Plaintiff at [106].

^[108] Defendant’s Outline of Submissions at [60].

^[109] Ibid at [61].

^[110] Nolan v Nolan [2014] QSC 218 at [88].

^[111] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 611–613; 617–618.

^[112] JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (7^th ed, LexisNexis Butterworths).

^[113] See Irvine v Scaysbrook [2005] NSWSC 565 at [11]- [13]. See also D Jensen, ‘Rehabilitating the Common Intention Trust’ [2004] UQLawJl 3; (2004) 23 The University of Queensland Law Journal 54.

^[114] See, for example, Grant v Edwards [1986] Ch 638; Green v Green (1989) 17 NSWLR 343; Parianos v Melluish [2003] FCA 190; (2003) 30 Fam LR 524.

^[115] See, for example, Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137; Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583.

^[116] See, for example, Commonwealth v Verwayen (1990) 170 CLR 394.

^[117] [1985] HCA 78; (1985) 160 CLR 583.

^[118] [2005] NSWSC 42.

^[119] [2005] NSWSC 565.

^[120] Ibid at [42]-[43].

^[121] Ibid at [52].

^[122] Ibid at [74].

^[123] Ibid at [75], citing Grant v Edwards [1986] Ch 648.

^[124] Ibid at [77].

^[125] Ibid at [87].

^[126] [1984] HCA 81; (1984) 155 CLR 242.

^[127] There are many cases which have considered this principle, such as Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (‘Waltons Stores’), Commonwealth v Verwayen (1990) 170 CLR 394, Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101.

^[128] Evans v Evans [2011] NSWCA 92 at [121].

^[129] (1988) 164 CLR 387.

^[130] Nolan v Nolan [2014] QSC 218 at [48].

^[131] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 399-406.

^[132] Closing Submissions of the First and Second Plaintiff at [127].

^[133] (1990) 170 CLR 394, 442.

^[134] Ibid at 445. This passage is approved by the High Court in Giumelli v Giumelli [1999] HCA 10; (1990) 196 CLR 101, 123.

^[135] See paragraph [129] above.