Merker v Merker[2022] QCA 277

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  This is a dispute between family members about the ownership of a house and land at Dayboro.  With no disrespect intended, I will refer to them by their first names.  The appellants, Terry, Carolyn, Valerie and Gregory, are siblings.  The respondent Marilyn is the widow of Arnold who was their brother.  Marilyn is the registered owner of the property.
2. [2]
   In the decision under appeal,^[1] the respondents (the defendants in the Trial Division) were given summary judgment against the appellants on those parts of the claim in which the appellants sought declarations that Marilyn holds the property in part on trust for them, or subject to an equitable lien or charge in their favour.

Relevant events

3. [3]
   The relevant history begins nearly 40 years ago, when in 1984, the appellants’ grandmother died, bequeathing the property to the appellants’ mother, Verona, and Verona’s sister, Audrey, as tenants in common in equal shares.
4. [4]
   In early 1985, Audrey transferred her interest to Verona for a consideration of $34,000.  Verona was able to purchase Audrey’s interest only with the assistance of her five children (the appellants and Arnold).  Prior to the purchase, Verona and her husband, Ronald, met with their five children to discuss the proposed purchase.  Verona told them that she and Ronald could not afford to buy Audrey’s share and they asked their children whether, if Verona and Ronald borrowed from a bank for the purchase, the children would repay the loan over time by equal monthly contributions.  In return, they proposed that the five would each acquire a 10 per cent share in the property so that, if the property were sold before Verona and Ronald died, one half of the proceeds of sale would go to Verona and Ronald and the other half would go to the children to be distributed among them in equal shares.^[2]  According to the appellants, after discussing the proposal with their partners, the five agreed to assist upon those terms.  That is denied in the Defence, but as I will discuss, there is evidence supporting it not only from the appellants but in what Verona later expressed in several wills.
5. [5]
   The appellants allege that between late 1985 and early 1990, each of the five children paid an amount of $130 per month to the Commonwealth Bank until the loan was repaid.^[3]
6. [6]
   In 1992, Arnold was declared bankrupt.  In the same year, Verona allowed Arnold, Marilyn and their children to move into the property, without paying rent.  The appellants were aware of that arrangement. 
7. [7]
   In 2005, Verona made a will by which the property was to be left to Arnold alone, but charged with an obligation to pay $50,000 to his four siblings to be divided equally amongst them.
8. [8]
   In 2008, Verona executed a 20 year lease with Arnold as lessee, which included an option to purchase the property for $50,000.
9. [9]
   In the same year, Verona made a further will which contained a clause saying that she had made no provision for Arnold “as he has received the benefit of my interest in the property … in recognition for the financial and personal contributions he has made to me, my husband and the Dayboro property during my life.”
10. [10]
    After Ronald died in 2011, Verona made another will in 2012, by which she gave the property to Arnold, expressed her appreciation for the “financial and other contributions he has made to the property” and for the care which he and Marilyn had provided to her and Ronald over many years.  The will provided that in making that bequest, she had taken into consideration her other children and that she had left them the residue of her estate equally.  She acknowledged that her five children had “made an interest free loan to me in the sum of $27,000 to help me purchase the property” so that she would “therefore charge the bequest [of the property] with the direction that Arnold pay Valerie, Carolyn, Terry and Gregory the sum of $40,000, such money to be divided equally among them.”
11. [11]
    In February 2014, Verona then made yet another will, and at the same time made a statutory declaration, in which she said:

“I paid my sister $38,000 for her interest in the property and then owned the property outright. I raised the $38,000 by a gift of $11,000 from my husband’s Superannuation, and the balance of $27,000 was paid off by each of my five children paying $130 per month from 24 January 1986 to 2 April 1990.”

She also said there that Arnold and Marilyn had paid the outgoings for the property and improved it in various ways, and that she had come to the view that Arnold should not be required to pay anything for the ownership of the property so that she wished to make an “outright gift” of it to him.  In that 2014 will, Verona left all of her assets to the appellants with the explanation that she had made no provision for her son Arnold as she had “already provided for him during my lifetime”.

12. [12]
    At about the same time, Verona transferred the registered ownership of the property to Arnold for a consideration which was expressed as her natural love and affection for him.  (Marilyn asserted that $50,000 in cash was paid to Verona as consideration for the transfer, although that would be inconsistent with Verona’s statutory declaration.)
13. [13]
    Later in 2014, Arnold transferred the property to himself and Marilyn as joint tenants.  His share passed to Marilyn when he died in September 2020.  Verona died in the following month.

The appellants’ pleaded case

14. [14]
    The appellants’ pleaded case effectively depended upon the effect of what they say was the agreement reached with their parents in 1985.  Their claim is not a contractual one, but it is based upon the equitable entitlements which, they say, resulted from that agreement.
15. [15]
    They pleaded that Arnold and Marilyn accepted the proposal by Verona and Ronald, by Arnold and Marilyn making monthly contributions towards repayment of the loan.  The appellants’ case is supported by a statement by Marilyn in an affidavit that “…Verona wanted the Property to be kept entirely within her family and for this reason, we (Arnold and I) agreed to help Verona “buy out” Audrey’s share of the Property.”^[4]
16. [16]
    The appellants’ case was advanced upon several legal bases, namely that the 1985 arrangement:

    1. (a)
       gave rise to a common intention constructive trust;
    2. (b)
       was an agreement or arrangement for a joint venture for the acquisition and use of the property which, having now failed, warranted the remedy of a constructive trust; or
    3. (c)
       created an expectation of the ownership of interests in the property, in reliance upon which the appellants acted to their detriment, and which they were induced to do by the silence of Arnold and Marilyn about Verona’s intention to deny them those interests.  They say that Marilyn was thereby estopped from denying them their interests in the property.
17. [17]
    On that first basis, the appellants claimed that Arnold, and in turn Marilyn, received their interests in the property in the knowledge that the transfer to them was made in breach of trust, thereby engaging the so called first limb of Barnes v Addy.^[5]
18. [18]
    It is necessary now to discuss the pleaded case in more detail.
19. [19]
    The appellants pleaded that the agreement was made for a common purpose that the property would be used to provide for Verona and Ronald in their retirement and as an investment for each of their children.  In pursuit of that purpose, from about 1986 until December 1991, the property was leased to certain third parties.  (Although that last allegation was denied in the Defence, the respondents nevertheless pleaded that the property was leased to various third parties throughout those years.^[6])
20. [20]
    Upon those premises, the appellants alleged that from the time the agreement was made in 1985, “Verona, Ronald, Terry, Carolyn, Valerie, Gregory and Arnold were engaged in a joint endeavour, alternatively a joint relationship, with the purpose of using the Property as [an] investment to accumulate capital and earn income by leasing the Property to third parties (the Joint Endeavour) …”.  They pleaded that there was a “Common Intention” held by the parents and their children that the property would be beneficially owned as to one half by Verona and Ronald and as to the other half by the children in equal shares, and that on the death of Verona and Ronald the property would be transferred to the children in equal shares.^[7]
21. [21]
    Importantly, they further pleaded that Marilyn:

“(i) was a party to the Joint Endeavour and/or, alternatively, knew of the Joint Endeavour;

2. (ii)
   held the Common Intention and/or, alternatively, knew of the Common Intention;

3. (iii)
   through Arnold, was in a position to benefit financially from the Joint Endeavour and the Common Intention upon the realisation of Arnold's said interest in the Property.”^[8]

22. [22]
    They pleaded that in the premises of those allegations, from 1985 Verona held the property, or alternatively one half of it, on trust for each of Terry, Carolyn, Valerie, Gregory and Arnold in equal shares “pursuant to a common intention constructive trust”.^[9]
23. [23]
    It was alleged that the 2005 will made by Verona, as well as the lease and the option to purchase granted by her in 2008, were:

1. (a)
   contrary to the Joint Endeavour and/or the Common Intention;

2. (b)
   a breach of the trust by Verona.^[10]

24. [24]
    It was further alleged that Arnold and Marilyn were aware of the contents of the 2005 will and the lease but did not inform the appellants of them.^[11]
25. [25]
    They pleaded that Verona’s transfer to Arnold in February 2014 constituted, on the part of Verona, acts contrary to the Joint Endeavour and/or the Common Intention and a breach of the trust.^[12]  They alleged that by “their involvement, consent or acquiescence” to the transfers to Arnold, Arnold and Marilyn knowingly participated in that breach of trust by Verona.^[13]
26. [26]
    They pleaded that upon becoming the registered owner, Arnold held the property on trust for each of the appellants “pursuant to the Joint Endeavour and/or the Common Intention”,^[14] and that by the transfer to Arnold and Marilyn, Arnold acted contrary to the Joint Endeavour and/or the Common Intention and in breach of trust.^[15]  In turn, it was alleged that Marilyn knowingly participated in that breach of trust.^[16]
27. [27]
    In the premises, it was said, when Marilyn became a registered owner of the property she and Arnold held the property on trust for each of the appellants pursuant to the Joint Endeavour and/or the Common Intention.^[17]
28. [28]
    They pleaded that in making the repayments of their parents’ loan, they acted in reliance on, and in furtherance of, the Joint Endeavour and the Common Intention such that it would now be inequitable to deny their interests in the property and unconscionable for Marilyn to do so.^[18]  They alleged that “the basis or substratum of the Joint Endeavour and/or the Common Intention has failed” and that it would be unconscionable for Marilyn to retain the property without accounting for the plaintiffs’ contributions the subject of the repayments.^[19]  That allegation was apparently made in support of their (alternative) claims for equitable compensation.
29. [29]
    The estoppel claim was pleaded as follows.  It was alleged that by reason of the lease, the 2005 will, the transfer to Arnold and the transfer to Arnold and Marilyn, Marilyn knew that the appellants believed that they owned one half of the property and that the property would be transferred to them upon their parents’ death, such that Marilyn was obliged to correct that assumption which she did not do.^[20]  They alleged that they acted to their detriment in reliance upon that assumption by “failing to make enquiries into the legal title to the property” and “failing to make any claim in relation to the property until after registration of the transfer [to Arnold]”.  In the premises, it was alleged, it would be unconscionable for Marilyn to insist upon her strict legal rights as the person legally entitled to the property.^[21]
30. [30]
    The relief claimed by the appellants was relevantly as follows (Marilyn being the first defendant and Arnold’s estate the second defendant):

“1. A declaration that the First Defendant holds 57 Mackenzie Street, Dayboro (more particularly described as Lot 5 on Registered Plan 31311, Local Government – Moreton Bay, Title Reference 11402184) (the Property), or alternatively 50% of her interest in the Property, on trust for the Second Defendant and the Plaintiffs in equal shares or such other proportion as the Court finds to be equitable;

2. Alternatively, an order that the First Defendant pay the Plaintiffs equitable compensation in an amount reflecting:

1. (a)
   the Plaintiffs' equal shares in 80% of the Property;

2. (b)
   alternatively, the Plaintiffs' equal shares in 40% of the Property; or

3. (c)
   in the further alternative, such other proportion as the Court finds to be equitable;

3. In the further alternative:

1. (a)
   a declaration that the First Defendant holds:

1. (i)
   80% of the Property;

2. (ii)
   alternatively, 40% of the Property; or

3. (iii)
   in the further alternative, such other proportion as the Court finds to be equitable;

subject to an equitable lien or charge in favour of the Plaintiffs; and

2. (b)
   an order for judicial sale of the Property consequent upon that equitable lien or charge and directions for the conduct of that sale;

…

Further and alternatively, the Plaintiffs claim from the Second Defendant:

1. An order that the Second Defendant pay the Plaintiffs equitable compensation in an amount reflecting:

1. (a)
   the Plaintiffs’ equal shares in 80% of the Property;

2. (b)
   alternatively, the Plaintiffs' equal shares in 40% of the Property; or

3. (c)
   in the further alternative, such other proportion as the Court finds to be equitable …”.

The reasons of the primary judge

31. [31]
    The judge observed that the appellants’ primary claim was that the 1985 arrangement gave rise to a common intention constructive trust.  Her Honour quoted from the judgment of Glass JA in Allen v Snyder^[22] and from a more recent review of the law by McMillan J in Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc.^[23]  Subsequent to the judgment under appeal, this Court decided King & Anor v Fister & Anor,^[24] in which the analysis in Imam Ali Islamic Centre was adopted.
32. [32]
    The judge concluded that the appellants had put on enough evidence to satisfy her that they had an arguable case that the 1985 arrangement gave rise to a common intention constructive trust whereby Verona held half of the property on trust for the appellants and Arnold, through her lifetime and for them after her death.^[25]  She said that establishing a common intention constructive trust would have assisted the plaintiffs had they discovered a breach of that trust during Verona’s lifetime.^[26] 
33. [33]
    Her Honour held that the appellants had an arguable case that both Arnold and Marilyn received the property with knowledge of the common intention constructive trust alleged by the plaintiffs.  However, her Honour continued:

“[49] I have difficulty with the pleading that, in Arnold’s taking a transfer of the Dayboro property, he participated in Verona’s breach of trust. There is no evidence that Arnold did more than receive a transfer of the Dayboro land, and pay for it, on Marilyn’s version of events. This does not amount to more than knowing receipt – the first limb of Barnes v Addy. The same can be said for the transfer by Arnold into a joint tenancy with Marilyn, and Marilyn’s becoming registered as owner of the whole interest in the land by survivorship.”

34. [34]
    Her Honour reasoned that assuming Arnold was a knowing recipient within the first limb of Barnes v Addy, the registration of his transfer meant that the appellants’ case on this basis was bound to fail.^[27]  This was the consequence of s 184(1) of the Land Title Act 1994 (Qld), in the absence of any fraud by the registered proprietor or the appellants’ interest being “an equity arising from the act of the registered proprietor” in the terms of s 185(1)(a) of that Act.  Her Honour recorded that there was no suggestion of fraud which would have engaged s 184(3)(b) of the Act, and the appellants’ case, she said, was “not that they have an equity arising from the act of either Arnold or Marilyn”, but rather “an equity which arises from the actions of, and promises made by, Verona …”.^[28]
35. [35]
    As to the second limb of Barnes v Addy, the primary judge said:

“[58] There will be cases where an exception to indefeasibility can be established by proving a personal equity based on the second limb of Barnes v Addy for that involves more than knowing receipt; it involves assistance with knowledge in a dishonest and fraudulent design on the part of the trustee. The phrase “dishonest and fraudulent” is to be understood by reference to equitable principles. I have discussed the words “participated in” in the plaintiffs’ pleading (above) and concluded that their case is no more than a case of knowing receipt. There is no allegation of fraud or dishonesty. The plaintiffs’ written submissions only relied on the first limb of Barnes v Addy, and so did their oral submissions.”

(Footnotes omitted.)

The judge noted that it was alleged that Arnold had participated in the 1985 arrangement, so that he was not “an unconnected third party who obtains registration knowing that this will defeat his equitable interest”.  Even so, her Honour said, she could not see that those facts would bring him within the second limb of Barnes v Addy, or within the words of s 185(1)(a).^[29]

36. [36]
    Her Honour then discussed the alternative case of a joint venture constructive trust.  Her Honour rejected that case by reasoning as follows:

“[62] The plaintiffs characterise much the same facts as are relied upon to make the constructive trust claim discussed above on an alternative basis as a joint venture constructive trust. This is based on the idea that from 1985, until Arnold and Marilyn moved into the Dayboro property, the plaintiffs, Arnold, and their parents were engaged in a joint venture, namely the purchase and rental of the Dayboro land. They say that the joint venture failed without attributable blame and that therefore they are entitled to have the Court assist them by the imposition of a remedial constructive trust of the Dayboro land in their favour. The plaintiffs rely on Muschinski v Dodds and Baumgartner v Baumgartner.

[63] There is no evidence of how the rent received from the Dayboro land was (or was to be) applied before Arnold and Marilyn began to live there. Further, the defendants have a strong argument that the facts show a joint venture which was abandoned by mutual agreement to allow Arnold and Marilyn to live on the Dayboro land, rather than a joint venture that failed. Factually this claim is weak.

[64] There is also the legal complication that until the Court decides to grant a remedial trust, no trust exists. While a Court may grant a remedy in terms of imposing a constructive trust, and may declare that the trust has been in existence before the date of the judgment, it does seem to me that there are difficulties with the plaintiffs’ claim that, before the Court intervened to impose the trust, Arnold and Marilyn were liable under the rule in Barnes v Addy. Even if that problem can be overcome, for the reasons discussed above, s 184 of the Land Title Act must defeat this claim so far as it is a basis for the proprietary relief the plaintiffs seek. For the reasons given above, the defendants are entitled to summary judgment on this part of the claim.”

(Footnotes omitted.)

37. [37]
    The judge then discussed the third of the causes of actions advanced by the appellants, namely one based upon a proprietary estoppel.  Her Honour was of the view that the evidence had shown “a substantial enough factual substratum” to demonstrate a sufficient case in the context of a summary judgment application.^[30]  She was of the view that on the facts, the appellants would have had a case based on proprietary estoppel against Verona on the basis that she departed from the assumption or expectation relied upon.^[31]  However she rejected the claim for an estoppel against Marilyn as misconceived and having no real prospect of success.^[32]  She reasoned as follows:

“[69] It was Verona who made the representation or encouraged the expectation on which the plaintiffs relied to give them an interest in the land. As discussed above, I cannot see that there was an obligation on Arnold or Marilyn to speak when they knew that Verona intended to act inconsistently with the 1985 arrangements; they were not trustees or fiduciaries. By that time many years had passed since the plaintiffs had repaid the loan used to purchase the land. Arnold and Marilyn’s silence after 2005 could not be said to have encouraged the plaintiffs to act to their detriment on the basis that they expected their actions would result in their obtaining an interest in the Dayboro land. At the time they stayed silent they did not own the land. After Verona transferred the land to Arnold, he had the benefit of the indefeasibility provisions.”

The appellants’ arguments

38. [38]
    The appellants do not challenge the judge’s reasoning as to a common intention constructive trust.  Their arguments challenge her reasoning as to a joint endeavour constructive trust and a proprietary estoppel.
39. [39]
    The appellants challenge the reasoning of the judge which I have extracted from the judgment earlier at [36].  They argue that there were two key errors in that reasoning, the first being that it misdescribed the nature and scope of the joint venture.  The joint endeavour or venture was for more than a proposed letting of the property; it was for the acquisition for the property as an asset, to be beneficially owned by the parents and the children.  The judge erred, it is said, in perceiving as strong the respondent’s argument that a joint venture was abandoned by mutual agreement to allow Arnold and Marilyn to live on the property.
40. [40]
    The second suggested error is that the judge overlooked the appellants’ case that Marilyn was a party to the joint endeavour.^[33]  Once those errors are accepted, it is said that there was an arguable case that the appellants had a personal equity arising from the acts of the registered owner, Marilyn, so that their claim was not defeated by s 184(1) of the Land Title Act.
41. [41]
    As to the proprietary estoppel case, the appellants argue that the judge erred by considering it in terms of Verona being the primary wrongdoer and the appellants’ reliance being by their contributions towards repayment of the loan.  Rather, they were also induced by the silence of Arnold and Marilyn, and they were thereby deprived of an opportunity to prevent a transfer of the property from Verona to Arnold and Marilyn which, upon registration, would defeat their claim to the property.

The respondents’ arguments

42. [42]
    It is necessary to say something first about the respondents’ submissions in relation to a common intention constructive trust.  On their behalf it is submitted that the evidence of the appellants was inconsistent with their pleaded case, in that according to their evidence, the agreement or arrangement reached with their parents in 1985 was that if the property was sold during the parents’ lifetime, the parents would repay to their children the amounts which they had contributed.  Consequently, by disposing of the property as she did, Verona did not act inconsistently with the parties’ Common Intention, because she was free to sell it.  That argument cannot be accepted.  It misstates the evidence.  For example in the second affidavit of Valerie, she recalled a conversation with her parents in which her mother said words to the effect that if she and her siblings contributed to the purchase of Audrey’s interest, then the property would:

“(A) be held in Verona and Ronald's names; but really

2. (B)
   they would be entitled to the 50% share that they already owned (because it had been bequeathed to Verona by Vera); and

3. (C)
   each of me and my siblings would be entitled to an equal share of the other 50% (assuming we all contributed equally)”.^[34]

There is evidence to the same effect in Terry’s second affidavit,^[35] Carolyn’s second affidavit^[36] and Gregory’s second affidavit.^[37]  As the primary judge observed about that affidavit evidence:

“[36] While recollections differ somewhat, there is evidence that the arrangement was that if the Dayboro property was sold while their parents were alive, 50 per cent of the sale proceeds would be received by the five siblings in equal shares; if the property was still in their parents’ possession on death, it would be left to the five siblings in equal shares.”

43. [43]
    A submission which was rejected by the primary judge was repeated here, which was to the effect that this affidavit evidence was inadmissible hearsay.  The judge was correct to reject that submission and to hold that it constituted direct evidence in proof of the 1985 arrangement.^[38]
44. [44]
    As to the case in reliance upon a joint venture trust, it is submitted for the respondents that the joint venture did not fail in the sense referred to in Muschinski v Dodds^[39] and Baumgartner v Baumgartner,^[40] because by agreement, the appellants’ joint venture “rights” had been converted from a potential property claim to a monetary reimbursement claim.  Secondly, it is submitted that if there had been a “failure” of the joint venture, that had not occurred “without attributable blame”.  Here, it is said, the appellants’ case is necessarily grounded in a failure because of attributable blame, namely an alleged breach of trust by Verona and Ronald.
45. [45]
    As to the estoppel case, it is said that there was no unconscionability by Verona in exercising what, it is said, was her right to dispose of the property by the 1985 agreement.  (Again, that misstates the evidence of the appellants.)  Further, it is submitted that the claim against Marilyn could not succeed because she was not the owner of the property in 1985.
46. [46]
    The respondents filed a notice of contention, in which it is said that the judge ought to have found that the 1985 agreement, the Common Intention and the Joint Endeavour were “terminated or abandoned” by the following conduct:

    1. (a)
       Gregory abandoned the joint arrangement by entering into a different agreement with his father;
    2. (b)
       the parties abandoned the use of the property as an income producing asset at the end of 1991;
    3. (c)
       the siblings and the parents agreed to the rent free occupation of the property by Arnold and Marilyn from 1992; and
    4. (d)
       the appellants did not take any steps to protect their alleged beneficial interest prior to the occupation of the property by Arnold and Marilyn, the registration of Arnold’s leasehold interest in the property or the conveyance to Arnold.

Consideration

47. [47]
    In King v Fister,^[41] Davis J (with whom Sofronoff P and Mazza AJA agreed) described “a failed joint endeavour constructive trust” as a remedial constructive trust based on principles of unconscionability, that is to say it is a constructive trust imposed by way of a remedy in order to do equity and a trust which arises at the time of the making of the order.^[42]
48. [48]
    In a frequently cited passage in Muschinski v Dodds, Deane J said:^[43]

“[T]he 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 …”.

That passage was referred to in the joint judgment of Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner^[44] as an application of “the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.”

49. [49]
    In that passage in Muschinski v Dodds, Deane J referred to the removal of the substratum of a joint relationship or endeavour “without attributable blame”.  As is submitted for the respondents, it is the appellants’ case that the joint endeavour ended with blame attributable to Verona, Arnold and Marilyn.  For that reason (amongst others) the respondents submit that the claim for a joint endeavour constructive trust was bound to fail.  That submission cannot be accepted.
50. [50]
    In a recent judgment in the New South Wales Court of Appeal, New South Wales Trustee and Guardian v Togias,^[45] Basten AJA said that in this context, “the attribution of blame is only relevant in circumstances where the blame is attributable to the parties seeking to invoke equity.”^[46]
51. [51]
    That was the view of Ward J (as she then was) in Austin v Hornby,^[47] who said:

“[170] The meaning (and potential uncertainty) of this requirement seems to have lead to the grant of special leave by the High Court in Gazzola v Gazzola [1990] HCA 13; (1990) 92 ALR 45 (where Brennan, Deane, Dawson, Toohey and Gaudron JJ said that their “main consideration” in granting special leave was that the issues would include” questions about the nature and effect of ‘attributable blame’”). However, as it transpired, their Honours did not address what was meant by attributable blame because, the court having found that the facts precluded a finding of a common intention to create a trust and did “not give rise to, or warrant the imposition of, a constructive trust upon any of the grounds for which the appellants contend”, the question as to attributable blame did not arise. Their Honours noted that “those questions only arise in the present case if the appellants succeed in showing either that there was a common intention among the parties to create a trust or that the facts of the case are such that, subject to any question of the existence or effect of any ‘blame’ or ‘unconscionable conduct’ on the part of one or both of the appellants, a constructive trust arose or should be imposed”. The grant of special leave was accordingly revoked.

[171] In “Doing Equity between de facto spouses: From Calverley v Green to Baumgartner” (1988) 11 Adelaide Law Review 370, Patrick Parkinson suggested that it was likely that the notion of blame would quietly disappear as a meaningful statement in this kind of case, though expressing his opinion that “Presumably the relevant fault here is that of the claimant who will be denied a remedy if he or she is held responsible for the breakdown of the relationship”. Such a presumption is, however, inconsistent with the notion that relief in equity does not turn on the “nice question” of where blame lies in the breakdown of relationships or joint endeavours of this kind (per Perry J in Callaghan approved as noted above in Henderson v Miles ).

[172] It seems to me that the apparent inconsistency in this regard is resolved if the question whether a joint endeavour has come to an end as a result of attributable blame (in circumstances where the breakdown is due to some wrongful conduct of the party seeking the imposition of a constructive trust) is one treated as part of the question whether it is unconscionable for the other party in those circumstances to retain the benefits of the joint endeavour. Thus, a lack of focus in the authorities such as Henderson v Miles on who might be to blame for the breakdown of the relationship or endeavour in question (when considering the “without attributable blame” part of the Muschinski formulation of the test) may be explicable if it is bound up in the question of unconscionability.”^[48]

52. [52]
    The appellants’ criticism of the judge’s reasoning, which I have set out earlier at [36], must be accepted.  It was part of the appellants’ pleaded case that the Joint Endeavour persisted beyond the point when Arnold and Marilyn moved into the Dayboro property.  They pleaded that upon becoming the registered owner, Arnold held the property on trust for each of the appellants pursuant to the Joint Endeavour,^[49] and by his transfer to himself and Marilyn, he acted contrary to it.
53. [53]
    Further, it was part of the appellants’ pleaded case that Marilyn was a party to the Joint Endeavour.  In the context of a summary judgment application, that allegation had a sufficient evidentiary basis.  As noted earlier, Marilyn said in an affidavit that “we (Arnold and I) agreed to help Verona “buy out” Audrey’s share of the Property”.
54. [54]
    On that basis, and in the absence of equitable relief, Marilyn as a participant in the Joint Endeavour would hold the property entirely for her own benefit when it had been acquired, as to a one half interest, by the contributions of her co-venturers.  She would hold the property in a way which was not intended by the Joint Endeavour.
55. [55]
    Ultimately, the question at a trial of this claim would be whether some equitable relief, and if so what relief, is necessary to prevent an unconscionable assertion of the exclusive ownership of the property.  Those questions might be affected by other circumstances, such as the extent to which the appellants benefited under Verona’s will and the value of the property.  But they are considerations for a trial.  In answer to an application for the summary dismissal of the claim, the appellants demonstrated a case to be tried.
56. [56]
    The question then is whether equitable relief, upon the basis of a failed joint endeavour, would be precluded by s 184 of the Land Title Act.  Her Honour held that it would be, but upon the premise of a case which did not include the critical premise that Marilyn was herself a party to the joint endeavour.  Once that premise is included, and there is an arguable case that the joint endeavour continued beyond Arnold and Marilyn beginning to live in the property, there is an arguable case that the appellants would enjoy “an equity arising from the act of the registered proprietor” in the terms of s 185(1)(a).  It is well accepted that s 185 was not intended to do more than state the existing general law.^[50]  On this part of the appellants’ case, liability of Marilyn is not under the first limb of Barnes v Addy.  It is by the acts of Marilyn, as a participant in the joint venture, that it is said to be unconscionable for her to retain her registered interest free of the interests for which the appellants contend.^[51]
57. [57]
    For these reasons, the appellants established an arguable case upon the basis of a joint endeavour to which Marilyn was a party which would make it unconscionable for her to hold the property free of any interest of the appellants without the appellants being given some form of equitable relief, either by a constructive trust or otherwise.  In my respectful opinion the primary judge should have so held and not given judgment for the respondents.  In view of those conclusions, it is unnecessary for me to express an opinion upon the appellants’ alternative argument of an estoppel.
58. [58]
    I have referred to the Common Intention of the participants, including Marilyn, alleged by the statement of claim.  The pleaded case and the evidence presented an arguable case for a common intention constructive trust.  As McMillan J observed in Imam Ali Islamic Centre, “a common intention constructive trust has a role to play distinct, albeit not always mutually exclusive, from a joint endeavour constructive trust.”^[52] Although in this Court, the appellants did not argue their case for a common intention constructive trust, that case also should be permitted to go to a trial.
59. [59]
    The notice of contention raises factual issues relevant to an argument that the Common Intention and the Joint Endeavour were terminated or abandoned by the parties.  It is sufficient to say that they are issues which could only be fairly determined after a trial.

Orders

60. [60]
    I would order as follows:

1. Appeal be allowed.
2. The orders made on 9 November 2021, whereby the respondents were given judgment against the appellants on paragraphs 1 and 3 of the prayer for relief in the amended statement of claim and the appellants were ordered to pay four fifths of the respondents’ costs on the summary judgment application, be set aside.
3. The respondents pay the appellants’ costs of the summary judgment application and the costs of the appeal, including those resulting from the notice of contention.

61. [61]
    BOND JA:  I agree with the reasons for judgment of McMurdo JA and with the orders proposed by his Honour.
62. [62]
    KELLY J:  I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.