Douglas v Pohl[1998] QDC 49

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 20th day of March 1998

The plaintiff and the defendant were living in a de facto relationship from 1984 until they separated on 31 August 1992: p. 9. At the time of separation they were, and remain, registered as proprietors of an estate in fee simple in a house in which they had been living together (Exhibit 18), and were joint owners of a motor vehicle. By this action the plaintiff claims that she has, or should have, a beneficial interest in the house in excess of 50%, that she has, or should have, the sole beneficial interest in the car, and that she is entitled to recover money lent by her to the defendant or paid on his behalf.

The defendant was not legally represented at the trial, solicitors whom he had previously engaged having withdrawn the week before, because the defendant was not able to put them in funds to conduct the trial. The defendant sought an adjournment to obtain legal advice, which was refused, on the basis that the defendant would not qualify for legal assistance and the prospect of his being able to obtain other solicitors who would be prepared to conduct the trial without being put in funds seemed to me to be slim.

The defendant is rather deaf, which made it more difficult for him to conduct his own case, but steps were taken to overcome that difficulty, I think reasonably successfully. It was apparent in the course of the trial that the principal difficulty facing the defendant was that he had, during the period of co-habitation, essentially left financial matters to the plaintiff (pp. 5, 122); that made it difficult for him to dispute effectively the plaintiff's version of events, a difficulty which I do not think would have been alleviated much by legal advice. He was, however, able to raise a number of concerns that he had in the course of the trial, and so far as I could tell, his case did emerge. Nevertheless, in respect of most matters there was no direct conflict of evidence, because the defendant was not in the position to dispute the evidence given by the plaintiff. At one point he referred to a number of matters which should have been in a counterclaim: p. 123; however, these claims were not supported by evidence or referred to further, and I will disregard them.

At the time when the relationship started the plaintiff was about 47 and the defendant about 43: Exhibit 1. The defendant was in employment and had no significant assets: p. 11. The statement of assets and liabilities of the defendant in the application for a loan to the National Australia Bank signed on 25 August 1986 (Exhibit 3) refers only to a motor vehicle to the value of $2,500, cheque account of $2,700, tools worth $3,000, and an outstanding debt to the National Westminister Bank of $3,000.

The plaintiff, who had previously been married, had some assets in the form of bonds with Hooker Corporation, totaling $45,000: p. 11. She was also receiving two pensions, a Veterans' Affairs pension and a War Widows' Pension; these pensions continued, and by the time of the trial were $2,141.50 per month and $534.14 per month respectively, in each case net of tax: p. 9. The parties originally lived together in rented accommodation. The plaintiff was carrying on a small business, but this was wound up when the lease for the premises expired: p. 11. In 1986, however, the defendant left his employment and set up in business on his own under the name Professional Resilient & Vinyl Flooring, referred to as P.R.V. Flooring: Exhibit 2, p. 12. The plaintiff denied that she had any share in this business, and the contrary was not asserted by the defendant: p. 4. Nevertheless, she assisted the defendant in the business, doing bookkeeping and office work full time during the relationship, and continued to work on a part time basis for the business for some time after the relationship terminated: p. 16, Exhibit 1, para 15. The business was financed with a bank loan of $10,000 on the defendant's account, although this was obtained by giving the bank security over the plaintiff's investments: Exhibit 3, p. 11.

Purchase of the House

In 1988, the parties decided to purchase a house. The contract is not in evidence, but apparently it was negotiated in August 1988; the contract price was $128,000: Exhibit 25. In order to obtain funds for this purchase the plaintiff had to obtain access to the investments which were covered by the security given to the bank. Accordingly, the bank loan was paid out on 3 August 1988 by a deposit of $7,537.66 (Exhibit 4) made with the defendant's funds: p. 15. There was a deposit to the plaintiff's Westpac bank account on 30 August 1998 of $24,356.30: Exhibit 6. This was presumably the proceeds of redeeming most of the bonds which became available as a result of the release of the bank security. Once this money was available, the plaintiff paid the deposit of $6,400, an initial amount of $50, and the balance by her cheque number 733115 on 1 September 1988: Exhibit 24, Exhibit 25. The contract settled on 14 October 1988, with the balance of the purchase price, after adjustments, of $122,128.30 being provided by the National Australia Bank: Exhibit 19.

The purchase was funded by two loans from the National Australia Bank, a housing loan of $65,000 and a bridging loan of $25,000: Exhibit 32; the purpose of the second loan was to provide temporary finance until the plaintiff could obtain a Defense Service Home loan which she was qualified to obtain. The balance of $32,128.30 was provided by the plaintiff from her own funds, in the following way. Most of the rest of the funds in the plaintiff's Westpac account were withdrawn by cheque 259227 for $24,000 cleared on 7 October 1988 (Exhibit 29); this represents part of a sum of $36,000 deposited that day into the National Australia Bank (Exhibits 26, 27) into a joint account of the parties, number 384122. The balance of the deposit consisted of an amount of $7,000 withdrawn from the plaintiff's National Australia Bank savings account number 383222 on that day (Exhibit 30) and a cheque (number 000159) for $5,000 drawn on the plaintiff's Commonwealth Bank cheque account number 292957: Exhibit 28 (and see Exhibit 33). The $36,000 was paid into account number 384122, from which the bank withdrew the money required to settle the home purchase on 14 October 1988, a total of $33,503.30, being the balance paid at settlement, together with the two amounts of loan costs: $933 for the housing loan and $442 for the bridging loan, see Exhibits 20, 31 and 32. This left an amount of just under $2,500 of the plaintiff's money in this account.

The plaintiff said that the payments on the home mortgage to the National Bank were made by both of them, although mostly by her: p. 40. Regular payments initially of $850.20 per month were made from the joint National Bank account number 384122 as housing loan repayments. On the other hand, she said that the payments made in respect to the bridging finance, and subsequently the Defence Service Home loan from Westpac, were made by her alone: p. 40.

A Defense Service Home loan was approved on 30 September 1988 (Exhibit 22) but on the basis that the funds would not be available until July the following year. However, on 17 May 1989 those funds became available and the National Bank bridging loan was paid out; thereafter repayments were made, deducted from the plaintiff's cheque account number 32-0708: Exhibit 22. This loan was made to both parties, initially with a Westpac account number 711135; on 20 September 1989 the account was renumbered to accommodate the amalgamation of Westpac branches in Surfers Paradise and became account number 321562; all the statements on this account except for sheet 9 were in evidence and they showed regular payments of $174.25 per month, all of which are recorded as having been made by way of transfer from an account in the name of the plaintiff: Exhibit 41. As at 6 June 1997 the balance outstanding on this loan was $20,677.87. By the end of September 1997 the plaintiff had made 100 such payments, a total of $17,425.

The payments were initially made from the plaintiff's account number 320708; after the branch amalgamation this became account number 302273. Most of the bank statements for this account from December 1985 until June 1997 were in evidence as Exhibit 42. This account appears to have always received the fortnightly payments of the War Widows' Pension referred to earlier; these have increased over the period from $115.67 to $268.97. Indeed, in the statements in Exhibit 42 there is only one other deposit, an amount of $1,182.05 on 1 December 1987, most of which was applied to a cheque cleared the same day for $1,025.74.

Some of the missing sheets are in other exhibits; sheets 18 and 19 for account 320708 are Exhibits 6 and 29 respectively, and sheet 5 for account 302273 is part of Exhibit 10. There must have been some significant deposit on sheet 14, because the balance increased by $2,651.33 between sheets 13 and 15, which is more than the pension could have produced, although it is not possible to know exactly how much because the pension rate changed between sheets 13 and 15. From this and from the accumulation of the pension, the amount in this account had been increased to almost $6,000 by mid-August 1988, and it was then further increased by deposits of $6,968.14 on 19 August, 1988: Exhibit 6. The plaintiff was vague about where this money came from, (p. 13) but said it came from other bonds that had matured earlier than those the proceeds of which were deposited on 30 August: p. 64. Soon after, however, $7,000 was withdrawn by cheque 733124 dated 25 August 1988, the butt for which is noted “PRV Nat Bank”: Exhibit 5. The plaintiff initially claimed that this amount was deposited along with a further $537.66 on in order to pay out the loan the defendant had obtained from the National Australia Bank for the purposes of his business: Plaint para. 4. However, that payment was said to have been made with PRV's funds on 3 August 1988 (p. 15) but the $7,000 from the plaintiff was subsequently deposited into PRV's account in order to meet the business commitments due at the end of the month, as a loan to the defendant: p. 15.

On 20 December 1988 a further $9,510 of the plaintiff's money was deposited into the joint National Bank account (Exhibit 31). This was the proceeds of the realization of the plaintiff's last investment with Hooker Property Funds Management Ltd: Exhibit 37.

The plaintiff made the first payment to the solicitors, to cover stamp duty, of $1,285 by cheque 158 drawn on her Commonwealth Bank account number 292957 on 19 August 1988: Exhibit 33. The plaintiff made a further payment from her Westpac account 320708 of $200.50 by cheque dated 7 September 1988 (Exhibit 34), cleared on 14 September 1988: Exhibit 6. The plaintiff said that this was a further mortgage application fee (p. 38) and the cheque butt is endorsed “Homes loan” but I have not seen any documentation from either the National Australia Bank or the Defense Service Homes Corporation to verify this. The documentation referring to National Australia Bank charges seems to me to confirm that these were the amounts debited to the joint account at that bank on 14 October 1988, but it is possible that this is some application fee in relation to the Defense Service Home loan. Exhibit 48 suggests that a fee in respect of this loan of $65.60 was paid by the defendant on 5 October 1988.

The stamp duty and legal fees were paid separately, payment of $1,285 being made on 21 September 1988 and a further payment of $1,615.40 being necessary: Exhibits 19, 33. I do not think there is any evidence about the payment of the balance of the solicitors account of $1,615.40, although there was a cheque for $1,616.40 cleared on 22 October 1990 to the plaintiff's Commonwealth Bank account 292957: Exhibit 10. In view of this and the absence of any apparently relevant entry in the defendant's list, Exhibit 48, I find that the plaintiff paid all the legal fees.

The total cost of the house therefore, comprising the deposit, the adjusted balance of the contract price and the legal costs, came to $131,428.70. Of this, $90,000 was paid by sums borrowed by the parties jointly from the National Australia Bank, and the balance of $41,428.70 was paid by the plaintiff. Money borrowed by both parties is treated as a contribution by each of them equally - Calverley v. Green (1984) 155 CLR 242 - so the plaintiff contributed about two thirds of the cost of the house and the defendant one third: it follows that when the house was acquired prima facie the equitable interest of the parties in it was divided between the parties in these proportions. There was no evidence of an express agreement by or a common intention of the parties to the contrary to rebut this presumption (see p. 71).

Another matter covered by the evidence was costs incurred by the plaintiff on what might be described as the maintenance of the house. The first of these was a payment made on 21 January 1989 for insurance on the house in the sum of $255: p. 38, Exhibit 35. Although this was said to be a requirement of the mortgagee, as was no doubt the case, it is not really capital expenditure on the house, and is, I think, properly regarded as part of the cost of owning and maintaining the house, like paying the rates. The plaintiff also produced a list of payments made between 3 May 1992 and 3 April 1994: Exhibit 43. There were said to be referable to the house and its maintenance apart from the mortgage since August 1992, but it contained some earlier entries for money spent on the house, some of which might be described as capital improvements, in particular money spent on the reconstruction of the kitchen, and also some money spent on the jointly owned motor vehicle, including the payments to Citibank. Actual expenditure on house matters in the schedule, so far as I can identify them, comes to $22,310.17, but this includes a number of items described as “Household Finance”, totaling $2,561, which I suspect were made to a finance company of that name. They may relate to money borrowed to spend on the house improvements, but this was not made clear in the evidence. The only matters in the schedule which seem to me to be in the nature of capital expenditure are the apparent cost of redoing the kitchen, and I will treat as included in this the larger payments to German Kitchens, the payments to Harvey Norman, Barina Tiles, the painter and the cost of a glass door, which total $15,483.65. There were also two payments by the defendant in Exhibit 48 in July 1992 which seem to relate to the kitchen; Gavin Plumber $710 and G James Glass $484: p. 127. I think that this expenditure may be properly regarded as a contribution to the capital cost of the house as it exists now, and therefore a matter properly taken into account in determining the apportionment of interest between the parties.

With regard to maintenance costs, I think that this is really a function of the way in which the finances of the relationship were handled, and the fact that after separation the plaintiff was left in occupation of the jointly owned house. The plaintiff said that during the relationship she was largely responsible for financing both parties, on the basis that the plaintiff's business was generally unprofitable, but the figures to which I have referred show, I think, that it was generating some profits which would have made some contribution to their joint life style, and in addition, under cross-examination, the plaintiff said that some cash was abstracted from the business by the defendant to meet his needs from time to time: pp. 95, 100. To the extent that this occurred, the plaintiff was not supporting him. I think that the plaintiff may be exaggerating somewhat the extent to which she was responsible for supporting both parties during the relationship, but certainly the relationship has proved expensive from her point of view and a substantial drain on her resources.

Repayment of Loans

Initially, the monthly repayments for the National Bank Housing loan of $850.20 were made from the joint account number 384122 (Exhibit 38), but in August 1989 this changed to fortnightly payments of $451.20. These continued until March 1994, when no payments were made from this account until 14 November 1994, when $600 was paid. The payments subsequently settled down to $300 per fortnight, and these payments were continuing up to the date of trial.

Until the bridging loan was paid out by the Defence Service Home loan, interest payable on this loan was also paid from the joint account, at the rate of about $400 per month: Exhibit 38. The plaintiff said that between 31 May 1990 and 25 September 1997 she had deposited a total of $48,000 of her own money into the joint account from which these payments were made, as set out in Exhibit 39. Other deposits to that account over this period, which she cannot trace to her funds (Exhibit 1, para. 38) and which therefore presumably came from the defendant, were said to total $21,142.52: Exhibit 40. According to Exhibits 39 and 40, since April 1992 all of the payments had been made by the plaintiff.

There are however some discrepancies between Exhibit 39 and the National Bank statements for the joint account, Exhibit 38. Some of these may be typographical errors, but the deposit on 7 September 1992 appears as $500 in Exhibit 39 and $1,000 in Exhibit 38. The defendant's list of cheques, Exhibit 48, has a payment of $500 on 7 September 1992 to “R. Pohl, M Douglas”. There is a further deposit of $1,000 on 15 October 1992 in Exhibit 38 which is not mentioned in Exhibit 39, but corresponds to cheque 107 on about 15 October 1992 for $1,000 in Exhibit 48, marked “R P House payment wages”, The deposit on 16 November 1992 is $1,000 in Exhibit 38 and $500 in Exhibit 39. Exhibit 48 has an entry for cheque 138, undated but between 3 and 20 November 1992 for $500 marked “FM Douglas, R H Pohl”. There is a deposit of $500 on 18 December 1992 in Exhibit 38 only. I do not have the plaintiff's bank statements for the relevant time to check against Exhibit 39, and in the absence of other evidence I think I have to proceed on the basis that these extra amounts were probably paid by the defendant rather than the plaintiff, and increase Exhibit 40 by $2,500 accordingly.

The deposit on 6 May 1993 is $1,135 in Exhibit 38 and only $1,000 in Exhibit 39. There is a deposit of $1,000 on 7 June 1993 in Exhibit 38 which is not in Exhibit 39, and a deposit of 10 November 1993 of $300 in the same position, although there is cheque 511 dated 10 November 1993 in Exhibit 48 for $300 marked “Tarkett Mum”. In addition, the deposit on 3 December 1993 is shown as $1,027.55 in Exhibit 38, and $1,000 in Exhibit 39. On the other hand, a payment of $600 on 14 September 1995 in Exhibit 39 does not appear in Exhibit 38, although Exhibit 38 has a deposit of $300 on 12 January 1996 which is not in Exhibit 39. The deposit on 28 May 1996 appears as $900 in Exhibit 38 and $700 in Exhibit 39; the latter entry is consistent with Exhibit 17. The pages covering the deposit on 28 January, and deposits after 19 June 1997 are not included in Exhibit 38. Exhibit 38 is definitive as to what was actually paid and I think that these reflect deficiencies in tracing the sources of payments. From this group I will add $300 to Exhibit 40 and $1,062.55 to Exhibit 39.

There is also a sum of $3,000 transferred into the joint account on 21 September 1989: Exhibit 38, sheet 19, which is not referred to in either Exhibit 40 or Exhibit 39. The original bank statement in Exhibit 38 has written on it “Money to PR V” but this amount was a credit to the joint account, not a transfer from it as is clear from the increased balance. It seems therefore that this should be added to the list in Exhibit 40. There is also a deposit of $1,000 on 28 February 1990 in Exhibit 38 which does not appear in either Exhibit 39 or Exhibit 40, but does correspond to an entry in Exhibit 48 dated 28 February 1990 for $1,000 marked “M Douglas & R Pohl”. This should be added to Exhibit 40.

Exhibit 46, a book of cheque and deposit butts, refers to a number of deposits made to the joint National Australia Bank account, which generally correspond with Exhibit 40, although the last was originally dated 30.3.90, and changed to 2.4.90. It is for $1,000 and the defendant's list of cheques, Exhibit 48, includes an entry for a cheque dated 30 March 1990 for $1,000 to “RH Pohl and FM Douglas”. Exhibit 38 confirms that the deposit was actually made on 2 April 1990, and there was no deposit on 30 March. Exhibit 46 records the drawer of the cheque as “FM Douglas” and this suggests that the defendant's cheque which was to be used on 30 March was not used, and was replaced by a cheque from the plaintiff on 2 April. Unfortunately, I do not have the relevant pages from the plaintiff's bank statement to confirm this, and given that the payment has been included by the plaintiff in Exhibit 40 rather than Exhibit 39, I think I am not justified in making an adjustment, although I suspect that one may be appropriate.

Exhibit 48 also contains an entry for 11 August 1992 for $1,000 “Home Payment”; this is not mentioned in Exhibit 40, but there is an entry in Exhibit 39 for a payment in this amount on 8 August 1992. However, Exhibit 17 shows that such an amount was cleared by the plaintiff's bank on 10 August 1992, and Exhibit 38 shows that the deposit of $ 1,000 was made on 12 August 1992. In other cases that I have looked at the dates in Exhibit 38 correspond with the dates in Exhibit 17 (which sometimes differ from the dates in Exhibit 39), and I think that this indicates that the deposit shown as received by the National Australia Bank on 12 August was not the cheque cleared by the Commonwealth Bank on 10 August. I think it more likely that the plaintiff's cheque was actually used for something else, and it was the defendant's cheque dated 11 August 1992 which was deposited the following day, Wednesday. It follows that Exhibit 39 should be reduced by $1,000 and there should be a corresponding increase in Exhibit 40.

Exhibit 48 also includes two cheques for $500, one dated 6 September 1991 “House Wages Roland” and one dated 22 November 1991, “House Roland?” However, in September 1991 there was only one deposit to the joint account, $1,000 on 5 September, which corresponds with the plaintiff's cheque for that amount cleared the same day: Exhibit 17. The next deposit was 9 October 1991 which is already in Exhibit 40. There were no deposits to the joint account in November 1991: Exhibit 38. Unfortunately, the sheet for December 1991 is missing, but the difference between the balance on 29 November 1991 and on 31 December 1991 shown on sheet 47 indicates that over $1,000 must have been deposited during December, and if there were also two of the regular fortnightly payments of $451.50 made, the discrepancy becomes, with a small adjustment for bank charges, $2,000. This is not included in either Exhibit 39 or Exhibit 40. I do not have copies of the plaintiff's bank statement for this period. There is however a cheque shown in Exhibit 48 on 4.12.91 for $2,000 shown as “Wages”. Some of the other entries that I have referred to indicate that cheques relating to house payments were occasionally identified as wages, no doubt for the purpose of having them recorded in the accounts of the business as being wages to the defendant, so this cheque may well correspond to the deposit on the missing sheet. In the circumstances, and in the absence of evidence that this money came from the plaintiff, I think this further sum of $2,000 should be added to Exhibit 40.

There is also a cheque in Exhibit 48 dated 6 March 1992 of $1,500 marked “House”. However, the only deposit shown in Exhibit 38 for March 1992 is $1,727.20 on 5 March, which appears to correspond with a cheque for $1,700 dated 6 March on the first page of Exhibit 48. This deposit is included in Exhibit 40 already, and I do not think that any further adjustment is required in respect of this cheque, which was otherwise unexplained. There was also a cheque dated 12 October 1992 for $500 marked “Wages Roland Home”, but the only deposit for October in Exhibit 38 is $1,000 on 15 October which corresponds with cheque 107 in Exhibit 48 for $1,000 marked “RP House Payment Wages”. I therefore would not adjust Exhibit 40 because of the cheque dated 12 October. The other cheques in Exhibit 48 which are identified in a way which suggests they have some relationship with the house payments either correspond to other entries in Exhibit 40, or have been referred to elsewhere in these reasons.

The overall result of these adjustments therefore is to increase Exhibit 40 by $9,800 to $30,942.52, and increase Exhibit 39 by $62.55, to $48,062.55.

As at the trial date there was an amount owing on the mortgage to Westpac of $20,677.87, and on the home loan to the National Australia Bank of $36,594.93: p. 46. No doubt since the trial the plaintiff has continued to make the regular repayments required on both of these mortgages. There is in addition a separate debt secured on the house relating to an overdraft obtained by the defendant for his business, to which I shall return.

Motor Vehicle

With regard to the motor vehicle, this was purchased in 1989 in joint names: p. 18. The plaintiff said that she traded in on this car another Celica which had been solely owned by her, for which she received an allowance of $10,500: p. 47, and see Exhibit 1, para 44. The balance of $21,000 was borrowed from Citicorp. The plaintiff produced the loan contract with Citicorp (Exhibit 44) which confirmed that the amount paid to Gold Coast Alfa Romeo, from whom the vehicle was purchased, was $21,000: Exhibit 44. However, the defendant's tax return for 1990, (Exhibit 7) includes reference to a Celica having an original cost of $26,900, and the accountant agreed that this ought to have represented the actual purchase price of the vehicle: p. 119. If this was the case, the amount allowed by way of trade-in on the plaintiff's vehicle was $5,900. The plaintiff was definite in her assertion that the amount allowed was $10,500 (p. 65) but she was not able to account for the entry in the tax return (p. 103), and agreed that she provided the accountant with the information that went into the tax returns: p. 66.

The accountant's notes were to the effect that the cost was $26,000 approximately, and his recollection was that it was $26,400: p. 117. There is no obvious reason for the accountant to have understated the purchase price of the vehicle in the tax return; stating a higher price should have given a larger amount of depreciation which would have reduced the profit in that year, and subsequent years, slightly. In that year there was no income tax payable anyway, but it might have made a difference in the future and I think it unlikely that this figure would have been understated. The plaintiff had no documentary support for her recollection that the figure was $10,500, and I suspect that she may be confusing the cost price of the vehicle with the total amount payable under the Citicorp contract, a little over $31,000, being the total of the amount lent and the sum of all of the credit charges. Whether or not that is the case however I am not persuaded that the purchase price of the vehicle was greater than the amount stated in the tax return, and on that basis the plaintiff's contribution by way of a trade-in was $5,900.

The plaintiff agreed that subsequently the payments to Citicorp were made by the defendant until the end of 1993 (Exhibit 1, para 45), although after the parties separated in August 1992 this occurred pursuant to an agreement between the parties that the plaintiff would retain the use of the vehicle and the defendant would continue to make the monthly payments to Citicorp in respect of it, in lieu of wages to the plaintiff who continued to work part time in the defendant's business, initially three days a week and subsequently two days a week: p. 71, Exhibit 1, para 17. The defendant at one point denied this (p. 156, cf. p. 155) but I find that there was such an agreement. The plaintiff ceased this work in December 1993, and the defendant's cheque to Citicorp was dishonoured; the plaintiff then made payments the following year totalling $2,601.84, after which the vehicle was unencumbered. That means that the total amount the plaintiff has paid, either directly or by a trade-in, is $8,501.84, but 15 of the monthly payments made by the defendant, totalling $9,756.90, should really be treated as payments by the plaintiff because they were in lieu of wages to her. Her total contribution was therefore $18,258.74. It appears that the payments the defendant made total $18,863.34, if these 15 payments are disregarded.

The matter, however, is complicated by the fact that since August 1992 the plaintiff has had sole use of the vehicle, and this is a factor which should, I think, be taken into account. The motor vehicle was valued at the time of trial by a valuer, Mr. Hamilton, at $9,000: p. 29, Exhibit 23. Assuming it still has much the same value, that means that, of the total amount spent to acquire it, $37,122.08, $28,122.08 may be regarded as the cost of such use of the vehicle as has been enjoyed up until now. Exhibit 44 is, unfortunately, undated. If the payments were made every month except in December 1993, the first payment must have been made in April 1990, and the tax return, Exhibit 7, gives the purchase date of 1 May 1990. It appears therefore that the parties had joint use of the vehicle for about 2⅓ years, and the plaintiff has had sole use of the vehicle for the subsequent 5⅔ years. If the cost not now reflected in the value is spread over the life of the vehicle, this gives a cost of ownership of about $3,500 a year, which I think should be treated as the amount to be offset by the use of the vehicle during that year. On this basis the defendant should be allotted half of the cost of the use of the vehicle for 2⅓ years, about $4,100; the balance of the cost of the use of the vehicle should be attributed to the plaintiff. Disregarding the payments made by the defendant after 31 August 1992 therefore, the defendant has paid $18,863.34 from which should be deducted $4,085. On the other hand, the plaintiff has paid $18,258.74 and the cost of her use of the vehicle as been $23,915. I think that this reflects the circumstance that if one looks at the motor vehicle in isolation the defendant paid about half of its cost, and has received relatively little use of it in return. In view of the state of the overall financial position of the parties, however, it is not appropriate to look at the motor vehicle alone.

Monies Lent to the Defendant

The plaintiff also claimed the repayment of monies lent to the defendant in connection with his operation of the business. I have already referred to a payment of $7,000 on 25 August 1988. The plaintiff claimed to have made a further nine loans totalling $22,500 between June 1987 and July 1991: Exhibit 9. Copies of most cheque butts are Exhibit 11. Reference to the bank statements (Exhibit 10) indicates that there are some errors in the dates in Exhibit 9, but confirms payment of these amounts from the plaintiff's account. In addition, the accountant for the business, Mr. Jackson, was able to confirm in a general way that the business was kept going by the plaintiff's money (p. 111) and was able to confirm (from p. 112) some of the other advances, although not all of them; he said that that did not necessarily mean that they had not been made: p. 113. I do not have the bank records for the business accounts, so I cannot confirm that these deposits were made to that account. Nevertheless, I am prepared to find that these payments were made.

There was also a list prepared by the plaintiff of a number of occasions when her cheques were used to pay business accounts directly: Exhibit 12. These total $23,392.26. Corresponding cheque butts appear in Exhibit 14. The cheque butts tally with the entries in Exhibit 12 in respect to payments from the Commonwealth Bank, but there are no butts for the payments from Westpac. Examination of the bank statements, Exhibit 13, confirm that most of these payments were debited to the plaintiff's account; the payment on 16 July 1991 was actually $487.50.

The accounts of the business generally do not refer to money advanced by the plaintiff (except for $2,000 in Exhibit 47), these advances being treated as proprietors' equity because of the nature of the relationship between the parties, in order to make the business accounts look better: p. 116. This explanation is plausible, and I do not think it detracts from the force of the plaintiff's evidence.

The defendant was not really in a position effectively to dispute that these payments were made. He had no records of repayments: p. 125. He suggested in response that the plaintiff had paid herself back (p. 122), having banked income of the business, either in cheques or in cash. This was denied by the plaintiff (pp. 85, 104), and an examination of such of her bank statements as are produced reveals few instances of deposits other than from her pensions, and most of these are explained. I have already referred to her Westpac account. With regard to the Commonwealth Bank account number 292957, there was a deposit on 5 September 1996 of $1,600 in the form of a cheque, the same day as the payment to Gold Coast Interiors in that sum listed on Exhibit 12. The plaintiff was not able to explain this deposit when the matter was raised by me during her evidence (p. 69), and no explanation was forthcoming during re-examination. The co-incidence in amounts is suggestive, and there was enough in the account without this deposit to meet the cheque, although that would not have left much in that account. No cheque in this amount appears on the defendant's list of business cheques (Exhibit 48), but I am not persuaded that this payment was not made with funds originally belonging to the business.

On 1 August 1989 there is a deposit of $500 to the Commonwealth account, which was not explained. Every other deposit on any of the Commonwealth Bank statements in Exhibits 10, 13 and 33 is apparently a pension payment. This is not a set of all such statements, being only those which include payments relevant to the plaintiff's claim, but it seems unlikely, if the plaintiff was making any significant number of such deposits, that at most one or two of them turned up in those statements selected on this basis. Most of the Commonwealth Bank statements from May 1990 to the end of 1993 are part of Exhibit 17 but the only deposit in that period which is shown in these statements which is not obviously a pension is one of $6,029 on 19 November 1992; the plaintiff said that the bulk of this money came from her daughter in Canberra: p. 70.

The plaintiff also had an everyday savings account with the National Australia Savings Bank number 383222; only one page of statement in respect of this account is in evidence, Exhibit 30, covering the period from 1 September 1988 to 28 February 1989. This contains a number of deposits totalling $4,382.82, identified as being in the form of cash or cheques or both. Unfortunately, this is not a matter which was raised with the plaintiff during her evidence, and that, I think, makes it difficult for me to attribute any particular significance to it, although it is not clear where the plaintiff could have obtained this money from if it was not from the defendant's business.

I should say something about the reliability of the plaintiff as a witness. The defendant acknowledged that she was an honest person: p. 139. In general her evidence was given in a forthright and straightforward fashion, and appeared to be consistent with the contemporaneous documents, although there were some exceptions. At p. 18, the plaintiff said she worked as a bookkeeper for the defendant's business and that it was profitable only in one year to her knowledge, and only a very small profit was made that year. I take it that this evidence was intended to be confined to the period prior to the end of 1993 when the plaintiff ceased to be involved with the business, but even within that period the business made a trading profit of over $16,000 in the 1987/88 financial year, according to the evidence of the accountant Mr. Jackson (p. 114) and made a profit of almost $8,000 in the 1989/90 financial year. Exhibit 7. In the 1991/92 financial year there was a profit of over $26,000, whereas in the 1992/93 financial year there was a profit of just over $9,600: Exhibit 47. There were other inconsistencies in her evidence; at pages 67-8 she was vague about any agreement to repay money she had advanced to the defendant's business, but did say that he had expressly agreed to repay the money. On the other hand, in her affidavit, Exhibit 1, she said that this was a matter which was not discussed, and the repayment of these sums was simply a matter of her personal belief: para. 20. Overall, therefore, although I think the plaintiff was generally reliable in her evidence, I think there were occasions when she was trying to improve her case a little, and I think her evidence needs to be approached with a certain amount of caution. The plaintiff's evidence is more important than the defendant's because so much of the case turns on the reliability of her evidence and her interpretation of such financial records as she has produced, the defendant's material being much less extensive. The defendant's evidence was very difficult to follow at times as he frequently jumped from one point to another, and I think it was often not reliable; in general where there is a conflict, I prefer the evidence of the plaintiff.

One matter that the defendant raised was that he had not asked the plaintiff to contribute her money to the business, by way of deposit to the business account, or in paying debts of the business, but that this was something the plaintiff had done at her own initiative: p. 123. He said that he had said that he wanted to get an overdraft from the bank in the period after the overdraft was cleared in 1988, but the plaintiff would not agree with this. The plaintiff agreed that the defendant had asked about obtaining an overdraft to finance the business, but also said that the defendant asked her to put her money into the business: p. 61. She also said that she frequently explained to the defendant how the business finances were being run, and how her money was being put in: p. 93. So far as money deposited to the defendant's bank account was concerned, unless this was intended as a gift, there is an obligation to repay it, and on any version of the plaintiff's evidence, she never intended that these monies would be a gift to the defendant, and I find that they were not a gift. It follows that whatever monies were provided to the defendant are recoverable as money lent. The onus of showing that money lent has been repaid is on the defendant: Young v. Queensland Trustees Ltd (1956) 99 CLR 560. The defendant has not discharged this onus.

The situation is somewhat different however, where the plaintiff has paid the defendant's debts. There is a right of recovery where the payment is made under compulsion of law: Goff & Jones “The Law of Restitution” (4th ed. 1993), p. 345, and where the payment has been requested by the defendant: Halsbury, 4th ed, vol. 9, para 652. In general however, there is no right to be repaid arising from the mere voluntary discharge of a debt of another: ibid para. 653. A liability to pay will also arise if the benefit of a voluntary payment is accepted by the defendant: Cheeseman v. Industries Assistance Board (1926) 29 WALR 1; once a debt has been paid however, a defendant has little choice but to accept the payment, and acceptance will only generate a liability if there is a real opportunity to choose whether or not to accept. I am prepared to accept that the plaintiff was asked from time to time to put money into the business, but the plaintiff's evidence does not go far enough to establish that all of these payments were made by her at the defendant's request. I think, however, that this is a different situation from one where an officious stranger pays a debt; the plaintiff was in control of the finances of the defendant's business (p. 5), necessarily with his consent, since he had the legal right to withdraw that control at any time. She was responsible not merely for the bookkeeping but for determining what accounts to pay and when. I think that, so long as the defendant was informed about what the plaintiff was doing, he has accepted, by keeping the plaintiff in her position as manager of the finances of his business, the benefit of these payments so as to give rise to a liability to repay. The payments were made until August 1992 (Exhibit 12), when the parties separated, but the plaintiff retained her position in the business until December 1993. I think therefore the defendant is to be taken as having adopted the payments or accepted the benefit of them, so as to make him liable to reimburse the plaintiff.

There are cheques listed in Exhibit 48 which appear to have been used to pay accounts in the name of the plaintiff, such as a Myer account, but these were explained as payment for purchases made by or for the benefit of the defendant, such as clothing for him: pp. 63, 127. The defendant also pointed out that cheques had been cashed from time to time for substantial sums which were not reflected in cash coming to him, but that is, I think, fairly easily explained as housekeeping monies: p. 125. This shows, as I would expect, that the defendant was making some contribution to the financing of the joint household at this time. I think it unlikely that the plaintiff would repay herself in any covert way; generally such records as there are in Exhibit 48 for payments from the defendant's account to the joint account to finance the housing loan repayments are identified, and there is no obvious reason why the plaintiff should have been clandestine during the relationship about repaying money advanced by her, if she was doing it. There would have been tax advantages in identifying monies paid to her as reimbursement for business debts paid, for example, rather than as wages for or drawings of the defendant. Ultimately, however, I think the question really turns on whether I am prepared to accept the plaintiff's evidence that these amounts have not been repaid: p. 21. I am prepared to accept that evidence. It follows that these amounts are recoverable.

The defendant suggested that large amounts of cash receipts were taken by the business, saying that in the three weeks prior to the trial he had banked approximately $3,000: p. 122. When cross-examining the plaintiff however, he referred to various amounts of cash takings as recorded in his books for relevant periods (p. 95-98), but the cash takings for the periods covered by these books, as recorded in the books, were always less than an average of $100 per week, on my calculations, and sometimes much less. The plaintiff said that this money was not generally banked but left in a drawer at work to be used as petty cash (p. 100) or by the defendant for living expenses: p. 72. That is plausible.

It follows that I am satisfied that the plaintiff is entitled to recover as money lent the sum of $7,000 paid on 25 August 1988 and the further sums totalling $22,500 in Exhibit 9, and as money paid for the use of the defendant the amounts set out in Exhibit 12, apart from the payment of $1,600, an amount of $21,792.26. The plaintiff is therefore entitled to judgment on this part of the claim for $51,292.26.

Plaintiff's Claim as Surety

After separation the defendant obtained a bank overdraft in the sum of $10,000 which was secured on the house owned jointly by the parties, with the plaintiff's consent. The plaintiff was subsequently called upon to satisfy her obligation under this security, with a Notice of Demand being given by the National Australia Bank on 28 March 1994: Exhibit 16. The plaintiff at that stage had an overdraft of $12,681.53, but the amount sought from the plaintiff was limited to principal in the sum of $10,000 plus accrued interest of $278.88. The defendant paid the balance: p. 124. The plaintiff subsequently made an arrangement with the bank to pay this money off, and by the time of the trial had reduced the indebtedness secured by the mortgage to $2,869.53: Exhibit 1, para. 27. Payments were being made at the rate of $264 per month, so this sum should have been by now almost wholly discharged. In the circumstances, given the existence of the liability under the guarantee and the arrangement with the bank, it is, I think, realistic to assume that the plaintiff will discharge the whole of this guarantee. She will therefore have a right to recover this amount from the defendant, as a guarantor discharging an obligation of the debtor, and will be entitled to be subrogated to the bank's security over the defendant's interest in the property to secure that debt: Goff & Jones “The Law of Restitution” (4th ed., 1993) p. 602. This part of the claim is, I think, reasonably straight forward, although the plaintiff can recover in law only those amounts already paid by her to the bank: Kostka v. Addison [1986] 1 Qd.R. 416. Any amount unpaid will be cleared when the house is sold.

Applicable law

Legal issues in relation to the location of the legal title are relatively straight forward. Equitable issues are more complicated, and involve what is really a two stage inquiry. The first stage involves a consideration of what equitable interests arise either through the actual intention of the parties, or as a result of implications such as those which give rise to a resulting trust. Once the outcome of that process is known, however, a question arises as to whether the court should impose a constructive trust by way of a remedy in favour of one party, on the basis that in all the circumstances it is unconscionable for the other party to insist on the distribution of the property otherwise dictated by the ordinary principles of law and equity: Baumgartner v. Baumgartner (1987) 164 CLR 137.

There are three decisions in the High Court which provided some guidance about the approach to take when considering the effect of the different contributions by the parties. In Calverley v. Green (1984) 155 CLR 242, the parties to a de facto relationship acquired a house in joint names principally with money raised on a mortgage to them both, although it was agreed that the man would make the repayments which he did. Some time later the parties separated. The Court by majority held that there was no presumption of advancement in the circumstances, and that to the extent that the purchase was funded with money borrowed by both parties jointly, this was a contribution to the acquisition of the property by them both equally. The majority stated that the basic presumption was, as expressed by Mason and Brennan JJ at p. 258:

That was something determined when the property was acquired and payments made under the mortgage work no alternation in this balance: p. 252, 262. This was subject to any actual agreement or common intention of the parties, but in that case there was none. The effect of making the mortgage payments depended on whether they were made intending the other party ultimately to have the benefit of those payments to the extent that they discharged the joint liability, if not the party making the payments would be entitled to contribution to the extent that more than that party's share had been paid off the joint debt, and to an equitable charge to secure that entitlement to contribution: p. 263. This situation is subject to the possible existence of a constructive trust. Gibbs CJ also pointed out that when only one party is in occupation the other may be entitled to be credited with an occupation rent: p. 253.

The next decision is Muschinski v. Dodds (1985) 160 CLR 583. In this case the parties to a de facto marriage acquired as joint tenants a property which had a run down cottage on it, intending to renovate the cottage and construct a kit home on the property, and subdivide it and sell part of the land. The local authority would not allow these steps to be taken, and the relationship subsequently came to an end. By the time it did the appellant's contribution to the cost of the project was about 10 times that of the respondent. The Court confirmed concurrent findings of fact below that the parties had an actual intention that the beneficial interest in the property on acquisition should be held equally which rebutted any presumption of a resulting trust. The majority held that the intention involved an unconditional conferral on the respondent of a half interest in the property; the minority, Brennan and Dawson JJ would have held the conferral to be conditional, but that the subsequent failure of the condition did not result in forfeiture of the respondent's interest, although it would have given the appellant a right of compensation. The minority would have rejected the imposition of a constructive trust, as did Gibbs CJ, although he would have favoured an equitable accounting so that the appellant obtained contribution to the extent to which he had paid more than half of the purchase monies, supported by an equitable charge: p. 598. Mason and Deane JJ were of the view that the failure of the proposed development and the relationship of the parties provided a basis for the imposition of a constructive trust to repay to each his or her respective contributions and to divide the residue equally. This produced much the same result as that proposed by the Chief Justice, but on a different basis, and the Chief Justice agreed with that order in order to produce a result in the appeal. Deane J at p. 620 expressed the principle thus:

His Honour however rejected the notion that a constructive trust could be imposed whenever a sense of fairness required it: p. 615. Mason J agreed with this approach. That was a case, of course, where the matter was not complicated by repayments of a mortgage, or occupation by one but not the other party.

The third decision was Baumgartner v. Baumgartner (1987) 164 CLR 137. In this case the de facto relationship started in a home unit owned by the man. During the relationship there was a pooling of resources, although the contributions from the man were larger. The relationship did not last very long, but at one stage the home unit was sold and another property purchased, still in the name of the man, using the proceeds of sale of the home unit (after discharging a mortgage on it) and money borrowed on a mortgage on the new property. After the relationship ended, the trial Judge held that there was no actual common subjective intention to create a trust, and that decision was reinstated by the High Court: p. 146. The majority adopted the approach of Deane J in Muschinski v. Dodds (supra) to a constructive trust (p. 148). Contributions, financial or otherwise, to the acquisition of the land, the building of a house, the purchase of the furniture and the making of the home were said to be on the basis and for the purposes of the joint relationship, so that after it had failed it was unconscionable for the appellant to rely on his sole legal entitlement to the property to exclude any interest on the part of the respondent: p. 149. The Court then held that the starting point for any constructive trust was equality of the beneficial ownership, subject to adjustments to avoid any injustice which would result if account was not taken of the disparity between the worth of the individual contributions, either financially or in kind: p. 150. It was held that the appellant was entitled to recover contributions made by him before and after the period during which the parties were living together and pooling their resources, which included most of the net proceeds of the sale of his unit, although there should be an offsetting adjustment to reflect the period after the termination of the relationship when he had the sole use of the property. An adjustment should also be made to take into account the fact that the respondent had, at the end of the relationship, taken a large amount of furniture which was jointly owned. The appellant was entitled to a lien over the property to secure the payment of these amounts: p. 151. Subject to these adjustments, the net equitable interest should be divided in accordance with their respective contributions of 55% and 45%; it was said that it was appropriate to strive to give effect to the notion of practical equality rather than pursuing complicated factual inquiries which would result in relatively insignificant differences in contributions and consequential beneficial interests, but that the disparity in that case was sufficiently significant to justify a departure from equality: p. 150.

There is a summary of the law in the judgment of Pincus JA in Dunne v. Turner (Appeal No. 196/95, 20.8.96, unreported):

In the same decision, McPherson JA said that the pooling of earnings was not indispensable to relief, and that it was proper to take account of non-pecuniary contributions.

The difficulty lies in identifying just what constitutes unconscionable conduct for the purposes of this principle. It does not amount to a general jurisdiction to do whatever may be felt by the individual judge to be just and fair: Baumgartner (supra) p. 148 and see Dunne v Turner (supra) per Macrossan CJ at p. 2. The classic situation is where one party contributes to the acquisition of property by the other party where the contributions were made on the basis that the relationship between them would continue, and where the relationship having come to an end, absent the imposition of a constructive trust the other party would continue to enjoy the benefit of those contributions. That may sound relatively straightforward, but the difficulty in application of this in practice is illustrated by the decisions in Willets v. Marks & Scram Investments Pty Ltd (1993) DFC 95-138, on appeal (1994) DFC 95-147 where the Court of Appeal by majority reversed the decision of a trial judge. In that case Fitzgerald P said that he had “little hesitation in concluding that there was unconscionable conduct” in circumstances where two members of the Supreme Court thought there was none. This shows that it is difficult to apply these principles, particularly in an unusual fact situation. The ordinary case is one where at the end of a long relationship there is a dispute over division of property. In the present case there was a relatively short relationship, and much of the argument in this case is over how the losses which arose from that relationship are to be borne. It is one thing to say that interest in property built up during a relationship should be adjusted to reflect the respective contributions of the parties; it is more difficult to say that after the end of a relationship there should be some adjustment to allow for any disparity in funds consumed during the relationship.

Analysis

The valuation evidence was that the house is now worth $145,000: p. 29, Exhibit 23. At the date of trial there was still encumbrances to a total value of $60,142.33 on the house, leaving an equity of $84,857.67. By now it will be a little higher. It is apparent therefore that there is insufficient equity in the house to repay the plaintiff and the defendant their respective contributions to the monies paid to discharge securities over the property, and there would be no balance left to be divided in accordance with the proportions in which they funded the acquisition. In these cirucmstances it seems to me that a different approach is necessary, since almost all of the money spent on the house, apart from repaying mortgage payments, has been spent by the plaintiff. The plaintiff's payments to discharge the overdraft in favour of the defendant are, I think, in a separate category; this was an obligation which was entered into after the parties had separated, and I think that the plaintiff's entitlement to reimbursement as surety is not one which should be compromised. These monies should be repaid in full. That will leave a balance of about $76,000 available for distribution, and in my opinion the appropriate way for this to be done is to divide that between the parties in the proportion of all of their contributions to the house, either by way of acquisition, improvement or repayment of mortgages.

The plaintiff's contributions overall have been as follows:

Defendant 's contributions have been as follows:

On this basis, and with some rounding, the plaintiff has paid 80% of all the money spent on the house by way of acquisition, improvement or discharge of mortgage, and the defendant 20%.

The question then arises whether there are any other considerations which require some further adjustment. The first is the consideration that the plaintiff has had sole use of the house since August 1992 (p. 80); the authorities indicate this is a matter which ought to be reflected by some adjustment in favour of the defendant. On the other hand, the plaintiff said that she was paying most of the costs of supporting both parties during the relationship, and has substantially assisted the plaintiff's business, both by working in it without wages during the course of the relationship (p. 16), and by providing funds to it from time to time. So far as these are loans, the plaintiff is entitled to judgment to recover the amounts lent, but whether that judgment is likely to be executed is doubtful, in view of the plaintiff's financial position: p. 77-8. I think it is likely therefore that the relationship has been very expensive to the plaintiff one way or another. No doubt the plaintiff was willing to make this contribution during the relationship in the expectation that it would be enduring and, so far as the business was concerned, in the hope that it would ultimately be a successful one which would generate returns for their mutual benefit. In the event that was not the case. Although for reasons I have mentioned the business was more profitable than the plaintiff made it out to be during the course of the relationship, and would have appeared more profitable if the money extracted in cash by the defendant was taken into account, the plaintiff always had a higher income and would, most of the time, have been paying most of the combined living expenses during the relationship.

These two factors tend to cancel out, and I think that the fairest way of dealing with the matter overall is to assume that they do, particularly when taking into account the situation with the motor vehicle. As I have indicated earlier, the parties made roughly equal contributions to the cost of acquiring the motor vehicle, most of which has been consumed by deprecation, and the plaintiff has had much more use of the vehicle than the defendant. Viewed alone, this would require some adjustment in favour of the defendant, but I think that the contributions the plaintiff has made to the relationship, both pecuniary and non-pecuniary, which are unlikely to be recovered, justify an approach of declining to interfere with the equitable title to the motor vehicle. If the defendant were in a position to repay all of the money advanced by the plaintiff to the business, a total of $51,292.26 apart from the plaintiff's entitlement to reimbursement in respect of the National Australia Bank overdraft, it would, I think, be appropriate to declare that the defendant has the sole interest in the motor vehicle, and adjust the balance of the trust on the house proceeds, but I take it that the defendant is not in a position to repay these amounts.

I think it is clear from the authorities that in formulating the final form of any constructive trust, it is appropriate to have regard to the whole relationship between the parties, in respect of any of its aspects, both pecuniary and non-pecuniary, in order to produce an appropriate outcome. That does not mean that a constructive trust is imposed simply to produce what is seen as an appropriate outcome; rather the situation is that, once it is seen that, in the absence of a constructive trust, the result of the failure of the relationship is that one party would be left in possession of legal or equitable rights acquired on the basis of the continuation of that relationship, such that the continued possession of those rights is unconscionable, so that it is appropriate to impose a constructive trust, the determination of the particular terms of the trust appropriate to impose in order to avoid unconscionability requires a consideration of all the circumstances of the relationship and the consequences of its failure.

In terms of the house property therefore I think the ultimate order which should be made is to declare that the parties hold the legal estate on trust to discharge the securities over the property, to reimburse the plaintiff for the amounts paid by her in order to discharge from the security in favour of the National Australia Bank Limited the separate debt of the defendant in respect of his business, and to hold the balance on trust as to 80% for the plaintiff and as to 20% for the defendant. I am also prepared to give judgment for the plaintiff for $51,292.26 together with such sum as the plaintiff has up to the date of judgment paid to the National Australia Bank in respect of the defendant's overdraft, together with interest pursuant to s. 47 of the Supreme Court Act 1995. Interest in respect of the bulk of these monies should run from the date when repayment of the loans was first demanded, 4 November 1993 (Exhibit 15), although the payments in respect of the overdraft were made subsequently and some allowance should be made for that. I suspect that this is an academic question, but overall think that the appropriate course is to adopt a broad brush approach and allow interest at 8% on the full amount for four years, a total of $16,413.52.

It seems to me that the plaintiff has been substantially successful in the action, although not entirely successful, and subject to considerations arising from the making of any offers which may properly be disclosed for the purposes of an order for costs, the defendant should pay the plaintiff's costs of and incidental to the action to be taxed.

At the end of submissions on 3 September last I indicated that I would publish reasons and then hear further submissions in relation to consequential orders. To facilitate that, the matter was adjourned to the District Court at Brisbane for further hearing. Accordingly, I publish these reasons, and will list the matter for further argument as to the form of judgment appropriate, and any consequential orders, on a date convenient to the parties.