DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff and the defendant are registered as proprietors of a parcel of land, Lot 312 on Registered Plan 620949, County of Flinders, Parish of Uxbridge, and situated at Lot 312, Streeter Drive, Agnes Water in the State of Queensland.  When title was transferred to them on 5 November 1999 they held as joint tenants (Exhibit 11); it was common ground that, in June 2004, the joint tenancy was severed and the plaintiff and defendant now hold the title as tenants in common in equal shares.  The plaintiff claims a declaration that she is entitled to one half of the equitable interest in the property, in effect that the beneficial interest in the property follows the legal interest.  That is disputed by the defendant, who counterclaims for a declaration that the defendant has the whole equitable interest in the property, and that the plaintiff holds her interest on trust for him, and for consequential relief.

2. [2]
   The defendant’s case is that, although the land was conveyed to both parties as joint tenants, pursuant to a contract under which both parties were the purchasers, he provided the whole of the purchase price and therefore the plaintiff holds her interest on a resulting trust for him. The plaintiff did not dispute that the defendant provided the whole of the purchase price, but her case was that the actual intention of the defendant at the time of acquisition was that both of them would hold the beneficial interest in the property, and that her share of the purchase price was paid by him as a gift to her. The purchase price under the contract in 1999 was $29,000. There was no evidence as to the current value of the land^[1], but one would expect the land now would be worth a good deal more.  That may explain why this dispute has ended up in court, but is irrelevant to the matters that I have to decide.

3. [3]
   The parties were formerly in an intimate relationship, and it is common ground that at times they were living together. According to the plaintiff, they met in July 1996 (p 2) and a relationship formed soon after that:  p 3.  Both parties have their own children; the plaintiff was living, in 1996, with two sons:  p 3.  She was working as a sales assistant at Myer, while the defendant worked as a set builder in the movie industry, when he could get such work; in between films he would sometimes do other carpentry, or other jobs generally.

4. [4]
   In early 1997 the parties investigated the acquisition of a catamaran hire business which they could run together,^[2] according to the plaintiff so that the defendant could settle with her:  p 4.  His work in the movie industry inevitably took him away from the Sunshine Coast area, and hence away from the plaintiff.  This business was investigated to some extent, and the plaintiff said that the defendant went to Cairns to obtain some formal qualification which was necessary to enable it to be operated.^[3]  Ultimately the acquisition did not proceed.^[4]

5. [5]
   In December 1997, the plaintiff moved in with the defendant in a flat that he was occupying under a house which he owned in Bli Bli; he had tenants in the balance of the house: p 8.  The plaintiff put tenants into her house; her sons who had been living with her there moved into a unit:  p 8.  The defendant said that the plaintiff only lived in his flat for about four weeks, and then moved out again:  p 136.  The plaintiff’s evidence was that in early 1999 she was still living in the defendant’s flat, except when he was not there, that is working away from home, during which times she moved back into her house with her sons:  p 15.^[5]  She said that the tenants in her house were unsatisfactory, and that in about December 1998 she had them evicted, and her sons moved back into that property:  p 14.  The effect of this evidence, therefore, is that she was living in the defendant’s flat at least until December 1998.

6. [6]
   In March or April 1998, she took a lease on a vacant shop and set it up as a restaurant, with the defendant assisting in the building work to fit it out: p 11, Exhibit 5.  The restaurant was not a success, but she was able to sell the business about March 1999, she said at a large loss:  p 15.  Presumably this involved an assignment of the lease, although it may be that her liability in respect of future rent payments was not discharged, because she said that at a later time she was being pressed to pay rent in respect of the restaurant premises:  p 28.  The defendant said there was a room at the back of the restaurant where she used to live while the restaurant was operating:  p 139.

7. [7]
   In about March 1999 the defendant was working in Malaysia for a time on a particular movie.^[6]  While he was away, he wrote four letters to the plaintiff:  Exhibit 7.^[7]  He wrote of having attempted, on a number of occasions, to make contact by telephone, without success; perhaps after these letters arrived, which may well have taken more than 10 days, communications improved, and there were no more letters after this.  The letters say nothing which is directly relevant to the acquisition of property, but suggest that the defendant was quite committed to the relationship, indeed more committed than he felt the plaintiff was.

8. [8]
   The third letter is the best illustration of this attitude on the part of the plaintiff. After referring to difficulties in telephoning, he continued:

“I don’t know what is to happen when I come back.  I don’t think about it.  When I spoke to you the other morning I felt disappointed.  It seemed that you were kind of annoyed that I had rung you – maybe you were just surprised.  I don’t want to hurt you, threaten you or cause you pain in any way.  I want you to feel completely free to make your own choices.  If you can feel released from our union as partners and then make a conscious choice about what you want then I will have to accept your decision.  Until now your need to be free of me has been born from a sense of unfulfillment.  Be careful not to make a decision based on denial.  I hope you can achieve a state of mental and emotional balance from where you are able to calmly see the true overall situation.  I know that you need time and space around you.  I have no plans.”

The balance of the letter referred to other matters.  That passage seems to me to be more consistent with the defendant’s evidence that during 1999 the parties were not living together, than the plaintiff’s evidence that, except when the defendant was away, they were.^[8]

9. [9]
   According to the plaintiff, before the defendant went overseas they had quite a lot of discussions about finding a way to live together; buying a property and moving out of the Coast was one of the solutions and something they really aimed for: p 14.  She said that they had been to various places looking at land, and mentioned Baffle Creek, Woodgate, Tuan, Turkey Beach and Agnes Water.  Her evidence was unclear as to whether they first went to Agnes Water before or after he was overseas, but she said that they did go afterwards, looked at land there, and went to a real estate agent there:  p 16.  She said they went together, although the defendant did the talking.  She said that the real estate agent showed them a block of land, and there were some discussions between the defendant and the agent, which continued after they returned to the Sunshine Coast:  p 17.  She said there was a block of land on which the defendant made an offer, that she knew about, but he told her that that had fallen through and that they had been given the opportunity to buy a more expensive block of land.  She said they discussed the extra amount, if it would be worthwhile, and they agreed that it would; the new land was the Streeter Drive property, the subject of the action.

10. [10]
    The plaintiff said she did not take part in the negotiations for the purchase, but it was purchased, and when the defendant told her, “We’ve got the block”, she was very happy because “this is our dream coming true”: p 18.  She was then asked if there were any further discussions about payment for the block and her reply was:

“Garth had money saved and he already – I mean, I didn't have a lot of money at the time and I’m sure we must have discussed [it] and he was happy to pay.  I think that’s why we discussed the extra amount of money and how – if it was all right to spend it.”

She said that the defendant brought the contract to her to sign at her workplace.  She said that prior to the purchase settling they went up, looked at the block and measured and, indeed, signed a document certifying as to the identity of the property agreed to be purchased and that they were satisfied with the boundaries and the absence of encroachments:  p 19, Exhibit 9, dated 21 September 1999.

11. [11]
    The defendant said that he had been away and had saved money and wanted to buy some property as an investment: p 76, p 137.  He went to have a look at various places, and the plaintiff accompanied him because they were in a relationship at the time.^[9]  They went to Agnes Water and saw some property advertised, spoke to the real estate agent who showed them that property and they went back to his office.  He said the plaintiff stayed outside while he went inside, spoke to the agent and signed a contract.  He said that as they were driving home the plaintiff noticed the contract and saw that only his name was on it as purchaser:  p 80.  She asked why her name was not on the contract as she had thought they were doing this together.  She seemed to be getting upset and he pulled over to the side of the road and it developed into what he described at one point as quite an argument.^[10]  He said she was crying and getting agitated, and pressuring him to change it, and he gave in and agreed to have her name put on the contract as well:  p 81.^[11]

12. [12]
    The defendant said he did not intend the half interest in the property to be a gift to the plaintiff, that he knew that she did not have any money at that time, but it was easier to keep the peace and to do what she wanted; “just because she didn't have the money on that day, didn’t necessarily mean she wouldn’t come good with it later on”: p 81.  He agreed, however, that there was no discussion with her on that day about her repaying him:  p 82.  He said he was not actually sure she would repay him, that he was suspicious but nevertheless went along with it.  When this version was put to the plaintiff, she said she did not remember it at all, and did not think it would have happened:  p 39, p 45.  She did not directly deny this version, but the manner in which she responded to the questioning indicated that she was really rejecting this version of events.  She did deny that this property was purchased as an investment.

13. [13]
    The deposit under the first contract was paid apparently by a bank transfer on 13 August 1999:  Exhibit 23.^[12]  Presumably a trust account receipt was issued for this payment, although if so it is not the one that went into evidence as Exhibit 23, which relates to the property at Streeter Drive; any earlier receipt was not put in evidence, nor was the earlier contract put in evidence.  The defendant said that attempts to obtain it from the agent were unsuccessful:  p 78.  That is unfortunate; the physical appearance of the contract ought to have indicated whether or not it was signed in the circumstances outlined by the defendant.

14. [14]
    Any contract which was signed on the first block did not proceed; presumably it was not signed by the vendor. The defendant agreed that the agent then suggested another block of land which was $2,000 more: p 77.  He said he went up the following weekend to have a look at it and agreed that it was a good block of land, so the deposit was transferred as an initial deposit on the second block of land:  p 78.  It was after this arrangement was made that the receipt, Exhibit 23, was issued, which refers to the Streeter Drive block, and is dated 18 August 1999.

15. [15]
    It appears that the contract for Streeter Drive was sent by the real estate agent to the defendant, and before it was signed he sent it to his solicitors.^[13]  Unfortunately the original contract was not put in evidence; a copy as executed is Exhibit 8, while an earlier version became Exhibit 28.  Looking at Exhibit 28, it looks to me as though the parts filled in by hand have been filled in by two different people, with the name and address of the buyer, and the details about the price, filled in by someone other than the person who filled in details of the agent, the seller, and the land.  It is not possible to tell from the exhibit whether the names of both buyers were inserted at the same time, or separately.  The defendant denied that he filled in any of the details shown in Exhibit 28, except “Attn:  Christine” at the top:  p 97.  The draft contract provided for a price of $29,000, a part deposit of $1,000, a balance deposit of $1,900 payable on 30 August 1999, and was subject to inspection by the purchaser on or before 30 August 1999 and satisfaction with the lot.

16. [16]
    The solicitor suggested an additional special condition, in a fax sent to the defendant on 25 August 1999: Exhibit 24.^[14]  The special condition was copied by hand onto the contract:  p 101; Exhibit 8.  There are a couple of other changes between Exhibit 28 and Exhibit 8:  the name and address of the seller’s solicitor have been inserted, and the name and address of the buyer’s solicitor; both have “nil” written against both encumbrances and tenancies, but in different hands; I suspect that nil was written on Exhibit 28 by the solicitors, but on Exhibit 8 by someone else.  The existing special condition was numbered one, the new one numbered two, and the place for settlement has been changed to the name and address of the purchaser’s solicitors, which has in turn been crossed out and “Gladstone” written in.  That is where the vendor’s solicitors practised.  It may be that this contract went back and forth before it was finally signed.  It is dated 14 September 1999, which is actually after the date by which the purchasers were supposed to be satisfied with the land following inspection.  The balance deposit of $1,900 was paid within the time limited by the contract, on 28 August 1999:  Exhibit 25, which shows that the payment was by both parties by bank transfer.

17. [17]
    The defendant also completed a questionnaire sent out by his solicitors: Exhibit 10.  That identified the date and country of birth of each of the parties, but otherwise does not say anything helpful; question 9(a), asking whether they were “purchasing the property as an investment/principal place of residence or first principal place of residence” was answered “n/a”.  This questionnaire was evidently returned to the solicitors on 23 September 1999.  The contract provided a settlement date of 27 October 1999; apparently it settled on that day.  It was not disputed that the defendant paid the whole of the purchase price.

18. [18]
    The land was transferred to the parties as joint tenants. The defendant said that he was the only one who dealt with the solicitors handling the purchase (p 97), so presumably he was the one who gave the instructions for the title to be held in this way.  He said he knew at the time that the effect of this was that, on the death of either owner, title would pass to the other, and that this was deliberate, because he believed that the plaintiff would probably pre-decease him, so he saw this as a way of getting title to the land back:  p 85.  The defendant said prior to the settlement of the contract he asked the plaintiff for a Statutory Declaration that she had no financial interest in the property, but she refused to provide that; the best he could get from her was a letter to the solicitors requesting that no receipt be issued in her name:  p 84.  That letter became Exhibit 12.  It is dated 26 October and signed by both parties, and is an authorisation for the receipts issued for payment in respect of the purchase of the land to be in the name of the defendant only.  The plaintiff agreed that she had signed this letter; she said she was concerned at the time about giving an appearance that she had contributed money to the purchase price in circumstances where she was, in fact, short of money, if matters came to be investigated by the tax authorities:  p 21.  She denied that she was asked to provide a Statutory Declaration in relation to this purchase:  p 39.  The solicitors issued a trust account receipt on 27 October 1999 for the settlement moneys, costs, outlays, stamp duty and registration fees, in the sum of $27,627.50 in the name of the defendant only:  Exhibit 13.

Other transactions

19. [19]
    This was not the first property transaction the parties had entered into together. They signed a contract dated 24 November 1997 to purchase a unit at Maroochydore, the purchase by them being expressly “as tenants in common”:  Exhibit 4B.  The property was conveyed to them as tenants in common in equal shares by a transfer registered on 7 January 1998:  Exhibit 4A.  There was no dispute that this was purchased as an investment.  The money to purchase the property was entirely borrowed, by them both, the rent from the property was paid into a joint bank account which they had opened, and interest payments on the loan were made from that account.^[15]  The rent did not cover the interest payments, and both parties said that the deficiency was made up by them equally.

20. [20]
    Prior to this purchase they obtained advice from a solicitor as to the difference between tenancy in common and joint tenancy (p 9), and the selection of tenancy was deliberate, reflecting the fact that the property was an investment by them.  The plaintiff said that she had originally considered purchasing an investment property together with a friend of hers, and that the defendant had suggested that instead he and she should purchase an investment property together:  p 35.  The property was ultimately sold and the proceeds divided.  There were proceedings in the Supreme Court in relation to that property, but they were ultimately resolved by a consent order under which a particular amount was payable to the defendant, after which the balance of the net proceeds of sale of the property were to be divided equally between the parties:  Exhibit 26.  The explanation for the specific payment to the defendant was that at some time, when some other property of his had been sold, part of the sale proceeds was paid by him in reduction of the mortgage.  This, he said, was a requirement of the bank which had financed the purchase, because it had a security over that other property, in addition to a security over the unit which was being purchased:  p 74, p 89.

21. [21]
    Apart from this, in 2000 a second parcel of land at Agnes Water was purchased by the parties: Exhibit 17, which is undated but refers to a settlement date of 15 May 2000.  This was described by the plaintiff as a superior block having ocean views (p 26), and the purchase price was $125,000.  It was apparently financed entirely by a loan from Perpetual Trustees Australia Ltd, which took a mortgage:  Exhibit 18.  It was common ground that it was the defendant specifically who wanted to buy this land, as an investment, but he was not able to get finance for it on his own, and the plaintiff agreed to be a party to the transaction, and a party to the mortgage, because if that occurred finance could be obtained.^[16]  The land was subsequently sold and the proceeds paid to the defendant:  p 36.  Some time after the purchase, on 18 April 2002, in response to pressure from the defendant, the plaintiff executed a statutory declaration that she had not made any payments for and had no financial claim on that land:  p 29, p 114, Exhibit 19.

22. [22]
    Ultimately the relationship between the parties broke down. The defendant said that the relationship ended in late 2002 (p 137) and that there was a meeting in April 2003 at a point where they were only communicating in writing:  p 125.  The plaintiff said the relationship came to an end around January 2003:  p 32.  Later in 2003 there were proceedings between the parties under the Domestic and Family Violence Protection Act 1989.  It does appear that nothing substantial was ever done to develop the subject land.  At one time the defendant put a shed there which was used in connection with some carpentry work that he was doing in the area:  p 141.  The land has never been sold, but in June 2004 the joint tenancy was severed.  These proceedings commenced in May 2006.

Title to the land

23. [23]
    Although it is common ground on the pleadings^[17] that the defendant purchased the subject land and directed that the title be registered in the names of both parties as joint tenants, that is not in fact what happened.  It is clear from the evidence that the contract to purchase the land (Exhibit 8) was signed by both parties as purchasers.  It was an unconditional contract and as a result the beneficial interest in the land passed to both of them from the vendor.^[18]  Prior to settlement both parties were under a common obligation under the contract to pay the purchase price to the vendor, and accordingly both held the beneficial interest in the land held by a purchaser under a contract for the sale of land.

24. [24]
    In Nelson v Nelson (1985) 184 CLR 538, McHugh J at p 600 said:

“When a person (the transferor) transfers property without consideration or purchases property and directs the vendor to transfer the title to another person, equity presumes that the transferee holds the property on a resulting trust for the transferor.”

25. [25]
    The case was pleaded as if it fell into that category of resulting trusts, but it does not. There can, however, be a resulting trust in circumstances where title was taken by the parties to the contract, but the purchase money was paid by someone else,^[19] or contributed by the parties in unequal shares.^[20]  The limiting case in such a situation is where one party contributes the whole of the purchase price, and the presumption there is that the other party holds that party’s interest on trust for the party providing the price.^[21]  That there is a resulting trust in these circumstances arises because of the presumption of equity, and it is well established that the presumption may be rebutted by evidence of the actual intention, at the time of the purchase, of the person who provided the purchase money.^[22]

26. [26]
    In order to determine whether the presumption was rebutted it is therefore necessary to look at the intention of the defendant at the time when the land was purchased. It is unnecessary for me to resolve any question of conflict of evidence between the parties in order to determine this, because on the version given by the defendant the presumption is rebutted. On that version, he was interested in buying some investment property and signed a contract to buy such an item of property for himself. When the plaintiff found out about this she became upset and wanted to be on the contract as well, and he gave in to this and the contract was changed. It would be quite unrealistic in the circumstances to interpret what she was seeking as simply a bare legal title; she was obviously seeking an equal beneficial interest in the land, and by agreeing to put her name on the contract the defendant was also agreeing to her taking an equal beneficial interest in the land under the contract and subsequent conveyance.

27. [27]
    His explanation for their both being purchasers on the second contract, the one which was completed, was essentially that the situation followed from the resolution of the dispute in relation to the first contract: p 146.  The same outcome therefore follows.  At the time of the contract therefore, his intention was that the plaintiff should share the beneficial interest in the land with him.  That in my opinion is the only reasonable interpretation of the resolution of the dispute in the way outlined in the defendant’s evidence.

28. [28]
    There was only one feature of the defendant’s evidence which might stand against the proposition that he intended the plaintiff to take a beneficial interest: his evidence that he sought (and the plaintiff refused to sign) a statutory declaration that she held no financial interest in the property. That would have been strong evidence in support of a resulting trust, but I am not satisfied that he did this. Although there was such a statutory declaration signed in relation to the later purchase of land at Agnes Water, that was not until well after the land was purchased, at a time when I suspect the relationship between the parties was already declining. If the defendant had sought and been refused a statutory declaration in relation to the first parcel of land, I think it is unlikely that he would have agreed to go ahead with the second purchase with the plaintiff’s name on the title and the mortgage without the execution at the same time of a statutory declaration (or something else) to protect his position.^[23]  Accordingly, I do not accept that there was any request for a statutory declaration in relation to the purchase of this land at this time.

29. [29]
    In my opinion, the presumption relied on is rebutted in the present case. Counsel for the plaintiff relied on the comments of McPherson JA in Buck v Washband [1998] QCA 310, at paras [4] and [5].  In that case, his Honour equated the existence of an intention to confer an interest beneficially on the transferee with the making of a gift of it to that person.  That comment was no doubt made in the context of the facts of that particular case, and the finding of the trial judge quoted at [6] that “There is evidence that the defendant and her mother intended the plaintiff to take a beneficial interest in the property despite the fact that the plaintiff was not expected to contribute to the purchase price.”  Nevertheless, strictly speaking whether the intention of the party paying the purchase price is that the other party take an interest in the property beneficially and whether that beneficial interest is to be conferred by way of gift, are separate questions.

30. [30]
    That is shown by the fact that in Muschinski v Dodds (1986) 160 CLR 583, Gibbs CJ held, in a case where one of an unmarried couple had provided the whole of the purchase price of land which was conveyed into the name of both of them, that the presumption of a resulting trust was rebutted but that the party who had paid the entire price was entitled to contribution from the other party.  That I think is apposite here.  It is one thing to say that it was the defendant’s intention that the plaintiff should take beneficial interest in the land, and another thing to say that it was his intention to make a gift to her of half of the purchase price.  In respect of this point (as indeed the resulting trust point) the plaintiff carries the onus of proving that it was the intention of the defendant, at the time when the purchase money was paid, in effect to make a gift to her of half of that money.

31. [31]
    The effect of the defendant’s evidence was that he was not intending to do so: p 81.  There was no direct evidence from the plaintiff of any express indication of an intention to make a gift; the plaintiff’s evidence quoted earlier from p 18 was essentially that the defendant had money saved and she did not have a lot of money at that time, they discussed it and he was happy to pay.  That could be consistent with an intention to make a gift, but I think it is also consistent with an intention that he would simply pay the money at that time, and things would be evened out later.  The plaintiff did concede elsewhere that the parties were careful about money and about clearly identifying who had what property (p 26):

“The understanding was very clear about our property before we got together.  His house was his, and his kids; my house was mine, and my kids.  That property might be purchased with that money, it was not to be touched.”^[24]

32. [32]
    It is also apparent that some care was taken in relation to the financial arrangements for the unit that was purchased as an investment by them, to keep everything equal between them. The defendant said that they had previously discussed buying a rural property on an equal contribution basis: p 82.

33. [33]
    Another matter which I think is of some significance is the nature or status of the relationship between them. Although the plaintiff spoke of a relationship which developed during 1997 and stayed strong until after the land was purchased, that seems to me to be inconsistent with the terms in which the defendant was writing to the plaintiff in March 1999, particularly the letter quoted at [8]. The distinct tone in those letters was that the defendant thought that the plaintiff was much less committed to the relationship than he was. That is consistent with other earlier correspondence. One of the letters in Exhibit 2 (Exhibit 2B) refers to her having written telling of difficulties in dealing with the relationship, and an undated letter apparently written about May 1998 which is part of Exhibit 6 also suggests that at that time any relationship was fairly tenuous.^[25]  These letters suggest that the relationship was not as strong as the plaintiff claims, at least during this period, or at least that the defendant’s perception of the plaintiff’s attitude to him was not one of any particularly strong commitment.  The defendant said that at the time when the relevant land was purchased, the parties were not living together:  p 136.

34. [34]
    The matter is somewhat complicated by my assessment of the credibility of the parties. On the whole, I cannot regard the evidence of either party as being generally reliable. As noted, I thought the plaintiff’s evidence as to the strength of the relationship was inconsistent with the contemporaneous letters (admittedly from the defendant), and there were some other inconsistencies. At p 6 she said the defendant purchased a sailing boat “for both of us”, but at p 43 she contended that the sailing boat was the defendant’s.  Her evidence about the payment of rates on the relevant land was vague at times (ie p 41) and I thought ultimately not supported by the documentation which was eventually put in evidence about this.^[26]

35. [35]
    There were also parts of the defendant’s evidence which were inconsistent, including on the subject of the rates: at p 87 he said he paid all the rates on the land, but at p 95 said that the plaintiff had made one rates payment.  I have referred to one part of his evidence which I do not accept, and there was some inconsistency with his account as to whether, for example, he went back to see the relevant land before the contract signed, or how the deposit was paid, matters I have referred to.

36. [36]
    I suspect that part of the problem is that the parties were never really ad idem as to what this purchase of land was all about.  I think it likely that the defendant really was looking for land, including the subject land and the earlier parcel that was sought to be purchased, essentially as an investment.  Apart from some vague designs drawn up by the plaintiff,^[27] nothing was done to carry forward the project to build on the land so they could live on it, and that would have required their living at a place where I suspect they would have had difficulty in maintaining themselves, and where they could not have followed their current occupations.  On the other hand, I think the plaintiff’s interest really was in building a dream home, and accept that she did see this as a parcel of land which was to be developed to create something where they could both live.  The defendant conceded that to some extent he went along with what he described as these fantasies (p 138) and no doubt this explains the evidence of the various witnesses who spoke of both talking about the land as where they were going to live.^[28]  To whatever extent the defendant ultimately went along with the project of building a dream home on this site, it ultimately did not materialise.

37. [37]
    In the light of these considerations, on the whole I prefer the defendant’s account as to how the land at Agnes Water came to be purchased, bearing in mind also that I did find this aspect of the defendant’s evidence plausible and convincing, whereas I found the plaintiff’s account, and her denials of this account, unconvincing.^[29]  It does not, however, follow that I am prepared to accept the defendant’s evidence generally.  He obviously felt strongly that it was unfair that the plaintiff should be entitled to half the land without having made any contribution to the purchase price, and I think that at times this influenced the evidence he gave.  Overall, as I say, I am wary of the evidence of both parties.  In all the circumstances outlined, therefore I am not persuaded that the defendant made a gift to the plaintiff in paying the whole purchase price of the land.

38. [38]
    In Muschinski v Dodds (supra) Gibbs CJ at p 596 noted that the conclusion that the respondent held beneficially a half interest of the land not subject to any trust in favour of the appellant was not the end of the matter, and that on the sale of the property there must be an equitable accounting between the parties.  That is raised in this case by each party’s seeking a declaration as to the basis upon which the plaintiff holds her legal titles to the land.  Gibbs CJ went on to point out that, the parties having been subject to a common obligation under the purchase contract and one of them having discharged the whole of that obligation, that party had a right to recover one-half of the amount so paid:  p 596-7.^[30]  This is what occurred here.

39. [39]
    The other two members of the majority, Mason and Deane JJ, reached the same conclusion, although on a different basis.  Deane J (with whom Mason J agreed) after a discussion beginning at p 618, stated a general principle at p 620 as follows:

“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 … 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 to him so to do.”

40. [40]
    The majority therefore concluded that the parties held their respective legal interests as tenants in common upon trust (after payment of any joint debts incurred in the improvement of the property) to repay to each his or her contribution and as to the residue for them both in equal shares. In that case, the majority as a matter of discretion declined to award interest on the respective contributions: p 624.  The approach of Deane J was affirmed by all members of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137, and has been generally recognised and applied subsequently.^[31]

41. [41]
    In my opinion, the present case is sufficiently similar to the situation in Muschinski v Dodds (supra) to justify the same resolution of the matter.  Given that the project of building a dream home for the parties to live in has failed, it would in my opinion be unconscionable for the plaintiff to retain her half interest in the land without making any contribution to the purchase price.  Accordingly, both views which made up the majority in that case apply in the present case.  The plaintiff should therefore be liable to reimburse the defendant for half of the cost of the purchase of the land.  The total cost came to $30,527.50^[32] so the plaintiff is liable to pay $15,263.75.  Given the time that has passed, and the fact that the land has still not been sold, and all the other circumstances of the case, in my opinion it is just that the plaintiff pay interest on that sum at a moderate rate from the time when the bulk of that money was paid, 27 October 1999, until the time when the proceeds of the sale of the property are distributed, and I will allow interest at 6 per cent.

42. [42]
    In addition, to the extent that the defendant has paid more than his fair share of rates (which was apparently the only outgoing in relation to the land since it was acquired) the defendant is entitled to recover this from the plaintiff. Unfortunately, the evidence in relation to this is very unsatisfactory. The bank statement extract Exhibit 27 shows a cash deposit of $1,210 on 7 August 2001, and cheque 42 for $456.34 cleared on 10 August 2001.  The butt for cheque 42, which is also dated 10 August 2001, is endorsed “Mvale Shire C rates”, and the Miriamvale Shire Council issued the notice for rates on the subject land for $456.34 due on 31 August 2001:  Exhibit 21.  The defendant claims that the $1,210 was money he had deposited to cover rates at Agnes Water and on the unit.  If this was a cash deposit by him, it was more than enough to cover cheque 42.  The balance of the deposit is not explained by the documentation.

43. [43]
    The Miriamvale Shire Council issued a rates notice payable on August 2002 in respect of the subject land for $493: Exhibit 22B.  The plaintiff put in evidence cheque butt 53 dated 1 August 2002, showing “Miriamvale Shire $2,236.75” (Exhibit 22A), but it is apparent from Exhibit 27 that there was a separate cheque 51, which cleared on 7 August 2002, for $493, which was more likely to be in respect of the rates for the subject land.  Possibly cheque 53 was for rates for the other land at Agnes Water.  There was a cash deposit on 31 July 2002 of $1,500, which the defendant said he made (p 90).  This would not have covered both rates payments.  He also referred to having paid $24,000 from the sale of the other land (p 89) shortly before this, but that money was not paid into this account, which after cheque 51 cleared had a credit balance of under $3,000.  The deposit of $1,500 would not have been enough to cover both cheque 51 and cheque 53.

44. [44]
    Presumably rates were due also in August 2000, August 2003 and subsequently, but there was no documentation of how they were paid. I think it is safe to assume the defendant has paid the rates for 2003 and subsequently. The defendant at one point conceded that the plaintiff had made one rates payment (p 95), which may have been the 2002 rates.  On the whole, doing the best I can, I am prepared to conclude that the defendant paid the whole of the rates in 2001, and from 2003 onwards, but I am not persuaded that the defendant has paid more than his fair share of the rates in 2000 or in 2002.  The defendant is therefore also entitled o be reimbursed for half of the rates paid in 2001, 2003 and subsequently, together with interest at 6 per cent from the date of payment to the date of distribution of the sale proceeds.

45. [45]
    Each party sought a declaration as to the terms on which the plaintiff holds her legal interest in one-half of the subject land. For the reasons given, I am not prepared to make either of the declarations sought. Effect will be given to the approach adopted by Deane J in Muschinski v Dodds (supra), if I make a declaration that the plaintiff holds her legal interest as tenant in common in the subject land upon trust to repay to the defendant half the cost of acquisition of the land, namely $15,263.75, together with interest at 6 per cent per annum from 27 October 1999 until the date of payment, and to reimburse him for half of the amount paid in rates on the land in August 2001, August 2003 and in subsequent years, in each case together with 6 per cent interest from the date of payment until the date of repayment, and as to the residue for herself beneficially.  I will hear further submissions in relation to the question of costs after publication of these reasons.