DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This much delayed hearing involves an application by a “deserted” de facto female partner against her former male partner.  He, to the last knowledge of the parties – and the Court – appears to still live in Venezuela.  His mother, named in these proceedings as the second respondent - again to the best of knowledge of the parties and the Court - appears to still live in Switzerland.  Neither attended the trial, though their names were appropriately called.  The proceeding - wrongly begun by Claim and Statement of Claim – was treated as if begun by Originating Application on and from 10 February 2009. Alternative orders are sought. The first is for a property adjustment order pursuant to the provisions of Part 19 of the Property Law Act 1974 (Qld) (“PLA”). For reasons later discussed, that seems to be the appropriate claim. The alternative claim is for a declaration that the first respondent, the male de facto partner, holds “all his right, title and interest in and to” real property at Buderim “upon a constructive trust for” the applicant.  Although this was the substance of the order made by Irwin DCJ on 10 February 2009, it never was an order potentially open, at least in that form pursuant to s 280 of the PLA. Accordingly, the Court will proceed to consider a property adjustment order.

2. [2]
   Although the estate in fee simple in the vacant land at Buderim [described as Lot 164 on Survey Plan 146373, County of Canning, Parish of Mooloolah, bearing Title Reference Number 50433383 (the “Buderim property”)] was transferred from the first respondent to the applicant pursuant to consequential orders made on 10 February 2009 and although all those orders were set aside by order of O'Sullivan DCJ on 22 May 2009, no restitutionary order was made re-transferring the title in the Buderim property back from the applicant to the first respondent. One consequence is that this Court, at this hearing, has before it a caveat lodged by the second respondent alleging a caveatable interest. Curiously, the first respondent has not lodged any caveat for his part. It is, thus, clearly necessary to resolve this issue before any property adjustment order can be considered.

Background

3. [3]
   Although the three affidavits filed by the applicant refer to the commencement of the relationship in May 2001 and the separation in July 2003, none descended to particularity as to when in July 2003 the separation occurred. For this, and other clarifications, the applicant, at the hearing, was called as a witness and gave oral evidence.

4. [4]
   Particularly since the first respondent has filed only one affidavit, and then in March 2010 (by way of a professional translator from Spanish into English), little is known of his knowledge of relevant events apart from what he deposed to there. Property matters aside, he addressed very little concerning the relationship, although he acknowledged the existence of it and the separation of the parties, also without descending to particularity as to months or years.

5. [5]
   Consequently, I find that a relationship between the applicant and the first respondent commenced in or about May 2001 and, insofar as it was a genuine domestic relationship based upon trust, intimacy and personal commitment to each other, ended in mid to late July 2003.

6. [6]
   I also find that, during the relationship, the parties had two children, being M (born 26 April 2002) and A (born 3 March 2003). I also accept that both of those children have resided with the applicant since the time of their birth and that they continue to reside with her.

7. [7]
   The beginning of the relationship was in England.  At that time, the applicant had a holiday/working visa and involved herself (as will be discussed later) in businesses in which the first respondent had interests. Just before that visa was to expire, and just before the birth of M, the applicant returned to Australia.  She was, at that time, a permanent resident of Australia. She was born on 4 May 1979.  The first respondent entered Australia on 25 April 2002 on a short term visa.  He was born on 27 February 1967. In about July 2003, the first respondent obtained permanent residency status. This was based, according to the applicant, on her residential status, the birth of his children, the basis of a genuine long term relationship, and stable plans for the future.

8. [8]
   Some nine months after the birth of A, the first respondent left Australia, never to return.  I accept that by Christmas 2003 such payments as the first respondent made to the applicant, to assist her to support the children, ceased. 

9. [9]
   The Claim and Statement of Claim were filed on 11 February 2004. Subsequent to that, this proceeding has meandered on, partly due to the difficulty in ascertaining the residential address of the first respondent and partly, at least as it seems to me, upon general inertia, although from the applicant’s perspective the delay (only very partially due to her illness in mid-2009) has only brought increasing financial concern.

10. [10]
    On 5 February 2008, McGill SC DCJ renewed the originating pleading and ordered substituted service in England.

11. [11]
    Despite that service, the first respondent entered no appearance prior to the orders made by the Court on 10 February 2009. The application heard that day was for “default judgment”, though it was treated as “an uncontested application for an adjustment order”.

12. [12]
    The declaration of a constructive trust pursuant to s 280(1) of the PLA and orders concerning the transfer of the Buderim property were soon met by an application to set aside that judgment.  First, on 20 February 2009, the first respondent filed a Notice of Address for Service and then on 19 March 2009 an application to set aside the 10 February 2009 judgment itself. 

13. [13]
    Complicating matters, the second respondent filed an application on 20 April 2009 seeking that she be included as a party to the proceeding, based upon an alleged agreement by her to advance to her son, the first respondent, £160,000.00 “for the purposes” set out in an attached Deed (dated as made 19 November 2003) by Schedule 1. Among five different purposes was stated to be the “purchase of a parcel of land in Australia”.

14. [14]
    The hearing of these two applications was conducted on 21 April 2009. On 22 May 2009, the Court made orders. Attached to the Court file, in the Order Sheet section, are typewritten “orders” made that day, initialled by the associate. A transcript of the orders made on that day are not fully reflective of the oral reasons given in the full transcript and translated into some of those typewritten orders. The setting aside of the default judgment is accurate; but the order numbered 4 (in the typewritten orders) states that the order being made was that the “Putative Second Applicant provide a Statement of Claim within four (4) weeks”, whereas the transcript of the “order taken in”, while requiring a Statement of Claim “to be provided” (additionally identifying the applicant as the recipient) further states that the purpose of such a provision follows from the “tentative view” reached that the second applicant “ought to become” a party, “envisaging” that, at the first directions hearing (which would not be undertaken by her because of pending leave), she would given formal leave to become a party. O'Sullivan DCJ had draft Reasons for her orders, but did not publish them. Rather, she read passages from the prepared Reasons into the record which became the full transcript of that day. What she chose to read from those Reasons concerning joining the second respondent as a party was lacking in any firm conclusion about joinder also. Although I will not rely upon it, paragraph [30] of the draft stated that she did “not consider it appropriate for (the second respondent) to be joined until (a Statement of Claim) is filed and served” (emphasis added), which differed from what was read into the record. Immediately following the “reading” she stated to counsel for the second respondent, “you’ll file the statement of claim”. Later, when requested by that counsel whether she would make an order for joinder, she responded by remarking that she would put it “clearer” than what she had “read”, and then made the order that was “taken in”.

15. [15]
    It is, perhaps, not surprising that, subsequent to those orders, the second respondent “filed” a Statement of Claim (it becoming document numbered 22 on the Court file). It was stamped as being filed on 19 June 2009. It did not comply with the relevant form requirements, particularly concerning endorsements. It sought a declaration of a “resulting and/or constructive trust” and consequential orders, including an order that the first respondent pay to the second respondent the sum of £160,000.00. On 13 January 2010, the second respondent filed a Notice of Address for Service (being Habermann & Associates, solicitors), despite no order still having been made concerning joinder.

16. [16]
    Although the orders made on 22 May 2009 did not require the second respondent to file any affidavit – contrary to the applicant’s solicitor’s understanding of the orders made that day and presumably on the basis that she had not then become a party – she filed an affidavit on 17 May 2010 in which she exhibited the Deed of 19 November 2003. She deposed that the sum was “never intended to be a gift” and referred to other “actions” taken by her son. Lastly, she stated that she was “seeking” that the Buderim property “be either sold and the proceeds repaid to (her) or alternatively the land be transferred into (her) name”.

17. [17]
    Nothing of any moment happened then until on 26 July 2012, Jones DCJ ordered that the applicant “may take a further step in the proceedings”, that the first respondent’s signature on the request for trial date be dispensed with, and that the matter be placed on the list of matters ready for trial.

18. [18]
    On 12 October 2012, McGill SC DCJ ordered that the first respondent’s solicitors be granted leave to withdraw as solicitors for him in this proceeding.

19. [19]
    When the matter came before me, first, on 15 October 2012, I caused the name of both the first respondent and the second respondent to be called three times. No appearance was made by either respondent. The applicant, by that time, had filed an application seeking that the second respondent’s application to be joined as a party be dismissed for want of prosecution and that the caveat lodged by the second respondent be removed. Since I was not satisfied that the second respondent had been served with that application and supporting affidavits, both filed 10 October 2012, I adjourned the further hearing of the trial and the further hearing of the application against the second respondent to 5 November 2012 to enable the applicant to notify the second respondent of the further hearings on that day.

20. [20]
    On 5 November 2012, I again caused the names of both the first respondent and the second respondent to be called three times outside the Court. Again, no appearances were announced.

Second respondent’s application

21. [21]
    Regardless of the actual meaning of the “draft” Reasons prepared by O'Sullivan DCJ, a combination of the transcript of the day and the typewritten initialled orders has convinced me that no order was made on 22 May 2009 joining the second respondent as a party to this proceeding; and there has been no such order ever made prior to my consideration. No application was ever brought to deal with documents of the second respondent as nullities, or even irregularities.

22. [22]
    While the applicant’s counsel argued that the second respondent need not be joined as a party to the proceeding, after I indicated my view that s 69 of the District Court Act 1967 (Qld) (“DCA”) grants only ancillary jurisdiction and that no jurisdiction independently of the second respondent being properly joined could be sustained under s 68 of the DCA, he sought that the second respondent’s original application to join be allowed (rather than dismissed).

23. [23]
    Because I have considered that s 336(2) of the PLA empowered me to do so, and because the second respondent’s “draft” Statement of Claim did raise matters which it might be necessary to determine in reaching a conclusion under the PLA to effect (in terms of s 337) the making of orders “that, as far as practicable, will end the financial relationship between the de facto partners”, I held that it was appropriate that the second respondent be joined. See, also, r 69 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Accordingly, she has become the second respondent (which is the name that I have given to her from the beginning of these Reasons). 

24. [24]
    Turning, then, to whether she was appropriately notified about the application to remove the caveat.

25. [25]
    When she brought her application filed 20 April 2009 to be joined, she was represented by Habermann & Associates. In an affidavit filed the same day by a solicitor of that firm, it was deposed that the second respondent lived in Switzerland, that she had been spoken to by the deponent and that her instructions had been obtained.  During oral argument on 21 April 2009 the second respondent was represented by counsel. As appears on the written orders made on the Order Sheet for this file, leave was “granted to present the application for joinder of” the second respondent.

26. [26]
    Habermann & Associates were the firm who caused the “Statement of Claim” to be filed on 19 June 2009, the Notice of Address for Services to be filed 13 January 2010, and the affidavit of the second respondent to be filed on 17 May 2010. Unlike the solicitors for the first respondent, no leave was sought by that firm from the Court to withdraw as solicitors on the record.

27. [27]
    I gave leave, on 15 October 2012, to the applicant to read and file the affidavit of Garry Stewart Rolfe. In that, he deposed to being independently aware that Habermann & Associates carried on legal practice at two addresses, for which he knew the phone and fax numbers as well. On information and belief disclosed, he informed the Court that, upon telephoning Emerson Black Lawyers, he was advised that they did, in fact, have the physical file with respect to this proceeding on behalf of the second respondent. Additionally, Mr Rolfe deposed to faxing to Emerson Black Lawyers the application concerning the second respondent and the supporting affidavits. Attempts by him to contact Habermann & Associates were unsuccessful and information was obtained from the Queensland Law Society that Habermann & Associates ceased practice on 30 September 2010. The QLS records showed that all files from that firm were transferred to Anthony Black Family Law Services. On contact with that firm, Mr Rolfe deposed to being informed, by facsimile, that they had not been retained by the second respondent and that the firm did not hold instructions to accept service of any documentation on behalf of the second respondent.

28. [28]
    Whatever the relationship between Anthony Black Family Law Services and Emerson Black Lawyers, it is clear both that Habermann & Associates no longer exists as a firm and that any firm that either has the file or a potential interest in the file of the second respondent holds no instructions to accept service on behalf of the second respondent. But it is also true that no change has been made by the second respondent or her representation to the Court record concerning her representation by Habermann & Associates.

29. [29]
    Accordingly, when the matter came back before me on 5 November 2012, the applicant sought leave to read and file - which was granted - a further affidavit of Mr Rolfe. He deposed that communications with Anthony Black Family Law Services on 19 October 2012 indicated that there was no postal address known for the second respondent other than that which Mr Rolfe already had as an address in Switzerland.  Mr John Frew of Anthony Black Family Law Services also advised Mr Rolfe that he had attempted to contact the second respondent, including by way of an email address available to him, but had received no response or communication.  Mr Frew stated that he was not at liberty to provide any contact details other than the postal address.  Mr Rolfe further deposed to causing, on 15 and 22 October 2012, correspondence, together with the stated enclosures, to be forwarded by Express Courier International to the Switzerland address, using both the names of “Mrs AA” and “Ms AA”. On further causing a search to be made with respect to tracking those documents, Mr Rolfe deposed to the reports indicating attempted delivery of both items at the named addressed.  Finally, Mr Rolfe deposed to no communication with the second respondent, or any solicitor or other persons seeking to represent her, apart from the matters deposed to.

30. [30]
    From all that evidence canvassed, I am contented to accept, as I indicated on 5 November 2011, that appropriate notification had been attempted concerning the hearing on that date, particularly where no attempt to change the address for service has been made by the second respondent. Thus, as I ordered then, the respondent became a party to this proceeding [pursuant to s 336(2) of the PLA, or r 69 of the UCPR as a necessary party in order to enable the Court to adjudicate effectively and completely on all matters in dispute in this proceeding]. I will formalise such an order by incorporating it into the orders made here.

Removal of caveat (plus other claims by second respondent)

31. [31]
    From the result of a title search of the Queensland Land Titles, responsive to a search on 10 February 2009, I find that the first respondent became the registered owner of the Buderim property on 9 July 2003. That search also indicated that the caveat – lodged before the orders made on 10 February 2009 – by the applicant was so lodged on 14 November 2003. Thus, for the purposes of s 126(4) of the Land Title Act 1994 (Qld), the applicant had started a proceeding in a Court of competent jurisdiction to establish the interest claimed under the caveat within the relevant time (if only just): see s 126(4)(a)(ii) which required the start to be within three months after the lodgement of the caveat.

32. [32]
    A further title search on 9 October 2012 showed that the caveat lodged by the second respondent was lodged on 25 June 2009. This was the time at which the second respondent was represented by Habermann & Associates. It is a little perplexing that, as I have found, despite the fact that the applicant did not become a party to this proceeding by order made on 22 May 2009 the Registrar still accepted that her application to be joined met the interpretation of “start(ing) a proceeding ... to establish the interest claimed”. Nevertheless, the Registrar has not moved pursuant to s 126(7) of the LTA to remove the caveat as a lapsing caveat.  Consequently, this Court must deal with it as an existing caveat. 

33. [33]
    The affidavit filed by the second respondent deposes specifically to advancing the sum of £160,000.00 “on or about” 19 November 2003. Given the title searches referred to, and taking account of the oral evidence given before me by the applicant, I find that the settlement of the Contract of the Sale for the purchase by the first respondent of the Buderim land occurred on or about 9 July 2003.  Accordingly, it is just impossible to accept that the sum advanced was to “purchase” the property, even if it were to be by loan for that “purpose”.

34. [34]
    Taken at its best, the Deed does not purport to be reflective of anything but a loan. Furthermore, the loan purpose was not only for the purchase of a parcel of land in Australia, but also for many other things including: the renovation of the first respondent’s property in the United Kingdom; the meeting of his outstanding and future mortgage repayment obligations in the United Kingdom; the meeting of his outstanding and future bills and utility payments in the United Kingdom and in Australia; and to pay various debts in the United Kingdom. There is also nothing in the Deed itself which purports in any way to create a charge over the Buderim property.

35. [35]
    From those facts, several conclusions can readily be reached.

36. [36]
    First, there is no direct caveatable interest, even taking the second respondent’s allegations at their highest. Critically, for the reasons examined by Chesterman J (as he then was) in Dinh v Dang^[1], there is nothing which points to, in any degree, a promise to encumber land with the obligation to repay the debt (i.e. that there is nothing to give to the outcome of the transaction in question “a semblance of secured land as opposed to an unsecured one”): particularly at [21].

37. [37]
    Secondly, given the disparity of dates, there is no possibility of an indirect caveatable interest (i.e. from some kind of resulting trust that eventuated from the provision of moneys which formed part of the purchase price – even though the second respondent’s affidavit denies any gift). Even if there were some suggestion of that in terms of other timing, the fact that the Deed deals with nothing but a loan is destructive of such a finding.

38. [38]
    Thus, there has been nothing of substance right from the time that the “draft” Statement of Claim was filed in mid 2009 which would suggest that there was any merit in the claim for “a resulting and/or constructive trust”.

39. [39]
    Consequently, since there is no caveatable interest and since jurisdiction has now been established, I ordered, by the power given to this Court under s 127(2) of the LTA (through s 69 of the DCA), that this particular caveat be removed. Again, that will be formalised in the orders made here.

40. [40]
    Quite interestingly, s 127(2) permits an order to be made “whether or not the caveator has been served with the application”, permitting the order to be made “on the terms” that the Court “considers appropriate”. If needed, I am content to rely on that, no further orders being appropriate where the efforts made to notify have been appropriate in the circumstances.

41. [41]
    Given that there is no evidence before the Court that the loan was not made in accordance with what asserted in the Deed, it must at least be considered as evidence potentially relevant to the primary application in this proceeding (i.e. as going to the first respondent’s debts). More will be analysed with respect to this later. Although the second respondent has been joined, there is no necessity to consider s 280(1) of the PLA where no interest in the property of either partner has been found to exist concerning her. As I later hold that the first respondent should bear his own debts, and since it has proved impossible to determine with any precision the financial position now pertaining between the two respondents to the extent to which it is necessary to deal with claims other than the right to caveat (after she has been joined), I will dismiss all other claims by the second respondent that she has “made” in her “unauthorised” Statement of Claim.

Declaration of trust

42. [42]
    Section 280 of the PLA states that, in a proceeding between de facto partners about “existing” title or rights in property, a Court may “declare” any title or rights a relevant person has in the property:  see s 280(1).

43. [43]
    As s 279 of the PLA makes abundantly clear, the “purpose” of the Subdivision in which s 280 appears is “to help persons ascertain” their “existing” rights in relevant property: see s 279(1).

44. [44]
    What the applicant seeks in the present draft order [namely, a declaration pursuant to s 280(1) that the applicant is the “full legal and beneficial owner” of the Buderim property)] “is based upon a fundamental misconception as to the nature of legal and equitable interests in land and other property”: see Aickin J in DKLR Holding Co (No 2) Pty Ltd v CSD (NSW)^[2] at 463 (in dissent on the outcome but approved by the High Court in CPT Custodian P/L v Commissioner of State Revenue^[3] at 114 [32]). As explained by Aickin J, if a person holds the legal estate on trust for some other person (as here), and thereafter there is a transfer to the person of the entire equitable interest, then the first person does not hold two separate interests – rather what is held is a single entire interest (i.e. as absolute owner of an estate in fee simple in the land).

45. [45]
    If such a declaration is made, s 281 of the PLA permits a Court to make orders “to give effect to a declaration” under Subdivision 1 of Division 4 of Part 19. 

46. [46]
    In Barker v Linklater^[4], the Court of Appeal was concerned with, amongst many other things, the possibility of an imposition of a constructive trust in respect of a shared home owned by of the cohabitants. As can be seen immediately, this proceeding differs in that the Buderim property is vacant land.  As indicated by Muir JA, with whom Douglas J expressly agreed, nothing in the authorities canvassed – which included Baumgartner v Baumgartner^[5] and Muschinski v Dodds^[6] – suggests that the mere existence of long-term cohabitation, even in a de facto relationship and even if combined with sharing of household expenditure and a division of household labour, suffices to justify imposition of a constructive trust in respect of the “shared home” owned by one of the cohabitants: at 425 [74].  Muir JA then referred to cited authority which stated that it is clear that the mere existence of a matrimonial or de facto relationship, combined with express or implied undertakings to provide support and accommodation, will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the “home occupied by the parties” is created: at 425-426 [74].  For his part, Jerrard JA, when examining this issue, noted that the trial judge had concluded that the applicant did not establish a representation that the other party “would give her the house or life interest in it, or that there was any common intention that the (applicant) was to receive the house”, adding that the moneys claimed to have been expended on the other party were not in fact expended as claimed: at 415 [28].

47. [47]
    Muschinski establishes that a constructive trust can be imposed in appropriate circumstances regardless of actual or presumed agreement, or the intention of the parties in question: at 614.

48. [48]
    In Baumgartner there was a pooling of financial resources by parties living in a de facto relationship.  It was held that their contributions, financial and otherwise, to the acquisition of the particular land, the building of the house, the purchase of furniture and the making of their home, were all on the basis of, and for the purposes of, that joint relationship; and it was, in that situation, after the relationship had failed, that the property in question, which was financed in part through the pooled funds, though the sole property of one party, was subjected to the determination that an assertion that the property belonged to that party beneficially to the exclusion of any interest on the part of the other party amounted to unconscionable conduct which attracted the intervention of equity and the imposition of a constructive trust: at 148.

49. [49]
    In this proceeding, the relationship between the parties was such that the applicant did not even know the exact terms of the contract of sale entered into by the first respondent for the purchase of the Buderim property. Moreover, the applicant herself purchased only household furniture. While it is recognised that during the course of her relationship with the first respondent the applicant made both financial and non-financial contributions to their relationship and to a property owned solely by the first respondent in England - but with respect to the latter indirectly by cleaning and maintaining households and assisting the first respondent in running his business - there is nothing which, of itself, shows that the purchase of the Buderim property (although selected for the intended construction of the first respondent’s family home) for which the applicant provided no financial contribution is, given the very short term relationship (i.e. just over two years), sufficient to give rise to an existing “full” constructive trust for her benefit.

50. [50]
    This is because the circumstances are not sufficient on these facts. The relevant principles can only operate 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 purpose of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that the other party should so enjoy it”: see Deane J in Muschinski at 620. Although the facts there were different, where the first respondent never contemplated – on the reasonable inferences from the applicant’s evidence – that she have any interest in any property of his during their short relationship (where the land was bought by him at the very end), the principles do not have traction.

51. [51]
    But even if the facts, correctly analysed, mean that a constructive trust existed, it could not be over the entire property. To attempt to give effect to the terms of such a constructive trust where the more beneficial provisions of the PLA can be engaged renders such a task otiose. Hence, here the focus will be on the application for an adjustment of the parties’ property interests.

De facto relationship and timings

52. [52]
    It is necessary in a case such as this to prove the de facto relationship. 

53. [53]
    By reference to the various definitional sections, including s 259, s 260 and s 261 of the PLA and s 32BA of the Acts Interpretation Act 1954 (Qld), there can be no doubt in this case that, in terms of a summary of the relevant factors by McMurdo J in LAB v AWH^[7], “the parties have so merged their lives that they were, for practicable purposes, living together as a married couple”: at [3].

54. [54]
    A necessary part of that determination is that the partners lived together in the relevant relationship “for at least two years”: see s 287(a). Clearly that is so in this case. In any event, since s 287(b) provides that the Court may make a property adjustment order if there is a child of the de facto partners who is under 18 years of age, that would be sufficient of itself. 

55. [55]
    The last aspect is the timely making of an application. In this case, the applicant has complied with the timeframe in s 288(1)(a) of the PLA. 

Applicable principles under Part 19 of the PLA

56. [56]
    In GAJ v RAJ^[8], the Queensland Court of Appeal reiterated that the proper approach for the exercise of the judicial discretion conferred by s 286(1) of the PLA is that discussed by Keane JA (as he then was) in FO v HAF^[9]. Such an approach was an endorsement of the four step analysis explained by the Full Court of the Family Court in Hickey v Hickey^[10] at 78, 386 as providing a “useful discipline to ensure clarity of thought and transparency of judicial reasons”: at [51]-[52] in FO v HAF.

57. [57]
    The four step analysis involves:

1. (a)
   the identification and valuation of the property, resources and liabilities of the parties;

2. (b)
   the identification and assessment of the contributions of the parties to the pool of assets, leading to the determination of their contribution-based entitlements in accordance with ss 291 to 295 of the PLA;

3. (c)
   the identification and assessment of the factors in ss 297 to 309 of the PLA to determine the adjustment, if any, to the contribution-based entitlements; and

4. (d)
   a consideration of the result of the three earlier steps, in order to determine whether that result is just and equitable in accordance with s 286 of the PLA.

58. [58]
    Important aspects of the decision in GAJ are that:

• it is incumbent on an applicant for an adjustment order to provide some relevant evidence which can value a contribution to specific property (at [32]); and
• if the Court is to make a holistic value judgment in the exercise of its discretionary power of a very general kind, it may be that the paucity of evidence and limited findings may not permit any mathematical exactitude in assessing a contribution (at [34]).

59. [59]
    As analysed by McGill SC DCJ in LCL v JGA^[11], concerning contributions and determination of the value of the “asset pool”, the appropriate approach is, prima facie, to adopt the values in respect of all matters, both assets and liabilities, “as they exist at the date of trial”, though taking into account where appropriate the way in which those have arisen: at [42]. 

60. [60]
    Finally, there are two important principles that are derived from the recent consideration by Applegarth J in RD v DB^[12].  They are:

• if a global approach is taken, rather than an asset-by-asset approach, heed must be paid to the fact of the origin and nature of the different assets (at [32]); and
• where one party provides “a roof over the head” of the other party, there can be a rough financial reckoning of the benefit of the contribution of one party’s property to accommodate “the couple”, which can mean that, in a particular case, besides the benefit of what can be loosely called “free accommodation”, the party who lives in the other’s house may have the opportunity to reap financial benefits because of the freedom to use that party’s own property as seen fit: (at [34]).

Credibility

61. [61]
    While, in this proceeding, there has been no occasion to judge the credibility of anybody other than the applicant, since she did give evidence before me, I find it important to conclude that, while she was very anxious to place the best possible light on what occurred (in the sense of being favourable to the application that she brought), I do find that she generally was both credible and reliable, particularly when it could have been tempting to express more knowledge about the first respondent’s financial circumstances.

62. [62]
    I was invited, by counsel for the applicant, to dismiss all assertions appearing in the affidavits filed not only on the first respondent’s behalf but also on behalf of his mother on the basis that they should not be accepted as credible. The only foundation advanced was that neither party, subsequent to the filing of those affidavits, contributed anything to ensuring that the trial of this proceeding occurred, or occurred with all relevant evidence being presented to it.

63. [63]
    Quite obviously, the failure of a party to attend a trial of the proceeding places such a party in a position of both not directly contesting the evidence given by an opponent, and not advancing a case to be tested by cross-examination. Despite this, where, as here, statements have been made by both the first respondent and the second respondent particularly about events that have happened subsequent to events deposed to which were within the direct knowledge of the applicant, it is impossible to ignore those assertions entirely. In many ways they are similar to what concerned Mason CJ and Gaudron J in Banque Commerciale SA, en liquidation v Akhil Holdings Ltd^[13]. There, in considering the circumstances of the non-appearance of a defendant at trial, they remarked that the filed defence put the other side to proof of its entitlement to the relief claimed and that, analogously to the “not wholly dissimilar area” of summary judgment - which (in the particular instance) made entitlement to summary judgment dependent upon evidence of the facts upon which the claim was based by evidence that the defendant had no defence to the claim - it would be anomalous if a plaintiff could, in the absence of the defendant from the trial, assert entitlement to judgment in circumstances where the evidence established a pleaded defence and that defence had not been withdrawn or circumstances had not arisen requiring it to be treated as if it withdrawn: at 283.

64. [64]
    Accordingly, I will take into account, at least in a defensive sense, what has been deposed to by both the first respondent and the second respondent, although clearly according to the applicant the benefit of the specific finding on credibility that I have made.

Asset pool

65. [65]
    Adopting the approach of ascertaining what assets are now available at the date of hearing, and then looking at the origin and nature of all assets during the relationship, is the method that I intend to follow.

66. [66]
    In the applicant’s affidavit filed 20 July 2012 she sets out her updated Statement of Financial Circumstances. Given the background of what has occurred following the cessation of the relationship, including the circumstances that caused the applicant to become bankrupt, it is unsurprising that the only assets she presently has are household furniture and effects to the value, according to her, of $5,000.00. She states that her current liabilities are “nil”. Honestly enough, she states that the first respondent’s assets and liabilities are “unknown”.

67. [67]
    Not included expressly in the stated assets of either the applicant or the first respondent is the Buderim property. As already observed, that property is presently in the registered ownership of the applicant. As is abundantly clear from decisions such as Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick^[14], where there has been, for instance, a decree of specific performance and property has been transferred pursuant to that decree, should the decision be overturned on appeal, the property should be available for “a re-transfer” to the opponent if the opponent wins the appeal: at [35].  Analagously, since the basis for the original transfer of the Buderim property to the applicant was the order of 10 February 2009 and since that order has been “set aside”, it might have been expected that the property would be re-transferred pursuant to an order made on 22 May 2009.  It would seem that that was not sought: it was certainly not ordered. 

68. [68]
    So the present position must be that the applicant holds the legal estate in fee simple of the Buderim property on trust for the first respondent. In proceedings such as this, on a prima facie basis, it is, in truth, an asset of the first respondent. 

69. [69]
    It has been contended by Counsel for the applicant that the Court should infer that “the property pool for distribution is approximately $1.305 million”, which is contended to include an increase in the value of property held at the time of the relationship by the first respondent.

70. [70]
    As I earlier indicated, it is impossible to ignore the fact that affidavits filed by both the first respondent and the second respondent assert that the first respondent no longer has any property (or income). In particular, the first respondent has asserted that:

• as at mid June 2009:

• he “currently” lived in Venezuela, renting an apartment from a company owned by his mother and his sister; and
• the only property he had was a NatWest Bank (UK) savings account with a balance of £6.18 and, apart from some household furniture and personal items with an estimated value of A$1,000.00, no other property; and

• such property as he did own during his de facto relationship with the applicant was, implicitly, lost after his businesses went into liquidation in about August 2003, subsequent to which time he has been solely dependant on the financial support of his mother and his sister.

71. [71]
    For her part, the second respondent states that, on a date unknown to her, the first respondent sold his property in the United Kingdom (presumably the home at Hove), paid out the balance of the mortgage and paid the net proceeds of the sale to the first respondent’s sister “in partial satisfaction of the debt owed to her by him”. She adds that, so far as she was aware, as at 10 May 2010, the first respondent owned “no other property of any significance other than personal items” and was then residing in a property owned by a company, belonging to both the second respondent and the first respondent’s sister, in Venezuela. 

72. [72]
    In WB v GSH^[15] Applegarth J was confronted with circumstances in which the respondent there had not disclosed or produced documents that were relevant to the determination of the assets and liabilities in question, and where some of the documents produced were unreliable (at least in part): at [28].  After referring to a cited decision of the Family Court of Australia, Applegarth J concluded that, where there had been such non-disclosure as that with which he was faced, the Court should not be “unduly cautious” about making findings in favour of the other party, relevantly noting, however, that the absence of evidence and adverse inferences that can be drawn concerning an unexplained failure to produce “do not entitle me to simply guess the extent of (the) assets and liabilities” (emphasis added): at [29].

73. [73]
    What is clear from the applicant’s affidavits and her oral evidence before me is that the first respondent, even in the early stages of the relationship, was close about what he did own, was willing to accept contributions from the applicant without necessarily responding in kind himself and was “open and ongoing” in his “lavish actions and lifestyle”. Examples of that include: while in England, the first respondent booked a holiday to travel to Las Vegas, USA; approximately three months after returning to England in 2003, he took a “five star holiday to Thailand with his family, leaving myself and our infant son in Australia”; after initially coming to Australia in April 2002, he remained out of Australia and only returned for the birth of A in early March 2003; and it was “clearly apparent” to the applicant that the first respondent had “an alcohol addiction”. Furthermore, a joint bank account which was set up to comply with the requirements of permanent residency was drained by the first respondent when he left Australia to reside in England permanently, leaving the applicant with just $100.00; and, as earlier noted, payments to assist the children ceased altogether by Christmas 2003.

74. [74]
    Although the applicant used the examples contained in her affidavit filed 17 August 2009 as indicating the likelihood of significant, continuing asset holding on the first respondent’s part, her reference to an email of 31 March 2004 (in which he boasted “of being invited to different venues almost every night for a week, and his description of the food and drink that was available”) as an indication that he “still continued to live a lavish lifestyle” and was still partying on a regular basis, is more indicative to me of a person who was profligate and uncaring. As such, while it undoubtedly lends support to the view that his assertions should be greeted with scepticism, they also are consistent with a spendthrift lifestyle which has left him, as he stated, solely dependent on the financial support of others.

75. [75]
    Such an approach to property retention, and the effect it could have on any adjustment of the parties’ interests pursuant to Part 19 of the PLA, are other matters altogether.  This will be analysed later. 

76. [76]
    In summary, I conclude that the only property of any worth that either party has at the moment is the Buderim property. On the valuation prepared by Cameron Greensill, contained in his affidavit filed 13 April 2012, this registered valuer gave an opinion that the market value of the Buderim property was $275,000.00, although he was careful to state that that was as at 18 February 2011. Given the Statement of Financial Circumstances of the applicant, and the fact that the actual value cannot, without further expense for a person already struggling financially, be established with greater precision, especially in a case such as this where a global approach is taken, I accept that the value opined is reasonably indicative of the property in question now.

Contribution-based entitlements to the pool

77. [77]
    As deposed to by the applicant, at the commencement these were as follows:

• she had assets of $14,200.00 and liabilities of $6,000.00; and
• the first respondent had assets in excess of £375,000.00 (excluding identified, but unknown values of, other assets) and unknown liabilities.

78. [78]
    For his part, the deposition of the first respondent is to the effect that, at the commencement:

• he had assets of: a house in Hove valued at approximately £275,000.00; a second hand Range Rover valued at approximately £20,000.00; and a 20% share in the company, Intertown Enterprises Limited, trading as “Driver Hire” and in the company, Intertown Communications Limited, trading as “The British Employment Agency”; and
• he had liabilities by way of: a mortgage over the home at Hove of approximately £275,000.00 (which was later extended to £315,000.00); and various loans from his sister totalling approximately £180,000.00 (being moneys advanced over a number of years commencing in 1996 to assist him in investing in various businesses and to pay for the deposit on the home in Hove).

79. [79]
    Before turning to what the applicant says occurred during and after the relationship, the following further aspects deposed to by the first respondent are relevant:

• as at June 2009, he was living with his partner of two years and their “now 14 month old daughter”;
• the home at Hove was sold in 2006, with the balance of settlement proceeds paid to his sister to repay a loan to her;
• he had been unemployed since the “demise” of his various business ventures;
• he had received in the financial years 2005/2006, 2006/2007 and 2007/2008 taxable income of “nil”, although he admitted that he had undertaken some limited employment on a casual basis as a painter and decorator; and
• since the separation, his sister had paid rates, tax and maintenance liabilities for the Buderim property in the sums of $5,436.44 and $2,303.58 (such that all payments, rates and taxes were stated to be up to date as of October 2008 – i.e. before February 2009).

80. [80]
    The applicant’s affidavit of 20 July 2012 referred to financial contributions by both her and the first respondent throughout the relationship. I will turn to those in a moment because they are more extensively covered in her other affidavits. The new information given in oral evidence was that she was now receiving a single parent payment of $1,430.00 per fortnight and that she had commenced part-time study for a non-accredited course (for which she was receiving no financial contribution).

81. [81]
    The most extensive survey of what occurred during and after the relationship (to the present time) is contained in the applicant’s affidavit filed 17 August 2009. It is to that affidavit that I will have primary reference in the findings that I now make.

82. [82]
    I find that the applicant, during the relationship, made indirect contributions to the acquisition, conservation or improvement of the property and the financial resources of the first respondent in the following ways:

• cleaning and maintaining the home at Hove (which was a double storey dwelling);
• cooking the meals, attending to laundry and ironing requirements, and caring for the dog;
• designing resumes for clients of the relevant businesses of the first respondent, usually “charging” £50.00 per resume and designing approximately two per week;
• obtaining a part time job at a financial advisor’s office, being employed for approximately four months and “earning” approximately £270.00 per week;
• assisting the first respondent in running his business by personally designing new marketing material, sourcing staff and promoting the product (spending approximately 18 hours per week doing so);
• undertaking responsibility for managing casual candidates and clients to ensure appropriate and specialised placements, and also being responsible for permanent placements for which she would “receive” £2,000.00 plus VAT and would arrange, on average, one placement every three weeks; and
• being on call 24 hours a day with respect to the businesses, which included picking up the first respondent and taking home staff from the businesses, thereby enabling the first respondent to continue sleeping undisturbed through the night in order to be “fresh for his daily work obligations”.

83. [83]
    In her oral evidence she expanded on some of these matters:

• with respect to picking up the first respondent, that it was because he could not drive as he would be drunk;
• with respect to the businesses, that the first respondent was one of four shareholders, and directors, in the companies; and
• with respect to those companies, particularly concerning the business called “The British Employment Agency”, franchises were set up which were sold and for which franchise fees were paid in the order of 11% (although the applicant, to her credit, acknowledged that she did not actually see any documentation in respect of the profits being made by the franchisor).

84. [84]
    Nonetheless, during the 12 months under her working/holiday visa, she stated in oral evidence that she could only work unpaid – though this work was, of course, to the benefit, indirectly, of the first respondent (and slightly inconsistent with her other evidence of work obtained in England outside the first respondent’s businesses).

85. [85]
    With respect to the home at Hove, she stated that, with the commitments they had financially, “it was getting too hard for us to pay the mortgage”, stating that the mortgage was an interest only one and but that she did not know what the mortgage amount was.  Further, she stated that she had to “leave” the businesses because the accountant for the businesses had stated that they had lost £60,000.00 and that therefore the expansion was going to stop, although she stated that the first respondent was still getting over £2,000.00 per week (which was just shortly before she returned to Australia).

86. [86]
    On the important issue of the purchase of the land in Buderim for $155,000.00, the applicant stated that the first respondent would not tell her any details other than the purchase price came from the sale of agencies in which the first respondent had the abovementioned interests.

87. [87]
    Also from her oral evidence the applicant produced outstanding Council rates and charges and outstanding water charges. The first stated that $6,737.51 was owing as at 13 March 2012 and $1,473.58 was owing as at 18 June 2012. With respect to her further study, she indicated that she was doing her commercial pilot’s licence for helicopters and had been doing it for three months. She stated that the total cost to final qualification would be about $60,000.00, plus CASA examination fees and medical fees.

88. [88]
    Returning to the affidavit material, and what occurred post-separation, the applicant also gave evidence that:

• she became aware, from a copy of a Savings Account entitled “Open Plan” in the first respondent’s name, that as at 21 March 2003 the first respondent had the sum of £89,277.50 saved;
• she was aware that the first respondent was attempting to sell the home at Hove and had informed her that he would not take less than £450,000.00, listing the property for sale at that price; and
• on the completion of the purchase of the Buderim property, Green Smart Homes was commissioned to prepare plans and specifications for the construction of a home for which she paid the sum of approximately $700.00 to meet the cost of such preparation (it being stated by the applicant that the balance of her account never exceeded about $1,000.00).

89. [89]
    With respect to outgoings met by the applicant during the relationship, she stated that between April 2002 and July 2003 she expended approximately $30,000.00 on household expenses (including clothes and personal items for the first respondent), on maintaining the family and on living expenses, also paying the entire rental expenses of $250.00 to $260.00 per week. No source of income was identified; but she did sell her motor vehicle to buy household furniture. She acknowledged that the first respondent spent some $5,000.00 on furniture during this time and some $30,000.00 “for living expenses” (see her affidavit filed 29 January 2009).

90. [90]
    As the evidence just canvassed ranged far and wide, it is necessary to view it as a whole in order to properly understand the determination of the contribution-based entitlements in accordance with ss 291 to 295 (inclusive) of the PLA.  Since there are no financial resources of any moment here, the financial and non-financial contributions made directly or indirectly to the acquisition, conservation or improvement of any of the property of either or both of the applicant and the first respondent show that, limited though the financial contributions of the applicant were, they were devoted entirely to either building up the first respondent’s assets or defraying household expenses that he might otherwise be obliged to meet.  I accept that all of her financial and non-financial contributions were directed to the improvement of their joint worth.  On the other side of things, it is clear that the first respondent was able to generate very large sums of money which, while not apparently used to generate permanently owned assets, were spent towards maintaining a home, a vehicle and accumulating a substantial savings account.

91. [91]
    Perhaps the most important aspect of these particular matters (though more relevant to the adjustment) is that it is more probable than not that the first respondent’s profligate lifestyle led to the “demise” of his income earning businesses and the depletion, if not complete exhaustion, of both real and liquid assets of his. What is also, similarly, important is that he has, apart from the limited contributions made in 2003 to the childrens’ welfare, assisted in no way with their continuing maintenance and support. All this led, eventually, to the applicant being in the position of having to declare herself bankrupt after being unable to service borrowings she had made.

92. [92]
    Although there is no evidence from which the applicant can trace any specific financial contributions she made into the Buderim property, I find that it is undoubtedly the case that all her financial and non-financial contributions were of assistance to the first respondent in obtaining that property – although it is impossible to even speculate as to the extent to which they would have assisted, even if it had been, for instance, that the first respondent paid for the property from his Savings Account.

93. [93]
    The next matter is those contributions which include the home-making or parenting contributions. These are undoubtedly one-sided; and almost totally in favour of the applicant, particularly considering the matters just canvassed.

94. [94]
    As for the matter of the effect of any proposed order on the earning capacity of the former partners, since the first respondent has been the author of any misfortune that has been visited upon him, since his actions destroyed the earning capacity of the applicant, and since she has now, and only recently, moved to establish a renewed earning capacity, all effects flow in her favour because she needs money to re-establish such a capacity. On the fact of child support, there is a very limited amount only that the first respondent provided, or is likely ever to provide, for both children. As at 14 August 2009, his outstanding Child Support liability was $48,364.71. But, again, where the only real asset is the Buderim property, those have most relevance later.

95. [95]
    Thus, before moving on to determining whether any adjustment should be made, it is clear that, with respect to the one identifiable existing asset, the contributions of the parties must lead to a determination that their contribution-based entitlements, given the purchase price, still considerably favour the first respondent (because of the short duration of the relationship, and the late purchase, and the non-existent upkeep by the applicant of the Buderim property). The exact percentage is difficult to determine, though it could be calculated to be 70%.

Adjustment to the contribution-based entitlements

96. [96]
    It is at this stage that the factors in ss 297 to 309 of the PLA are brought into account.  As to the age and health of each of the partners, the applicant is 33 years old and in good health and the first respondent is 45 years old and is likely, on the balance of probabilities, to still be in good health. 

97. [97]
    On the factor of resources and employment capacity, the applicant has virtually no property, or financial resources, and has only now been able to move to a position of seeking to qualify for gainful employment. As for the first respondent, it is likely, on balance, that, despite his affidavit, his earning capacity has not been impaired or restricted, although it is impossible to know whether his dissolute lifestyle has meant that his dependence on his mother and sister is a result of a loss of physical and mental capacity to gain appropriate employment.

98. [98]
    As far as the children are concerned, the applicant has the sole care of the two children who are now aged 10 and 9, respectively, and is likely to have their sole care until they are self supporting. As for the commitments of the partners which is necessary to enable them to support each other and of the children, the plaintiff has had cause to rely upon a government pension as she has received no support since Christmas 2003 from the first respondent. Neither party, so far as the evidence allows, has a responsibility to support any other adult person. Turning, then, to government assistance, the fact of the applicant receiving $1,460.00 per fortnight for the single parent payment is taken into account. That pension also covers the applicant’s twin younger children (presently aged 5½) for whose support she is responsible and therefore has commitments to them (although unparticularised).

99. [99]
    As to what standing of living is reasonable in all the circumstances, the applicant was clearly used to a reasonably high standard of living – although she was not provided with a fraction of the money which the first respondent spent on himself – and even that has deteriorated significantly now, while the standard of living that is reasonable for the first respondent can only be judged by that which he has bought on himself.

100. [100]
     In terms of the contributions to income and earning capacity, the applicant, by looking after the household, the children and the first respondent, and by contributing non-financially to the business interests of the first respondent, allowed him to devote almost all his time to such interests.

101. [101]
     The length of the particular relationship has been almost the statutory minimum and, therefore, is not a particularly relevant matter in any adjustment to be undertaken.

102. [102]
     The extent to which the relationship has affected the earning capacity of each of the parties is that it has left the applicant, as already mentioned, in a position of totally caring for herself and the relationship’s two children to the extent to which bankruptcy eventuated. It is only now that she can engage in improving her prospects, lacking any higher education. It cannot be considered that the relationship was the cause of any effect on the earning capacity of the first respondent.

103. [103]
     In terms of cohabitation with other persons, the applicant has no cohabiting person and to the extent that the evidence indicates that the first respondent has, or still is, cohabiting with the mother of their child in Venezuela, it is impossible to determine that there is any positive financial circumstance arising for him.

104. [104]
     Since child maintenance was only provided by the first respondent until Christmas 2003 to the extent of $875.00 (in total), it is not a significant factor at all.

105. [105]
     With respect to other facts and circumstances, I do accept the evidence given by the applicant that she was subject to domestic violence and controlling behaviour. As recognised by Mackenzie J in BLM v RWS^[16], an allowance can be made in terms of making the roles respecting contribution “more onerous”: at [83].  The extent to which that is taken into account can only be done so in a global sense given the lack of both medical evidence and the short term nature of the relationship.  Even so, it is useful in concluding that whatever has befallen the first respondent in terms of his own fall from financial grace, he is likely, on the balance of probabilities, to be the author of all of his own misfortunes.

Property Adjustment Order

106. [106]
     In s 286(4) of the PLA “adjust” is defined, for the purposes of s 286, for interests of persons in property, to include to give an interest in a property to a person who had no previous (such) interest in the property.

107. [107]
     In the terms of s 286(1), the order that the court may consider is one that is “just and equitable” about the property of either or both of the de facto partners. That end is achieved by “adjusting the interests” of the de facto partners in the property. And it is obliged, by s 286(2), in deciding what is just and equitable, to consider the matters in ss 291 to 296 (inclusive). By s 296, the factors in ss 297 to 309 (inclusive) are, further, bought into account.

108. [108]
     It is unnecessary to traverse the various matters and factors that I have already considered in some detail again. What is clear is that the first respondent, on the limited evidence concerning him (and to the extent to which credibility can be given to it), has wasted whatever property he has had, whether that property was originally held by him at the beginning of the relationship or still held by him at the end of the relationship. Since there is no evidence that he presently has any property available for pooling which can be subject of any adjustment order (apart from the Buderim property), the conclusion must be reached that it is just and equitable that having formed the relationship that he did with the applicant, having so exploited the applicant (whether deliberately or incidentally) and leaving the applicant in the position she has been in since late July 2003, he has forfeited his right to a share in the only property capable of being determined, on the balance of probabilities, to be part of any present asset pool. The reason why he has forfeited such a right is that, insofar as it can be determined on the evidence presented, the interest that he does have in the Buderim property would on its face have its value totally dissolved, for him, by what appears to be very large (but undefined), and still existing, debts to his mother and to his sister. While such debts are matters that are taken into account in determining the value of the asset pool at the time of trial, since they would diminish its value to zero unless he was obliged to bear them all, if full effect was given to the first respondent’s “unadjusted” interest in the Buderim property there would be no property of any kind available for distribution. Even by having the first respondent bear the burden of those debts, largely following the approach adopted in FO v HAF, the assets which reflect his initial contribution are largely dissipated (due to him alone), the equity in the Buderim property is roughly $275,000.00 (less outstanding rates and charges), her debts are relatively modest (although, unusually, her legal fees have not been disclosed), so a 30/70 split between her and the second respondent would give her very little from the relationship. This is far from just and equitable.

109. [109]
     Because I have determined that the first respondent has led his profligate lifestyle to the obvious detriment of the children of his relationship with the applicant, and to the applicant herself, it is just and equitable to make an adjustment to his interest so as to give some prospect to the applicant to obtain remunerative work and to care for the children of the relationship without necessarily having to rely upon government pensions. It is not without some substance that the first respondent’s grant of permanent residency was dependent upon his undertaking to meet community obligations in this country. His total rejection of that obligation comes within the sweep of factors that are caught up in a consideration of s 286 of the PLA. Given the relatively limited sum which is the value of the total pool of the parties’ assets, and given the overwhelming effect in the applicant’s favour of the relevant matters and factors, I hold that a division which gives the applicant the whole of that Buderim property is one which is just and equitable between the parties in this exceptional case.

110. [110]
     It is necessary to turn then to the Court’s powers under s 333 of the PLA.  The purpose of the Subdivision in which s 333 appears is to ensure that the Courts having jurisdiction “have adequate powers to make appropriate orders”. 

111. [111]
     Since I have ordered that the caveat of the second respondent be removed, and because of earlier determinations of the interests of the parties, the bare legal ownership is held by the applicant as registered owner of the estate in fee simple of the Buderim property. Hence, pursuant to s 333(1)(a), the Court will order the first respondent’s entire beneficial interest in that estate in fee simple to be transferred to the applicant. That will require no adjustment to the registered title, leaving the applicant free to deal with the property as she may see fit (which, given her present circumstances, will inevitably lead to the sale of that property in order to discharge the existing debts to the local authority and utility providers, as well as discharging the mortgage to her instructing solicitor).

Summary

112. [112]
     The summary of the orders that I intend to make in this proceeding are:

1. (a)
   that the second respondent be granted leave to be added as a party to this proceeding;

2. (b)
   that the caveat lodged by the second respondent against Lot 164 on Survey Plan 146373 in the County of Canning, Parish of Mooloolaba and bearing Title Reference 50433383, numbered 712549465 in the name of AA be removed, and that her other “claims” be dismissed; and

3. (c)
   that the first respondent’s entire equitable interest in the estate in fee simple for Lot 164 on Survey Plan 146373 in the County of Canning, Parish of Mooloolaba and bearing Title Reference 50433383 be transferred to the applicant.

Costs

113. [113]
     By s 314(1) of the PLA a party to a proceeding of this kind bears the party’s own costs. However, s 341(2) provides that if the Court is satisfied that there are circumstances justifying it making an order, it may make an order for costs it considers appropriate, although in doing so it must take into account the matters set out in s 341(4).

114. [114]
     Although I have serious concerns as to whether any order for costs will bear any fruit at all, there are good reasons in this proceeding to make an order against both the first respondent and the second respondent.

115. [115]
     Dealing with the second respondent first, while one might wonder as to what advice she received, there never was any real prospect of the affidavit she lodged being found by a Court to be a justifiable basis for a caveatable interest. Her intervention in that way has obviously led to further cost and there is every reason to conclude that at least s 341(4)(c) has been engaged here.

116. [116]
     Dealing, then, with the first respondent, apart from his intervention in having set aside the decision of 10 February 2009, his involvement in the proceeding has been, initially, spasmodic and, thereafter, totally non-engaging. It led to the application by his solicitors, granted successfully, for leave to withdraw.

117. [117]
     More importantly, the first respondent failed to make any disclosure which would have been of utility in deciding the issues arising. To the extent it matters, the outcome that I have determined can be characterised as being wholly unsuccessful on his part.

118. [118]
     Therefore, I will make an order that the first respondent pay the applicant’s costs, including reserved costs, but excluding those costs relevant to the second respondent, to be assessed on the standard basis.