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Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer[2015] QDC 147

Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer[2015] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer [2015] QDC 147

PARTIES:

BONNIE HELEN MORRISON

(plaintiff)

v

ALEXANDER JOHN SHEARER AS EXECUTOR OF THE ESTATE OF ROBERT GRANT SHEARER

(defendant)

FILE NO:

3727/14

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10th of June, 2015

DELIVERED AT:

Brisbane

HEARING DATE:

11-13th May 2015; submissions received 14th and 15th of May 2015

JUDGE:

Ryrie DCJ

ORDER:

  1. The plaintiff’s claim is dismissed.
  1. The defendant’s counterclaim is allowed.
  1. Morgan Gerard Lane and Christopher Cook, Insolvency Practitioners be appointed Trustees of the land described as Lots 4 and 5 on Registered Plan 12499, County of Stanley, Parish of Bulimba and situated at 71 Brentnall Street, Norman Park in the State of Queensland, pursuant to Section 38 of the Property Law Act 1974 (Qld).
  1. The proceeds of sale, after payment of all selling expenses and conveyancing costs, be divided into two equal shares and dealt with as follows;
  1. (a)
    As to one share, to be paid to the Defendant to be distributed in accordance with the Testator’s will; and
  1. (b)
    As to the other such share, to be applied firstly in the payment of the Trustees’ professional costs and outlays and thereafter the balance be distributed to the Plaintiff. 
  1. I declare that, on the proper construction of the will, the defendant should distribute 20% of the estate’s 50% share of the net sale proceeds to the plaintiff, such that the plaintiff’s total share is 60% of the total proceeds of sale of the subject property.
  1. The parties are to provide written submissions as to costs but not until after 28 days has expired from the date of publication of this judgment unless the parties otherwise agree.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY CONDUCT – PROPRIETARY ESTOPPEL – where the plaintiff and defendant were in a de-facto relationship and purchased a property as joint tenants together – where the plaintiff alleges that an oral ‘Acquisition Agreement’ was entered into with the defendant that they would purchase the property as joint tenants, that they would refrain from making wills, and title to the property would pass to whichever party survived the other – where the plaintiff alleges that a subsequent oral ‘Separation Agreement’ was also entered into with the defendant at or about the time of their separation that the plaintiff and defendant would continue to own the property as joint tenants and that title to the property would pass to whichever party survived the other - where the defendant subsequently severed the joint tenancy – whether any representations were made by the defendant to the plaintiff as they related to the said oral agreements – whether the plaintiff relied upon those agreements to her detriment

EQUITY – DECLARATORY RELIEF – CONSTRUCTIVE TRUSTS – RESULTING TRUSTS – GENERALLY – whether there was any joint endeavour between the plaintiff and the defendant irrespective of the parties’ intentions – whether any joint endeavour, if any, gave rise to a constructive trust – whether a resulting ought to be imposed in order to reflect any unequal contributions made to the initial acquisition of the property

EQUITY – GENERAL PRINCIPLES – EQUITABLE DEFENCES – LACHES – whether the plaintiff delayed in bringing her claims to the disadvantage of the defendant

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND THE EFFECT OF TESTAMENTARY DISPOSITIONS – whether clause 3 of the deceased’s will is clear in its terms – whether extrinsic evidence ought to be admitted

Barker v Linklater & Anor [2007] QCA 363 – considered

Baumgartner v Baumgartner (1987) 164 CLR 137 – considered and applied

Calverley v Green (1984) 155 CLR 538 – considered and applied

Fell v Fell (1922) 31 CLR 268 – considered

Germanotta v Germanotta & Ors [2012] QSC 116 – considered and applied

Gillespie & Ors v Gillespie [2013] QCA 99 – considered and applied

Hill v Hill [2005] NSWSC 863 – considered

Muschinski v Dodds (1995) 160 CLR 583 – considered and applied

Nolan v Nolan and Ors [2014] QSC 218 – considered

COUNSEL:

B. Kidston (for the plaintiff)

D. Morgan (for the defendant)

SOLICITORS:

Active Lawyers and Consultants (for the plaintiff)

Woods Prince Lawyers Pty Ltd (for the defendant)

Introduction

  1. [2]
    During the period 1979 until December 1992, the plaintiff Ms Bonnie Morrison (‘Bonnie’) and Mr Robert Shearer (‘Bob’) (now deceased) lived together as husband and wife but never married. In June 1988, they purchased a property (‘the property’) (71 Brentnall St, Norman Park) together as ‘joint tenants’. The property was in effect on two lots with one title, in that it had a house straddling on it which was divided into two flats. Ms Morrison and the deceased resided in one of the flats while renting out the other save for a period when the deceased’s mother lived there. After the relationship came to an end in December 1992, each party then took a flat each in order to facilitate their own and separate lives. Regrettably, Mr Robert Shearer died on the 20th September 2012 as a result of a terminal illness. Prior to his death however, the deceased had made his own will dated 16th May 2012, the construction of which is now in issue (exhibit 2). Shortly after making that will, the deceased, on legal advice, severed the joint tenancy in respect of the subject property. The parties continued to hold the subject property as tenants in common in equal shares thereafter until his death on 20th September 2012. The property is currently held as tenants in common in equal shares as between Ms Morrison and Mr Alex Shearer, the deceased’s brother and executor of the estate.

The Pleadings

  1. [3]
    In these proceedings, Ms Morrison’s primary relief is based on proprietary estoppel. In the alternative, Ms Morrison seeks either equitable damages or declaratory relief (constructive or resulting trust). In short, the pleadings reveals that Ms Morrison’s claim essentially is that just prior to the acquisition of the said property in 1988, the deceased had verbally agreed with her “that the property would be purchased as joint tenants; that they would refrain from making wills; and that the title to the property would ultimately survive to whichever party survived the other”. She says that in reliance upon those representations being made, she had financially contributed the lion’s share to the property’s purchase, all of the loan repayments (including interest) and the property’s maintenance and upkeep. She also says that she undertook the lion’s share of the domestic work in respect of their relationship. The parties eventually separated in December 1992. Ms Morrison says these assurances were repeated from time to time throughout the relationship. Ms Morrison also says that at or about the time of their separation, it was further agreed between her and the deceased “that they would continue to own the property as joint tenants and that the title to the property would pass to which every party survived the other”. Ms Morrison says that in reliance upon the representations being made to her by the deceased at those various times, she had suffered a detriment, namely the loss of an entitlement to the deceased’s ½ share of the subject property. By transfer dated 6th July 2012, the deceased had severed the joint tenancy in respect of the said property. As a consequence, the deceased’s interest held in the property did not pass to Ms Morrison upon his death on 20th September 2012. As such, Ms Morrison claims that it was unconscionable for the defendant to resile from the agreement in all the circumstances having regard to the earlier verbal representations which the parties had made to each other, and her subsequent reliance upon them. 
  1. [4]
    The defendant Alex Shearer (Executor of the Estate of Mr Robert Shearer) in these proceedings in effect denies the claims being made by Ms Morrison and the relief which she seeks. The defendant has also counterclaimed seeking that the subject property be sold and that the net proceeds obtained (after deducting selling and conveyancing costs) be divided so that Ms Morrison receives 20% of the estate’s half share of the net sale proceeds (or put another way, that the whole of the net proceeds obtained from the sale of the property be divided 60:40 in Ms Morrison’s favour).
  1. [5]
    In order to determine the plaintiff's claims, a consideration of the evidence given at trial is necessary which also necessitates findings to be made; in particular, issues as to credit.

‘The Dynamics of the De-Facto Relationship’

  1. [6]
    Ms Morrison was born in 1955. She has been a qualified Chartered Practicing Accountant since 2006. Prior to that time she had worked as a bookkeeper for approximately 20 years. Ms Morrison and the deceased formed a relationship in 1979. They came to Australia together in 1980 as ‘husband and wife’. They were never married. They did not have any dependants arising from that relationship. They had approximately $400 between them at that stage. Both commenced working not long after they had arrived in Australia. The deceased undertook work as a Chemical Engineer until he left that work voluntarily in late December 1981. Their relationship as ‘husband and wife’ continued until their final separation in December 1992. In the middle of 1988 however, the parties had purchased the property together as joint tenants, the subject of these proceedings.
  1. [7]
    Ms Morrison provided to the court a document which she had prepared (marked Annexure A attached to the Statement of Claim, marked exhibit 6 in these proceedings) which in essence sets out her recollection regarding her best estimate as it related to the respective earnings of both parties during the period March 1980 to 30th June 1992. She had done so, on her evidence, after having regard to certain documentation which was still available and her own recollections of that period. The documentation included tax returns, bank accounts and the like.
  1. [8]
    Ms Morrison’s recollections at trial in respect of the parties’ working lives prior to separation can be summarised as follows. Aside for a short period where they both travelled together to Tasmania (February to June 1982), she said that she had worked consistently as a bookkeeper. She had also additionally took up a hobby during 1986 to 1990 which entailed a jewellery business selling her wares at the markets. Ms Morrison gave evidence that the deceased would go to the markets with her in order to sell the jewellery together. She gave evidence that his contribution however to the business was about 10% (T1-36). She said that she then ceased doing the jewellery business in 1990 and believed that the deceased also did so at that time (T1-35). This evidence was given notwithstanding her own pleading which says that the deceased continued to conduct the jewellery business well after that time.
  1. [9]
    According to Ms Morrison, the deceased never worked again as a Chemical Engineer once he had left that work in December 1981. She says that during 1982 to 1984 he built a boat (‘The Boat’). She conceded it was however for the benefit of both of them. During the time he was building a boat during that period, she initially said that he was doing it full time (T1-34). Ms Morrison then gave evidence that even when he was working on the boat, he was also working as a casual roof plumber, sporadically a couple of times a month (T1-35). She later gave evidence that while he was building the boat he also worked on a casual basis for a sports club a couple of nights a week for cash wages as a cook (T1-42). Ms Morrison says that for about two and half years or so after that, presumably from 1984, he then worked in the roof plumbing industry full time as an employed supervisor after which time he tried to establish a lead lighting business however she said it was unsuccessful. She gave evidence that in respect of exhibit 6 (Annexure A), that during the financial year 01/07/1987 to 30/6/1988 she had calculated the deceased’s net earnings per week to be approximately $135.00 in accordance with the information he had provided in the Metropolitan Loan Application (exhibit 5 Doc 24) (T1-43). Ms Morrison says that was because his lead lighting business ran at a loss and so she had used that figure for the subsequent years that followed ($135.00 per week) in calculating his future earnings for the next few years. She gave evidence that she was the one who had maintained the records of financial matters throughout the relationship (T1-40). She also gave evidence that she considered that exhibit 6 fairly represented all the money which she and the deceased had earned throughout the relevant financial year periods stated (T1-43).
  1. [10]
    She gave evidence that when the property settled for a purchase price of $74,000 in June 1988, $50,000 of that came from a joint metropolitan home loan, four odd thousand came from her own bank account and the rest of it came from joint funds (T1-46). She then referred to Document 26 (marked exhibit 7) which was a document she says she prepared in 1988 which she said set out all of the parties’ relevant bank account details at that time. That was prepared by reference to Document 27. Ms Morrison also says that it was based on Documents 28 and 29 (exhibits 9 and 10) which was the documentation received from the subject property’s conveyancing solicitors. In effect, her evidence was that those documents collectively provided sufficient evidence of her own contribution (from her own personal NAB account) of $4107.29 to the purchase price of the subject property (Doc 30 (exhibit 8). In re-examination, Ms Morrison confirmed that the schedule of the disbursement of funds used to acquire the property outlined what bank accounts the parties had used or cleared out in order to facilitate the purchase (T3-50).
  1. [11]
    Ms Morrison gave evidence that after the property settled she alone then paid all of the mortgage repayments (including interest) up until they separated using her own funds. In this regard, she said that she had utilised her personal NAB Account in which her wages were being paid. She stated that once her wages came into that account, she would walk across the road and deposit money into the Metropolitan Building Society in order to make the loan repayments due. She also said that she paid for all the furniture which they had initially purchased for the subject property and paid all of the phone bills while the deceased had only paid for the joint electricity and food expenses (T1-50). She gave evidence that while they were both living in Flat 1, they had rented Flat 2 out (except for a period when the deceased’s mother lived there rent free it seems for approximately two years) and that that rent money was put towards paying off the rates and other running expenses on the property as required. She stated that in addition to the home loan repayments, she had also made some additional payments using the home loan reducer account. She recalled paying about $2000 in about 1990, her sister putting in about $10,000 and the deceased putting in one payment, but not during the course of their relationship (T1-52; T1-69).
  1. [12]
    She also gave evidence that any monies earned by them went into their own separate bank accounts however she admitted they had also both put money into a joint account as well. She stated however that it was not contributed to equally. She estimated that she gave about 80% of the monies to those joint funds. She also gave evidence that she did the majority of the work maintaining the gardens and also did the lion’s share of the domestic duties. She stated that they both shared 50:50 cooking notwithstanding that her own pleading says that the deceased only undertook the minority of the cooking. She then referred to the purchase of a glass kiln, a Toyota HiAce van and the boat which the deceased had built (the latter being valued at $15,000) which she says the deceased took with him when they separated. She also stated that but for his verbal representations prior to purchasing the property, she would not have contributed to the relationship both financially and domestically to the degree which she had done, and would have insisted he paid or did his share (T1-55).
  1. [13]
    In respect to the parties’ personal circumstances prior to separation, Ms Morrison stated that aside from the deceased’s mother coming to live in Flat 2 for a period, she stated that she believed the deceased to be estranged from his only other living family, his brother Alex (T1-56). Mr Alex Shearer who also gave evidence at trial did not agree. While not having much contact due to distance during the first 20 years or so after the deceased left to head to Australia, Mr Alex Shearer gave evidence that he and his brother were never ‘estranged’. During cross examination, Ms Morrison stated that her definition of ‘estranged’ simply meant to her that the deceased and his brother did not have a relationship where they discussed personal information (T3-26).

‘The Alleged Acquisition Agreement Representations’

  1. [14]
    Ms Morrison gave evidence that prior to the purchase of the subject property, she and the deceased had certain discussions. Those discussions had taken place at Flat 1 (71 Brentnall St, Norman Park) where they were living at the time. Ms Morrison said that that discussion was “that when we bought the property it would be held as joint tenants. We didn’t need to make a will because we were holding it as joint tenants, and it was our only major asset” (T1-45). Ms Morrison said that she believed that it was also discussed regarding who would get the property if the other passed away because ‘she knew and believed Bob (the deceased) knew that joint tenants meant that if either one of them died, the survivor gets the property – gets the other person’s share’ (T1-45). She also gave evidence that she in fact knew what joint tenancy meant because she had come across it in her work as a bookkeeper and that when she and the deceased had gone to see a (conveyancing) solicitor for the purpose of actually purchasing the property, the solicitor had explained it then more clearly to both her and the deceased who were both present. That explanation she said included what joint tenancy meant and what the consequence of it were. During cross examination, she confirmed that if her position was accepted as true, then it would have the effect of effectively tying up both parties’ financial affairs for the rest of their respective lives, that is, regardless of what happened in the future (T1-94).

'The Alleged Separation Agreement Representations’

  1. [15]
    Ms Morrison gave evidence that in December 1992, she again had verbal discussions with the deceased. This was at the point they had decided to separate as a couple. She stated that she had said to the deceased that they should leave the joint tenancy intact and that he had said yes to her. She stated that he then bought up the fact that he might like to return to England and that she said that she would buy his interest out in the property. He had then put forth that he felt that at that time that she had put in 60 percent of the property through the original purchase, because “that cash that had come from me to originally purchase the property and also the fact that I had paid off 100 percent of the repayments during the period we were together” (T1-59).
  1. [16]
    She also stated that she believed they separated because of the fact that his mother had come to live with them. This evidence was in fact consistent with certain evidence given by Mr Lillicrap (Solicitor) who also gave evidence as it related to the deceased’s mother’s ‘part’ in the separation. She further stated that they had also decided not to make wills again at that time. This assertion was made notwithstanding that her own pleadings make no reference to this specific detail.
  1. [17]
    She maintained that the general tenor of those discussions were again mentioned between them throughout the relationship (T1-60) and at no time prior to her receiving a letter from the deceased’s solicitors dated 9th July 2012 (exhibit 21) had the deceased ever told her or communicated to her that he did not intend to honour the prior verbal agreements they had reached. She stated that she had understood that she would only be required to purchase his 40 percent share of the property if he went back to England, otherwise the joint tenancy would simply continue (T1-61). During cross examination on this issue, Ms Morrison conceded that had the deceased in fact chosen to go back to the UK she would have in fact bought out his share in the property (T1-94). When questioned about how incongruous that was, that is, the need for her to buy out Bob’s share, against her continued assertion that she was always going to be entitled to retain Bob’s interest in the subject property as they had agreed regardless of what happened in the future, she stated that she considered “it was a lifetime thing, that if one of them died, the other was not left homeless, whereas if he went back to England and I had bought him out, then it was finalised.” (T1-94).
  1. [18]
    Notwithstanding this evidence, there was no reference regarding any 60:40 split agreement discussed or reached at separation dependent upon any contingency initially pleaded. When questioned about how the 60:40 split had been calculated on the assumption that if indeed the deceased did eventually go back to England as she asserted, Ms Morrison stated that it had been arrived at because she had paid 100 percent of the home repayments, bought the furniture and basically made sure everything was done in the relationship (T1-95). Significantly, she considered that it was nevertheless a fair split between them at that time but only if the deceased had wanted to go back to the UK. Ms Morrison also conceded during cross examination that not only did she think it was a fair split proposed, but that she had in fact agreed with Bob as to the percentage split proposed (T1-96). Again significantly, Ms Morrison agreed that she thought it was fair having regard to the inputs into the property and the various tasks that they had both done, at that time, and early on (T1-96). She stated however that she no longer considered it fair and that had there not been the agreement as such, then she would never have done the renovations, repairs and maintenance after they separated. She stated she would instead have gone to see a solicitor to get some sort of agreement in place. Ms Morrison stated that she had chosen not to tally up her actual contributions at that time even though the ability to do so was available (T3-50).
  1. [19]
    Ms Morrison was also asked during cross examination about the financial contributions made during the relationship with reference to Annexure A which she had prepared. She agreed that in effect she had worked out the initial percentage pre-separation contributions to joint funds was 63 versus 37 percent and that she had come to that percentage by simply adding up what she estimated each party had earned during that relevant period (T1-97). She also conceded that the figures set out in paragraph 14 in her Statement of Claim did not in fact match the figures set out in Document 26 (exhibit 7) which she had placed reliance on in those calculations. She was also further questioned about Annexure A (exhibit 6) in respect of the earnings which she has used for the purpose of her calculations. She admitted that she did not include what contribution the deceased had provided in respect of the jewellery business even though she admitted that he would go to the markets and help sell the jewellery with her at a time when she was conducting the business for a profit (T1-89).
  1. [20]
    She also accepted that even while the deceased was building the boat for both of them the deceased had also worked at casual jobs in order to earn cash. She stated however that she had listed zero (0) dollar earnings for the years 1991 and 1992 because he was running the jewellery and woodworking business at the markets at a loss. There was however no documentation provided to demonstrate the assertion made. She also accepted that he was in fact working most of the time or trying to obtain work during the duration of their relationship. She also accepted that she had put all the rental income received from Flat 2 while they were both residing in Flat 1 as a couple into her earnings column only (including the expenses) because Bob’s businesses was running at a loss. She stated that had she done so otherwise it would have meant his side of the ledger would be even less.
  1. [21]
    Ms Morrison gave evidence that on the 10th May, 2012 the deceased had rung her up to say goodbye. During cross examination Ms Morrison conceded that when she spoke to the deceased on that day, she had asked him during that telephone conversation whether or not he had made a will. This is notwithstanding that her claims are that she and the deceased had always agreed to refrain from ever making wills. Her explanation for asking him if he had in fact made a will was because she knew that he had other assets such as the boat and a car. Ms Morrison conceded that she didn’t remind him of their prior agreements regarding the subject property and the fact that it was always to remain held as joint tenants even at that time. She stated that she didn’t consider it necessary (T1-86). In fact, Ms Morrison conceded that she had never raised the point with anyone (which included even the deceased when he was alive), which was that the deceased and herself had struck certain agreement/s to the effect that the property was always to be held in joint tenancy and that the interest held respectively by them would always pass under survivorship to the other. Her recurring reason for not raising this was, ‘because my solicitor had basically said there’s nothing I could do about it’ (T1-86). In this regard, Ms Morrison had seen a solicitor (Mr Redburn) in July 2012 for another matter, but had raised whether one party to a joint tenancy was able to sever it unilaterally. Indeed, the recurring reason just referred to, was in effect the general thrust of Ms Morrison’s evidence on this issue.
  1. [22]
    When the parties finally separated in December 1992, Ms Morrison gave evidence that the parties each continued to pay off the remaining home loan of $29,500 equally, which was eventually paid out in full on 20th November 1998. They also paid the rates equally and in effect, it is open to find on the evidence available that essentially they then led their own separate lives from that point onwards. Ms Morrison lived in Flat 1 until 2005 at which time she left to reside with Mr Luxford at his home. The deceased on the other hand, lived on the boat for a period until his mother who had been living in Flat 2 at the point of the parties’ separation, went into a nursing home. The deceased then returned to live in that flat himself. Ms Morrison retained at all times the benefit of Flat 1. The deceased retained at all times the benefit of Flat 2. There was no suggestion that they were separated and simply living under the same roof (albeit 2 separate flats at the one property) after separation. Ms Morrison nevertheless stated that the power in respect of lighting for both flats was nevertheless connected to her flat’s meter and she continued to pay for it in full until she left the property in 2005 (T1-62).
  1. [23]
    She stated that even though the relationship had come to an end in December 1992, she did not seek any legal advice regarding her rights at that time as she had relied on his word that their prior verbal agreements would stand. She also gave evidence that at no time had the deceased ever communicated to her prior to her receipt of a letter (exhibit 21) (Mr Lillicrap letter dated 9th July 2012) that the deceased would not be honouring the agreements that they had entered into previously (T1-85). She also gave evidence that even though their relationship had finished, she had remained in contact with the deceased on friendly terms, helping him by paying the bills etc. and talking to him when he was depressed (T1-78), which on her case apparently happened a lot. During cross examination however, Ms Morrison conceded that she had not even visited the deceased when he was in hospital seriously ill with a brain tumor and had only spoken to him a couple of times after he had rung her to advise her that he was seriously ill (T1-86). Her reason for not visiting him at hospital was that she had had an aunt who had died from a brain tumour and that ‘she couldn’t cope with it’.

‘Improvements, Repairs etc Claimed’ (Annexure B)

  1. [24]
    Ms Morrison gave evidence of the improvements, repairs and the like which she said were undertaken by her in respect of the property after separation. She produced a document, Annexure B, which she had prepared (exhibit 20). Certain documents were tendered in support of her claim. A substantial amount of that claim however comes from documentation relating to Mr Sydney Luxford. Mr Sydney Luxford, who has been Ms Morrison’s de-facto partner since 2005, gave evidence that he had performed the work at the subject property at Ms Morrison’s request. He stated that he had not been looking for work at that time as he was semi-retired. He nevertheless provided a series of tax invoices/statement (exhibit 1) for work performed by him for the plaintiff at the subject property over the period from the 10th of January 2006 to the 20th of September 2010. He stated to the court that he was never formally qualified as a builder but that he had performed certain building work for his parents’ building company many times over the years. He stated that he believed that the first work that he did at the property for Ms Morrison related to the driveway; excavating under the house to create two car parks (T1-19). Upon consideration of the documentation tendered this evidence was in fact not correct. Mr Luxford was then referred to an invoice he had issued on the 1st of September 2006 and stated that it was ‘probably’ the first job he did. Again, this cannot be correct as there is an earlier tax invoice for January 2006 submitted. He stated that the amounts claimed in all the invoices tendered were paid by the plaintiff. There was no documentary evidence available on this fact tendered. He also stated that he had calculated his (labour) rates based on his knowledge of having worked in the building industry prior and that he considered them to be ‘very moderate’. Some are noted as $50 and $80 ‘per hr’, whilst some rates claimed were not distinguished at all in the invoices tendered. Curiously, an extension to Flat 1‘s kitchen performed by Mr Furney in November 2003 has a labour rate of $20.00 per hour. The total component which may be attributed to Mr Luxford’s ‘efforts’ to the improvements claimed is $41,252.20. Other documentation was provided to support the plaintiff’s claim for the improvements made to the subject property, post separation. During cross examination however, Ms Morrison admitted that a substantial amount of those improvements were attributable solely to Flat 1 of which she had received the sole benefit, either by living there herself or when she was receiving the fruits of the rent received. A careful examination of the documentation tendered in the plaintiff’s case (excluding exhibit 1) shows that most of that documentation (exhibit 19) was in fact either accompanied by a receipt for monies paid or at least an acknowledgement on the document itself of the monies being received as payment. Curiously, no such notation is written on any of Mr Luxford’s documentation nor have any receipts for payment been tendered by the plaintiff into evidence. Nevertheless, there was no evidence to suggest that the work claimed was not in fact performed by Mr Luxford at the subject property regardless of whether proof of payment was tendered or otherwise. The amount attributable to improvements and repairs to the common property (rather than just to one flat or the other) based on Ms Morrison’s evidence as it related to Annexure B can be calculated at $27,717.42.       
  1. [25]
    Ms Morrison conceded during her evidence that in respect to the construction of the joint deck and roof replacement (common property), she had paid for the materials while the deceased had undertaken this work himself (T1-64). She valued his work contribution however to be about $3000. No account was made for his work in Annexure B at all in respect of the joint deck. Ms Morrison was also asked about the installation of a water tank as the Annexure prepared did not show that fact (T1-102). In this regard, Ms Morrison was of the view that she didn’t believe the tank cost around $5000 when it was suggested to her. She stated that it didn’t cost anything like that and stated that in any event it was plumbed only into his laundry. She also mentioned that she had been told by the deceased that the tank was in fact a ‘reject’ that he was given by an organisation that went ‘bust’ (T1-102). She also stated that by creating a laundry in Flat 1 (instead of requiring the tenants to use the joint laundry as it existed) had meant a better quality of tenant which helped out the deceased as well (T1-106). She further stated that getting a better tenant was so Bob wouldn’t continually complain (T3-25). She was reluctant to concede that these improvements also meant that a better tenant would mean better rent for her (of which she received the whole benefit of). Ms Morrison also referred to other documentation provided which she said supported her claims in respect of the furniture purchased by her during the relationship (exhibit 15). She also stated that in her opinion the deceased had basically done nothing to his unit, and that he lived in a squalor (T1-75). As a consequence she stated that it had presented difficulties for her securing tenants for her flat and she had to improve certain things because “they didn’t like to go into areas he didn’t maintain such as the back where the washing line was and where the joint laundry was situated”. This evidence was given notwithstanding that the responsibility to maintain that area equally fell to Ms Morrison as a joint owner of the common area of that property. Nevertheless, she stated that she chose to renovate the bathroom upstairs (in her flat) and put in a dryer, washing machine and laundry tub into it (T1-76) so the tenants in her flat were accommodated.
  1. [26]
    Ms Morrison stated that she would not have done the large amount of repairs, improvements and the like claimed in Annexure B (exhibit 20) had she not relied on the deceased’s earlier agreement as pleaded, made at the time of separation. She also claimed that had she not secured the agreements which she says were reached with him at the various times, she would have gone to see a solicitor and/or would have proceeded to the courts in order to secure the additional amounts of money that she had put into the relationship (including the purchase monies, mortgage repayments and the like) (T1-76).
  1. [27]
    Ms Morrison gave evidence that she has always viewed the subject property as her primary asset and that she now needed it in order to fund her retirement. In effect, her evidence was that she needed the (whole) of the property to enable her to in fact retire (T1-77). This evidence was given notwithstanding that Ms Morrison has been living in a de-facto relationship with Mr Luxford for the past 10 years at his home at Tarragindi and has always continued to work as a Chartered Accountant since becoming qualified since 2006.
  1. [28]
    Ms Morrison also gave evidence that after Bob died, when the property was being surveyed in September 2012, she had told Mr Alex Shearer that she was still interested in buying it when he had inquired whether she was still interested (T1-84). Mr Alex Shearer gave evidence in respect of the post separation improvements claimed during cross examination. He admitted that he had not inspected the property in order to elicit whether the work claimed had been done or not. However, he made the point that the deceased had also put in a new bathroom because Mr Shearer’s daughter was going to be visiting him in 2012 and that he had also put in new floors including carpet (T3-78). I have no reason to reject his evidence. In any event there was no real challenge made to the assertions regarding any improvements made by the deceased to his flat at that time.

‘The Meeting on the 4th July 2012 with Alex Shearer at the Bowls Club’

  1. [29]
    Ms Morrison gave evidence that Alex had rung her and said he needed to talk to her. She said she had agreed to meet him. Her recollection of that meeting was that Alex Shearer told her that the house will have to be sold to essentially fund the deceased’s future care in light of his terminal illness. She said that Mr Shearer then suggested that she could buy out the deceased’s share and that she replied to the effect that she had always been interested in buying Bob’s interest. She told Mr Shearer that if Bob stayed on at the property, he might have to pay her some rent because she would need to borrow the money (T1-80). She stated that he then pushed Mr Lillicrap’s card across the table they were sitting at towards her. Her recollection was that no discussion turned to the question of the percentage she might acquire or the like. The first she became aware of a will by the deceased, she says, was when Mr Alex Shearer told her about it after Bob died (T1-81). After being referred to Mr Lillicrap’s letter (exhibit 21), she then stated that she did not take any reference to a will in that correspondence as meaning that the deceased had made one or not (T1-81). During cross examination, Ms Morrison stated however that she was willing to consider purchasing the deceased’s interest in the property then, and in effect to ignore the alleged agreement which had been struck between them, in order to help Bob out (T1-91).
  1. [30]
    Mr Luxford recalled this meeting as he was present. His recollection was that Alex Shearer raised with Bonnie the issue regarding the deceased’s future care in light of his condition and that because it would be expensive the house would have to be sold. He recalled Ms Morrison responding that if she had to pay money to obtain the property and if the deceased wanted to continue to reside in the back flat (flat 2), he would have to pay rent. He also recalled Ms Morrison indicating that under certain circumstances, she would be prepared to buy out the deceased’s share. He did not recall any percentages being discussed insofar as the property if Ms Morrison was to buy out the deceased’s share or anything regarding the deceased’s intention to sever the joint tenancy.
  1. [31]
    Mr Alex Shearer had a different recollection of the meeting. He recalls that there were two points to calling the meeting with Ms Morrison. The first to inform her that the deceased intended to sever the joint tenancy and change the nature of the house ownership to tenancy in common. The second point was to see if Bonnie was prepared to buy Bob out at that stage so that if he needed to go into care, the money would be there to fund it (T3-60). He recalled that she stated that if the deceased was to stay on at the property under those circumstances then she would want commercial rent. He stated he informed her that even in the event of Bob’s death, she would still be getting 60 percent value of the whole house. He subsequently made a note of what he believed to be the pertinent aspects of what was discussed in accordance with solicitor’s advice (Mr Lillicrap) (exhibit 24). That note did not contain any reference to the deceased’s intention to sever the joint tenancy. During cross examination, Mr Alex Shearer rejected the suggestion put that he had not had any discussion with Ms Morrison regarding any prior agreement being reached between her and the deceased to divide the property 60:40 (T3-63). He also rejected the suggestion made that no mention of the deceased’s intention to sever the joint tenancy was ever mentioned by him at that meeting. Mr Shearer gave evidence that the meeting only took place between them because he had rung Mr Luxford to intervene as Ms Morrison was not returning his calls (T3-77). The evidence that is outlined under the next heading supports a conclusion being made that Mr Alex Shearer did in fact discuss with Ms Morrison the deceased’s intention to sever the joint tenancy in the near future. The consultation with Mr Lillicrap which had occurred the day before and the nature of that consultation supports such a conclusion being made. As such, I do not accept Ms Morrison’s memory of that meeting (or Mr Luxford’s) where it conflicts with that of Mr Shearer.

‘The Consultation with Mr Lillicrap (Solicitor) with the deceased on the 3rd July 2012 and the subsequent letter sent on his instructions dated the 9th July 2012 to Ms Morrison (exhibit 21) tendered as part of the plaintiff’s case’

  1. [32]
    Mr Lillicrap gave evidence (under objection) that he met with the deceased and his brother Alex Shearer on the 3rd of July 2012. Mr Lillicrap stated that the consultation related to the deceased having received a diagnosis of a brain tumour about seven weeks beforehand and that it was essentially to get his affairs in order. Mr Lillicrap noted that the deceased had drawn up his own will of which Mr Lillicrap then copied and kept for safe keeping. His recollection was that after a title search was performed in respect of the subject property by him, he advised the deceased regarding the consequences of it being held as joint tenants with Ms Morrison. His impression was that the deceased did not appear to know how that title was held at the time, a fact he further confirmed during cross examination. Mr Lillicrap gave advice that if the deceased was to pass away then it would largely render the will insofar as it related to that property of no consequence because it wouldn’t from part of the estate (T3-8). He stated he then received instructions to sever the tenancy. He recalled that the deceased had clearly wanted 60 percent of the gross asset to end up with Bonnie (Ms Morrison) and that he, Mr Lillicrap, had expressed some concern in the will’s wording, that it might be open to several interpretations (T3-21).
  1. [33]
    A copy of the notes taken of that consultation were tendered (exhibit 22) and were read helpfully by Mr Lillicrap into the record (T3-13). Included in those notes was a reference to the agreement which the deceased said he had made with Ms Morrison at the time they separated, namely that he had agreed that if and when they sell, she would get a greater share of the property. Mr Lillicrap did not accept the proposition which was put to him during cross examination, which was that he had not been advised of any agreement as to percentages having been struck at all between the deceased and Ms Morrison at separation. Rather, it was put to Mr Lillicrap that his notes suggested that the deceased had simply wanted Ms Morrison to have ‘a greater share’ and no percentages were attached to discussions they had at the time they separated (T3-19). Mr Lillicrap said that he may have inferred the ‘specific amount’ about the agreement from looking at the will. Mr Alex Shearer, who was also present at that meeting was asked whether the deceased gave an explanation for the greater share distribution, but he didn’t remember if he did or didn’t (T3-78). I accept Mr Shearer’s recollection on this issue. I find that he could have easily embellished his evidence here but didn’t. In any event, I find it is of no real matter. Ms Morrison herself conceded during her evidence, on her own pleadings (reply) and subsequently in e-mails that a 60:40 split of the whole (my emphasis added) of the property had been struck at time of separation (subject, according to her, on a contingency being fulfilled).
  1. [34]
    Mr Lillicrap also referred to the notes insofar as a discussion taking place regarding the deceased’s mother living with them without paying proper rent and that was why Ms Morrison was to receive a greater share (T3-22). Mr Lillicrap also recalled the deceased authorising him to tell Bonnie that she had been included in the will in accordance with the prior discussions the parties had agreed upon and that the subject letter sent to Ms Morrison was to reflect the instructions which he had received from the deceased in that regard (T3-15). He stated he received no response to his letter from Ms Morrison.
  1. [35]
    Mr Alex Shearer, who attended with his brother (the deceased) upon Mr Lillicrap, gave evidence that once he had discovered his brother was seriously ill with brain cancer he came across to Australia to visit and stay with his brother for about a month. During that visit Mr Alex Shearer recalled his brother discussing the house with him, indicating that he wanted to leave Alex the house but that the deceased didn’t seem to know how the house was held in ownership. This is what led to the consultation with Mr Lillicrap. Mr Shearer stated at no time did his brother ever specifically discuss with him any details of any alleged agreement/s which had been struck by his brother with Ms Morrison at the time they separated. Again I find that Mr Alex Shearer had the opportunity to embellish his evidence on this point but did not do so at hearing. Indeed, his evidence at hearing was that as far as he was concerned, he simply understood that there had been an agreement as between his brother and Ms Morrison which had been earlier reached, which he then communicated to Ms Morrison at the bowls club meeting to the effect that it was his brother’s wishes that she was to receive a 60:40 percent split of the property upon his death (T3-65).
  1. [36]
    Having regard to the evidence I have just referred to, I find that Ms Morrison’s assertion that any 60:40 split discussed at separation between her and the deceased was because of the greater contributions she had made to the relationship up until that point should not be accepted. There is countervailing evidence which suggests otherwise. Mr Lillicrap’s notes reflect that Ms Morrison was to receive a greater share because the deceased’s mother had lived with them without paying property rent for 2 years and that was why Ms Morrison was to receive a greater share. Secondly, there is evidence from Ms Morrison that when the parties separated, the deceased took certain items (the boat, glass kiln and the car) for which she says she received no compensation. This evidence is equally capable in my mind of ‘explaining’ why there was a 60:40 split agreed when the parties’ separated. Accordingly, I am not satisfied to the requisite standard required that Ms Morrison’s assertion as to why a 60:40 split in her favour was struck, is entirely truthful. There was also her own evidence at hearing in any event, which was that she thought it was fair and had in fact agreed to that percentage split in her favour at that time having regard to the inputs into the property and the various tasks that they had both done, at that time, and early on (T1-96). That does little to support Ms Morrison’s assertions which she made at trial which are that she had in fact put a far more significantly higher financial percentage of contributions towards the property before they separated.

‘The Mr Redburn (Solicitor for the plaintiff) Consultations with Ms Morrison’

  1. [37]
    Mr Redburn recalled meeting with Ms Morrison and Mr Luxford in respect of an unrelated matter sometime in July 2012. He could not be specific about the date. During the course of that consultation, he gave evidence that the plaintiff had asked him if a party is able to sever a joint tenancy without the consent of the other party to which he replied in the affirmative. He was then asked if there was anything that could be done to stop that severance to which he replied, “no, it was an entitlement.” (T1-14). Significantly, nothing further was mentioned by Ms Morrison to Mr Redburn in respect of that particular matter. Neither was any documentation produced by Ms Morrison (such as any letter from a solicitor (namely Mr Lillicrap) that she may have received by that time). As such, Mr Redburn, not surprisingly, did not make a file note in respect of it.
  1. [38]
    Ms Morrison on the other hand gave evidence that as soon as she had received the letter from Mr Lillicrap dated 9th of July 2012 (exhibit 20) she specifically made an appointment to see Mr Redburn in order to discuss it. She conceded however that she had made no mention of the earlier alleged agreements which she says were made between herself and the deceased (the subject of her Statement of Claim) to Mr Redburn. Her reason for this ‘oversight’ was that she was very busy at work (T1-82) and that she also had other unrelated litigation on foot at the time. Ms Morrison then gave evidence that it was only in late December 2012 after being advised that the (original) will had been lost that it had then occurred to her that there must’ve been something there that she was missing (T1-88) and that basically she felt she had a further claim and she could do something about it.  This is notwithstanding her recurring evidence at trial which was that she had been led to believe and in fact did believe that there was nothing that she could do about the severance of the joint tenancy which had been effected by the deceased prior to his death as early as July 2012 when she first saw Mr Redburn.
  1. [39]
    Mr Redburn also recalled a further consultation sometime between December 2012 and early January 2013 with Ms Morrison. He said it was only at that time that he first became aware of any alleged representations said to have been made in respect of the subject property by the deceased (now the subject of the statement of claim). His recollection was that during that specific consultation, it was Ms Morrison who had raised the issue again regarding the ability of one party to a joint tenancy being able to sever it with him and that it was her who then stated to him that she considered it to be unfair because statements had been made by the deceased when they had first bought the property, during the relationship and also at the time of separation to the effect that the property would always remain as being held between them as ‘joint tenants’ and that she had always understood that the survivor would take all (of the others’ interest in the property) upon one of them passing.
  1. [40]
    I have no reason to reject the account given by Mr Redburn where it conflicts with Ms Morrison. Had he been given another solicitor’s letter (exhibit 20) or even had his attention drawn to its’ contents on the first occasion without being shown it, he would had discussed it with Ms Morrison. I find that like any other reasonable solicitor, Mr Redburn would have at least taken a note of it. The evidence available for consideration therefore supports a conclusion that Ms Morrison had not in fact received that letter by the time she first consulted Mr Redburn and had in fact already been advised of the deceased’s intention to sever the joint tenancy at the meeting with Mr Alex Shearer at the bowls club which is consistent with Mr Alex Shearer’s memory of that meeting. As such, I reject Ms Morrison’s evidence to the effect that she only was made aware of the deceased’s intention to sever the joint tenancy upon receiving Mr Lillicrap’s letter.

‘Post Mr Bob Shearer’s Death (20th September 2012) and the Subsequent e-mails between Mr Alex Shearer and Ms Morrison (exhibit 23)’

  1. [41]
    After Mr Bob Shearer passed away, a series of e-mails tendered into evidence (by the defence) were sent between Mr Alex Shearer and Ms Morrison. The content of those e-mails were the subject of cross examination.
  1. [42]
    The following adverse findings with respect to the evidence given by Ms Morrison may be made. When questioned about the e-mail dated 20th of September 2012 (T3-29) Ms Morrison stated that where there was a reference to a 60:40 split agreed as stated in the contents of that e-mail, she was of the view it had only meant a 60:40 split was being ‘suggested’. That evidence in my mind was deliberately tailored to be evasive particularly when regard is had to the ensuing e-mails. A consideration of those e-mails in my mind supports the conclusion that Ms Morrison well knew what any reference to the ‘60:40 agreed’ meant by that stage, having regard to the other evidence already referred to.
  1. [43]
    Ms Morrison also conceded that she had never pointed out to Mr Alex Shearer during the course of those e-mail exchanges that she and the deceased had in fact always had an agreement that the property was to remain being held in joint tenancy and that she was always to get the whole of the interest in the subject property in the event of Bob’s death. Her reason for not doing so was that she had received legal advice (from Mr Redburn) that ‘they (she) didn’t think there was anything I could do’ (T3-30). That explanation in my mind is inexplicable having regard to the alleged agreements which she maintained were made between herself and the deceased to that effect throughout the duration of their relationship and even after they had chosen to separate. Her silence on this issue to Mr Alex Shearer raises a real concern in my mind whether there were in fact any such agreement/s struck at all with the deceased as pleaded. This is especially so when Ms Morrison gave evidence that she had always believed she had such agreements in place and that her whole future was depending on those agreements remaining in place in effect forever.
  1. [44]
    Indeed, Ms Morrison stated that the only reason why she actually went back to see her solicitor again the second time was because she wasn’t happy and had never been happy. This is notwithstanding saying that she always knew or always thought she had that agreement with the deceased as alleged yet nevertheless continued to remain silent, even with her solicitor, until well after the deceased had passed away. Her explanation regarding her failure to raise it with anyone (including the deceased even when he was alive) was because she had been earlier advised in July 2012 by Mr Redburn ‘that there was nothing I could do about it’ (T3-33). That evidence in my mind is not worthy of belief particularly having regard to the series of e-mails corresponded after the deceased had initially passed away, as well as other pertinent evidence which I shall now refer.
  1. [45]
    It is significant in my mind, that between the initial consultation with Mr Redburn in July 2012 and Ms Morrison’s subsequent consultation in December 2012/January 2013 with him again, nothing factually had actually changed, other than the deceased had passed away (and his original will may have been ‘misplaced). It is difficult to accept then in those circumstances that Ms Morrison stayed silent about her known entitlement to the said property as pleaded, because she believed’ there was nothing she could do about it’ particularly when she says she had only specifically gone back to Mr Redburn to seek legal advice about a right to ‘claim’ in December 2012/January 2013. The fact remained the same. Nothing had changed even on her own evidence during July 2012, when she first saw Mr Redburn and subsequently when she saw him again.
  1. [46]
    The e-mails tendered also did little to assist Ms Morrison’s case. In the e-mail dated 9th of October 2012, Ms Morrison has in fact herself offered to sell her 1/2 share to a third party (for $330,000 as it was valued for her ½ share) plus an extra $20,000 to compensate her for the moneys she says she has expended over the years (post separation). Ms Morrison’s evidence was that she had only written that e-mail because she didn’t see that she had any other choice (T3-36) and because curiously, she felt that $660,000 was overvalued. When questioned specifically why she had only asked for $20,000 to compensate her for moneys expended by her over the years in improving and maintaining the property post separation, she stated that it was because she had never gone and sat down and added it all up (T3-37). This is notwithstanding she had apparently paid for all the improvements, repairs etc. herself, the subject of Annexure B, and the deceased had not paid a cent.
  1. [47]
    Ms Morrison was also referred to an e-mail dated 11th October 2012. In that e-mail Ms Morrison herself has restated Bob’s will in which she says “was based on an arrangement between the two of them when they separated and that was stated in the letter from Lillicrap when you (Alex and the deceased) had the title changed” (T3-42). When put to her in cross examination that this meant exactly how it read, she would not even concede the point and stated that it was only part of it and the other part of it is the part that I was told I couldn’t do anything about (T3-42). This evidence in my mind does little to assist Ms Morrison’s overall credit and was deliberately evasive.
  1. [48]
    Finally, Ms Morrison said that the first she knew about the concept of the equitable remedy of a constructive trust was in January 2013 when she was first advised by her solicitor. While I accept that this may in fact be true regarding the nature of equitable relief, nevertheless I cannot accept Ms Morrison’s continued assertion that she did not ever seek advice at all in order to pursue her rights and seek legal advice in respect of her ‘entitlement’ to the property as pleaded because she had been told by Mr Redburn in July 2012 that there was nothing she could do about it (regarding the severance of the joint tenancy). Her own evidence on this point was that even Ms Morrison knew at the time of separation that she could approach a solicitor in order to pursue her rights (T1-76). That evidence therefore belies her own assertion on this point.

Further Findings of Credit

  1. [49]
    My impression of Ms Morrison overall, sadly, was that she was a witness not worthy of belief. She was evasive and vague at times while giving her evidence, particularly when being questioned over the series of e-mails to which I have just referred. Indeed, my impression of her was that she was prepared to say whatever was required in order to support her assertion that she had been led to believe or had in fact been told by the deceased that she was always going to be entitled to receive the whole of the deceased’s share in the property upon his death, regardless of where their respective lives took them. I find her assertion in this regard particularly difficult to accept having regard to the parties’ separation in December 1992 and the course their respective lives led them.
  1. [50]
    I also find that Ms Morrison’s continued assertions that she did not believe she could do anything about ‘it’ (in respect of the severing of the joint tenancy or at all it seems in relation to the alleged agreements as pleaded) did not sit well with the whole of her evidence which she gave on this issue. A careful examination of the whole of her evidence is that the fact remains the same. She at no stage ever spoke up about the alleged agreements as pleaded at all notwithstanding that she says she well knew she had always had those agreements with the deceased in place and that she was relying upon them being honoured for the sake of her future. Her own evidence was that even she knew she could do something about it legally if those agreements were not honoured (T1-76). I also find that she did in fact discuss buying out Bob’s share as early as 1992. She said as much in her evidence. That evidence alone in my mind supports a conclusion that she was well aware that he held an interest in the property which he could then dispose of if he chose to do so. That is evident by the discussions the parties regarding a 60:40 split of the property at the time the parties separated in 1992. Ms Morrison’s evidence that this was only ever dependent on a contingency, namely that it would only occur if he went back to England, is rejected. According to Ms Morrison, her whole future was entirely dependent upon the agreements which had been reached even before that time, that each party would always retain their interest in the property for the other in order that they could receive it under the rules of survivorship, regardless of what happened in their respective futures. The weight of the evidence available supports such a conclusion being made that Ms Morrison did not mention the alleged agreements as pleaded which she says were reached with the deceased because they simply were not discussed at all as she suggests. There was also the significant fact of the 60:40 agreement reached in 1992 (not initially pleaded). I find her evidence that this agreement was only subject to him going overseas cannot be reconciled with her continued belief that she was to receive it regardless of the circumstances that arose (including the deceased even going back to England, which I have in any event, rejected). 

The Relevant Law

  1. [51]
    Helpful, comprehensive and timely written submissions were received by both parties (marked exhibit 25 and 26 respectively) in order to assist me.

Proprietary Estoppel

  1. [52]
    The relevant legal principles were recently examined by Lyons J in Nolan v Nolan and Ors.[1] There, Justice Lyons noted that as McMeekin J had explained in Germanotta v Germanotta & Ors,[2] generally a plaintiff must show three things: an assurance by the defendant, a reasonable reliance on that assurance and detriment by the plaintiff. As was the case in the cases just referred, the essence of the claim here is that the defendant is acting unconscionably in not honouring his assurance to the plaintiff. In effect, the plaintiff submits those three things are satisfied given the evidence available.
  1. [53]
    The plaintiff submits that the assumption of future acquisition of ownership of property which had been induced by representations, can be found in Ms Morrison’s evidence that prior to purchasing the property it was agreed with the deceased that they would purchase the property as joint tenants; they would refrain from making wills; and that title to the property would pass to whoever outlived the other. Those representations were said to be repeated throughout the duration of the relationship. Ms Morrison also gave evidence of a second agreement at the time the relationship broke down (1992) at which time the defendant represented that they would continue to own the property as joint tenants; and that title to the property would pass to whoever outlived the other. It is submitted that those representations were never withdrawn by the deceased at any time prior to him effecting a severance of the joint tenancy in 2012, shortly before he passed away, at a time after detriment had already been suffered.
  1. [54]
    Secondly, concerning reasonable reliance the plaintiff submits that reliance may be found in Ms Morrison’s evidence which was that but for her reliance on the representations made she would have insisted he pay his half share to the acquisition, repayment and continuing maintenance of the property; that she would not have spent money on substantial improvements post separation or insisted he pay his half share; she would have consulted a solicitor post separation to recognise her contributions; she would have insisted that the deceased contribute to the management of the affairs of the property post the termination of their relationship and she had the capacity and would have acquired the deceased’s interest in the property. Finally, concerning detriment, it is submitted that this is established based on the considerable sum of money which Ms Morrison expended in respect of the property. It is submitted to represent the bulk of her wealth, and that she had lost the opportunity of pursuing a property settlement at the end of the relationship in 1992 and that therefore, she is entitled to the whole of the property.
  1. [55]
    It is submitted that when considering the issue of detriment it will be part of a broader enquiry as to whether departure from a promise would be unconscionable in all the circumstances. Having regard to the financial contributions and other contributions said to have been made by Ms Morrison during the relationship it is submitted that the severance of the joint tenancy shortly prior to the deceased’s passing is conduct by the deceased that was unreasonable and as such, unconscionable.
  1. [56]
    It is trite to say that a determination of all these issues requires the court’s acceptance of Ms Morrison’s evidence as being both credible and reliable. Regrettably, I do not accept Ms Morrison as either a credible or reliable witness having carefully observed her while she was giving her evidence and for the reasons I have already articulated.
  1. [57]
    I shall now turn to some further parts of the evidence which gave me cause for concern regarding Ms Morrison’s veracity for truth. Ms Morrison’s continued assertion that the deceased agreed with her just prior to the time of the purchase of the property that they would refrain from making wills and that the property would pass to whoever outlived the other is not plausible having regard to the other evidence available. It is true that the property was purchased by them as joint tenants. That fact alone however does not lead to a conclusion that the parties had also sat down and specifically agreed at that time to refrain from making wills or that they had agreed with one another that the property would pass to whoever outlived the other. I find that it is more likely than not, that what occurred was that they had simply agreed to purchase a property together as joint tenants in order to provide both of them as a couple a permanent place to live and it was convenient to register the property as joint tenants as neither had prepared a will at that stage.
  1. [58]
    It is submitted on behalf of the plaintiff that the essence of the alleged agreement emerged out of a consultation with their (conveyancing) solicitor in which they were advised as to the options by which they could hold the property. That is not a fair reading of that evidence nor is in my view, accurate. Ms Morrison stated in her own evidence that the alleged agreement had been apparently reached while at the property itself (T1-45). My conclusion is in any event supported by other evidence which I have no reason not to accept. Mr Lillicrap gave evidence that when the deceased had consulted him in 2012, he did not even know how the property was held as to its title and by implication, any consequences that flowed. Ms Morrison herself was also keen to emphasise during the course of her evidence that the deceased had never shown any real interest in the property nor in its upkeep and that she was the one who had always had to manage the financial affairs in respect of it. It seems unlikely then, given those circumstances and the fact that according to Ms Morrison the deceased was rather lasse faire in his approach to life that he would have sat down with her and agreed with her in the specific terms she suggests at the time of purchase to the finite degree she now asserts.
  1. [59]
    The same can be said for the alleged agreement which Ms Morrison says was made between her and the deceased at the point of separation. Ms Morrison would have most certainly been disavowed of any earlier alleged representation said to have been made regarding the retention by both of them of their interest in the property in order that it would pass to whoever outlived the other. Even on her own case, Ms Morrison has conceded, both in her evidence before the court and again in writing (e-mails tendered) that an agreement was in fact struck with the deceased at that time of which she considered was fair; that she was to receive 60 percent of the property and the deceased was to receive 40 percent of the property if the deceased was wanting to sell his interest to her. If in fact what Ms Morrison’s says is true, that both parties were always going to retain their interest in the property so the other could receive it under survivorship, then there was no need for her to ‘buy’ anything from the deceased in order for him to go back to England. According to Ms Morrison, she had already earned an entitlement to his share as a consequence of their earlier agreements, and therefore would not have needed to buy him out regardless of what circumstances arose. Ms Morrison’s attempts to suggest that the 60:40 split agreement was only contingent upon him returning to England is in any event, rejected. Firstly, that contingency was not initially pleaded and secondly, it belies Ms Morrison’s own assertion that she had always understood that regardless of whatever happened in the future (which could include the deceased at some point returning to England), that each of them had promised to retain their respective interest in the property for each other in order that whoever outlived the other would ultimately receive their share in the property.
  1. [60]
    Indeed, if Ms Morrison actually thought the alleged acquisition agreement and the separation agreement as alleged by her were on foot subsequent to separation up until his death or at the point the joint tenancy was severed, then it is difficult to accept that assertion given that the termination of their relationship was in 1992; that both parties agreed to a 60:40 split if the deceased wanted to sell his interest; the fact that both parties then lead completely separate lives; the actual severance of the joint tenancy by the defendant in 2012; the reference by him in the letter by Mr Lillicrap dated 9th of July 2012 that he wished to honour the agreement he had reached in respect of the property made at the point of separation (namely a 60:40 split); the failure by her not to ever raise the alleged agreements at all with the deceased at any stage prior to his death even after the receipt of that letter, and the many e-mails exchanged (exhibit 23) after the deceased‘s death which in my mind, evidences that even Ms Morrison believed that another agreement had in fact been reached between her and the deceased at separation.
  1. [61]
    A careful examination of Ms Morrison’s evidence on this issue leads me regrettably to but one conclusion; that she was being less than truthful in her recollections. Her continued assertions that she didn’t think there was anything she could do about ‘it’ as it related to the severance by the deceased of the joint tenancy after she was advised by her solicitor that he was entitled to do so legally in July 2012, belies the action which she in fact then took herself on her own volition in December 2012/January 2013. That action included her approaching her own solicitor again in order to advise him that she didn’t think it was fair in respect to any severance of the joint tenancy in July 2012 and that certain alleged agreements had in fact been entered into between her and the deceased, as pleaded. As already stated, even on Ms Morrison’s own account, at no stage had anything factually changed between when she had first seen the solicitor in July 2012 (and only mentioned in passing about whether a party could sever a joint tenancy unilaterally) and when the second consultation occurred. In fact, tellingly, her evidence was that she had always known that she had had these agreements in place with the deceased and that she had specifically gone back to see her solicitor because she had felt she had a claim (T1-88). That evidence simply cannot be reconciled with her continued assertion that she didn’t think there was anything she could do about ‘it’.
  1. [62]
    There were also further matters of concern which I shall now briefly address. Ms Morrison’s initial evidence that she believed the deceased’s involvement in the jewellery business ceased in 1990 is inconsistent with her own pleadings. There was also the late amendment made to her statement of claim regarding the payment of the lighting electricity for both flats being initially that she had paid for this up until his death. That assertion was later changed to 2005 even though no documentation was provided to support that change or earlier pleading. The absence of significant matters in the pleadings were also of some concern having regard to the evidence which Ms Morrison gave. For example, there was no reference to any 60:40 split agreement being reached between her and the deceased at the point of separation or any alleged contingency attached to it until a Reply was filed. Her recollection was also different to that of Mr Redburn’s (who I have no reason not to believe) regarding the consultation and its’ purpose on the first occasion. There was also her evidence regarding her definition of ‘estranged’ insofar as the deceased and his brother which was at best, odd and at worst, in my mind tailored to suit her case with the design to paint the deceased in a further bad light.
  1. [63]
    Overall, I was unable to accept Ms Morrison as a witness worthy of belief. Accordingly I am unable to be satisfied, even to the requisite standard required (on the balance of probabilities), that Ms Morrison and the deceased did in fact agree as alleged, in respect of either of the alleged agreements as pleaded. Having made those findings, I do not find it necessary to consider whether or not Ms Morrison reasonably relied on any alleged representations as pleaded or determine any question of detriment, particularly having regard to the findings which I have already made.

Constructive Trust

  1. [64]
    It is accepted law that a constructive trust may be imposed regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.[3]
  1. [65]
    A helpful discussion on this area of law was given by Muir J in Barker v Linklater & Anor.[4] As Justice Muir observed, nothing in the authorities 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 sufficies to justify the imposition of a constructive trust in respect of the share home owned by one of the cohabitants (which was the situation in that particular case, whereas the property here is held jointly). It is also accepted law that in general terms, when determining a constructive trust and any ‘quantum’ in respect of it, where one party to a failed joint endeavour retains property against the other where blame is not attributable for the failure of the joint endeavour and retention would be unconscionable, that in general terms, it will require analysis of the actual contributions which each party has made over the life of any joint endeavour which came to an end.[5]
  1. [66]
    The plaintiff in the written submissions provided has set out in helpful mathematical terms how such contributions ought to be calculated. If calculated solely on financial contributions alone, it is submitted that it would be in the order of 84.32% in the plaintiff’s favour. Those calculations are however dependent upon an acceptance by this court of Ms Morrison’s evidence insofar as the contributions which she says she made over and above that of the deceased during the period of any ‘joint enterprise or endeavour’.
  1. [67]
    In light of the findings which I have made as it relates to Ms Morrison’s credit, I am unable to find, on the balance of probabilities, that a constructive trust ought to be imposed in all the circumstances to the degree being sought. In other words, I am unable to be satisfied to the requisite standard that Ms Morrison has demonstrated that the contributions which she said she made throughout the duration of the relationship was in fact correct. The documentation which Ms Morrison has also prepared in support of her case was, in my mind, somewhat ‘tailored’. For example, Ms Morrison has simply put her best estimate in respect of the deceased’s earnings over significant periods covered in Annexure A. That was coupled with her continued suggestion that the deceased was in effect a layabout who did little to contribute financially to the relationship. The calculations insofar as financial contributions made and the percentages attributed to those are essentially based on ‘adding up’ what each party is said to have earned during the relevant periods and the contributions said to have been made by one party (Ms Morrison) such as loan repayments and the interest payable.
  1. [68]
    I shall now discuss in some detail certain deficiencies which I find related to the documentation tendered in support.

In respect of Annexure A:

  1. [69]
    Counsel for the plaintiff argues that any finding against Ms Morrison’s credit overall will not necessarily affect Ms Morrison’s entitlement to the declaratory relief sought (constructive trust/resulting trust) in any event, in view of the independent available documentary evidence supporting her claim of the financial contributions to the initial purchase, loan repayments (Annexure A) and subsequent improvements (Annexure B) made to the subject property. That submission overlooks however the fact that a significant part of the calculations made in the Annexure A are entirely dependent upon an acceptance by me of Ms Morrison as a credible and reliable witness. For reasons already outlined I am not so persuaded. In respect of Annexure A, I have grave reservations in any event, regarding its entirety being accurate even to the requisite standard required.
  1. [70]
    For example, for the financial years ending 1983 and 1984 respectively, there is no documentation provided by Ms Morrison to support the figures which she has estimated as the wages earned by the deceased while building the boat. That is dependent solely upon an acceptance of her evidence as being truthful and reliable. The evidence which she gave on this issue was at best unreliable particularly given the varying degree which she said he had worked while undertaking that project which was for the benefit of both of them, particularly given his past work earnings and even subsequently when working as a roofer. Nor was there any tax returns or group certificates tendered in respect of her own earnings for the financial years ending 80, 81, 82, 83, 84 or 85. At best, Ms Morrison has relied on documents 9 and 10 in order to calculate an estimate of her wages during the period between June 1980 to February 1982 when she was working at Wall, Lehman and Will in Sydney. Document 9 shows that for the purpose of holiday pay, a gross income of $234.40 was given per week while she was working at Wall, Lehman and Will plus holiday loading. Document 10 shows an amount of an average of $925.00 per month being received by her as pay (i.e. $231.00 av per week) while she was working at that firm. Ms Morrison herself stated that all the monies she was receiving as wages in Sydney were always being put into her own (my emphasis added) bank account (document 10). That document however only shows discernible wages being paid into that account up to December 1981. Document 11 was also however an account being operated jointly by both the deceased and Ms Morrison during that time which shows monies coming in. It is not readily discernible where the monies coming in were actually coming from. Having regard to the fact that it was a joint account and both Ms Morrison and the deceased were working, I find that the entries relating to the monies received into that account were monies which included the deceased’s substantial wages at that time.
  1. [71]
    The estimates with respect to the earnings of the deceased during 1988 and thereafter (subsequent to the purchase of the property in June 1988) which Ms Morrison has documented is also deficient. No tax returns or other documentation were tendered to show that the deceased’s various attempts at certain businesses (lead lighting, woodwork or the jewellery businesses) were in fact running at a loss as Ms Morrison suggested at trial. I note that documentation was available to be produced by Ms Morrison while she was running the jewellery business showing it to be making a profit yet no documentation was provided to demonstrate that it then apparently ran at a loss as suggested by Ms Morrison after the deceased took over. If it indeed it ran at a loss thereafter, it is my mind far likely that documentation would have been available to illustrate that fact particularly considering Ms Morrison’s background as a bookkeeper and the fact the parties were still together even at that time and she was managing the parties’ affairs.
  1. [72]
    Further, Ms Morrison’s use of the ‘$135 pw’ in the Metropolitan loan application as being indicative of the deceased’s earnings subsequently for the following years thereafter, in my mind, is superficial and again dependent upon her account given in this regard. It must be remembered that the deceased had only just started that business in May 1988 and that form was filled out shortly thereafter. The earnings therefore proposed for the subsequent stated financial years to which I have just referred are again dependent on an acceptance of Ms Morrison’s evidence which I did not find to be overall either truthful or reliable even on the balance of probabilities.
  1. [73]
    There was also the documentation which Ms Morrison herself used to demonstrate what she says was about $4000 odd of her own personal contribution from her NAB personal account used for the purpose of initially acquiring the property. There were no bank documents tendered relating to her NAB account over the period 1988 (when the house was purchased) up to 1991. Instead, Ms Morrison referred to a series of documents received from the conveyancing solicitors in order to demonstrate that amount as having been paid by her from her own NAB account towards the acquisition of the property (exhibits 9, 10). That exercise in my mind failed to persuade me at all of that alleged personal contribution made. For example, the bank cheque received by the conveyancing solicitors was in the amount of $22823.64; an amount which far exceeds any amount held in Ms Morrison’s personal NAB accounts at that time, even on her own evidence (exhibit 7). There was however a substantial amount of monies also available in all of the other accounts that were jointly held at that time even after making any allowance for any monies held in the NAB account/s which equally may well have been utilised solely towards that (solicitor trust account) payment. I have already articulated my reservations about the estimates given by Ms Morrison as it relates to her evidence insofar as the earnings she says the deceased made prior to the property even being purchased. As such, I do not accept her evidence regarding what she says was her significantly greater contribution to any joint funds used towards the initial acquisition of the property in 1988 or that her own personal monies were specifically utilised towards that acquisition.
  1. [74]
    It follows that I am unable to be satisfied, even on the balance of probabilities, that Ms Morrison did in fact contribute to the degree which she says she did to the initial acquisition of the property by claiming that the substantial amount of those monies were from her own funds (as a result of her earnings). Nor am I satisfied that the documentation supports a conclusion that it was only her monies that were ever used to pay off the loan repayments (plus interest) to the degree calculated even after the property was purchased up to the point of separation. At best the documentation provided merely shows that repayments were in fact being made. How that was financially facilitated however was based solely on the acceptance of Ms Morrison’s evidence; that she was the one who had contributed the most financially prior to their separation. That evidence is difficult to accept having regard to the findings which I have made as it relates to Ms Morrison as a witness overall and the deficiencies in the documentation. It also overlooks the contribution which the deceased made insofar as paying for all of the food and electricity over that period. It is also to the point that upon the parties separating in December 1992, the deceased immediately undertook and commenced making repayments including interest equally with Ms Morrison. He also paid for his share of the rates and supported himself financially. Indeed, the outstanding $29,500.00 remaining on the mortgage at date of separation was paid out by both parties in November 1998 after the deceased had also paid $5000.00 towards the home loan reducer account some 16 months or so beforehand. That evidence is not indicative in my mind that the deceased had been earning far less monies in the preceding years before separation as Ms Morrison was prepared to maintain; a fact she was happy to convey while giving her evidence which I do not accept.

In respect of Annexure B:

  1. [75]
    Insofar as the documentation provided, a substantial amount of the work is said to have been performed by Mr Luxford who the plaintiff was living with as a de-facto during the relevant time, There was no evidence of payment tendered before the court for the work actually performed other than the word of Ms Morrison and Mr Luxford during their evidence. There was for example no receipt of payments tendered (even if cash was paid), no acknowledgement on the invoices themselves of any receipt of payment and indeed, Mr Luxford seem to have very little memory of the work which he says he actually performed for Ms Morrison (even though he was only doing little work as he was semi-retired). His evidence regarding the ‘very moderate’ rates which he says he charged was also cause for concern especially having regard to the going rate for builders in the mid-2000s and the other documentation available suggesting that $20.00 per hour was more likely the going rate (see Mr Furney’s Account). Most, if not all of the substantial work that was performed in any event, entitled Ms Morrison to the whole benefit of it, namely such as reaping the reward of rent from it. Her attempt during her evidence to understate this benefit did little for her credit overall. Nor was there any evidence that suggested that she even consulted with the deceased at any stage before undertaking any of the various renovations to her own Flat. In respect of the renovations to the common property shared, aside from the times when he assisted in the building work, the amount expended since separation is minimal ($24,212.17). That is consistent with the deceased telling Mr Lillicrap during his consultation with him in July 2012 that the parties had shared in any improvements made equally. There was also the absence of sufficient acknowledgement by Ms Morrison in the annexure which she had prepared insofar as attaching any value dollar to the deceased’s contribution to improvements of the property in regards to the re-sheeting of the roof and in particular, the construction of a joint deck. There was also the ‘oversight’ by Ms Morrison in respect of the installation of a water tank which Ms Morrison well knew would also improve the property as a whole but attempted to downplay in her evidence as it being only a ‘reject’ that the deceased had put in and that ‘his’ laundry only received the benefit of it. This was notwithstanding the laundry Ms Morrison refers to is in fact a joint one situated on the property. There was also other evidence in any event of improvements which the deceased had carried out in his own flat which I accept were undertaken by him too that I cannot quantify.
  1. [76]
    There was also no valuation of the property taken other than what is contained in exhibit 12 in 2013. None was taken in respect to what the property might have been valued at the time of separation in 1992. The 2013 valuation essentially describes both flats are being one of the same type save an addition of a laundry tub in the bathroom. It is difficult therefore to determine what, if any, increase in value the renovations (improvements) and repairs that were actually made to the property by Ms Morrison, has actually achieved in monetary terms insofar as any increase in value in today’s market.
  1. [77]
    There was also limited receipts for the ‘furniture’ claimed by Ms Morrison to have been bought by her. While some allowance must be given for the time that has past, Ms Morrison was nevertheless at pains to point out during her evidence that she was the person who maintained all the ‘financials’ regarding the home. It seems odd then that she does not have the documentation available to support her claim in that regard given her skills in bookkeeping. Nor was there any phone accounts provided for the courts’ consideration. Rather that is dependent upon the acceptance of her evidence.

Should a constructive trust be imposed nevertheless?

  1. [78]
    Notwithstanding my real reservations regarding Ms Morrison’s veracity for truth, the question remains whether a constructive trust should still be made. I have already made findings regarding the failure of Ms Morrison to satisfy me to the requisite standard regarding her assertions as to the initial acquisition of the property and subsequent financial contributions made (the loan repayments including interest and other subsequent payments made to reduce the loan), however there is nevertheless still the question of the improvements, repairs and the like which Ms Morrison has made to the property post separation. While it is difficult to quantify with any real accuracy what those improvements or repairs added insofar as to the property’s value as a whole, particularly having regard to the fact that the deceased has also made or contributed to the value of the property overall by his various improvements and labour undertaken, I accept nevertheless that any improvements, repairs and the like that have been made to the property may well have improved the value of the property overall. To what degree however remains uncertain as no evidence was provided at all to show any increase in value between 1992 and 2012.
  1. [79]
    It is also difficult to see, notwithstanding the pleadings of both parties, that a ‘joint endeavour or enterprise’ actually existed between the parties after the point they separated in 1992. The fact that the property remained held as joint tenants up until its severance in 2012 does not mean that a’ joint enterprise or venture’ in fact existed during that period. Nevertheless, it is accepted however by me that the property was continually used by both parties for their own respective advantages post separation notwithstanding that they had formally separated as a couple and had essentially gone their own way.
  1. [80]
    The starting point when considering whether or not a constructive trust ought to be imposed is equity favours equality. As such, unless there is good reason to depart from that position, the parties are considered to hold the property in 50:50 shares. This is especially so where a property was purchased and was registered as joint tenants, and held as tenants in common at the time of the deceased’s passing. [6]Amongst other things however, repairs, improvements and maintenance of a property contributed to by one party over and above that of the other, although the responsibility of both owners, may give rise to such a departure.[7] As I have already stated, there is no concrete evidence to show how much if any the improvements and repairs made to the property by Ms Morrison has increased the value of the property as a whole. Notwithstanding that fact and the fact that the parties separated in 1992, the property nevertheless remained registered as joint tenants in the names of Ms Morrison and the deceased until 2012 and they both made use of it by having the benefit of their own flat each (either by occupation or renting it out). As such, the improvements now claimed by Ms Morrison are said to have been made at a time when both parties were still in equal ownership of it yet enjoying the benefit of the property separately. Accordingly, any cost of improvements and repairs made during that period would have been the equal responsibility of both co-owners. Ms Morrison’s contribution in the amount indicated in Annexure B therefore must factor that responsibility into any claim, if it is accepted that she has in fact contributed more than her half share of responsibility as a co-owner to the amounts claimed. If indeed Ms Morrison has paid more, then it may well be that it would be unconscionable to allow the deceased’s estate to benefit from any increase in value to the property as a whole without having to contribute at all to half of those expenses. However, as Campbell J in Hill v Hill [2005] NSWSC 863 observed ‘the mere making of the contribution in a domestic relationship is not something which automatically results in a trust … for an amount equal to the amount of the contribution’. In that case, His Honour was referring to the contribution (improvements) which a son had made to his mother’s home in which he and his family had lived for over 12 years in return for which his mother had guaranteed a debt of his company. His Honour was of the view in that case it was not unconscionable for the mother to retain the full beneficial title in the house.
  1. [81]
    Turning then to this case, some allowance needs to be made for the deceased’s own financial contribution in respect of any improvements made. This would include his labour in constructing both the roof and common deck, the installation of a water tank and his own renovations effected to the inside of his flat. I have come to the view that in the event that a constructive trust ought to have been imposed in this case, then a split of anywhere up to 60:40 of the proceeds of the whole of the property in Ms Morrison’s favour would have been more than appropriate and in fact, generous, in all the circumstances. While it cannot at this point now be mathematically calculated with any precision, that percentage is still indicative as it would nevertheless sufficiently recognise any financial contribution made by Ms Morrison to the improvement and repairs of the property post separation over and above her half share of responsibility in that regard, discounting the whole of the amount claimed in Annexure B in order to reflect the deceased’s contributions already outlined, the sole benefit which Ms Morrison received insofar as a substantial amount claimed overall in respect to her own flat. It also takes into account that no valuation has been provided insofar the value of the property at the point of separation in 1992 and what, if any, the improvements, repairs and the like have made insofar as any discernible increase in its’ value today. The percentage proposed would include any monetary allowance made for Ms Morrison’s entitlement to a half share of the value of the boat ($7500) which she would have been entitled at the point of separation being joint property, in the event it is accepted that the deceased took the boat at that point without compensating her in any way. The proposed percentage is not precise but indicative only. It also does not include any allowance for the car or the glass kiln which Ms Morrison says the deceased also took at separation. That is because there was no clear evidence on this point regarding the actual value of these items (especially taking into account any depreciation) other than Ms Morrison’s assertion that this joint property was paid for again substantially by her, a fact, for the reasons already having regard to her overall credibility, I am unable to accept as true.
  1. [82]
    There was also the agreement reached between the parties regarding a 60:40 split of the whole of the property at time of separation in 1992 in the event the property was sold. Having regard to the fact that I am unable to be satisfied on the balance of probabilities that any such proposed split at that time was to compensate Ms Morrison for any greater financial or non-financial contributions she had made by that stage as she asserted at trial, I am of the view that the correct starting point at the point of separation in respect of any division of the subject property should be that the parties held the subject property in equal share. As already indicated, the 60:40 split agreement discussed between the parties at that time may have been made to simply reflect the fact that the deceased did in fact take the boat (in order to live on for a period) and the fact that he had allowed his mother to live in flat 2 rent free for a period even prior to the parties’ separation.
  1. [83]
    As already discussed in these reasons at length, the improvements, repairs and the like post separation which she says she is entitled to claim over and above her half share of responsibility in respect of these expenses, coupled with some adjustment in her favour for her half share in the boat would more than adequately covered in the percentage proposed if a constructive trust was imposed. It would also give effect to the actual agreement which I find was reached between the parties at the point of their separation in 1992 which I find was not contingent only upon the deceased going back to England as suggested or based upon any acceptance by the deceased that Ms Morrison had contributed significantly more to the relationship at the time than the deceased. Rather I find that it more likely than not, that it was to recognise that the deceased had taken certain jointly owned property at that point.
  1. [84]
    However, a constructive trust should only be imposed if it would be unconscionable having regard to the circumstances of this case. This raises a further matter for consideration. That is, the deceased’s will in any event allows for a 60:40 split of the whole property in Ms Morrison’s favour (discussed later in these reasons). Another matter for consideration is that the defence of laches has been raised on the evidence which I shall discuss subsequently. As will become evident, I do not consider it appropriate therefore in all the circumstances of this case to declare any constructive trust.

Should a resulting trust be imposed in respect of the initial acquisition of the property?

  1. [85]
    It is accepted law that where two or more persons have contributed the purchase money in unequal shares and the property is purchased in joint names, that in the absence of a relationship that gives rise to a presumption of advancement, it is presumed that the property will be held by the purchasers in trust for themselves in tenancy in common in the proportions to which they have contributed the purchase money.[8] Calverley v Green is also authority for several propositions; that the presumption of advancement does not arise in respect of de-facto relationships and gifts by wives in favour of their husbands and that only direct contributions towards the purchase monies are taken into account, not subsequent repayments of the mortgage, repairs etc.[9]
  1. [86]
    Because of the reasons already stated, I am not satisfied that Ms Morrison did in fact contribute financially to the degree which she says in respect of the initial acquisition of the property. While it is true that some of the documentation provided certainly demonstrates that she was in fact earning regular wages during the relevant period prior to the acquisition, it does not follow that those earnings alone are indicative of her having contributed financially more to the acquisition of the property than the deceased to the degree which she now asserts. The acceptance of her evidence insofar as making a significantly greater contribution to the joint funds used in part to facilitate the acquisition is dependent upon my acceptance of her evidence as reliable. As already indicated, I am not satisfied on the balance of probabilities that Ms Morrison specifically used monies specifically from her own personal funds. Her evidence regarding the deceased’s alleged work history and earnings during this period prior to the purchase itself was at best, tenuous. Having regard to my assessment overall of Ms Morrison as a witness, and the lack of tangible documentation to support her assertions in this regard, I am not satisfied, on the balance of probabilities, that Ms Morrison contributed to the acquisition of the property to the degree she says she did and as such, it follows that a resulting trust ought not be imposed in all the circumstances.

Laches

  1. [87]
    The defence of laches has been clearly raised for consideration not only on the pleadings but also having regard to the evidence given at trial.
  1. [88]
    It is submitted on behalf of the plaintiff that even if the defence of laches is arguable, that it has no bearing whatsoever on whether a constructive and/or resulting trust ought to be imposed and that its only possible application is in relation to the propriety estoppel claim. I cannot accept that submission. As an equitable defence, laches is available in answer to the complete breadth of equitable claims under which delay can bar a claim to equitable relief.[10] As such, having to the whole of the evidence available, I consider that laches has real relevance to the present case at hand. I have already referred to Ms Morrison’s own evidence that she already knew that she could have taken legal advice in order to pursue her legal rights in respect of the subject property even as early as 1992 (the time of separation). She said as much in her own evidence. As such, it is difficult to accept then the submission made, that Ms Morrison was ‘unaware’ prior to the deceased’s passing of her right to press the equitable claims she now seeks.
  1. [89]
    It is also submitted on behalf of the plaintiff that any delay between Ms Morrison seeking out legal advice after becoming aware of the deceased’s intention to sever the joint tenancy in July 2012, was short. That is, it is said, because Ms Morrison promptly sought advice from her solicitor on whether the joint tenancy could be severed unilaterally or not and was advised correctly it could be. That submission in my mind overlooks the evidence given at trial which was that Ms Morrison failed to raise even with her own solicitor at that time, the alleged (pleaded) agreements which she said had been made between her and deceased and only did so at a time well after the deceased had already passed away.
  1. [90]
    It is also submitted that any ‘lost evidence’ could not have been obtained in any event during the short time prior to the deceased’s passing on the 20th September 2012. That submission in my mind overlooks several significant facts. The deceased would have been alive prior to that time in order to provide instructions in respect to any of the alleged verbal agreements said to have been entered into between the parties. He would have also been in a position to provide instructions to his solicitors regarding to what degree the respective parties had contributed to the property’s acquisition, retention, improvement or otherwise throughout the lengthy period which it was held by them as joint tenants. He may well have been able to garner documentary evidence himself. Had Ms Morrison acted promptly and pursued her legal rights especially in circumstances where she well knew that she would have an entitlement to do so in the event of any alleged ‘reneging’ of those agreements by the deceased, then the deceased could have at least been in a position to answer them. It was obvious at the point that it was communicated to Ms Morrison in July 2012 that the deceased intended to sever the joint tenancy.  Ms Morrison must have been well aware that it also meant that he was therefore intending to ‘renege’ on the alleged agreements which had been made between them, according to her, much earlier and repeated many times. Yet Ms Morrison still chose to do nothing in respect of those claims. I find that Ms Morrison through her delay in seeking advice not until a point after the deceased has already passed has imposed an unfair advantage on the deceased’s estate now in being able to answer all of the equitable claims being made, particularly having regard to the fact that a substantial part of those respective claims is based on an acceptance of Ms Morrison’s and her word. Consequently I am of the view that had the deceased had an opportunity afforded to him prior to his death to answer some of the claims now made, he could have done so. That opportunity however was lost by the actions of Ms Morrison failing to raise with him at any stage prior to his death, the various claims which she now makes. Accordingly, I consider the defence of laches is made out in respect of all the claims now being made. It follows that Ms Morrison’s claims for equitable relief must fail.
  1. [91]
    As a matter of completeness however, I nevertheless intend to address the question of any non-financial contributions said to have been made (domestic services) which may also give rise to such a departure to the equitable starting point of 50:50 as already discussed.[11]  I am not satisfied on the balance of probabilities that Ms Morrison’s evidence regarding the deceased’s lack of contribution insofar as domestic work should be accepted. Even notwithstanding my own view of her reliability as a witness overall, this is particularly so when regard is had to the fact that even Ms Morrison accepted when giving evidence that they had in fact shared the cooking equally, a fact which goes against her own pleadings. I am therefore unable to accept her overall account on this issue having regard to those matters.
  1. [92]
    I shall now address the other submissions made on behalf of the plaintiff for the purpose of completeness.
  1. [93]
    It was submitted in respect of the alleged agreements as pleaded, that the fact that the deceased did not prepare a will until May 2012, is conduct entirely consistent with the agreements having being made between Ms Morrison and the deceased as asserted in the plaintiff’s pleadings. That submission overlooks the fact that it is also consistent with the deceased simply not turning his mind to actually making one, not knowing what the implications actually even were by his failure to do so until it became necessary to take legal advice upon becoming seriously ill. The submission also overlooks the fact that an agreement which the parties struck relating to the 60:40 split of the whole of the property at the time they separated was in fact included in his will, which runs contra to any alleged agreements pleaded. It is also curious that the assertion that the parties would respectively refrain from ever making a will was not specifically pleaded insofar as any second alleged oral agreement (made at the point of separation).
  1. [94]
    It was also submitted that both agreements worked in the deceased’s favour, in that he was the one irregularly undertaking modest paying work and therefore would be hardest hit if the plaintiff predeceased him. That submission overlooks the fact that I have found Ms Morrison not to be either a credible or reliable witness in respect not only to the evidence which she gave relating to the alleged agreements as pleaded but also in respect to her evidence relating insofar to her so called greater contributions throughout the relationship.
  1. [95]
    The Court has also been asked by the defendant to infer from a number of circumstances that both of the oral agreements alleged were in fact not entered into at all and that Ms Morrison evidence in this regard be rejected. I shall now turn to the written submissions on behalf of the plaintiff and the defendant and deal with the more salient points raised for consideration.
  1. [96]
    It is said on behalf of the plaintiff that she had relied on her continued understanding that there was simply nothing she could do regarding the deceased’s severance of the joint tenancy in 2012. As such, it is submitted that this provides a reasonable explanation as to why she did not assert the existence of the oral agreements at an earlier time. That submission in my mind overlooks a significant fact. Ms Morrison’s own evidence was that she always knew (my emphasis added) that she had these oral agreements in place and well knew that had he ‘reneged’ on those agreements she could have pursued her legal rights in respect of them. Ms Morrison also by her own conduct demonstrated that knowledge by going to her solicitor on her own accord in late December 2012/early January 2013 to stake a claim on what she believed she had always had, notwithstanding that nothing had factually changed (other than the deceased having passed away and his will apparently being misplaced or lost) since she was there seeing that same solicitor in July 2012. She said as much in her own evidence (T1-89).
  1. [97]
    In respect of the submission addressing the defendant’s suggestion of Ms Morrison’s greed and the like, having regard to the detailed analysis of the contributions claimed for as asserted by Ms Morrison during her evidence and in the documentation provided, I have not considered them sufficiently reliable, even having regard to the required standard of the balance of probabilities. This is regardless of any consideration of whether or not Ms Morrison was motivated by greed or not.
  1. [98]
    In respect of the 60:40 split of the property agreed at time of separation, it is not disputed by the defendant on its pleadings that such an agreement was in fact reached. The same cannot be said for the plaintiff’s initial pleadings which makes no mention at all of this alleged agreement let alone any contingency upon which it would only arise. There was also complaint made by the plaintiff that the defendant has not produced any contemporaneous written record of that 60:40 agreement, that Mr Lillicrap’s notes make no specific mention and indeed Mr Alex Shearer’s own note regarding the bowls club meeting, does not specifically refer to that agreement in those terms. The submission made in this regard holds little force. Mr Lillicrap’s letter based on instructions sent to Ms Morrison sets out that fact. Ms Morrison herself also agrees that such an agreement, at least percentage wise, was struck at the time of separation and that she in fact considered it to be fair. Her own e mail also confirms that such an agreement was made. The only difference was, which I do not accept as credible, is Ms Morrison’s assertion that such a percentage split would only take effect if the deceased apparently went back to England. That assertion as I have already stated in my reasons completely belies her own case, which was in essence that regardless of what ever happened in their respective lives, each of them would nevertheless continue to retain their respective interest in the property in order that whoever survived the other would receive the whole of that share.
  1. [99]
    It was also submitted on behalf of the plaintiff that in respect of any notation by Mr Lillicrap in his notes insofar as equal contributions made to the property post separation, that it is difficult to understand how the deceased could have even considered such a position when a significant financial undertaking in that regard had only ever been performed by Ms Morrison. This submission in my mind overlooks the following significant facts. Neither party spent any time in each ‘others pockets’ (my words) after separation it seems and in effect, lived their own lives. This is particularly so having regard to Ms Morrison leaving the property altogether in 2005 to live elsewhere. There was also the contributions made by the deceased himself to the construction of the common deck and roofing, the installation of a water tank which benefited the whole of the property and the fact that a substantial amount of the improvements claimed were in fact made only to Ms Morrison’s flat. The submission made also overlooks the real possibility that the deceased did in fact contribute more financially to the improvements being claimed in respect of the common property than Ms Morrison would have the court believe, a fact that he is now unable to prove or disprove. This is particularly so having regard to the fact that he was managing to pay towards the financial responsibilities of the property equally (mortgage, rates etc.) after the parties’ separated. There was also further evidence in the e-mails after the deceased had died in which Ms Morrison herself also considered that $20,000 was in fact fair compensation for all the improvements which she had undertaken in respect of the property post separation over and above receiving her half share as a tenant in common. That evidence in my mind is entirely consistent with the deceased having contributed far more to the property than Ms Morrison was even willing to consider.
  1. [100]
    A further submission was made on behalf of the plaintiff that because the deceased was not a man interested in the pursuit of property or wealth that it was readily explicable that years later when he met with Mr Lillicrap he would not remember how the title was actually held in the property. That submission overlooks the fact that the deceased well knew even when he reached the agreement of a 60:40 split of the property with Ms Morrison at point of separation that they both must have both held the property in equal shares.
  1. [101]
    The plaintiff also made a submission that the evidence available supports an inference being drawn that the deceased’s treatment for brain cancer may have affected his memory of past events. I cannot accept that submission. There simply was no evidence capable at all in allowing such a conclusion being drawn. Indeed, the evidence from Mr Alex Shearer was that his brother did very well cognitively speaking notwithstanding his serious illness. Mr Lillicrap, an experienced solicitor, did not also make any adverse observations in this regard during his consultation with the deceased.
  1. [102]
    There was also other evidence available for consideration. Ms Morrison gave evidence that even though she left in 2005 to live with Mr Luxford over at Taringindi, she nevertheless maintained that she and the defendant had some continuing friendship or ‘relationship’ where she continued to help him. The evidence given at trial in my mind belies that assertion. She failed to visit the deceased even when he was seriously ill in hospital, she made no attempt to find out how he was going health wise, and only spoke to him at best, several times before he died. She also stated that she was going to charge him commercial rent if he sold his share to her after learning he was diagnosed with brain cancer and therefore required the money for his future care. She gave this evidence notwithstanding that she said that she was always willing her help him out as a friend as much as she could and even more so at that difficult time. The reason given by Ms Morrison that if she needed to borrow the money to buy him out at that stage, thus her request for commercial rent, belies in my mind her suggestion that she had always considered ‘Bob” a friend and had continued to help the deceased out. This is particularly so having regard to her own situation at that time (full time employment as an accountant, living with Mr Luxford in his home, commercial rent being obtained from her own flat 1) and given his terminal prognosis. That evidence does little in my mind to assist Ms Morrison on this issue.
  1. [103]
    Finally, the submission was made that there was no reason for Ms Morrison to contrive or tailor to her own benefit, her evidence. It was submitted that is because of her overall contributions to the purchase, subsequent repayments, and improvements, repairs and the like made by her, were so great that the nearly same result is achieved regardless of whether she is rejected by the Court regarding whether or not any alleged oral agreements were made. That submission in my mind however overlooks a very important fact which is that a substantial part of the plaintiff’s claim/s are dependent upon an acceptance of her own oral evidence by this court as truthful and reliable. While it is accepted that there is documentation which has been provided for the court’s consideration, nevertheless for the reasons already stated, they are sufficiently deficient to raise concern, particularly when having regard to the oral assertions which Ms Morrison was seeking to make in respect of them. It is also submitted that because no challenge was made under cross examination in respect of the plaintiff’s evidence regarding these matters then any such claims should be accepted. That submission however overlooks the pleadings of the defence; the fact that the deceased is no longer alive to provide evidence to the court or indeed even when he was, that instructions were not taken, as no claim/s now made by Ms Morris were even raised or on foot legally. It also overlooks that a significant part of the plaintiff’s pleadings are either dependent on oral exchanges between Ms Morrison and the deceased of which it is no longer available for his estate to be able to prove or disprove.

The Construction of the Will made by the Deceased on the 16th May 2012

  1. [104]
    It is submitted on behalf of the plaintiff that the will is clear in its’ terms in that the deceased has in fact left Ms Morrison 60% of his (1/2) half share of the property. As such, there is no need to have regard to any extraneous evidence (Mr Lillicrap’s evidence regarding the deceased’s intention).The defendant on the other hand says the will is clear in its’ terms in that the deceased has left Ms Morrison only 20% of his (1/2) half share which in effect is 60% of the overall value of the whole of the property in her favour.
  1. [105]
    I am satisfied that the terms of the will are plain enough. The deceased wished for Ms Morrison to have 60% of the overall value of the property notwithstanding that it was being held at that time as tenants in common in equal shares. I am also satisfied on the balance of probabilities that the percentages proposed under the will is appropriate if it accepted that Ms Morrison should have some financial entitlement to the property over and above her 50% share.
  1. [106]
    I intend now to briefly address the submissions made on behalf of the plaintiff on this issue. The plaintiff says that the better view of ‘the property’ referred to in clause 3 of the will means the deceased’s own interest in the property at the time of his death rather than in respect of the property as a whole. It is submitted that that is because the date for construction is the date of his death and not the date the will was made. It is also submitted that the first duty of the court is to ascertain if possible what the deceased intended by his words expressly or by implication.[12] This is to be discerned from the words of the will and not what the court considered to be in the deceased’s mind.[13]
  1. [107]
    In my mind the will is plain enough. The deceased had intended that Ms Morrison receive a greater share of the proceeds of the sale of the property of which both held an equal half share as tenants in common at the time of his death. It is submitted that the value of the property would allow for the clause to be read as 60% of his half share to pass to Ms Morrison upon his death and that any remainder would be sufficient to facilitate the gifts made under the will to third parties. To do otherwise would invalidate the will. That submission overlooks the fact that if the clause is read to mean that Ms Morrison was to receive 60% of the whole property then it follows that he intended that 20% of the deceased’s own interest was intended to go to her. This would therefore also facilitate all the gifts made under the said will.
  1. [108]
    It is submitted that Mr Lillicrap’s own opinion was that the clause may be open for challenge (that is, contrary interpretations) and the fact that the deceased was happy to leave it as it was at that time was because he wanted to allow for such variance. I cannot accept that submission. The deceased even on Ms Morrison’s evidence had come to an agreement insofar as a 60:40 split as far back as 1992 when they separated, at the point their relationship came to an end. As such, the submission that the deceased did not change his will even after Mr Lillicrap had made his observations in respect of it, because he had apparently intended that the competing interpretations not be excluded, ignores the fact that both Alex Shearer and Mr Lillicrap himself said that the deceased was happy to leave it, presumably because he was also reliant on Ms Morrison ‘keeping her end of the bargain’ which he understood had been struck which was that if and when the property was ever sold, each would honour the 60:40 split.
  1. [109]
    It was also submitted that if Clause 3 is accepted as being 60% of the deceased’s ½ interest as his intention rather than as stated in the will as being 60% of the whole of the property, then in effect Ms Morrison will received 80% of the proceeds of the sale of that property, and that would not have been a surprising result for the deceased, given that she had already contributed 85% of the total costs related to the property. It is submitted that this is capable of being indicative of the defendant having apprehended that she should be given an end result of 80% of the whole of the property’s sale proceeds (or put another way, 60% of his half share interest). I cannot accept that submission. It overlooks in my mind the note of Mr Lillicrap and the notation made that the deceased was of the view that he had equally shared in the improvements and the like since post separation. It also overlooks the fact that Ms Morrison’s alleged contributions of 85% or more is dependent upon the acceptance of her overall as a truthful and credible witness. That acceptance has not be made. Finally, it also overlooks that Ms Morrison herself considered that the 60:40 split of the property at the time of separation was a fair and equitable one at that time and that she had even considered herself that $20,000 was fair compensation for the costs she had expended post separation (that is, over and above her own half share entitlement). She said as much in the e-mail which she sent shortly after the deceased had passed away.

Conclusion

  1. [110]
    Accordingly, my orders shall be as follows:
  1. The plaintiff’s claim is dismissed.
  1. The defendant’s counterclaim is allowed.
  1. I order that Morgan Gerard Lane and Christopher Cook, Insolvency Practitioners be appointed Trustees of the land described as Lots 4 and 5 on Registered Plan 12499, County of Stanley, Parish of Bulimba and situated at 71 Brentnall Street, Norman Park in the State of Queensland, pursuant to Section 38 of the Property Law Act 1974 (Qld).
  1. I further order that the proceeds of sale, after payment of all selling expenses and conveyancing costs, be divided into two equal shares and dealt with as follows;
  1. (a)
    As to one share, to be paid to the Defendant to be distributed in accordance with the Testator’s will; and
  1. (b)
    As to the other such share, to be applied firstly in the payment of the Trustees’ professional costs and outlays and thereafter the balance be distributed to the Plaintiff. 
  1. I declare that, on the proper construction of the deceased’s will, the defendant should distribute 20% of the estate’s 50% share of the net sale proceeds to the plaintiff, such that the plaintiff’s total share is 60% of the total proceeds of sale of the subject property.
  1. The parties are to provide written submissions as to costs but not until after 28 days has expired from the date of publication of this judgment unless the parties otherwise agree.

Footnotes

[1] [2014] QSC 218.

[2] [2012] QSC 116.

[3] Muschinski v Dodds (1995) 160 CLR 583.

[4] [2007] QCA 363 [66]-[74].

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Calverley v Green (1984) 155 CLR 538.

[9] Ibid.

[10] Gillespie & Ors v Gillespie [2013] QCA 99.

[11] Baumgartner v Baumgartner (1987) 164 CLR 137.

[12] Fell v Fell (1922) 31 CLR 268.

[13] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer

  • Shortened Case Name:

    Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer

  • MNC:

    [2015] QDC 147

  • Court:

    QDC

  • Judge(s):

    Ryrie DCJ

  • Date:

    10 Jun 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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