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- Unreported Judgment
Perry v Bostock QDC 253
DISTRICT COURT OF QUEENSLAND
Perry v Bostock  QDC 253
PERRY, Alan Dale
BOSTOCK, Kirsteen Lyndall(Defendant)
DC 1356 of 2019
District Court at Brisbane
12 December 2019
28 – 30 October 2019
Loury QC DCJ
EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – where the plaintiff and defendant were in a romantic relationship – where the defendant purchased a property – where they never cohabitated – where significant improvements were made to the property – where the plaintiff contributed funds to the property – where the plaintiff claims a constructive trust over the proceeds of the sale equal to his contributions to the property – where the defendant counterclaims unpaid rent and other expenses
Baumgartner v Baumgartner (1987) 164 CLR 137
Engwirda v Engwirda & Ors (2000) QCA 61
Muschinski v Dodds (1985) 160 CLR 583
J Hewson for the Plaintiff
A Laylee for the Defendant
BTLawyers for the Plaintiff
DBL Solicitors for the Defendant
- The plaintiff and defendant met online in 2009 and started dating in 2010. Their romantic relationship continued until 13 July 2015, although they never cohabitated. On 6 September 2013, the defendant purchased a rural property for $375,000. She made many improvements to the property ultimately selling it in December 2015 for $650,000. The plaintiff lived at that property from mid 2014 through to September 2015. It was not in contest that he paid for the installation of a bore, the construction of a shed and the installation of an off-grid solar system. It is the cost of these items together with the value of his labour in maintaining the property and its resident livestock, for which the plaintiff claims a declaration of a constructive trust over that much of the proceeds of the sale of the property that equals the value of his financial and other contributions to the maintenance and improvement of the property. The defendant counterclaims for unpaid rent, the cost of the food the defendant purchased to feed the plaintiff’s animals, the costs associated with the purchase of a horse float, the application fee for connection to mains power and the cost of remedying the defective installation of the off-grid solar system.
The history of the relationship and purchase of the rural property
- At the time that the romantic relationship commenced between the plaintiff and defendant, he was living with his mother in Hamilton. He did not pay her any rent. The defendant lived with her three children at an address in Cannon Hill. She owned that property. The relationship was such that by 2011 the plaintiff would stay overnight at the defendant’s home and the defendant at the plaintiff’s home.
- In November 2012, the plaintiff stopped working for his then employer, Queensland Rail, due to a back injury that he sustained. On 18 November 2013, he received a payout from his superannuation fund. He did not work in paid employment (other than for two weeks truck-driving) after he sustained the injury. The defendant worked full-time as a guidance counsellor at a school.
- On 6 September 2013, the defendant purchased a rural property in Hillview (near Beaudesert) for $375,000. The plaintiff did not contribute to the purchase of the property, although he did lend the defendant $5000 for the deposit. That money was repaid to him. Whilst the plaintiff did not contribute financially to the purchase of the property, he was involved in inspecting this property and another with the defendant. The plaintiff said in his evidence that he did not want the property himself because it was too far out of Brisbane, being some 33 kilometres away. The plaintiff does not suggest that there was ever an intention for him to take a financial interest in the property.
- The rural property consisted of 110 acres of farming land. Prior to the settlement of the rural property on 10 August 2013, the defendant purchased a house for $20,000 to relocate onto the property. The plaintiff inspected that house with the defendant prior to its purchase. The house was relocated to the rural property in November 2013, although it did not become habitable until around May 2014.
- By oral agreement, the plaintiff moved to live at the rural property midway through 2014 (sometime after it became habitable). The defendant and her children would attend the property on the weekends and school holidays. The defendant worked and her children attended school in Brisbane making residing at the rural property inconvenient.
- The plaintiff’s understanding of the defendant’s purpose in buying the property was so that they could both keep animals on the property and perhaps buy and sell cattle and breed horses. Consistent with that evidence, within a week of acquiring the property, the defendant had purchased four horses and four calves. The plaintiff had acquired one horse (a mare in foal) which he kept on the property. Over time, further animals were acquired by both parties. The plaintiff eventually had two horses, one dog, one goat and a number of cows (between six and ten). The defendant had a number of horses, a number of cows, a dog, eight chickens, two goats, two sheep, a pig and four ducks. Until he came to reside at the property, the plaintiff would attend every day or two to feed and care for the animals.
- It was common ground between the parties that the plaintiff attended at the property every day or two to feed the animals and that the plaintiff paid for the installation of a bore on the property, a shed and an off-grid solar system. The defendant paid for all other improvements to the property, the rates and insurances.
- In December 2015, the defendant sold the property for $650,000.
The use of the property
- Once the plaintiff moved into the property midway through 2014, the arrangement between the plaintiff and defendant was that he would look after the property, feed all the animals and maintain the property. The defendant paid for the food for the animals and in return, the plaintiff cared for them, which included feeding, watering, worming, brushing and calling a vet when necessary. That arrangement continued until the plaintiff moved from the property, in September 2015.
- The defendant would attend at the property on the weekends and school holidays with her children. Her purpose in having purchased the property she said, was to have horses, quad-bikes and motorbikes for adventure activities for herself and her children. There were quad-bikes on the property. They had been purchased by the plaintiff and by their size, appeared to be for the defendant’s children to use. There were many animals acquired that were considered pets by the defendant and her children.
- The plaintiff said in his evidence that feeding and caring for the animals would take him “quite a few hours of a day”. The defendant was at pains to explain in her evidence that most of the animals didn’t need feeding, they ate grass and that feeding would only take half an hour. I preferred the plaintiff’s evidence as to this labour. The defendant was attempting to down-play the work involved in caring for the animals in a way that was inconsistent with the treatment of pets.
- In relation to the cattle, the defendant said that she intended to breed them and sell off the calves as a source of income to cover the rates, insurance and other expenses associated with the property. The defendant also said that she operated a horse breeding business from the property through a company, K Bostock Proprietary Limited. That business was operating at least from May 2014 given the evidence of a receipt from 27 May 2014 for horse paddock fencing material, which the defendant admitted was acquired for the purpose of her business. The defendant also said that on two occasions she attended events with a number of animals as part of a business she named “Farmer Brown Comes to Town”. That business was something of a petting zoo.
- On 22 October 2014, the plaintiff obtained an Australian Business Number for a horse spelling and agistment business. His intention was to operate the business on the defendant’s rural property. Despite setting up the business, no horse was ever agisted on the property.
- Neither the plaintiff nor defendant made any money from their attempts at running any of these businesses.
The improvements to the property
- A number of improvements were made to the property during the defendant’s ownership of it. Significantly, the defendant purchased and relocated a house to the property. She made all payments directed towards relocating the house, including certifications and approvals.
- Other improvements were undertaken by both the plaintiff and defendant. It was common ground that the defendant purchased all the materials necessary for those improvements.
- At the time of purchase of the rural property there was no power or water supply to it. The building of a shed on which an off-grid solar system was installed as well as the installation of a bore are matters of contention in the claim.
- The plaintiff said that he and the defendant discussed getting the property connected to mains power. The defendant obtained a quote from Energex indicating that the connection would cost $30,000 as there had to be a new transformer and posts installed outside the property.
- The documentary records show that on 23 September 2013, the defendant paid Energex $2,200. That fee was the cost of having Energex quote for the connection of power to the property. Around 29 October 2013, Energex wrote to the defendant providing an “Energex Connection Services” offer. The estimate of the connection charges payable was $30,000. On 1 November 2013, the defendant signed the contract, accepting that offer. The estimated completion date was 31 March 2014.
- In relation to the off-grid solar system, the plaintiff’s evidence was that in speaking to people around Beaudesert, an off-grid solar system was recommended to both the plaintiff and defendant. They were introduced or put in touch with Mr E Walker who came out to the property and spoke to them both about such a system. After ascertaining what appliances the plaintiff and defendant intended to run, Mr E Walker recommended a particular system. The plaintiff said that the defendant agreed to the installation of the recommended solar system because it worked out a little cheaper than the Energex connection and they wouldn’t have monthly power bills.
- The plaintiff paid for the solar system. The invoice for payment of the deposit is dated 17 December 2013. Installation of the system was completed on 22 May 2014. It cost the plaintiff $28,776. The plaintiff said that he discussed the installation of the solar panels with the defendant and paid for them as his contribution to the property, which was for their future.
- The defendant accepted that the plaintiff paid for the installation of the solar system. However, her evidence was that the plaintiff had looked into the idea of installing a shed on the property that could be converted into living quarters. He produced a quote to her for $7,000 and said that he would be able to have solar panels on the shed and live in it as a residence. The defendant’s evidence was that she told the plaintiff that she wouldn’t be paying for a shed. She said that Mr E Walker did attend the property and she was present on one occasion when he was at the property and discussing where the solar panels might be located. However, she said that there was no discussion had in her presence about price, only about the location of the system. She alleged that the plaintiff said to her “I want them put on the shed. If I’m paying for solar panels, they’re mine. I’m putting them on my shed. That’s where they’re going”. This statement was not put to the plaintiff for comment in cross-examination. This evidence had the flavour of a recently invented statement, given in order to assist the defendant’s case. I do not accept that this comment was made by the plaintiff. The defendant’s conduct in selling the property including the solar system (referred to later in these reasons) is inconsistent with an understanding or even belief by her, that the solar system was owned by the plaintiff.
- The defendant’s evidence was that she had already organised for Energex to connect power to the property so she wasn’t going to pay for solar panels and so wasn’t involved in any conversations as to the price of them. Whilst she had signed the contract accepting the offer from Energex on 1 November 2013, she had not made a payment to them, which was a requirement for them proceeding. She received an email from Energex on 10 December 2013 requesting the payment of $29,209.40 within 10 days. The defendant received a further email on 15 January 2014, requesting a further payment of $4,247.10. No evidence was elicited as to when the payments were made to Energex but suffice to say a final invoice was paid on 10 June 2014. The $2,200 fee (for which the defendant counterclaims) was a necessary cost associated with the connection of the power.
- In cross-examination, the defendant agreed that she and the plaintiff had discussions with people living in Beaudesert about installing a solar system but she said those discussions were had before she contacted Energex. The process of connecting the property to mains power and the installation of the solar system were happening largely at the same time. It is improbable that the defendant, as the owner of this property, would not have had input into the installation of a solar system on the property. The fact that the defendant had made contact with Energex prior to the installation of the solar system does not make it any the less likely that she would have had nothing to do with the installation.
- On 11 March 2015, an electrician tested and certified the solar system. His certificate lists the defendant as the client. On 1 May 2015, the defendant signed a document declaring that she was the owner of the solar system and claimed a financial rebate of $3,534 in respect of that solar system. She accepted in cross-examination that she received that money. Those documents support the plaintiff’s evidence that the defendant was in agreement with the plaintiff as to the installation of a solar system. It is improbable that she would have claimed ownership of the system and a rebate for its installation if, as she claimed, the plaintiff had said to her “they’re mine”.
- The solar system was affixed to the roof of a shed, which the plaintiff paid for and forms part of his claim. A 15 metre x 6 metre shed was installed on the property. A development application for the shed received approval on 16 December 2013. The documents state the owner’s name as Allan Perry with his mother’s residential address, which was where he was living as at December 2013. The site address for the shed is listed as the defendant’s rural property. The cost, which the plaintiff bore, of installing the shed was $12,812. The shed was erected on a concrete slab. The plaintiff bore the cost of the slab. On his evidence it cost $4,500 and he paid for it on 5 November 2013. The footings, slab and framing was certified, although the date on the certificate is incorrect. The slab was poured prior to the house being moved onto the property. A final inspection was required to be performed on the shed. That did not occur prior to the building approval lapsing and a notice of discontinuance of engagement was ultimately provided by the certifier. It is dated 27 April 2017.
- The plaintiff’s evidence in relation to the shed was that he and the defendant attended at Kam Constructions where together they inspected sheds to fit their needs. He said that they decided to acquire a shed, which contained two carports for their cars and an enclosed area for the quad-bikes and motorbikes and other equipment stored on the property. The particular shed that they discussed was ultimately designed by Kam Constructions. In cross-examination, the plaintiff was asked whether the defendant told him that she did not want a shed. His response was to say he didn’t know whether the defendant said she wanted a shed or not. He could not recall her saying “don’t get a shed”. The plaintiff’s evidence was that they discussed getting a shed, they looked at sheds and ultimately a shed was installed. The plaintiff readily accepted that he dealt with Kam Constructions and that he didn’t think that the defendant was involved in the designing of the shed.
- Much was made in cross-examination of the fact that the plans for the shed stated that the plaintiff was the owner. However, the same plans clearly indicate the site where the shed was to be installed, being the defendant’s rural property. The documents do not purport to say that the plaintiff was the owner of the property on which the shed was to be installed.
- When asked if the defendant was aware of how much he paid for the shed the plaintiff said that he was “pretty sure” she would know how much he paid because they virtually spoke every night and discussed what was going on at the property. Whilst the plaintiff accepted he couldn’t recall what the defendant had said about the idea of getting a shed, he said that they discussed everything, including what he was contributing to the property. He said that he would not have just had a concrete slab poured and erected a shed without the defendant’s knowledge. He would not have paid $5,000 for a concrete slab if the defendant had said “don’t get it done”.
- The plaintiff denied ever having planned to live in the shed as alleged by the defendant. It is improbable the plaintiff would have planned to live in the shed when he was in a romantic relationship with the defendant and living in the house from mid 2014.
- The defendant’s evidence was that the plaintiff had asked her about getting a shed to store the quad-bikes and motorbikes. Together they constructed a small shed on the property, however, it wasn’t lockable and the plaintiff said that he was going to get a bigger shed on the property. The defendant said that she told him that she wasn’t putting a bigger shed on the property and his response was “well, tough. I’m going to do it anyway”. The defendant in response said, that she would not be approving the council documents. The first she knew about the shed, she said, was when she drove up to the property one weekend and there was a slab being poured.
- The defendant further says that the shed was not included in the sale of the property. When the defendant came to sell the property in late 2015, she discovered that the shed had not been finally certified. She said that she told the plaintiff that the shed could not be included in the sale of the property. According to her evidence the plaintiff said he would collect it. A week before settlement she spoke to him again and asked when he was coming to collect the shed and the plaintiff said “I couldn’t be bothered. Just let it go with the property”.
- The plaintiff, in cross-examination, said when he asked the defendant what was in the sale of the property, the defendant said “all of the stuff on the property”. His evidence was that if he knew the shed wasn’t included in the sale of the property he would have had someone dismantle it and take it away so that it could be sold. It was not suggested to him in cross-examination that he said to the defendant “I couldn’t be bothered. Just let it go with the property”. The account of this conversation by the defendant and the absence of a significant feature of it having been suggested to the plaintiff in his evidence, demonstrates a recent fabrication by the defendant in order to suit her case.
- Contrary to the defendant’s evidence that she told the plaintiff that the shed was not included in the sale of the property, the contract for the sale of the house and land does not set out as an excluded fixture, the shed. It does list as an included chattel, the solar panels (which were attached to the shed). I do not accept the defendant’s evidence that the shed was not included in the sale of the property or that she told the plaintiff that the shed was not included in the sale of the property. The documentary evidence supports the plaintiff’s evidence. I am satisfied on the balance of probabilities that the shed was included in the sale of the rural property. I find that the defendant told a deliberate untruth about sale of the rural property. This adversely affects her credibility generally.
- The plaintiff’s evidence in relation to the bore was that when the property was purchased there was a water bore present, however, it was not functioning because it had no pump. They decided to get a new bore. That decision was made on the basis of advice received from a man who had been installing bores in that area for over 30 years. Mr W Richter recommended a position for a new bore and said that it was not worth fixing the old bore because it could cost the same amount of money to fix as to install a new bore. The plaintiff said that the defendant was not present when he had the discussion with Mr Richter but they needed water for the animals and the property and he took Mr Richter’s advice. He paid for the new bore at a cost of $4,995. However, he did not realise that for the new bore to function it needed a pump and to be plumbed. The defendant paid for the pump and plumbing at a cost of $5,271. The plaintiff agreed in cross-examination that there was never any mention that he would be reimbursed for the cost of the bore by the defendant. It was just talk between the two of them as a couple.
- The defendant’s evidence was largely consistent with the plaintiff’s as to the installation of the new bore. The plaintiff, she said, had told her of the conversation he had with Mr Richter. The plaintiff organised for the new bore to be installed. It wasn’t until after the bore was drilled that it became apparent that the bore needed to be plumbed and needed a pump, which ultimately the defendant paid for. The defendant did say in evidence “it was actually more cost-effective for me to plumb the old bore because then I wouldn’t need to pay for a new bore”. No evidence was adduced to support that statement. In any event, the defendant accepted that it was the plaintiff and not her who paid for the new bore. The defendant was attempting to insinuate by this evidence that the bore added no value to the property. Again, the documentary evidence proves to the contrary. A condition included in the contract for the sale of the house and land was to provide evidence as to the date that the bore had been installed. That shows installation of a new bore added value to the property from the point of the view of the buyers.
- The defendant in her evidence further attempted to explain why the installation of a new bore did not improve the property. Initially she said “I was working nearly 12-hour days most days during the week and in Brisbane; and Mr Perry was travelling back and forth out to the property. He’d organise to stay some nights at Mr Crane’s (a friend) to save on petrol costs. And I’d ask him if he had some time if he wouldn’t mind checking on – getting a – organising for someone to come out and quote on fixing and plumbing the existing bore versus whether we sh – whether I should plumb the – do the easement – access the easement that was already granted”.
- A little later the defendant said “The existing bore was actually better in a way for me because – and which is why I looked into it and wanted that one functional originally – because the man, Mark, who I mentioned, that lived next door, who ran the dairy, had a bore because the whole – the property was originally all his family – owned property. So the bores were actually very close together. And he already had power to his power, which was just not very far from the – the bore that was already located on the property. So I would have been able to actually power ready if I wanted from – with a – paying rent for power by accessing his power rather than the generator that we ended up using”.
- This evidence that the defendant looked into getting the original bore functioning is not consistent with her earlier evidence that she was so busy working in Brisbane that she left getting the bore functioning to the plaintiff. It seems most unlikely that she would have or even could have accessed the neighbouring property’s power source to run the pump. Certainly no evidence was adduced to support this statement. I find that this evidence was a reconstruction on the part of the defendant designed to support her argument that the installation of the bore did not improve the property.
The Maintenance of the Property
- A considerable body of the oral evidence was devoted to the work that the plaintiff did in maintaining the property. His account was that he helped install the front stairs to the house with the defendant’s step-son. He installed railings above the balustrade on the veranda as the balustrade was too low to meet council requirements. He removed an old box ex-conditioner and repaired the hole it left. He rewired the house and installed smoke alarms. He assisted in renovating the bathroom with the defendant and her step-son. He and the defendant demolished the kitchen in the house so that the defendant’s step-son could install a new one. The plaintiff said that he built three horse stables behind the shed with the assistance of the defendant. He and the defendant built a number of shelters in the paddocks for the horses and for a horse float. Together they built a shelter and pen for the goats, a chicken coop, and pens for the pig and ducks. The defendant’s children assisted in some of that work. Together they installed a number of fences creating paddocks for the horses. The plaintiff agreed that the defendant paid for all the materials to improve the property in this manner.
- In relation to the rewiring of the house the plaintiff said that this involved removing the old wiring and running new wiring to the light-switches. He said the defendant assisted him in that task and in installing the smoke alarms on the weekends. That work was certified by an electrician who was a friend of the plaintiff. He said that the electrician did not charge for certifying the work. The defendant’s evidence was to the effect that this work was largely done by the electrician and that she paid him $800 for that work. No receipt or evidence of a payment having been made was adduced in evidence in circumstances where if such a document existed I would expect it to have been produced.
- The defendant gave evidence that it was her step-son that built the stairs at the front of the house. She said that the plaintiff was not present at the property when that work was undertaken. Despite she herself not being present at the property and thus having no direct knowledge, she said that her step-son told her that the defendant was not present. She also said that the plaintiff told her that he didn’t attend the property when the stairs were built. I do not accept this evidence. It was not suggested to the plaintiff that he was not present at the property at all when the stairs were built or that he’d told the defendant he was not present at the property. The defendant’s step-son was not called in her case to provide any support for this statement.
- It was suggested to the plaintiff that the work done on the property (other than on the house) was all done for the purpose of the plaintiff’s agistment business. He did not accept that proposition. His evidence was that the work he did was intended to be used for both of their horses and other animals. The plaintiff agreed that there were never any discussions about him being paid for the work he was doing, that he didn’t want any money from the defendant. He said that they undertook the work together because they were a couple.
- The defendant in her evidence down-played the work that the plaintiff had undertaken on the property by referencing his back injury a number of times, suggesting that the plaintiff wasn’t physically capable of undertaking such work. Whilst the plaintiff was asked if his back injury restricted his ability to do any of the work on the property (to which he answered “no”), no proposition was put to him that his ability to undertake the work he did was restricted due to his back injury. Whilst the plaintiff accepted that other friends of his, had, at times, assisted in this work he nonetheless undertook much of it himself and sometimes with the assistance of the defendant. The defendant’s evidence was that one of the plaintiff’s friends had built the horse shelters and stables and her step-son had done most of the work in creating the paddocks. Again no evidence was adduced in support of that statement.
- The defendant said that in relation to the plaintiff’s agistment business that she was supportive of the idea because he had a lot of contacts in the racing industry. He couldn’t get Centrelink payments so it was an opportunity for him to make an income in a way that would not hurt his back. The defendant said that she paid for much of the improvements that were undertaken for the purposes of the plaintiff’s business. Those improvements included the erecting of horse shelters in eight extra paddocks created and building the stables. She also said that she purchased a second horse float and horse crush for the plaintiff’s business.
- The defendant’s evidence as to the purpose in building the stables was internally inconsistent. She said in her evidence-in-chief that the stables were built to hold the mares that were in foal when they were ready to give birth and were to be used if the vet came to the property to check on the horses.She later denied that the stables were to be used for her horse breeding business at all. She claimed that she never would have wanted to use the stables for her own business.
- In cross-examination, the defendant agreed that her horse-breeding business operated through a company, K Bostock Proprietary Limited. Receipts were produced in evidence, which clearly indicate that much of the fencing and other material purchased has been receipted to the defendant’s business. For example on 27 May 2014, the defendant’s business was receipted $2030 for horse paddock fencing material. The defendant accepted that material was fencing used in relation to her own business.
- On 4 November 2014, a receipt for $4050 was issued to K Bostock Pty Ltd for posts. The defendant had written on that receipt “for horse paddocks and stables”. In cross-examination she said that she meant the horse shelters when she wrote stables. She agreed that the receipt was for material used for her business. She denied the material was used for the stables. I do not accept this evidence. The building of the stables for the purpose of housing mares in foal was an activity consistent with the nature of the defendant’s business. The receipt is consistent with her own business activities. I find that her evidence that she meant to write “horse shelters” was a deliberate untruth designed to explain away a document inconsistent with her testimony. I do not accept the defendant’s evidence that the stables were built for the purpose of the plaintiff’s agistment business.
- Another receipt, dated 5 January 2015 for $1000 for fencing contracting is also made out to the defendant’s business. This is another piece of documentary evidence inconsistent with the defendant’s testimony as to the purpose behind the building of the paddocks and stables.
- A receipt for $3500 for the purchase of a horse float on 14 June 2014 is again in the name of the defendant’s business. The defendant said that this receipt, which was the only receipt for a horse float in evidence, was for the first horse float that she purchased, which she sold before buying a bigger one for the plaintiff.
- On 8 November 2014, the defendant issued the plaintiff with a receipt for $200 in the name of her business. On the receipt the defendant has written that the money was paid to the plaintiff for transporting her horses to the stud. She accepted in her evidence that this transport was done using a float, although she wasn’t sure which of the floats was used. It seems likely, that this was the float for which the receipt was produced. Additionally, in relation to the defendant’s petting zoo business, she used a float to transport the farm animals on two occasions in December 2014. Documentation produced also establishes that the float purchased by the defendant’s business on 14 June 2014 had the same registration number as the float that the defendant’s business registered on 12 January 2015.
- The plaintiff gave evidence that after their separation he sold the horse float and gave the defendant the money from that sale. That evidence was not disputed by the defendant.
- I find that the float purchased by the defendant on 14 June 2014 is the same float that was used on the property from the date of its purchase through to 2015 when it was sold by the plaintiff. The only receipts produced in evidence relate to one float purchased in June 2014, registered by the defendant in January 2015 and again repaired by the defendant in October 2015. The only receipt related to the horse float, which is not in the defendant’s name, is a safety certificate dated 4 February 2015 in the name of Alan Perry for an amount of $45. I do not accept the defendant’s evidence that the float was purchased solely for the use of the plaintiff’s agistment business. The payment of expenses after July 2015 by the defendant for a float, which she asserts was bought for the plaintiff’s business, is improbable given that the relationship had ended. Further it is entirely unlikely that an asset purchased for the purpose of a business would be receipted to another entirely separate business. I accept, on the balance of probabilities, the plaintiff’s evidence, which was that the horse float was purchased to move both of their animals around. They had purchased horses and cows at the sales in Lismore and would transport them back to the property in their float.
- The defendant in her counterclaim claims rent from the plaintiff in the amount of $150 per week for the duration of the plaintiff having lived at the property, which amounts to a period of 67 weeks from 6 June 2014 until 18 September 2015.
- The plaintiff lived at the property once it was habitable so that he could feed and care for the animals and otherwise attend to maintenance around the property. He denied that there was ever any agreement between himself and the defendant that he would pay her rent in the amount of $150 per week. He said that he would not have lived at the property, looked after all the animals and the property itself whilst paying rent when he could live in Brisbane rent free.
- It was suggested to the plaintiff in cross-examination that the defendant had provided a rental agreement to him in or around June 2014. The plaintiff denied that.
- The defendant’s evidence was that when the plaintiff moved into the property that they negotiated a fee of $150 per week. She said that the plaintiff refused to sign the rental agreement and in fact ripped it up and told her it was a sign that she didn’t trust him. She thought that he would make the payments, however, he was unable to find work in the area. The idea of the agistment business then arose from which he thought he could make some money and start paying the rent.
- The defendant relies, in support of her counterclaim that there was an agreement for the plaintiff to pay her rent, on an application the plaintiff made to Centrelink for rent assistance. The plaintiff accepted that in May 2015 he had applied for rent assistance through Centrelink. He said that he initially applied for the disability pension but that was refused on the basis that he did not have a disability. He then applied for the Newstart allowance because he had no income. He said that in completing the forms he discussed with the defendant what he should say about paying her rent. Together they agreed that he should indicate that he was paying $150 per week in rent. He admitted receiving around $60 by way of rent assistance. He admitted that he did not pay any of that money to the defendant.
- I don’t consider that this evidence provides support for the defendant’s claim that there was an agreement almost 11 months earlier for the plaintiff to pay her rent. The payment of rent in circumstances where there was a romantic relationship between the two parties and the plaintiff was attending to the animals and maintaining the property during the week whilst the defendant could not be there, is not probable. It is also inherently unlikely that the plaintiff would have agreed to pay the defendant rent when he had no income until May 2015 and could otherwise live rent free in Brisbane with his mother. In the absence of any supporting documentation, I am not willing to accept the evidence of the defendant as to the payment of rent.
The End of the Relationship
- It was common ground that the relationship between the plaintiff and defendant ended on 13 July 2015, although the plaintiff did not vacate the property until 18 September 2015. In his evidence the plaintiff said that an incident occurred, which brought the relationship to an end. He indicated that he would vacate the property by the end of that week. His account was that the defendant asked him to stay on to look after the animals. She sold her property in Brisbane and then moved out to the rural property at which time he left the property. He denied that he refused to leave the property on 13 July 2015 when asked to by the defendant.
- The defendant sold the property around October 2015. The settlement occurred on 2 December 2015. The property was sold for $650,000. The defendant’s evidence was that the plaintiff moved out of the property on 18 September 2015 because she had given him notice when they broke up that he needed to leave. She said that the plaintiff kept asking to stay on because he wanted to find other work in the Beaudesert area. She said that she gave him notice that he would have to vacate as he was a tenant. No such notice was produced in evidence. The defendant also said that she had to sell her property in Cannon Hill (which settled on 20 September 2015) before she could move out to the rural property.
- I do not accept the defendant’s evidence in this regard. It is improbable that the plaintiff who had not been able to obtain work in Beaudesert during the period when he lived at the property would ask to stay, in order to find work when he otherwise had no place to live. Upon vacating the property he returned to his mother’s house where he had lived prior to moving out to the rural property. In light of the number of animals that were living on the property at the time of the relationship breakdown, the probabilities favour the plaintiff’s evidence that he stayed on in order to feed and care for the animals until such time as the defendant was able to live at the property.
- I considered the plaintiff to be an honest witness giving his best account of events that had occurred up to six years ago. His answers were measured. He made concessions and did not attempt to paint the defendant in a poor light acknowledging that she contributed most of the money to the property. Further, his evidence is supported by the documentary evidence that was produced. His oral evidence was consistent with his pleaded case. Criticism was made of his inability to provide more previse estimates of his labour when precise estimates were given in the pleadings. Given the passing of time, I don’t consider this impacts on his credibility unfavourably. Suffice to say, a significant amount of his labour was devoted to the feeding of animals and maintenance of the property.
- I do not accept the defendant as a credible and reliable witness in the absence of some support for her evidence. The defendant was reconstructing events in order to suit her case. Her evidence was at times entirely inconsistent with the documentary evidence. She was willing to tell complete untruths. A number of matters of some significance were referred to for the first time in the defendant’s evidence when no such propositions had been put to the plaintiff for comment.
- Further, the defendant’s evidence that the plaintiff owned the shed and the solar system is completely inconsistent with her having sold that property and kept the proceeds. The shed, which would be considered a fixture, was not mentioned as an exclusion in the house and land contract and the solar panels were specifically referred to as being included in the sale. I am satisfied on the balance of probabilities that the shed was included in the sale of the property.
- The very fact that the defendant sold the property shortly after the plaintiff moved from that property evidences that the purchase of the property, and the plaintiff’s contributions to the maintenance and improvements to the property; were for the future of their relationship together. Without the plaintiff living on the property, the animals had to be sold and indeed the property also sold.
- I find, on the balance of probabilities, that the plaintiff did the majority of the work involved in caring for the animals and maintaining the property on a day to day basis. I find that his labour also significantly contributed to the improvement of the property as did the defendant’s. The work undertaken by the plaintiff was physically demanding work and was therefore a significant contributor to the maintenance and improvement of the property.
- Whilst the defendant paid $19,322 in animal feed and expenses, primarily the plaintiff attended to the feeding and caring of a significant quantity of animals on the property. This was in accordance with the oral agreement that they had reached.
- The plaintiff paid $51,087 for improvements to the property by way of the installation of the bore, the building of a shed and the installation of an off-grid solar system. The contract of sale specifically referred to the equipped bore and petrol generator as included chattels in the sale of the property. The contract of sale also contained a condition that required the defendant to provide information regarding the age of the bore and the details of the pump. That demonstrates that the bore, only having been installed in 2014 together with the recently acquired pump and plumbing system were of some value to the buyer of the property. I find, on the balance of probabilities, that the installation of the bore added value to the property. The 19 solar panels and batteries were also listed as included chattels in the sale of the property, which again demonstrates that they were of some value to the buyer. I find that the installation of an off-grid solar system installed on a large shed added some value to the property.
- I find that the defendant contributed $606,170.15 for the purchase, maintenance and improvement of the property. She also paid the rates and insurances on the property.
- The plaintiff relies upon the principles established in Baumgartner v Baumgartner, and submits that a constructive trust arises from the agreement or common intention that the parties would each devote monies and labour to the property for the enjoyment, use and benefit of both parties.
“the constructive trust serves as a remedy which equity imposes 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’”.
- In Muschinski, Deane J said of the circumstances giving rise to the equitable remedy that
“the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do”.
- In Engwirda v Engwirda & Ors, in considering a claim based on unconscionability the court said
“a contention of this kind is usually made and sometimes succeeds in a context in which both parties to a relationship such as this have provided their resources, in money and labour, for the purpose of acquiring or improving assets to be used by the parties in their joint relationship; usually a residence but sometimes a business in which they were or expected to become involved together. In many of these cases there has been a pooling of funds although that is not essential”.
- In determining whether a constructive trust should be imposed in the circumstances of this case regard must also be had to the statement of Deane J in Muschinski, that
“[t]he fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice”.
The determination in this case must therefore be based on principles of law and not a mix of judicial discretion or subjective views as to which party ought to win. However, general notions of fairness and justice are relevant to the notion of unconscionable conduct.
- Whilst the plaintiff and defendant never cohabitated and did not pool their financial resources at all, I nonetheless consider that given the significant amount of money that the plaintiff expended on items that became fixtures on the property and were thus sold with the property and the significant amount of physical work he contributed to improving and maintaining the property, that it would be unconscionable for the defendant to retain the benefit of all of that relevant property.
- The plaintiff and defendant provided their resources, in money and in labour for the purpose of improving the property, which was to be used by both parties for the ongoing common benefit of each of them. Accordingly, a constructive trust should result over the net proceeds of the sale of the property in favour of the plaintiff in an amount, which gives effect to the “notion of practical equality”, that is, account being taken of their respective contributions.
- The plaintiff’s financial contribution for the bore, solar system and shed amounts to $51,087. He claims a further $23,220 for his labour. However, I must factor in that he obtained a benefit in living on the property rent free for approximately one year. He also had the benefit of the defendant having paid for the food for his animals. Further, I infer that the plaintiff having failed to have the shed finally certified would have had some impact upon its value in the sale of the property. Additionally, it was never the intention of the plaintiff or the defendant that he should be paid an hourly rate for the work he undertook on the property.
- The defendant’s financial contribution to the purchase, improvement and maintenance of the property amounts to $606,170. She sold the property a little over two years after acquiring it for $650,000.
- Jointly the financial costs associated with buying, maintaining and improving the property amount to $657,257.
- The defendant having sold the property for $650,000 means that together a loss was suffered in the amount of $7,257.
- In order to achieve practical equality and to avoid an unfair situation arising where the defendant suffers a significant loss on the sale of the property and the plaintiff suffers no loss but rather, receives more than he expended financially on the property, I consider that equity warrants a constructive trust for the amount of $51,087. Whilst that means that the defendant will have suffered a small loss of $7258 on the sale of the property, I do not intend to order that she pay interest on the $51,087. Interest at a flat rate of five percent per annum over four years would amount to a little more than $10,000. By not ordering the defendant pay interest on the $51,087, I have also factored in that the plaintiff, by failing to attend to the certification of the shed has likely reduced the value of it, although to what extent is not quantifiable on the evidence before me. I’ve taken into account the cost of $250 that the defendant bore to remedy the off-grid solar system. Practical equality is achieved in my view by the declaring of a constructive trust in the amount of $51,087.
- For the reasons set out above I am not satisfied that there was an agreement between the parties that the plaintiff was required to pay rent. The evidence of such an agreement came wholly from the defendant, which was unsupported by any documentary evidence. The probabilities favour that no such agreement was reached for the reasons set out in this judgement.
- The defendant also claims damages for the costs associated with the purchase, repair and registration of the horse float in the amount of $4,335.10. I do not find, again for the reasons set out above, that the defendant made these payments for the purpose of the plaintiff’s agistment business. I find that the float was purchased by the defendant for the use of both parties predominantly for the transport of their own animals. She received the proceeds of its sale.
- There was no evidence led in the trial to establish that any delay in having the defendant’s foal’s hooves clipped had caused a detriment to the foal.
- The application fee for mains power was a necessary cost associated with the connection to the Energex network.
- I dismiss the defendant’s counterclaims.
- My orders are:
- I declare that the defendant holds the proceeds of the sale of the property described in these reasons on trust for the plaintiff to the extent of $51,087.
- I order the defendant pay the plaintiff equitable compensation in the sum of $51,087.
- I will hear the parties as to costs.
 Transcript 1-89 line 21.
 Transcript 2-15 line 35.
 Transcript 1-14 line 35.
 Transcript 1-99 line 22.
 Transcript 2-8 line 25.
 Exhibit 1 document 109.
 Exhibit 1 document 63.
 Exhibit 1 document 64.
 Transcript 1-13 line 9.
 Exhibit 1 document 3.
 Exhibit 1 documents 5-8.
 Transcript 1-80 line 9.
 Transcript 2-17 line 34.
 Transcript 2-18 line 15.
 Transcript 2-18 line 7.
 Transcript 2-18 line 20.
 Exhibit 1 document 65.
 Exhibit 1 document 66.
 Exhibit 1 document 68.
 Exhibit 1 document 67.
 Exhibit 1 document 67.
 Exhibit 1 document 62.
 Exhibit 1 document 56.
 Exhibit 1 document 58.
 Transcript 1-10 line 45.
 Transcript 1-69 line 10.
 Transcript 1-72 line 6.
 Transcript 1-73 line 28.
 Transcript 1-93 line 41.
 Transcript 1-93 line 29.
 Transcript 2-16 line 36.
 Transcript 1-82 line 19.
 Transcript 1-82 line 17.
 Exhibit 1 document 343.
 Transcript 1-10 line 10.
 Transcript 1-64 line 34.
 Transcript 2-13 line 23.
 Transcript 2-13 lines 1-7.
 Transcript 2-14 lines 24-32.
 Transcript 2-34 lines 28-35.
 Transcript 1-83 lines 30–36.
 Transcript 1-97 lines 10–14; Transcript 2-15 line 19, 42; 2-35 line 34.
 Transcript 1-59 line 24.
 Transcript 1-97 lines 13–17; 1-98 line 26.
 Transcript 1-96 lines 43–47.
 Transcript 2-27 lines 27–32.
 Transcript 2-25 lines 20–41.
 Exhibit 1 document 109.
 Exhibit 1 document 152.
 Exhibit 1 document 164.
 Exhibit 1 document 184.
 Transcript 2-12 lines 5–12.
 Exhibit 1 document 201.
 Transcript 2-28 lines 18–27.
 Exhibit 1 document 248.
 Exhibit 1 document 276.
 Exhibit 1 document 202.
 Exhibit 1 document 335.
 Exhibit 1 document 286.
 Transcript 1-60 lines 16–20.
 Transcript 1-94 lines 35–47.
 Transcript 1-59 line 38–46.
 (1987) 164 CLR 137.
 Ibid at 148.
 Muschinski v Dodds (1985) 160 CLR 583 at 614.
 Ibid at 620.
 (2000) QCA 61 at  (references omitted).
 Muschinski v Dodds (1985) 160 CLR 583 at 615.
 Ibid at 616 per Deane J.
 Baumgartner v Baumgartner (1987) 164 CLR 137 at 150.
- Published Case Name:
Alan Dale Perry v Kirsteen Lyndall Bostock
- Shortened Case Name:
Perry v Bostock
 QDC 253
12 Dec 2019