Barker v Linklater[2007] QSC 125

SUPREME COURT OF QUEENSLAND

LYONS J: 

Background

1. June Dorothy Barker (the applicant/applicant hereinafter referred to as “the applicant”) and Pearl Marie Linklater (“the deceased”) first met in the 1960s when they played Cricko together. Both married and had children. In 1972 the deceased separated from her husband and moved to a property at Maine Road, Clontarf, Queensland (“the property”) with her two daughters.

2. After the applicant married she moved to Darwin, Northern Territory. In approximately 1976^[1] the applicant left her husband and with her children moved to Queensland.  They lived initially with the deceased and then in a caravan park close to the deceased’s home.  When the applicant’s husband died in 1977 the property in Darwin was sold and the applicant purchased a house in Vernon Street, Clontarf in July 1979 not far from where the deceased lived.

3. The applicant worked as a caterer at the Royal Brisbane Hospital and after the Vernon Street property was sold in 1986 she resided with the deceased at the deceased’s property until the deceased’s death on 29 January 2004.

4. At her death the deceased’s only assets were her sole ownership of the property valued at the time of her death at approximately $225,000, furniture of no commercial value and approximately $1,100 in a Commonwealth Bank account.

5. In her will the deceased described the applicant as her “carer” and gave her a specific bequest of “my Black Coloured Public address System and all its accessories”. No other provision was made for the applicant in the deceased’s will.

6. The applicant contends that she was the de facto partner of the deceased for a period of at least 20 years.

7. The applicant has two proceedings before this court, one commenced by way of application and one commenced by way of claim as follows.

8. By way of application filed on 29 July 2004 (BS 6604/04), as amended on 13 August 2004 and 15 September 2004, the applicant seeks the following orders:

1. Such provision as the court thinks fit be made out of the estate of Pearl Marie Linklater for the proper maintenance and support of the applicant; and

2. That the costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate.

9. By way of claim filed on 7 February 2006 (BS 1002/06) the applicant (the plaintiff in this claim) seeks the following orders:

1. A declaration that the Defendants hold their legal interest in and to the property described as Lot 1 on Registered Plan 99707 County of Stanley Parish of Redcliffe Title Reference: 13648044 (“the property”) in favour of the Plaintiff by way of a constructive trust in favour of the Plaintiff.

2. Alternatively, a  declaration that the Defendants hold their legal interest in and to the property described as Lot 1 on Registered Plan 99707 County of Stanley Parish of Redcliffe Title Reference: 13648044 (“the property”) in favour of the Plaintiff by way of a resulting trust in favour of the Plaintiff.

3. An Order that the Defendants take all necessary steps to transfer the property to the Plaintiff.

4. That the Defendants pay the Plaintiff’s costs of this action.

10. On 7 March 2006 the defendants in BS 1002/06 filed a counterclaim for the sum of $584.30 owing under an agreement whereby the applicant agreed to pay an amount in respect of rates and insurance premiums relating to the premises. The defendants also claimed damages for trespass being loss of rent in the sum of $1,950 as at the date of claim and accruing at the rate of $150 per week until the date of the vacation of the premises. The defendants also seek interest on the said sums until judgment and an order that the applicant forthwith vacate the premises at Maine Road, Clontarf.

11. The claim proceeded by way of pleadings and the application by way of affidavits. Oral evidence was also given at the hearing. The oral evidence related to matters that were in issue in both proceedings particularly in relation to expenditure by the applicant. The parties had previously agreed that the claim and counterclaim should be heard together with the originating application as many of the issues to be determined were common to both proceedings and the same witnesses were required for both. A Consent Order issued to this effect on 8 May 2006. During the course of the trial questions arose in relation to the extent to which the oral evidence could be relied upon in relation to the claim and the extent to which admissions in the pleadings, pursuant to Uniform Civil Procedure Rules 1999 (“UCPR”) r 166 (4), could be considered in the application given the possibility of inconsistent results.  I will refer to these issues in greater detail later. 

Family provision claim

12. This application has been brought pursuant to s 41(1) of the Succession Act 1981 (“the Act”) claiming that adequate provision has not been made for the applicant from the estate for the proper maintenance and support of the deceased’s spouse.  The applicant claims to be the spouse of the deceased pursuant to the Act.  Section 41 provides as follows:

“Estate of deceased person liable for maintenance

(1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.”

13. For the applicant to succeed in her application, she must establish that she comes within the definition of “spouse” as defined in s 5AA of the Succession Act 1981:

“5AAWho is a person’s spouse

  (1)Generally, a person’s spouse is the person’s—

(a)husband or wife; or

(b)de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA.

  (2)However, a person is a spouse of a deceased person only if, on the deceased’s death -

(a)the person was the deceased’s husband or wife; or

(b)the following applied to the person -

(i)the person was the deceased’s de facto partner, asdefined in the AIA, section 32DA;

(ii)the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

(c)for part 4, the person was -

(i)a person mentioned in paragraph (a) or (b); or

(ii)the deceased’s dependant former husband or wife.

  (3)Subsection (2) applies -

(a)despite the AIA, section 32DA(6) and section 36, definition spouse ; and

(b)whether the deceased died testate or intestate.

  (4)In this section -

dependant former husband or wife, of a deceased person, means a person who -

(a)was divorced by or from the deceased at any time, whether before or after the commencement of this Act; and

(b)had not remarried before the deceased’s death; and

(c)was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.”

14. The applicant contends that she is a “de facto partner” of the deceased. This term is defined in s 32DA of the Acts Interpretation Act 1954 (the “AIA”).  For a person in a de facto relationship to then come within the definition of a spouse as required by the Succession Act 1981 the person must establish that the person and the deceased lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death (s 5AA(2)(b)(ii) and (c) Succession Act 1981). 

15. For the applicant therefore to be successful in her application she must establish firstly that she comes within the definition of a de facto partner and then that she comes within the definition of a “spouse” because she lived with the deceased on genuine domestic basis for the two years immediately prior to the deceased’s death. The court is essentially concerned, therefore, with the period of the last two years of the deceased’s life ending on her date of death 29 January 2004.

Is the applicant a ‘de facto partner’ within the meaning of s 32DA AIA?

16. Section 32DA(1) defines a de facto partner as “either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.” Section 32DA(5)(a) provides that for subsection (1) “the gender of a person is not relevant”.

17. Section 32DA(2) then sets out examples of the criteria which may be taken into account in deciding whether two persons are living together as a couple on a genuine domestic basis. They are as follows:

“(a)the nature and extent of their common residence;

  (b) the length of their relationship;

  (c) whether or not a sexual relationship exists or existed;

(d)the degree of financial dependence or interdependence, and any arrangement for financial support;

(e)their ownership, use and acquisition of property;

(f)the degree of mutual commitment to a shared life, including the care and support of each other;

  (g)  the care and support of children;

  (h)the performance of household tasks;

  (i)the reputation and public aspects of their relationship.”

18. Whilst the AIA provides that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether or not two persons are living together as a couple on a genuine domestic basis,^[2] it is important to note that the legislation provides that two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.^[3]

19. The question before me is whether the parties were in fact in a de facto relationship during the relevant period of the last two years. In order to make findings in relation to the last two years it is necessary to consider the nature of the relationship during the entire period.

20. It is therefore necessary to turn to the indicia set out in the AIA to determine whether, on the evidence established in this case, the parties were in fact a de facto couple.

Common residence and length of relationship

21. The applicant relies first on the fact that the parties had a long standing relationship which commenced in the 1960s and continued up until the date of the deceased’s death in 2004. I accept that the deceased and the applicant knew each other for around thirty years.

22. The applicant gave evidence that from approximately 1983 until the deceased’s death in January 2004 they shared the same residence. Accordingly, the applicant submits that not only was there a relationship of some thirty years but for nearly twenty of those years they lived together which indicates that the relationship was one of both de facto partner and spouse.

23. There is uncontroversial evidence that the parties shared a residence together for a long time but the parties cannot agree when this commenced. The applicant states that they commenced living together in 1983 and the defendants state it was 1988. The applicant’s daughter Rosetta Lynis-Huffenreuter stated that she was residing with her mother at Vernon Street until her marriage in September 1983. The Titles Office records^[4] show that the applicant’s home at Vernon Street was sold in 1986   and the 1984 Electoral Roll^[5] indicates that the applicant’s place of residence at that time was Vernon Street.   Accordingly I consider that the applicant and the deceased commenced living together in 1986 when the applicant’s home was sold.

24. As previously indicated the AIA specifically provides that a common residence in itself is not sufficient to establish that there is a de facto relationship and that one has to look at the true nature of the relationship.  The evidence shows that some of the witnesses consider that the period of common residence was simply as “flatmates” whereas others consider it was a lesbian relationship.  The deceased’s daughter Katherine Hanna stated that the applicant moved in after her mother had a stroke so that she would be company in the event of another stroke.^[6]

25. The applicant gave evidence at the hearing that she and the deceased did not tell people about the true nature of their relationship.^[7]  There was also evidence that the applicant was at times referred to as the deceased’s “sister”.^[8] 

26. Whilst I am satisfied that the parties lived in the same residence from 1986 until the deceased’s death in January 2004 the real question is what was the true nature of the relationship during this time? Was it a de facto relationship? One of the criteria which needs to be examined in order to answer this question is whether there was a sexual relationship at any time and whether there was such a relationship in the last two years of the deceased’s life.

Was there a continuing sexual relationship?

27. The applicant stated in her evidence at the hearing that she and the deceased were a close and loving couple and that they had a sexual relationship throughout the period of their relationship. The applicant’s daughter Rosetta Lynis-Huffenreuter gave evidence at the hearing of having seen her mother and the deceased in a passionate embrace in the kitchen of the deceased’s home when she was 15 years of age, which was 1977. Rosetta describes seeing the pair with their arms around each other leaning against the sink “French kissing” where they had their tongues in each other’s mouths and other intimate contact.

28. The applicant also states that they shared a bedroom during the length of their relationship. The applicant however stated that they hid this fact from the deceased’s family and she gave evidence of moving her belongings out of the jointly shared room to another room each time the family would come to visit: “They went into their mother’s room but there was no evidence that I was there because I used to take my stuff out and put it into the other room.”^[9]  The deceased’s two daughters gave evidence that they did not believe that their mother was in a lesbian relationship with the applicant.^[10]  The second defendant in fact stated that she had actually asked her mother the question and the deceased had denied it. 

29. On the other hand the applicant’s daughter Rosetta Lynis-Huffenreuter stated that she believed there was a lesbian relationship even though her mother had never actually told her that she “was in a lesbian relationship with Mrs Linklater.”^[11]  The neighbour, Shauna Fitzpatrick, gave evidence that she assumed that the pair were a lesbian couple during the 13 years she lived next door to them.  The son of the deceased, Robert Linklater, and his wife Michelle Linklater also stated that they believed the pair were lesbians.

30. Mrs Sheila Palethorpe also played Cricko with both the applicant and the deceased and she gave evidence that they had both told her in the 1970s they were in a sexual relationship at that time. In contrast to this however is the evidence of Mrs June McArthur who gave evidence that she had been a close friend of the deceased throughout her life and had played Cricko with her. She gave evidence that she was not aware that the deceased and the applicant were lesbians or in a de facto relationship.

31. I accept the evidence that the applicant and the deceased were observed in a passionate embrace in the kitchen of the deceased’s home in approximately 1977 and that Mrs Palethorpe was told there was such a relationship in the 1970s. The real question however is whether there was an ongoing sexual relationship and whether there was such a relationship in existence in the last two years of the deceased’s life.

32. What objective evidence is there of an ongoing sexual relationship after 1977? A number of people believed them to be lesbians however, it is clear that the evidence of the neighbour Shauna Fitzpatrick is simply a statement of what her view was as there was no discussion as to the nature of their relationship. Similarly, the evidence of the deceased’s son, Robert Linklater, was that it was his belief that it was a lesbian relationship. I am not satisfied however that this was anything other than speculation particularly given the evidence that there was very little contact between the deceased and her son. It is also difficult to be satisfied that his views were based on the situation as at the end of the deceased’s life. Accordingly I do not consider that any of the evidence of what a number of people believed about the relationship really assists.

33. In coming to a determination on the issue as to whether there was an ongoing sexual relationship between the parties, ultimately I am not satisfied the parties shared the same bedroom. In this regard I accept the evidence of the deceased’s daughters, Ann-Margaret Linklater and Katherine Hanna (the respondent/first defendant and second defendant). Mrs Hanna who lived in the home during the period 1988 to 1991 while she was working as an air hostess, stated that they slept in separate bedrooms and kept their belongings separate.^[12]  In particular I accept the evidence of Ms Linklater where she explains that her mother gave her specific instructions to lock her bedroom to ensure that the applicant could not have access to it as follows: “Towards the end of October 2003 my mother requested that I change the door in her bedroom so that it could be locked.”^[13] (emphasis added)

34. I find that this evidence expressly contradicts the assertion that the parties shared a bedroom. Furthermore the applicant expressly agreed that in February 2004 she had a conversation with the second defendant and asked her if she could move into “Pearl’s room”.^[14]

35. I also find the oral evidence of the applicant in relation to the sharing of the bedroom to be particularly unconvincing. In particular I find her evidence of changing rooms every time the children would visit, to be unbelievable. The evidence that the applicant would hear the gate and then quickly change all of her possessions from one room to the next was simply not credible.^[15]

36. In coming to a determination on this issue there are two pieces of evidence which need to be referred to in particular. The first is the evidence of the Public Trust officer who took the deceased’s instructions for her will and the second is the bundle of handwritten notes found in the house.

37. Mrs Rhyll Gardner an officer from the Office of the Public Trustee, who took instructions from the deceased at the Redcliffe Hospital in the final months of the deceased’s life, was called to give evidence in relation to the preparation of the will dated 2 December 2003. The officer had filled out a “Questionnaire for the Will for Linklater, Pearl M”^[16] which has a specific note which states “She also advised that the carer who lives with her is not a dependant or defacto partner”.  The questioning by Counsel for the applicant during cross examination also revealed that Mrs Gardner queried the deceased about the relationship and was specifically told that the applicant was not a de facto partner.^[17]

38. The question arises as to what effect should be given to the evidence of the statements by the deceased to the Public Trust officer that the applicant was a carer and not a dependant or de facto partner. The statement made by the deceased to the officer is hearsay and is admissible as original evidence only to prove the knowledge, motive or other state of mind of the deceased if that is relevant. In Hughes v National Trustees, Executors & Agency Co. of Australasia Ltd^[18] the High Court held that such statements cannot be regarded as probative in relation to allegations about the character and conduct of the applicant.  The oral statements from the deceased to Ms Gardner and the written statement in the questionnaire cannot therefore be admitted as to evidence of the truth of the statements.   

39. The second body of evidence are the handwritten notes of the deceased^[19] which were found when the house was being cleaned after the death of the deceased.  These notes were tendered by Counsel for the defendants at the hearing and were initially accepted by the applicant as being in the deceased’s handwriting.^[20]  On a further reading of the notes the applicant then expressed some hesitation as to whether they were in fact in the deceased’s handwriting.  The notes were however subsequently confirmed by the deceased’s daughter to be in her mother’s handwriting.^[21] 

40. I accept that the notes were in the deceased’s handwriting as they have been identified by the deceased’s daughter and they were found in the deceased’s house after her death.

41. These notes are undated but there is reference to the person referred to receiving payment for caring for the writer during a period when the writer was ill. I am satisfied that the evidence establishes that the only person who was receiving a carer’s payment for caring for the deceased was the applicant and that this occurred during the last two years of the deceased’s life probably from around 2001.

42. The notes are clearly about a woman who is not specifically identified however there are extensive references to factual matters. I am satisfied that the only rational inference is that the person referred to in the notes is the applicant. This is because the person referred to in the notes is paid to care for the writer, is with the writer for extensive periods, works around the house, drives the writer around and “Tells Rosetta everything on Thursday”. The applicant’s own evidence states that she received a carer’s pension for caring for the deceased in her final years, worked around the house, did most of the driving and has a daughter named Rosetta.

43. Counsel for the applicant objected to the admission of the notes into evidence on the basis that the notes could not be put into any context. Pursuant to s 92(1)(a) of the Evidence Act 1977 in a proceeding, where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible if the person making the statement had personal knowledge of the matters dealt with and is called as a witness.  The requirement to call the witness to give evidence is not required if the maker of the statement is dead.  I am satisfied that the deceased could have been called to give evidence as to the nature of their relationship if she were still alive and accordingly the notes are admissible to the extent they are relevant.

44. I have relied on the notes to a limited extent and that is in relation to the nature of the relationship between the parties at the end of the deceased’s life. I accept that of course the deceased can not be subject to cross examination in relation to the notes but the notes are none the less compelling evidence and indicate the strength of the deceased’s feelings towards the applicant. I consider the notes demonstrate the nature of the relationship in the final years of the deceased’s life which is the relevant period which needs to be examined to ascertain whether there was a de facto relationship during this time.

45. A similar issue arose in the case of Hooper v Winten^[22] where written statements of the deceased were tendered including a statement that the applicant and the deceased “were not lovers”.  Windeyer J stated:^[23]

“In a matter such as this it is necessary to make a determination bearing in mind the applicant’s evidence and the written statements of the deceased bearing in mind one cannot be challenged by cross-examination and the other is difficult to challenge without instructions from the deceased.  There is no doubt that by the time the deceased made his written statements his relationship with the applicant was becoming strained.”

46. Similarly an extract of the first couple of pages of the notes (with original spelling and punctuation) shows a strained relationship as follows:

“Feeds me wrong tablets makes me sick, keeps giving me wrong tablets

Swears at me shouts out dirty laungage (sic) When I play the keyboard and shower she darts off to my room to look for money

Tells Rosetta everything on Thursday pretends to help me talks about me to others

Chases my friends away. 

Theives (sic) my clothes.

Only half does things leaves things all over the place and wingers (sic)  Has dirty nails and feet. 

Pretends to help me when people are around

Pretends she knows everything and is very cunning goes thru (sic) everything

Sold my recliner chairs fan etc out Boat and trailer from her garage.  Copys (sic) everything I do 

Rushes in to garage sales and buys the things I usually get

When Wants to drive all the time

When things are to be done wants to sit around all day and smoke.  When people anybody is here pretends she is the Maid 

Leaves good things out in the Weather

coughs in my face

gets paid for to help me and stills (sic) theives (sic) my money. 

Has been thieving (sic)  Money from me for years. 

Goes slow purposely when I’m in a hurry.  Pretends she can’t hear.  Dishing out tabelts (sic) to me mostly wrong keept (sic) me sick for over 6 mths now I check all tablets & when she brings them out I still check them. 

Alw Always wrong ones

over reacted to everything.

Tryes (sic) to be little me in front of People wingers (sic) about everyone especially when they come here. 

Tries to copy everything I do and say In the past she has turned people away from here by being rude to them

has sold or Given away some of my things

buys herself Coke Chocs

Lollies nothing for me I start to prasctice (sic) keyboard

always make cup of tea to stop me Always sits and watches TV with Dirty feet up on lounge

never nails are dirty.”

47. I am satisfied that the sentiments expressed in the notes are inconsistent with a close and loving relationship or an ongoing sexual relationship in the final years of the deceased’s life.

48. The objective evidence therefore does not show that there was a close and loving relationship between the two women from which an inference could be made of an ongoing sexual relationship in recent times. Whilst there were a couple of photos of the women together they were simply photos which added nothing to the evidence of a relationship. There is no evidence other than the incident in the kitchen in 1977 to show that there was any affection or overt signs of love between the two. I also consider the fact that both women wore wedding rings as being equivocal given that both women had been previously married and may well have simply continued to wear the rings. There is some reference to a peck on the cheek whilst the deceased was in hospital but there is simply no reference to, or evidence of, overt signs of affection between the two women at any time since the incident in the kitchen in 1977.

49. I am not satisfied therefore that on the evidence before me there was evidence of an ongoing sexual relationship between the applicant and the deceased at any time since 1977.

50. The issue of the existence of a sexual relationship is however just one aspect of the consideration of the question as to whether the applicant and the deceased were in fact de facto partners. There are other criteria which also need to be examined.

The nature of the domestic relationship

51. The applicant states that whilst they both worked around the house, she did the majority of the household chores.^[24]  This is not supported by the deceased’s daughters and there is no evidence to substantiate this until the declining health of the deceased when the applicant became her carer in 2001 and was paid a Centrelink allowance in recognition of this.  The Death Certificate^[25] shows that the deceased died of “(a) Chronic renal failure (due to hypertension) and (b) Congestive heart failure”.  The Certificate stated that the first condition had been present for five years and that the second had been present for two years.  The evidence indicates that the deceased did not use a wheelchair until 2002.  The evidence of both the deceased and the applicant being actively involved in the country music scene and in flea markets supports a finding that the deceased led a reasonably active life until at least 2001.  The evidence also indicates that when the applicant retired in 1999 she in fact was on a Disability Pension so she must have had some heath issues herself.   

52. The evidence would suggest that for the majority of the period that they lived together, there was a normal sharing of household chores. I accept that on the evidence of the neighbour Ms Fitzpatrick, the applicant took some responsibility for a lot of the outside work but it would not appear that much maintenance or renovation work was in fact carried out. The evidence of the deceased’s family was that the kitchen remained basically the same and the renovation of the bathroom commenced by the deceased’s son was never completed.^[26]  I accept that whilst the roof was fixed, it was the deceased’s son-in-law Christopher Hanna who did the work and not the applicant.^[27] 

53. I accept that whilst there were times when the deceased and the applicant babysat the deceased’s grandchildren together the deceased also babysat her grandson Jayden during the years 1997 to 2000 by herself.^[28]

The reputation and public aspects of the relationship

54. There is no evidence before me of any public declaration that the applicant and the deceased were a lesbian couple. When queried by the officer from the Public Trustee the deceased expressly denied such a relationship. The applicant also stated that she did not declare the relationship on her Centrelink form.^[29]    

55. The applicant gave evidence that she and the deceased would go on holidays together and they would attend social functions together, particularly country music and senior citizens dances. The applicant gave evidence also that they were an open lesbian couple in their country music life however the only evidence to support this were three Christmas cards from members of this group addressed to “June and Pearl”.^[30]  I do not consider such cards support an inference of a lesbian relationship.

56. The evidence at the hearing also indicated that the applicant and the deceased never celebrated Christmas lunch together but rather celebrated with their own families.^[31]  The evidence of Ann-Margaret Linklater was that the applicant only attended one of the four weddings of the deceased’s children.^[32]  The deceased’s son-in-law Christopher Hanna also gave evidence that “There was constant tension between Pearl and June for as long as I remember”.^[33]  He also gave evidence that the deceased had asked the applicant to leave.

57. The evidence also establishes that the house was at all times registered solely in the name of the deceased. All electricity and telephone accounts were only in the name of the deceased.^[34]  Furthermore when cars were purchased they were purchased in one name only.  When the applicant purchased a car she would register it in her own name and when the deceased purchased a car it would be registered in her name only.  Ongoing costs also seemed to be kept separate as the applicant stated in evidence, “Pearl would pay for the registration of hers and I would pay for the registration of mine.”^[35]

58. It is also clear from the evidence that the deceased had made a number of previous wills and the applicant acknowledged at the hearing that she had not been mentioned in any of the prior wills.^[36]  The applicant gave evidence that they had not even discussed the issue of wills between themselves.^[37]  An examination of the wills also reveals that the applicant was in fact a witness to the deceased’s will dated 14 October 1988^[38] which is at a time when the applicant states she has already been in a lesbian relationship with the deceased for a number of years.  The applicant however states that she did not know the document she witnessed was a will.  I do not accept this evidence as having examined the document and the placement of the signatures it must have been apparent that the document was a will.  

59. There was no authority for the applicant to exercise decision making on behalf of the deceased by way of an Enduring Power of Attorney or a Bank Authority.^[39]     When the deceased was admitted to hospital the applicant was not listed as “next of kin”.^[40] 

60. In the context of the evidence as a whole, I do not think the evidence of the deceased’s son Robert, his wife, the applicant’s daughter and Ms Fitzpatrick establish that the deceased and the applicant were by reputation a lesbian couple. I am satisfied therefore that there was no public declaration or acknowledgement that there was a lesbian relationship in existence at any time since they commenced openly sharing the same house in 1986 and there was no general reputation that they were.

The degree of financial dependence or interdependence

61. The applicant gave evidence at the hearing that the deceased received a pension but she did not know whether it was a single pension or a pension paid to someone who was part of a couple. The applicant stated “It had nothing to do with me what pension she got.”^[41]  She also stated: “I never discussed her pension or what she did with her money.  It had no concern to me.”^[42]

62. The applicant also gave evidence that when she retired from the hospital in late 1999 the superannuation that she received in the amount of some $42,000 was placed in an account in the name of her daughter and son-in-law.^[43]  When asked why the money had been put in this account the applicant advised that the deceased had said to her that she should put it in that account otherwise “Centrelink would be on to me. … because she said if you put – have too much money she said they will take your pension and she was frightened of hers … she was frightened that her pension would be cut.”^[44]

63. I am satisfied that both the applicant and the deceased kept their finances quite separate from each other. The applicant in fact gave evidence that whilst she wanted a joint account, the deceased had refused to open one.^[45]  The evidence shows that the deceased had only one bank account at the time of her death and there was no evidence of any joint bank account at any stage.  There is no evidence of either the deceased or the applicant allowing the other to access her account or to even know the contents of her bank account. 

64. There was evidence from the applicant at the hearing that she and the deceased were involved together in a flea market operation. They would travel together to flea markets and buy and sell items. The evidence that the applicant gave at the hearing was that all of those earnings were totally looked after by the deceased. There was no evidence at the hearing in relation to any income to either party from this source and the deceased’s bank account did not disclose any significant income from this source. It would appear that this activity was something akin to a hobby or minor business activity.

65. As previously indicated the house was owned solely by the deceased and when asked if there was ever any discussion that the house would be put in both names, the applicant did not specifically answer the question. The applicant said that privately the deceased used to say “…it was our house”^[46] but that when other people came to the house the deceased would say “…June’s just living here.”^[47]

66. During the course of the relationship the applicant gave to the deceased a sum of money per fortnight which in the later years was $150 per fortnight or almost $4,000 per year. I do not accept that such an amount would have been paid per fortnight simply as a half contribution for rates and electricity as contended by the applicant. I am satisfied that is more accurately described as rent or board given it was a set amount per fortnight rather than a percentage of a particular bill or bills.

67. For the period up until 1999 when the applicant worked as caterer at the Royal Brisbane Hospital she received a salary and managed her own income of about $36,000 a year. On her retirement in 1999 she received a Disability Pension due to her own ill health. Her income after her retirement consisted of social security payments which included a Carer’s Pension from approximately 2001. It is clear from the evidence that the deceased was in receipt of a pension for the period that they lived together and on the applicant’s evidence the deceased also received an income from her flea market activities.

68. On the basis of all this material I do not accept that there was financial interdependence but rather the evidence establishes that there were quite distinct arrangements in place in relation to the management of the applicant’s and the deceased’s finances.

Expenditure by the applicant on the deceased

69. Quite apart from the issue of financial dependence or interdependence is the claim by the applicant that she has expended significant sums of money on the deceased. This is outlined more fully in her claim for a declaration that there is a constructive or resulting trust in her favour however the matter needs to be considered on the question of whether there was a de facto relationship in existence.

70. In her affidavit in support of the application the applicant states that she expended substantial amounts of money on the deceased as follows:

• The sum of $4,000 to $5,000 on joint holidays.

• The purchase of a utility and caravan out of the proceeds of sale of Vernon Street in 1983 for their joint use.

• The sum of $1,742.50 for a trailer.

• The sum of $450 on a wheelchair.

• The sum of $1,200 in replacing the kitchen in 2000.

• The sum of $2000 on paint for the house.

• Expenditure on a dividing fence.

• The bulk of her superannuation payout of $42,000 was expended on the deceased leaving a balance of $6000.

• She purchased all of the household goods and chattels throughout the relationship.

71. The applicant gave evidence that in relation to other costs they effectively “split the expenses down the middle”.^[48]  The applicant also stated that she would paint the house every five years for the deceased except for the last occasion when the house was painted when they both paid half each for the labour. 

72. The evidence of the neighbour Ms Fitzpatrick supports the fact that the applicant would do some of the outside work and I accept that this was the case. I do not accept however that the applicant carried out renovation and maintenance work around the house to the extent she claims. The evidence of Robert Linklater was that it was he who commenced renovating the bathroom in 2003. Christopher Hanna also states that it was he who painted the roof without the assistance of the applicant and that the deceased paid for the paint.^[49]  He also asserts that very few renovations were in fact ever carried out at the premises and that the bathroom renovations were never completed and did not have plumbing fitted.^[50]

73. The applicant also states that she replaced the kitchen in the year 2000 for $1,200 and painted the house at that time expending some $2000 on paint. Katherine Hanna however gave evidence of the run down nature of the house^[51] and the evidence of Christopher Hanna was that the kitchen remained the same since he first saw it in 1997 with only some cupboards moved around.  He stated that he did not witness any kitchen renovations and that the kitchen was always in a state of disrepair.^[52] 

74. Mr Hanna clearly stated that the deceased would pay for the materials and Mr Linklater indicated that he saw no evidence of the applicant ever giving money to the deceased for the purchase of materials.

75. The applicant claims that she purchased most of the white goods in the house. I accept that the applicant had a higher income than the deceased until 1999 and I accept that the white goods in the house were purchased by the applicant and therefore belong to the applicant.

76. In relation to the evidence at the hearing that the applicant would purchase cars for the use of both her and the deceased, it would appear from the evidence that the applicant would purchase cars which would be put in her own name and the deceased would purchase cars which would be put in her own name. There is no evidence that the applicant purchased a car for the deceased. Exhibit one clearly indicates that a number of cars were purchased by the applicant in her own name.

77. I do not consider that the fact that the applicant expended a considerable amount of money on cars indicates anything of significance in terms of the relationship given that the applicant agreed that the deceased had her own car during the period of their relationship. Similarly the fact that the applicant purchased a caravan and a utility for $9,500 and $4,500 in 1983 or 1984^[53] does not in itself advance the applicant’s submission that they were living together as a couple.  In relation to the trailer the evidence is that the applicant registered the trailer in her own name and has paid for the registration ever since.  I consider that the evidence supports a finding that this trailer is the property of the applicant. 

78. The applicant’s claim that she expended these substantial amounts of money on the deceased is not substantiated and this issue will be dealt with in more detail later in relation to the question as to whether there is a constructive or resulting trust. The issue at present however is whether, even if the expenditure of all of these amounts is totally accepted, such expenditure in any way enhances the applicant’s claim that she and the deceased were in a de facto relationship at the time of the deceased’s death.

79. I am not satisfied that the expenditure as claimed by the applicant, even if accepted totally, would add any significant weight to the applicant’s claim that there was a de facto relationship given the weight of the other evidence in this case. Clearly the purchase of all of the white goods and vehicles were for the benefit of the applicant even if the deceased also had the benefit of their use. Significantly, these items remain the property of the applicant. The evidence of the painting of the house and the renovation of the kitchen (even if accepted totally) are not typically conduct of a boarder however they are not compelling evidence of a de facto relationship and are not determinative of the existence or not of a de facto relationship. It also has to be noted that the applicant was paying fairly minimal rent fortnightly throughout the period. At the time of the deceased’s death the amount being paid was $150 per fortnight. Counsel have agreed that the appropriate current figure for rent is $195 per week or $390 per fortnight.

80. In all of the circumstances therefore I do not consider that this evidence of the expenditure, even if accepted, would add significant weight to a finding of a de facto relationship.

Issues in relation to the applicant’s credit

81. There is one further aspect which needs to be discussed and that relates to the applicant’s credit. As I have previously indicated I did not find the applicant’s evidence, that she moved all her possessions from the shared bedroom every time she heard the deceased’s children come in through the gate, to be credible.

82. In addition, at the hearing the applicant was cross examined in relation to evidence which she had given about the changing of the door and the lock on the deceased’s bedroom. I found the applicant’s answers to be evasive and at times obtuse and I have difficulty in accepting them as truthful.

83. I also consider the applicant was not credible in her explanation as to the amounts she claimed to have withdrawn from her own moneys to give to the deceased. The applicant effectively stated that any large amount that had been withdrawn from the account, held by the applicant’s daughter on the applicant’s behalf, had been spent on the deceased. Under cross examination it was revealed that this was clearly not the case and in particular an amount of $8,000 she claimed to have given to the deceased was admitted as having in fact been spent on the purchase of a vehicle which was registered in her own name.^[54] 

84. The applicant also had to concede that she got her claim “muddled up” in relation to the expenditure of $2,800 for the motor scooter.^[55]

85. Similarly the applicant stated that an amount of $1,000 she asked her daughter to withdraw on 25 December 2003 was for the deceased. However it was established at the hearing that this was not the case and that the money had not been requested by the deceased, was not given to the deceased and was in fact spent on the purchase of white goods for the house whilst the deceased was in hospital in the last stages of her illness.^[56]

86. Having heard the applicant give evidence I did not consider all of her evidence to have been truthful.

Was the applicant the deceased’s de facto partner?

87. Before coming to a conclusion as to whether the applicant was in fact the deceased’s de facto partner it is convenient to summarise the facts:

1. The applicant and the deceased were friends for a period in excess of thirty years.

2. They shared the same residence for about eighteen years.

3. They did not share the same bedroom.

4. They did not refer to each other as partners and there was no manifestation to the public at large that they were a couple.

5. There were no overt signs of affection.

6. Whilst there is some evidence of passionate kissing in 1977, there is no evidence that there was an ongoing sexual relationship.

7. They kept their bank accounts and finances separate.  

8. Cars were purchased by each in the name of one only.

1. The house was in the name of the deceased as was the telephone and she paid the rates and the telephone bills.

10. The applicant kept her superannuation payout in an account in the name of her daughter and son-in-law.

11. In her will the deceased referred to the applicant as her “carer” consistent with what she said when specifically asked as to the nature of the relationship by the representative from the Public Trustee.

12. The parties shared household tasks.

13. The applicant paid rent to the deceased and most expenses were shared equally.

88. The applicant has placed particular reliance on the decision of the Victorian Supreme Court in McKenzie v Topp^[57] where a stepson was successful in obtaining further and better provision out of the estate on the basis of the level of care he had provided to his stepmother.  The applicant states she provided an extraordinary level of care to the deceased over a long period of time which is an indication of her love and commitment to a shared life with the deceased.  In the circumstances of the current case I am not satisfied that the applicant has in fact shown a similar degree of care as was evident in the decision of McKenzie v Topp and importantly, the level of care in existence in the present case is not of such a degree that the only conclusion is that the applicant was the deceased’s spouse.  Whist the deceased suffered from a number of health conditions including a stroke and bowel cancer, she led an active life up until the last two years of her life during which time the applicant received a Carer’s Pension.  I accept the evidence of Katherine Hanna that it was she who cared for her mother during her final days at home. 

89. In coming to a final determination in this matter I have considered a number of cases and place particular reliance on the decision of Windeyer J in Hooper v Winten^[58] where it was held that a de facto relationship was not in existence between the male deceased and his male carer in a situation where both were homosexuals and where his Honour accepted that there might have been “odd occasions when intercourse took place”.  His Honour held:^[59]

“The deceased never referred to the applicant as his partner, lover, de facto, or companion when talking to other people.  The applicant did not refer to the deceased in those terms.  There was no intermingling of financial affairs or money.  There were no purchases of joint property…..There was no public display of affection between the two such as kissing…”

90. In the decision of K v H-J^[60] Douglas J referred to the importance of the public aspects of the relationship:^[61]

“On balance the evidence of the reputation and public aspects of the relationship was clearly against the conclusion that they were de facto partners.”

91. The 2004 Court of Appeal decision of S v B^[62] referred to the decision of Philippides J at first instance where her Honour also referred to the importance of financial interdependence in her determination that there was such a relationship in these terms:^[63]

“There was also a significant degree of financial dependence by the [respondent] on the [appellant] during this period, which I am satisfied the [appellant] encouraged and willingly undertook on the basis that he would provide for her as his partner. Their financial arrangements indicated features of trust, generosity and intermingling. Notwithstanding the reticence of some witnesses called by the [appellant], I consider that the evidence indicates that the parties presented themselves to the outside world as a couple.”

92. The fact that there may have been a sexual relationship at some stage is only one element that has to be considered. As Windeyer J in Hooper v Winten^[64] stated:

“I have come to the conclusion that the applicant has not established a de facto relationship with the deceased at the date of death.  I have reached that conclusion in view of the matters referred to, which have, I think, covered the matters set out in s 4(2) of the Property (Relationships) Act 1984. It is however necessary to make a determination as to the question of sexual relationship.  The applicant differentiated between a sexual relationship and such an arrangement involving intercourse.  No particular explanation was given of this.  I consider that the applicant’s evidence of intercourse in 1988 ought to be accepted.  There may have been odd occasions when intercourse took place after that, but I am not satisfied it was regular.  I am not satisfied that there was any continuing sexual relationship between the parties and it is accepted that there was none towards the end of the deceased’s life.” 

93. In the present case the onus lies on the applicant to prove that she was in a de facto relationship. In all of the circumstances therefore whilst there is clear evidence of companionship over a long period, some evidence of a sexual relationship at some time, evidence that the applicant assisted with work around the house particularly the outside work, and evidence that the applicant was the deceased’s carer in her last years, I am not satisfied that this is sufficient to establish that the applicant was the deceased’s de facto partner at the time of her death.

Was the applicant the deceased’s spouse?

94. I am not satisfied that the applicant was the deceased’s spouse because whilst I am satisfied that they were living in the same house for the last two years of the deceased’s life I am not satisfied that they were in that period living together as a couple on a genuine domestic basis within the meaning of s 32DA of the AIA.  

95. Accordingly because the applicant was not the deceased’s de facto partner and because the applicant and the deceased were not living together as a couple on a genuine domestic basis for the last two years ending on the deceased’s death the requirements which need to be established in order for there to be a finding that the applicant was the deceased’s spouse have not been made out.

96. I am satisfied that the applicant was not the deceased’s spouse at the time of the deceased’s death on 29 January 2004.

97. I therefore dismiss the applicant’s claim pursuant to s 41 of the Succession Act 1981.

The application for declarations 

98. The real property of the deceased at Clontarf has been registered in the names of the defendants who are the deceased’s two daughters Katherine Hanna and Ann-Margaret Linklater. They are the major beneficiaries under her will dated 2 December 2003.

99. As previously indicated the applicant also seeks, by way of claim filed on 7 February 2006, declarations on the basis that the court would impose a constructive trust, or a resulting trust, in respect of the property at Maine Road, Clontarf. In summary the applicant claims:

(1)that representations were made to her by the deceased that the house would be left to her and,

(2)that in reliance on those representation she did not buy her own property,  provided money to the deceased, expended money on the maintenance and renovation of the property and spent significant time on the care of the deceased. 

The applicant therefore seeks the declarations and an order that the defendants take all necessary steps to transfer the property to the applicant.

100. Turning then to the specifics of the claim. Paragraph [10] of the claim filed on 7 February 2006 alleges that in 1983 at the deceased’s request the applicant sold her house at Vernon Street for $25,000 and at the time of the sale she was told by the deceased “We don’t need two houses. Sell your house and move in here with me.” The applicant claims that she spent this money on the deceased particularly on the purchase of a utility and a caravan and spent $5,000 on holidays and that she provided extensive care and labour to the deceased during the period of the relationship.

101. The claim also states at paragraph [15] that:

“15.During the cohabitation period the Plaintiff made the following financial contributions on the basis of the ongoing relationship:

15.1the purchase of a Toyota Hilux Ute for $13,000.00 in or about 1984;

15.2the purchase of a Toyota Celica for $12,500.00 in 1988;

15.3the purchase of a Toyota Corolla Hatch for $12,760.84 on 21 April 1992;

15.4the purchase of a Subaru Ute and a Camry in 1995;

15.5the purchase of a Toyota Hilux registration number 623BWU in 1998 for $10,000.00;

15.6the purchase of a Toyota Hilux registration number 109EAC in 1999 for $10,450.00;

15.7the purchase of a Mazda Panel Van registration number 586FNB on 30 June 2000 for $7,800.00;

15.8the purchase of a Motor Scooter for approximately $2,800.00;

15.9paid one half of the cost of construction of the shed at the property, the sum of $2,500.00.”

102. The claim further provides at paragraph [22]

“22. Between 1999 and the date of Pearl’s death the Plaintiff acted in reliance on representations made by Pearl to the Plaintiff that she did not have to worry about a house because the house would be left by Pearl to the Plaintiff in the event of Pearl’s death.

23. In reliance on those representations and the Plaintiff’s understanding of Pearl’s intentions the Plaintiff:-

23.1At the request of Pearl would obtain moneys from her daughter and provide them to Pearl.  The Plaintiff did so at Pearl’s request and without question as to the use of the moneys on the following dates:

99. $2,500.00

99. $2,500.00

99. $2,000.00

99. $4,138.19

10/02/00$3,000.00

07/04/00$5,000.00

29/06/00$8,000.00

03/05/01$1,000.00

01/11/01$  300.00

24/12/01$  500.00

07/03/02$  500.00

15/03/02$  500.00

09/05/02$1,000.00

21/07/03$3,000.00

25/12/03$1,000.00

23.2Did not purchase a house property;

23.3 Carried out renovation work and maintenance work on the property, namely:-

1. The painting of the exterior of the property including the purchase of the paint for $1,200.00;
2. The construction of a dividing fence between the property and the adjoining property;
3. Repairs and maintenance to the roof of the property;
4. Painting of the inside of the property;
5. The purchase of household goods and chattels for the property;
6. The purchase of hardware for the renovation of the bathroom at the property;
7. The maintenance and care of the gardens and lawns of the property;

23.4In reliance on the relationship between the parties in a social context contributed by the payment for Pearl for entertainment and meals when socialising as a couple;

23.5Purchased for Pearl a ramp wheelchair trailer in 2002.”

The alleged representations

103. The applicant claims that in 1983 at the deceased’s request she sold her premises at Vernon Street, Clontarf on the basis that the deceased had said to her “We don’t need two houses. Sell your house and move in here with me.” The applicant gave evidence that she did not purchase a house with her own money on the basis of representations made by the deceased that she did not need a house as she had a house with the deceased.

104. As previously indicated I find that the house was not sold until 1986. The question I have to determine is whether there was a representation made at about that time that the house would be left to the applicant. I do not accept that the statement referred to above was a representation that the applicant would have an interest in the deceased’s house. That is not what was said. There is no suggestion that the applicant and the deceased agreed to share the proceeds of the sale of the applicant’s house. Further the deceased made a will in 1988 leaving the property to her daughters. The applicant was a witness to this will. It is likely that the applicant was aware she was not a beneficiary.

105. I consider that the will supports the finding that in about 1986 the deceased made no promise or representation to the applicant that she would receive an interest in the house.

106. The applicant further claims that she did not purchase a house with her superannuation moneys when she retired in 1999 because she relied on the representations made by the deceased that “You don’t need a house. You’ve already got one here with me”. The applicant also referred to the deceased using the term “our house”.

107. At the hearing, under cross examination the applicant gave the following evidence:^[65]

“She never said to you, did she, that she was going to give you half the house? -- Never mentioned it.

Ever? – All she said it was “our house”.

Yes.  But she never said to you, did she, that she was going to -----? --- She never mentioned that because we never spoke about it.

Never spoke of it?  So she never represented to you that you would receive the house that you lived in? – All she would say was it was our house and you will live here until you died.

She never said to you that she would leave you part of her estate?  Never said it? – No.  All she would say was that I would be set.  I would be right.  There would be plenty of linen and everything there for me for the rest of my life.

All right.  And did she say it in the context of you helping her along the way, in other words, looking after her? – No.

So it wasn’t a case that, well, whatever you did for her you did it because you wanted to; is that so? – I did it because I loved her.

It wasn’t a case of you doing it in the situation which you didn’t want to do it, in return for some promise of getting the house? – No.

Nothing like that at all? – No.”

108. The statements attributed to the deceased are vague and imprecise. There is no indication as to when or where or in what context they are said to have been made. The words referred to by the applicant at the hearing are at variance with the representations relied on in the pleadings. The representations relied upon by the applicant are also at variance with the intention the deceased was evidencing in her wills executed in 1988, 1989, 1993, 1999 and 2003 that the property would be left to her daughters. Given the significant concerns I have in relation to the applicant’s credit and the deceased’s consistent intention to leave the property to her daughters, I consider it extremely unlikely that the representations set out above were made by the deceased.

109. In particular in examining the words used I do not consider that a promise was made or that the use of the term “our house” (if said by the deceased) carries with it any implication of ownership but was simply a term which described where both parties lived. It did not amount to a representation that the applicant had an interest in the house at that time. Furthermore a representation that the applicant had an actual interest in the house is inconsistent with the payment by the applicant of rent or board.

110. I am not satisfied therefore that the deceased made a representation to the applicant that the house would be left to her or that she would be able to reside in the house till she died.

Expenditure of funds on the deceased

111. The second element of the applicant’s claim, as set out in the preceding paragraphs, is that in reliance on the representations made by the deceased she expended significant funds on the deceased. As I have indicated I am not satisfied that the deceased made representations to the applicant. Accordingly any funds expended could not have been expended on the basis of representations. The question remains however whether funds were in fact expended on the deceased.

112. The applicant states that the proceeds of the Vernon Street house were spent on holidays and the purchase of a utility and a caravan and that between 1999 and the date of the deceased’s death she obtained funds from the superannuation funds held by her daughter and provided the funds to the deceased. As previously indicated the caravan and the utility were the property of the applicant and I do not accept that there were significant funds expended on holidays.

113. I accept that the applicant purchased a freezer from her funds which is in the deceased’s home and remains the property of the applicant. I accept that the sum of $1,000 which was withdrawn on Christmas Day 2003 was not spent on the deceased but on a television, a washing machine and a stove which remain the property of the applicant.^[66]  As previously indicated I accept that white goods and appliances were purchased by the applicant and are her property. 

114. As previously indicated in relation to the discussion as to whether there was a de facto relationship, the deceased’s son Robert Linklater, who was renovating the bathroom for his mother to allow wheelchair access, specifically stated that he was not aware of his mother receiving money from the applicant and in fact indicated that he had never seen any evidence of it.^[67]  He also indicated that he was not aware of any things being bought that his mother could not have afforded.^[68]   There was no evidence of any significant purchases by the deceased.  Whilst there was some renovation work carried out around the house Mr Hanna states the deceased paid for the outlays.   

115. As previously indicated, cross examination of the applicant indicated that all of the vehicles mention in paragraphs [15.1] to [15.7] were purchased in the applicant’s name only and that during the relevant period the deceased had her own car.^[69]   

116. I accept that the amount of $2,800 stated by the applicant to have been spent on the purchase of a motor scooter for the deceased at paragraph [15.8] was in fact provided by the deceased.

117. It would also seem that on the evidence the applicant purchased a trailer in 2002 for $1742.50 which remains her property.

118. There is no objective evidence to support the applicant’s claim that she spent $2,500 on the construction of a shed.

119. I do not accept that the applicant spent money on repairs and renovations to the house to any significant extent given the evidence of both Christopher Hanna and Robert Linklater.

120. Accordingly whilst I consider that there is evidence of sums of money being withdrawn by the applicant from her superannuation account, I do not accept that the sums referred to in paragraph [23] were withdrawn at the deceased’s request, were given principally to the deceased or were spent to any significant extent on the property.

The ruling

121. The issue of expenditure of funds on the deceased by the applicant also arose in relation to issues in dispute in the application as previously referred to and oral evidence was given in this regard. Counsel for the applicant also led evidence in chief from the applicant in relation to the expenditure alleged in paragraph [23] of the claim and other matters alleged in paragraphs [18]-[28]. When Counsel for the respondent sought to cross examine on this expenditure there was an objection to this by Counsel for the applicant on the basis that there were deemed admissions in these paragraphs pursuant to UCPR r 166(4) which states that “A party’s denial or non admission of an allegation of fact must be accompanied by a direct explanation of the party’s belief that the allegation is untrue or can not be admitted.”  Paragraph [10] of the defence stated:

“The defendants do not admit the allegations in paragraphs 18 to 28, inclusive, on the grounds that the defendants are unable to attest to the truth or otherwise save for their knowledge that, with reference to 23.3.5, the applicant did purchase a freezer that remained her property at Pearl’s death.”

122. I was initially attracted to the submission and made a ruling that I accepted that the matters “set out in paragraph 23 are deemed admissions”. The submissions and ruling were only directed to paragraph [23] although the same point was available in respect of paragraphs [18]-[22] and [24]-[28]. I now consider that whilst the explanation given by the defendant was sparse it may in light of all the circumstances have been a sufficient explanation given the limited scope of the investigation which could have been made by the defendant as to the truth of the allegations. In any event, at the time I permitted cross examination on the matter which is a course supported by UCPR r 367.  Cross examination proceeded in relation to matters pleaded in paragraph [23] as did re-examination. 

123. Some difficult issues have therefore arisen as there are two proceedings which are being heard together with issues in common. Having allowed cross examination of the applicant in relation to the expenditure claimed to have been expended by her for the deceased, some of the deemed admissions are no longer able to be sustained given the applicant’s answers during that cross examination, in particular as to the expenditure of $8,000 on 29 June 2000, and $1000 on 25 December 2003. As I have previously indicated I have some serious concerns in relation to the applicant’s credit which essentially affects her evidence about matters alleged in paragraph [23].

124. It became apparent that there was a possibility of inconsistent results if I acted on the admissions in the action but on the evidence in the application. Counsel were therefore contacted after the trial and the matter was re-listed for mention. Submissions were sought in relation to four issues:

(1)Whether the ruling in relation to paragraph [23] should be revisited in light of UCPR r 367.

(2)If the ruling was not revisited, what effect did the admissions have in the application where there are no admissions and what effect do the findings in the application have in respect of admissions, if the findings and the admissions are inconsistent.

(3)Whether any party wished to adduce further evidence in relation to the deemed admissions.

(4)Whether any party wished to make further submissions about the outcome of the case.

125. Counsel for the defendants (respondent) sought to reopen his case for the limited purpose of seeking leave to amend the defence and counterclaim purely for the purpose of withdrawing the “deemed admissions” and amending the pleading to comply with UCPR r 166.  Given the fact that the applicant had gone into evidence in chief and indeed re-examination, Counsel for the defendants submitted that the applicant could not point to any prejudice and that the amendments should be allowed.  Counsel for the applicant submitted that a determination should be made on the evidence as it stands and that judgment should issue. 

126. Having considered the matter I consider that the appropriate course is not to allow the defendants to re-open for the purpose of amending their pleading but rather I consider that on the basis of UCPR r 366 and r 367 there is power in the Court on its own motion to revisit the ruling in relation to the deemed admissions in paragraph [23].  In light of the further evidence I consider that the appropriate course is to proceed on the basis that paragraph [23] was not a deemed admission.  Counsel for the applicant was given the opportunity to lead further evidence but did not seek to do so.

Is there a constructive trust?

127. The applicant relies on the decision in Baumgartner v Baumgartner^[70] and submits that in the circumstances of this case a constructive trust should be declared because there was a common intention to create an interest in the property.  The Baumgartner principle has been summarised as applying where:^[71]

“…a relationship formed by parties has collapsed and property referrable to the relationship has been acquired in the name of one of them without any expression, formal or informal, of dispositive intention.  If the non title-holder contributed to the acquisition, improvement or maintenance of the property the court has an equitable jurisdiction to apportion the property between the parties.”

128. The applicant submits that there was a common intention that she would have an interest in the property, and because of this she gave willingly of her money and her time to the deceased. The applicant submits that it is unconscionable for the defendants to deny that she has a beneficial interest in the property because she has acted to her detriment. The applicant states that she fully expected to be a beneficiary under the will and was shocked when she only received the amplifier.

129. In Muschinski v Dodds^[72] Deane J described a constructive trust in these terms:^[73]

“Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) 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.”

130. His Honour went on to say:^[74]

“Indeed, in this country at least, the constructive trust has not outgrown its formative stages as an equitable remedy and should still be seen as constituting an in personam remedy attaching to property which may be moulded and adjusted to give effect to the application and inter-play of equitable principles in the circumstances of the particular case.”

131. The rationale for such relief is that in the absence of the relief a person may secure or maintain an interest in property or money that is contrary to equitable principle for such retention.^[75]  Relief is appropriate where the court finds a person could not, in all good conscience, retain for him or herself a benefit or the proceeds of a benefit he or she has appropriated in breach of his or her contractual or other legal or equitable obligations to another.^[76]

132. In the present case the applicant is submitting that because she relied on the deceased’s representations that she did not need to buy a house she has expended considerable funds and effort for the deceased’s benefit but has not received the house in return. The applicant submits that there is an essential unfairness in that she can no longer occupy the residence at Clontarf where she has lived for almost twenty years and for which she has provided substantial funds; accordingly she submits there is a constructive or resulting trust in her favour and she is entitled to the property.

133. In relation to the nature of constructive trusts Ford and Lee, in their comprehensive work on Trusts,^[77] state that in Australia:^[78]

“the provision of a remedy has depended upon the court being able to discern by analogy, induction, or deduction some appropriate existing legal or equitable principle capable of rationalising extension of a remedy to the new category of unconscionable reliance”.

Two of the main categories include “an owner of a property compelled to honour an informal common intention with another person as to that other person’s beneficial interest in the property held following other person’s suffering detriment on the faith of the common intention” and situations where “one party to a failed joint endeavour retaining property against another party where blame is not attributable for the failure of the joint endeavour and retention would be unconscionable”.^[79]

134. The applicant has essentially asserted that there was a representation or common intention that the deceased would give her the house on her death.

135. As I have indicated I am not satisfied that a representation was made by the deceased.

136. I am not satisfied that there was a common intention that the applicant was to receive the house.

137. Furthermore I am not satisfied that the moneys claimed to have been expended on the deceased at her request were in fact expended in the way claimed.

138. I accept however that for the period 1986 until 1999 the applicant was the only person who was in receipt of wages but that the deceased did receive some funds from her flea market activities. I am satisfied that the applicant spent significant funds to the extent of $42,000 which were her superannuation moneys during the years 1999 to 2003 some of which was clearly spent on the purchase of vehicles and white goods which are owned by the applicant. Whilst I have not accepted that the amounts claimed by the applicant were spent in the way claimed I do accept that she did do work some around the property but not to the extent claimed and that some amounts may have been spent on the maintenance of the property but not to any significant extent.

139. The question arises however as to whether the amounts which have been spent and the labour which has been expended can be recognised in some way? Jacobs has expressed the issue in these terms:^[80]

“Questions of whether a trust arises or not can also arise in circumstances where one person expends time and money in improving another person’s property.  Orthodox legal theory should require that in the absence of circumstances calling for the application of the principle applied in Dillwyn v Llewellyn^[81] the former acquires no proprietary interest by so acting; and it is submitted that view is correct.  There is some suggestion in cases such as Muschinski v Dodds,^[82] Baumgartner v Baumgartner^[83] and Lloyds Bank Plc v Rosset^[84] that conduct of this type nevertheless may be relevant to the question as to whether a constructive trust may be imposed.” 

140. As has been previously indicated a constructive trust can not be said to arise in the circumstances of this case given there were no specific representations made and no evidence of a common intention or common purpose. .

141. The application for a declaration of a constructive trust is dismissed.

Is there a resulting trust?

142. Given that I am not satisfied that there is sufficient evidence to establish a constructive trust, is there a resulting trust?

143. A resulting trust is a trust which arises by presumption of law in favour of the settlor or the settlor’s representatives. Such a trust arises where one person (the settlor) confers title to property to another person but the settlor retains beneficial ownership of the property, in whole or in part.^[85]  As Jacobs states: “The term ‘resulting’ applied to these trust expresses the view that the property comes back to the settlor or purchaser after it has been given away, although in truth the beneficial interest may never have left the settlor or purchaser”.^[86]   

144. The applicant’s submission is that she is entitled to an equity either in the property, that is the real property itself, or the estate on the basis that she has provided funds for the purchase which related to specific value in the property. The onus of proof is on the applicant to the extent that she must show that the moneys were directed in some way towards increasing the value or creating value in property in which she is entitled to some equity or entitled to a minimum equity resulting in a sum of money to compensate her.

145. As has been previously discussed the applicant has not been able to satisfactorily identify what the amounts that were withdrawn were used for. In particular there is doubt as to whether the amounts listed were in fact used by the deceased for her benefit or on the property.

146. It is would seem clear on the authorities that a resulting trust does not in fact arise in the current circumstances.

147. Accordingly the applicant’s application for a declaration of a resulting trust is dismissed.

Counterclaim

148. On 7 March 2006 the defendants as well as filing a notice of intention to defend filed a counterclaim in the following terms against the applicant;

“15.Following Pearl’s death, the First Defendant as executrix of her will and on the Second Defendant’s behalf, as a beneficiary, allowed the Plaintiff to continue to occupy the premises at 103 Main Road, Clontarf, pending determination of her application made pursuant to s. 41 of the Succession Act 1981, upon acceptance of the condition that the Plaintiff pay an amount that was payable in respect of the rates and insurance premiums relating to the premises.

16. An amount of $ 1,894.05 was paid by or on behalf of the Plaintiff evidencing the Plaintiff’s agreement that she would pay such outgoings in return for her right to occupy the premises.

17.By letter dated 27 July 2005 from the First Defendant’s solicitors to those of the Plaintiff, the First Defendant sought reimbursement of the sum of $ 788.03 from the Plaintiff in respect of outgoings for the premises pursuant to the agreement.

18. By letter date 11 October 2005 from the First Defendant’s solicitors to those of the Plaintiff, the First Defendant terminated the agreement she had made with the Plaintiff as a result of the Plaintiff’s default in payment of the balance of the said sum of $ 788.03 after payment only of the sum of $ 203.73 and advised her that vacant possession was required on or before 11 December 2005.

19.The Plaintiff has failed to vacate the premises and is therefore trespassing on the premises.

20. In the premises, the estate has suffered damage by virtue of a lost opportunity to rent the premises at a market rental from no later than 11 December 2005 and the First Defendant, as executrix, claims damages against the Plaintiff in a sum representing the loss of such rental being no less than $150.00 per week.

The First Defendant claims the following relief:

1. The sum of $584.30 as monies owing under an agreement;
2. Damages for trespass being loss of rent in the sum of $1,950 to 6 March 2006 and accruing at the rate of $150.00 per week until the date of vacation of the premises;
3. Interest on the said sums until judgement.

4. An order that the Plaintiff forthwith vacate the premises at 103 Main Road, Clontarf.”

149. Having considered all of the evidence I am satisfied that the applicant was allowed to continue to occupy the residence pending the determination of her application on an agreement to pay for the rates and insurance. Such an agreement was evidenced by the fact the applicant paid an amount of $1894.05 to the first defendant. The applicant however failed to continue to make the payments agreed to and the agreement was terminated. Accordingly the appropriate order is that the applicant pay the sum of $584.30 owing under the agreement. Rent should also be paid for the period that the applicant has been in occupation.

150. I can find no basis for the applicant’s continued residence of the property since the date of the deceased’s death and the applicant is to vacate the premises at Clontarf forthwith.

ORDERS

151. The applicant’s claim pursuant to s 41 of the Succession Act 1981 is dismissed.

152. The applicant’s application for a declaration of a constructive trust is dismissed.

153. The applicant’s application for a declaration of a resulting trust is dismissed.

154. I give judgment for the respondent on the counterclaim in the following amounts

1. the sum of $584.30;

2. the sum of $1,950;

3. the sum of $150 per week from to 6 March 2006 to the date of vacation of the premises;

4. interest on the said sums until judgment.

155. The applicant is ordered to vacate the premises at 103 Main Road, Clontarf forthwith.

156. I will hear from Counsel as to costs.