Marlow v Boyd[2012] QSC 331

SUPREME COURT OF QUEENSLAND

[1] Boddice J: The plaintiff and the defendant are mother and daughter.  They have, in the past, enjoyed a close relationship.  That relationship was so close that the plaintiff and her late husband contributed monies towards the purchase of a rural property in the defendant's name, located at 147 Emu Swamp Road, Glen Aplin in the State of Queensland.  The plaintiff and her late husband, and the defendant and her family, lived in neighbouring houses on the Glen Aplin property.

[2] The plaintiff and the defendant’s relationship is no more.  They are not even on speaking terms.  The plaintiff seeks recovery of the monies contributed to the defendant's property.  The defendant denies the plaintiff is entitled to recover those sums.  At issue is the amount and nature of the contributions made, and the proper construction of a written agreement entered into between the plaintiff and the defendant in January 2006. 

Background

[3] The plaintiff and her late husband were married for over 30 years.  He died on 2 July 2006.  They have two adult daughters.  They have assisted both their children financially in the past.  That assistance included helping the older daughter purchase real property.

[4] In October 2002, the plaintiff and the defendant became registered proprietors of real property at Logan Village in the State of Queensland.  The Logan Village property was encumbered by a mortgage, in joint names, with Suncorp Metway.  A bank account, in joint names, was established with Suncorp.  The mortgage repayments were made through this bank account.

[5] A contract for the sale of the Logan Village property was signed on 29 April 2005.  The sale price was $372,000.  On completion, the sale proceeds were used to repay the mortgage, with the balance being paid into the joint bank account. 

[6] In June 2005, the defendant entered into a contract for the purchase of the Glen Aplin property.  The purchase price of $475,000 was met, in part, by funds from the joint bank account.  The defendant also obtained loans from Westpac Bank and Stacks Finance. 

[7] In late 2005 and in 2006 the plaintiff and her late husband undertook renovations of a house on the Glen Aplin property, known as the White House.  The renovations were paid for by the plaintiff and her late husband. 

[8] On 20 January 2006 the plaintiff and her late husband, and the defendant and her husband, signed a written agreement ("the 2006 agreement").  It was in the following terms:

“This document is an agreement between Michelle Gayle Boyd (nee Marlow), Barry Richard Boyd (known as Rick) her husband, their beneficiaries and Robert Alfred Marlow, Jacqueline Marlow, parents of Michelle Gayle Boyd.

It is hereby agreed that the property at 147 Emu Swamp Road Glen Aplin owned by Michelle Gayle Boyd shall be known to all parties that in return for 50% of the purchase price being $237,500.00 will give Robert and Jacqueline Marlow lifetime tenancy of the dwelling known as the ‘white house.  Robert and Jacqueline agree to renovate and keep the ‘white house’ maintained throughout their tenancy.

If for any reason the property is sold the agreement is to be transferred to the new property purchased in replacement for 147 Emu Swamp Road or if the arrangement is to be terminated Michelle Boyd, Rick Boyd and their beneficiaries agree to repay Robert and Jacqueline Marlow 50% of the sale price of the property less any solicitors fees, real estate commissions.  An agreeable amount to be deducted from this sale price if necessary for any improvements made to the land, eg. Crops, Fencing, Irrigation.  This will then enable Robert and Jacqueline to purchase another property in the event the arrangement is dissolved.

It is also agreed that Albert Fensham, grandfather of Michelle Boyd is to erect a cabin on the paddock next to the ‘white house’ and he will also have lifetime tenancy.  If the property is sold assistance will be given for the removal and relocation of the cabin to another property. 

It is noted that upon the death of Robert and Jacqueline Marlow this agreement is to be terminated and no claim for monies can be made from their estate for reimbursement.”

[9] In February 2006, the plaintiff and her late husband paid to the defendant the sum of $237,500.  Some of these funds were used to repay the loan obtained from Stacks Finance. 

[10] When the plaintiff and her late husband moved onto the Glen Aplin property, they resided in the White House.  The defendant and her family lived in a neighbouring house on the property.  After the plaintiff’s husband died, the plaintiff continued to reside in the White House. 

[11] In 2008, the plaintiff became engaged to her now-husband.  The relationship between the plaintiff and the defendant, which had been deteriorating, fractured completely.

The pleadings

[12] The plaintiff contends she contributed $351,606.20 towards the purchase price of the Glen Aplin property.  These sums comprised her share of the net proceeds from the sale of the Logan Village property, and the sum of $237,500 paid after execution of the 2006 agreement.  The plaintiff further claims approximately $160,000-$164,000 was spent on renovations on the White House. 

[13] The plaintiff alleges those monies were contributed by her in the common expectation that she and her late husband would live in the White House for the rest of their lives during which time they would enjoy the society and support of the defendant and her family.

[14] The plaintiff claims her relationship with the defendant has deteriorated to the point where she no longer can, or will, enjoy the society and support of the defendant and her family, and the common expectation has therefore failed.  The plaintiff claims an entitlement to recover the sums contributed to the Glen Aplin property by way of constructive trust.  Alternatively, the plaintiff claims an entitlement to recover those contributions pursuant to the 2006 agreement.

[15] The defendant denies there was any common expectation.  She also denies the plaintiff had any entitlement to the proceeds of sale of the Logan Village property.  Although purchased in joint names it was, in truth, the defendant’s property.  Further the plaintiff is not entitled to any equitable relief.

[16] The defendant contends the 2006 agreement governs the arrangement entered into with the plaintiff.  On its proper construction, the plaintiff was given a lifetime tenancy of the White House.  It was not an agreement to purchase a half interest in the property.  The plaintiff has no right to recover any monies as she is able to continue to live in the White House.  Alternatively, the defendant contends the plaintiff agreed to compromise her claim, in October 2008, for $300,000.

Evidence

Logan Village property

[17] According to the plaintiff, the Logan Village property was purchased after the defendant advised the plaintiff and her late husband that she was interested in purchasing an investment property.  She needed assistance to do so.  As the plaintiff and her late husband had assisted their other daughter to acquire a property, the plaintiff agreed to assist the defendant.  The plaintiff indicated the property would be purchased on a 50/50 basis, and would be tenanted.  The defendant had responsibility for managing the property.  The plaintiff and the defendant were to share equally the costs of any improvements to the property.

[18] A contract for the purchase of the Logan Village property was signed by the plaintiff and the defendant. It was dated 16 September 2002.[1]  A mortgage was obtained from Suncorp.  A bank account in the name of the plaintiff and the defendant was opened at this time.  The plaintiff said she and the defendant each contributed approximately fifty per cent of the deposit.  All mortgage repayments were made from this joint account.  At times, the plaintiff deposited further monies into the account to cover any shortfalls.  The property was then tenanted until shortly prior to its sale in mid-2005.

[19] According to the defendant, the Logan Village property was purchased by her alone after having been found by her partner.  She initially signed a contract, in her name only, on 16 September 2002.  That contract was subject to finance.  The defendant attempted in the ensuing days to obtain finance but was unsuccessful.  The defendant then approached her parents for assistance.  They agreed to arrange a meeting with their bank manager at Suncorp Metway.  Suncorp agreed to provide finance if one of the defendant's parents was jointly responsible for the mortgage.  As the defendant's father was considered too old, the defendant asked her mother.  The plaintiff readily agreed to this request.

[20] The defendant said the original contract was then altered to include the plaintiff's name as purchaser.  The defendant collected the contract from the agent, took it to the plaintiff for signature and returned it to the agent.  The plaintiff's name was only included on the contract as the defendant was unable to obtain a loan by herself.

[21] The defendant denied the plaintiff contributed any money to the purchase of the Logan Village property.  Any monies provided by the plaintiff, including the deposit, were as loans to the defendant.  The defendant repaid those loans over time.  The defendant said the Logan Village property was purchased as an investment so that it could be renovated and sold.  Whilst a friend lived in the property for a time, she paid no rent.  All renovations were paid for by the defendant and her partner.

[22] The plaintiff and the defendant also had differing versions as to the circumstances of the sale of the Logan Village property in 2005.

[23] According to the plaintiff, the defendant raised the prospect of selling the Logan Village property when she advised her parents, in March 2005, of her intention to move to the country.  The plaintiff agreed to sell.  Renovations were then commenced on that property.  The plaintiff contributed monies towards the installation of a new kitchen.

[24] According to the defendant, she sold the Logan Village property when she and her husband decided to move to the country.  They had been undertaking renovations throughout their period of ownership of that property.  The defendant did not consult the plaintiff before listing the property for sale.  It was not necessary to do so as the plaintiff had no interest in that property. 

Glen Aplin property

[25] By January 2005, the plaintiff and her late husband had sold their photographic business and were in retirement.  At that time, their older daughter and her family were living in the family home at Bethania.  The plaintiff's parents also lived close by to them. 

[26] According to the plaintiff, when the defendant told them of her plans to move to the country, the plaintiff's late husband expressed a concern that the grandchildren would be living a long way away.  They discussed the possibility of also relocating to the country.  The plaintiff would not go, however, as her older daughter and her family were still living with them, and her mother was seriously ill.

[27] By April 2005, the plaintiff had reconsidered remaining in Brisbane.  Her older daughter was moving to North Queensland, and her mother's health was failing.  The plaintiff’s late husband told the defendant they would also like to move to the country.  He suggested they purchase a property together as they would be able to acquire a larger property.  It was suggested they look for a property with two houses.  The defendant agreed with this suggestion.

[28] In about June 2005 the defendant identified the Glen Aplin property to her parents.  The defendant said it was ideal.  It had approximately 450 acres, a large river frontage, and two existing houses.  The plaintiff said she, her late husband, the defendant and her husband travelled together to inspect the property on or about 12 June 2005.  Whilst the defendant and her partner were excited by what they saw, the plaintiff and her late husband considered the property too run-down and needing too much work.  They decided they were not interested in buying it.

[29] On 13 June 2005, the plaintiff and her late husband told the defendant of their decision.  In response, the defendant suggested her husband could undertake renovations of the main homestead, which the plaintiff and her late husband could take as their home.  After further discussion, the plaintiff said she and her late husband agreed to the purchase of the property.  It was to be purchased by the plaintiff and the defendant in joint names.

[30] The plaintiff said that on the following day the defendant expressed concern that if the property was purchased in joint names the defendant’s sister would inherit a quarter share of the property upon the death of her parents.  During this conversation, the plaintiff's late husband also raised a concern that the purchase of a large rural property in the plaintiff’s name could affect his disability pension.  He could not afford to lose the health care card as he was very ill.

[31] After some discussion, the plaintiff proposed that if a written agreement was prepared and signed by the four of them, acknowledging the contribution of the plaintiff and her late husband to the property, the plaintiff would be willing to go ahead with the purchase of the property in the defendant’s name only. 

[32] Although it was agreed to proceed with the purchase, the plaintiff told the defendant she would not sell the family home until her mother had passed away.  The defendant suggested that if the money from the sale of the Logan Village property was used towards the purchase, the defendant could obtain an advance on her existing Westpac mortgage in order to secure the balance of the purchase price for the Glen Aplin property.  The plaintiff agreed with this course. 

[33] According to the plaintiff, on 17 July 2005 the defendant informed the plaintiff and her late husband that she was not able to secure sufficient funds from Westpac and she had to secure a high interest mortgage with Stacks Finance.  The plaintiff and her late husband agreed to meet the repayments on the Stacks Finance loan until the sale of their house at Bethania.  As they were also concerned about the amount of debt owed by the defendant, the plaintiff and her late husband offered to contribute, in addition to the plaintiff's share of the Logan Village proceeds, fifty per cent of the actual purchase price of the property.  These funds would be used to pay out the Stacks Finance mortgage. 

[34] The plaintiff said the monies contributed by the plaintiff and her late husband to the Glen Aplin property were advanced on the basis of a common expectation between all four parties that the plaintiff and her late husband would live on the property at Glen Aplin for their lifetimes, and enjoy the company of the defendant and her family.  The plaintiff and her late husband intended to travel for six months of each year, and the defendant would also care for their animals whilst they were away from the property.

[35] The Glen Aplin property was purchased in the defendant’s name only.  Part of the purchase price was met from the proceeds of the sale of the Logan Village property.  The plaintiff and her late husband also paid the mortgage payments in respect of the Stacks Finance loan.  These sums were paid by direct debit.

[36] Soon after settlement of the Glen Aplin property, and after the death of her mother, the plaintiff told her father about their plans.  It was suggested that a relocatable home be placed on the Glen Aplin property so that he could live next to them.  Her father agreed to this arrangement.  A relocatable home was placed on the property in approximately March or April 2006. 

[37] The sale of the plaintiff’s family home was completed in or about February 2006.  Prior to its completion, the plaintiff produced the 2006 agreement for signature by the parties.  The plaintiff drafted the 2006 agreement herself.  She chose the wording.  Although the words “lifetime tenancy” were inserted in the agreement, the plaintiff said she always believed that she owned half of the property.  The words “lifetime tenancy” were used to satisfy Centrelink’s requirements. 

[38] The plaintiff said she and her late husband had met with Centrelink in June 2005.  They told Centrelink of their plans to contribute, on a 50/50 basis, to the purchase of a rural property in the defendant’s name.  Centrelink advised it would have to be called a “life tenancy" because otherwise they would deem it a gift and the plaintiff’s late husband would lose his pension.[2]

[39] The plaintiff said she included the last paragraph of the 2006 agreement, which provided there would be no claim on the plaintiff and her late husband’s estate after their death, to make sure the plaintiff’s older daughter did not try and claim a share of the property on the plaintiff’s death.  It was to “protect” the defendant.[3]

[40] After the plaintiff’s family home was sold in February 2006, the plaintiff and her late husband paid to the defendant a sum of $237,500.  Part of this sum was used to repay the monies loaned from Stacks Finance.  The plaintiff and her late husband also continued to undertake renovations on the White House at their expense.  Those renovations had commenced in November 2005.  They were undertaken by the defendant’s husband and his friend Shane. 

[41] The plaintiff said she and her late husband moved into the White House in about June 2006.  The plaintiff’s husband passed away shortly after, on 2 July 2006.  After his death, the plaintiff made application for a widow’s allowance.  She advised Centrelink she had paid for her lifetime interest in the property.  The amount specified was $210,000.  The plaintiff said she was distressed at the time and could not remember the amount paid under the agreement.[4]

[42] The defendant has a different version of the circumstances surrounding the purchase of the Glen Aplin property.  According to the defendant, she located the Glen Aplin property via the internet in February 2005 and travelled with her husband to inspect it in March or April 2005.  They agreed to purchase it.  There was no discussion with the plaintiff and her late husband that the property would be purchased in joint names.  The purchase was effected using proceeds from the joint account and loaned funds.  The joint account funds were used as they were the defendant's funds.

[43] The defendant said that after her family had moved onto the Glen Aplin property, the plaintiff and her late husband visited the property and said they may also move to live on the property.  This visit occurred in or about August 2005.  In September 2005, the plaintiff and her late husband offered to contribute fifty percent of the purchase price in exchange for a life tenancy.  They wanted to travel and needed a house to live in for six months of the year.  The defendant readily agreed as her parents would only be there for six months of the year and "all we had to do whilst they were gone was feed their animals, and we would have a baby-sitter."[5]

[44] The defendant said the 2006 agreement was produced by the plaintiff for signature without any consultation.  It was executed by all parties that same night.  The agreement reflected an arrangement whereby the plaintiff and her late husband would have a life tenancy of the White House in exchange for a payment of $237,500, being half the purchase price of the Glen Aplin property. 

[45] The defendant does not accept there was any common understanding or expectation which formed the basis for that agreement.  Due to past difficulties with the plaintiff, the defendant said she never expected the relationship with her parents to remain harmonious.  The defendant accepted she had a moral duty to care for her parents but said there was no discussion about this duty.  The only discussion was about the defendant feeding the animals whilst her parents travel for six months of the year. 

Breakdown of the relationship

[46] The plaintiff continued to live in the White House in 2006 and 2007.  She enjoyed a close relationship with the defendant.  She also had the company of her grandchildren.  However, by November 2007, the plaintiff decided to seek adult companionship.  She sought the assistance of an internet dating service.  This development caused friction between the plaintiff and the defendant.  The defendant requested the plaintiff not introduce her boyfriends to the defendant’s children until she had known them for six months.

[47] In June 2008, the plaintiff was hospitalised after an altercation with a male companion she had met through the internet.  She sought the assistance of police who obtained a domestic violence order.  The plaintiff did not inform the defendant or her husband of those circumstances.  She felt it was none of their business.  The defendant and her husband were upset they were not informed of the incident.  They learned about it from the plaintiff’s father.

[48] Angry words were exchanged between the plaintiff, the defendant and her husband following this incident.  The plaintiff said the defendant’s husband called her offensive names and said the grandchildren were not allowed to come to her house.  He also suggested the property be sold and each take their share "and go as per the agreement".[6]  The plaintiff said he told her she was to conduct any relationship off the property.  The defendant denied such a condition was imposed on the plaintiff.  She said it was suggested the plaintiff, for her safety, not meet those men at her home. 

[49] Soon after this incident, the plaintiff commenced a relationship with her now-husband.  The plaintiff said she conducted this relationship off the property as ordered by the defendant’s husband.  A whirlwind courtship led to an engagement some 11 weeks later.  This event greatly upset the defendant.  According to the plaintiff, when told of the engagement, the defendant responded “what about my inheritance”.[7]

[50] The defendant’s son was christened on 18 October 2008.  The plaintiff attended with her fiancé.  The next day angry words were again exchanged between the plaintiff and the defendant.  According to the plaintiff, the defendant raised parting company.  There was a discussion about the plaintiff starting a new life elsewhere. The defendant agreed to give the plaintiff “all of her money back”.[8]

[51] The terms of the conversation are in dispute.  The defendant says the plaintiff agreed, in that telephone conversation, that those contributions would be fixed in the sum of $300,000.  The plaintiff says she did not agree to accept $300,000.  The plaintiff says she said she would have to consider her level of contributions. Two days later she told the defendant it would be over $350,000.  The plaintiff later fixed the amount at $450,000.  The plaintiff says the defendant replied it would take time to obtain the money, and she would not have it until January 2009.  The plaintiff said she was willing to wait. 

[52] According to the plaintiff, there was no contact with the defendant’s grandchildren after this conversation.  They were not brought to visit her, and she has never met a grandchild born since that time. 

[53] On 30 November 2008, the plaintiff wrote a letter to the defendant.[9]  She did so as the defendant had said in their conversation in October 2008 that she wanted them to go their separate ways and was terminating the 2006 agreement. 

[54] According to the plaintiff, the defendant left two telephone messages in December 2008.  Both were abusive.  The first, on 4 December 2008, demanded the plaintiff leave the property.  The defendant’s words were “I have got your money.  Consider yourself evicted.  Pack your shit and get out.”[10]  The defendant accepts she left a telephone message to that effect.  The defendant said that message was left as she had arranged the necessary finance to pay the plaintiff the agreed sum of $300,000.

[55] The plaintiff said the second message was left on or about 12 December 2008.  In it, the defendant stated she had changed her mind and would not pay the plaintiff $450,000 as she had only paid $475,000 for the property.  The defendant denies leaving a second message. 

[56] The plaintiff’s version that there were two telephone messages was supported by her now-husband.  He said the plaintiff played the messages to him.  He confirmed the second message indicated the defendant was not going to pay the plaintiff $450,000. 

[57] On 15 December 2008, the plaintiff sent the defendant another letter.  In it, she asserted an entitlement to remain in her home on the property as she had a lifetime tenancy that could not be terminated without her consent.[11]  The defendant did not respond to this correspondence.

[58] The plaintiff sent a further letter to the defendant on 7 January 2009.[12]  It sought repayment of the monies contributed by her which she fixed in the sum of $450,000.  The plaintiff said this was an amount she was then prepared to accept.  That amount did not represent all of the monies she had contributed to the property.

[59] At the end of December 2008 the plaintiff left the property and moved to Brisbane.  The plaintiff remarried on 6 June 2009.  On 21 October 2009, the plaintiff and her husband returned to the Glen Aplin property.  The plaintiff’s husband was undertaking long service leave for six months and the plaintiff wanted to see whether it was possible to renew her relationship with the defendant. 

[60] The plaintiff said that upon their return the defendant and her husband made living on the property impossible.  Angry words were exchanged between them on occasions.  There were incidents throughout the six month period.  The defendant’s husband did “burnouts” on her driveway.  A pump installed on a dam near her home operated for long periods each day.  On one occasion the defendant’s husband drove at the plaintiff and her husband.

[61] At the end of the six month period, the plaintiff decided to leave the property “for my sanity”.[13]  While she has returned on occasions to tend her home, the plaintiff says it is impossible for the plaintiff and the defendant to again live harmoniously on the property.

[62] The plaintiff’s husband also gave evidence that he and the plaintiff returned to live on the property in November 2009 for six months, as the plaintiff was wishing to find out whether she would be able to comfortably live in the White House for the rest of her life.  At the end of the six months, the plaintiff wanted to leave.  He said she is fearful about staying there alone.

[63] The defendant does not accept the plaintiff cannot live at the White House.  The defendant accepts there is no existing relationship with the plaintiff.  However, the two houses are a considerable distance apart and the plaintiff is free to come and go as she wishes.  The defendant says the plaintiff continues to visit the White House, and her possessions and animals remain at the White House.

[64] The defendant’s husband also gave evidence that the plaintiff was free to remain on the property.  He denied engaging in conduct which interfered with the plaintiff’s enjoyment of her home.  He accepted he had undertaken renovations of the White House on behalf of the plaintiff and her late husband but denied he was paid for those services.  He had been allowed to keep tools the plaintiff purchased so that he could undertake the renovation work.

Expert evidence

[65] A valuer, Mr Harrison, was jointly appointed to value the Glen Aplin property and the effect of any improvements made by the plaintiff and her late husband to their home.  This evidence was largely uncontested by the defendant.

Findings

Generally

[66] The credit of both the plaintiff and the defendant was in issue throughout their evidence.  They agreed on little.  Each challenged the truthfulness of the other's version of events.  Each submits the other’s version of events ought not be believed, and that their respective partners’ evidence should also be questioned, having regard to their loyalty to their partner.

[67] The plaintiff further submits the defendant’s evidence ought not be accepted, as much of it involved assertions not put to the plaintiff to give her an opportunity to comment on its accuracy.  There is substance in the plaintiff’s contention that she was not given the opportunity to comment on many aspects of the defendant’s evidence.  This included evidence in respect of significant issues. 

[68] The failure to offer the plaintiff this opportunity offended the rule in Browne v Dunn.[14]  This rule, which is based on the need to secure fairness in a trial, is a rule of practice.  There is therefore flexibility in its application, with the consequences of a failure to comply varying depending on the circumstances.[15]

[69] Where, as here, one party is asserting the other party's evidence ought not be believed, a failure to comply with the rule is particularly unfair.  In such a case, it is often appropriate for a court to decline to accede to such a submission.

[70] In the present case, it was apparent during evidence that both the plaintiff and the defendant harbour great ill-feeling and resentment for each other.  Care must be taken in accepting either the plaintiff's or the defendant's recollections of the conduct of the other, unless there is other evidence to support that version. 

[71] Against that background, there is little practical unfairness to the plaintiff in proceeding to determine the matter on the basis that any findings of credit will be based on an assessment of the evidence having regard to the existence of any other evidence to support either the plaintiff's or the defendant's version of events.

Logan Village property

[72] There is no dispute that this property was purchased in the names of the plaintiff and the defendant.  The issue is whether the plaintiff had a beneficial entitlement to one-half of the proceeds of this property.

[73] The defendant's contention that she had initially entered into the contract for  purchase of this property in her name only was not supported by the production of the original signed contract.  If, as the defendant contended, a name had been added subsequent to its original execution, it is likely to have been obvious on the original contract.

[74] Importantly, such a scenario was contrary to the contents of letters sent in the days following the execution of the contract on 16 September 2002. 

[75] By letter dated 19 September 2002[16], the real estate agent sent a copy of the contract to a solicitor, Gary Couper.  That letter, sent three days after the contract was signed, expressly stated that the real estate agent had been advised “by the purchasers” that Mr Couper will be acting “on their behalf for the abovementioned transaction” (my emphasis).  The reference to purchasers is only consistent with the contract for purchase being in more than one name.  This conclusion is supported by the letter sent by the solicitors upon receipt of the letter from the real estate agency.  That solicitor’s letter was addressed to both the plaintiff and the defendant.

[76] The defendant’s evidence as to the initial contract of purchase being in her name only is not supported by the contents of the contemporaneous correspondence.  That correspondence is also inconsistent with the defendant’s evidence that she spent days unsuccessfully seeking to obtain finance before her parents then arranged a meeting with their bankers “within days”.[17]  It was at this meeting, according to the defendant, that the need for the plaintiff to be on the contract was first raised, and agreed to by the plaintiff.  It was only then that the signed contract was altered to include the plaintiff’s name as a buyer. 

[77] I do not accept the defendant’s evidence on this aspect.  I found the defendant’s attempt to explain this discrepancy in her version of events disingenuous.  That attempt reflected adversely on her credibility and reliability generally.  I was left with the impression that the defendant was prepared to give evidence which was neither reliable nor credible if it would advance her case.  I am satisfied the defendant is neither credible nor reliable. 

[78] By contrast, I found the plaintiff’s evidence on this aspect credible and reliable.  Her evidence that the contract was signed jointly by the plaintiff and the defendant was supported by the contemporaneous documentation sent by the real estate agent.  I accept the Logan Village property was purchased by the plaintiff and the defendant jointly after the defendant sought the assistance of her parents to purchase an investment property.

[79] I accept the plaintiff’s evidence that she contributed to the deposit for the property and to any shortfalls in the mortgage repayments whilst the property was owned by the plaintiff and the defendant.  Again, her evidence was supported by entries on bank statements.  The timing of those payments, and the use of the joint account, was entirely consistent with the plaintiff being a beneficial owner of the Logan Village property.  I do not accept the defendant’s evidence that those monies paid by the plaintiff were loans to the defendant.

[80] The defendant relied on the repayment of $16,490 to the plaintiff upon the sale of the Logan Village property as supporting her evidence that the monies paid by the plaintiff at or around the time of the purchase of the Logan Village property were loans to the defendant.  However, there was evidence of other monies being loaned to the defendant by the plaintiff and her husband over this period.  The defendant accepted she was always borrowing from her parents.  In those circumstances, a repayment of $16,490 at the time of the sale of the Logan Village property is consistent with the defendant repaying other borrowed monies.  It does not support a conclusion the monies contributed by the plaintiff to the deposit and to any shortfall in the mortgage payments were loans to the defendant.

[81] I also accept the plaintiff’s evidence that the property was rented after its purchase.  The defendant admitted someone lived in the property, but said it was for a limited time and rent-free.  I do not accept the defendant’s evidence in this respect.  The defendant and her husband had limited sources of income.  On numerous occasions they obtained loans from the defendant’s parents for various items.  It defies common sense that the defendant would have had a friend living in the property rent-free.

[82] The plaintiff has established, on the balance of probabilities, that the proceeds from the sale of the Logan Village property, deposited into the joint bank account, were legally and beneficially owned by the plaintiff and the defendant equally.

Glen Aplin property

[83] There is no dispute the Glen Aplin property was purchased in the defendant’s name.  There is a dispute as to whether the plaintiff was involved in the purchase of that property from the outset.  Resolution of that dispute is relevant to a consideration of whether funds advanced by the plaintiff and her late husband towards the purchase of that property were pursuant to the pleaded common expectation.

[84] The plaintiff’s evidence that she and her late husband were involved in the decision to purchase the Glen Aplin property is supported by transactions in the bank statements which are consistent with the plaintiff’s contention that they agreed to make the repayments on the high interest Stacks Finance loan pending the sale of their family home.   

[85] The defendant’s evidence that the plaintiff and her late husband were not involved in any decision concerning the Glen Aplin property, and only expressed interest in it in September 2005, is inconsistent with those payments made by the plaintiff and her late husband.  The defendant again sought to explain these payments by contending they were loans for her own use.  I did not find the defendant’s evidence on this aspect in any way persuasive.  Her explanation for these transactions lacked credibility.  The defendant accepted some of these monies were used to meet the loan repayments for the Stacks Finance loan.  The defendant also accepted she would not otherwise have been able to meet these repayments.

[86] I accept the plaintiff’s evidence as to the circumstances in which the Glen Aplin property was acquired in the defendant’s name only.  I accept the property was purchased pursuant to an agreement between the plaintiff, her late husband, the defendant and her husband that they would acquire a large rural property together, on which the plaintiff and her late husband would reside when they were not travelling in their retirement. 

[87] I accept the plaintiff’s evidence that the agreement reached with the defendant was premised on a desire to live closer to their grandchildren and to have access to carers of their animals whilst they travelled for extended parts of each year.  The defendant conceded this was her understanding when her parents moved onto the Glen Aplin property.  Such a premise is consistent with a common expectation that the plaintiff and her late husband would live on the Glen Aplin property with the enjoyment of the society of the defendant's family.

[88] Where a parent contributes a large sum towards the purchase price of real property to which their child has legal title, as part of a joint endeavour that the parent receive the support and comfort of living in a family environment with that child, it would be unconscionable for that child to retain the beneficial interest in the whole property where that joint endeavour fails through no attributable fault of either party.[18]  In that event, a constructive trust should be imposed so that the parties are proportionately repaid their respective contributions to the property.[19]

[89] I am satisfied the $237,500 paid by the plaintiff and her late husband towards the Glen Aplin property was paid on the basis of a common expectation that they would reside in the White House for their lifetime, and enjoy the company and society of their daughter’s family.  I am also satisfied that that common expectation has failed through no attributable fault of either party.  The plaintiff is entitled to fifty per cent of the value of the Glen Aplin property by way of constructive trust.

[90] The plaintiff’s share of the proceeds from the sale of the Logan Village property is in a different category.  The plaintiff did not ever exercise a proprietary right over those funds after they were paid into the joint account.  She did not seek to access those funds.  She did not ever seek confirmation from the defendant that she had used the proceeds of the joint account in the purchase of the Glen Aplin property.  The 2006 agreement did not refer to those funds.  The plaintiff also did not refer to those funds when completing her application for a widow allowance. 

[91] Importantly, the letters sent by the plaintiff in November and December 2008, and January 2009, did not refer to those funds.  If those funds were advanced to the defendant on the basis now contended by the plaintiff, it is extraordinary no reference was made to them in the correspondence seeking recovery of funds paid by the plaintiff to the defendant in respect of the Glen Aplin property.

[92] The plaintiff's failure to exercise or assert any proprietary right to the half share of the proceeds from the sale of the Logan Village property, which had been paid into the joint account, is consistent with an intention on the part of the plaintiff and her late husband to allow the defendant to obtain the benefit of the whole of the proceeds from the sale of the Logan Village property.    To allow the defendant to retain the benefit of that joint purchase is also consistent with the stated reason for the plaintiff agreeing to become a joint owner of the property.  It was to assist the defendant to enter the investment property market.

[93] Whilst an inference of advancement may be displaced where the common intention of the parties was dependent on a continuing state of affairs or relationship or common endeavour, the presumption of advancement is only of practical importance if the evidence does not enable the court to make a positive finding of intention.[20]  Here, the evidence supports a positive finding that the plaintiff intended to advance the defendant the benefit of the plaintiff's share of the proceeds from the sale of the Logan Village property.  The advancement of these proceeds was not dependent on a continuing state of affairs or common endeavour. 

[94] The plaintiff also seeks to recover the costs of the renovations to the White House on the basis those renovations were undertaken by the plaintiff and her late husband pursuant to the common expectation.  However, the plaintiff and her late husband, by the terms of the 2006 agreement, evidenced an intention that any recovery by them of monies contributed to the Glen Aplin property was to be on the basis of a 50/50 split.  That agreement expressly stated that the plaintiff and her late husband agreed to renovate and maintain the White House.  It would be unconscionable to allow the plaintiff to now recover the cost of those renovations, in addition to an entitlement to fifty percent of the Glen Aplin property. 

[95] The plaintiff’s entitlement to recover any sums contributed to the Glen Aplin property is limited to recovery of fifty percent of the value of that property.

[96] The defendant submits that in the event of a finding that the plaintiff is entitled to recover any sums contributed to the Glen Aplin property, the plaintiff should be denied equitable relief on the grounds of delay or acquiescence or laches.  In so far as the sum of $237,500 is concerned, there is no basis for such a conclusion.  The plaintiff has always asserted an entitlement to that sum.  There was nothing in her conduct which would justify denying the plaintiff the relief sought in equity.

[97] Alternatively, the defendant submits the plaintiff's entitlement to fifty percent of the value of the Glen Aplin property should be reduced in recognition of the fact that her late husband received the benefit of a life tenancy, and the plaintiff has received the benefit of some period of life tenancy.  I am satisfied that no such adjustment ought to be made in the circumstances of this case.

[98] The plaintiff and her late husband contributed fifty percent of the purchase price on the basis of the common expectation.  This contribution was as one unit.  It was not on the basis of twenty-five per cent each.  It would be unjust and inequitable to deny the plaintiff recovery of twenty-five per cent of that contribution on the basis that her late husband received a lifetime tenancy.  He died within six months of the payment being made, and a little over one month after they had permanently moved into the White House.

[99] Similarly, there is no basis for an adjustment to allow for the time that has expired since that payment.  The defendant has had the benefit of the plaintiff's contribution, thereby reducing her mortgage.  The plaintiff did not leave voluntarily. She was forced to do so having regard to the breakdown in the relationship between the plaintiff and the defendant.  There are therefore distinguishing features to the present case from that considered in Taylor v Streicher and Anor.[21]

[100] Finally, I am satisfied there is no basis for any adjustment to allow for sums expended by the defendant on the Glen Aplin property.  Having determined that it would be inequitable to allow an adjustment for the renovations to the White House, I am satisfied it would be inequitable to allow any adjustment in the defendant’s favour for monies expended by her on the Glen Aplin property.

[101] The defendant contended the recovery of any monies by the plaintiff was to be determined solely by the 2006 agreement.  However, I accept that the 2006 agreement was only executed by the parties to satisfy the requirements of Centrelink. 

[102] Even if I had not been satisfied as to the existence of a common expectation, recourse to that agreement would have led to a similar outcome. 

[103] The meaning of a contractual document is to be determined against what a reasonable person would have understood it to mean, having regard to its text, to the surrounding circumstances known to the parties, and to the purpose and object of the transaction.[22]  Where, as here, the agreement is drafted by a person who is not a legal practitioner, it is important not to adopt a narrow or pedantic approach.  Regard should be had to the substance of the agreement, not its form.  The proper approach is “sympathetic not hyper-critical; understanding not pedantic; sensible but not overly fastidious”.[23]

[104] Adopting these principles, a reasonable person, knowing the surrounding circumstances and the purpose and object of the transaction, would have understood the 2006 agreement to provide for four things.  First, in exchange for the payment of fifty percent of the purchase price of the property, the plaintiff and her late husband obtained a lifetime tenancy on the dwelling known as the White House.  Second, if the property was sold, the plaintiff and her late husband had an entitlement to transfer their lifetime tenancy to any replacement property.  Third, if the arrangement was terminated, the defendant, her husband and their beneficiaries agreed to repay the plaintiff and her late husband fifty percent of the sale price of the property less any solicitors fees and real estate commissions.  There was also to be a deduction, if necessary, for any improvements made to the land.  Fourth, the plaintiff’s father would erect a cabin adjacent to the White House.  If the property was sold, assistance was to be given for the removal and relocation of the cabin to another property. 

[105] The plaintiff's entitlement to recover fifty percent of the sale proceeds arises on termination.  The agreement does not specify a mechanism for termination.  In the circumstances of the family relationship and the purpose of the transaction, a reasonable person would understand termination to encompass both mutual termination and termination by either the plaintiff or the defendant.

[106] This conclusion is consistent with the use of “or” before the words “if the arrangement is to be terminated”.  A reasonable person would understand "or" as dealing with the situation where the arrangement was terminated whether or not the property was sold.  Whilst the agreement refers to the entitlement as being fifty percent “of the sale price for the property”, a reasonable person would understand those words to refer to a sale as a consequence of the termination of the arrangement, rather than only applying where the defendant has agreed to sell the property. 

[107] The defendant’s contention that the agreement, properly understood, only gave the plaintiff an entitlement to recover fifty percent of the sale price in the event the defendant agreed to sell the property does not accord with the interpretation of a reasonable person.  It would mean the plaintiff agreed to leave herself captive to the wishes of the defendant.

[108] The plaintiff’s asserted entitlement to recover under the 2006 agreement, in addition to fifty per cent of the sale price of the property, the amount expended on the renovations of the White House, is inconsistent with how a reasonable person would understand the words "improvements made to the land".

[109] The 2006 agreement specifically provided for an adjustment to the sale price for “any improvements made to the land”.  The agreement did not refer to improvements to the “property”, despite the agreement using the word “property” throughout.  The reference to "land" is significant.  A reasonable person would interpret "land" as referring to improvements to the land as opposed to improvements to houses on the property. 

[110] This conclusion is consistent with other terms of the 2006 agreement.  They gave the plaintiff and her late husband a lifetime tenancy “of the dwelling known as the White House”.  They did not give the plaintiff and her late husband a lifetime tenancy to the property.  Further, the agreement expressly provided the plaintiff and her late husband agreed “to renovate and keep the White House maintained throughout their tenancy."  A reasonable person would interpret that term as requiring the plaintiff and her late husband to undertake those renovations and maintenance at their own cost.  Such an interpretation is consistent with the intention of the parties being that no adjustment would be made for the cost of renovation to the houses on the property.  An adjustment would only be made for improvements made to the land.

[111] The plaintiff’s contention that she is also entitled to recover her share of the proceeds of the joint account which were used to purchase the Glen Aplin property is also contrary to the clear words of the 2006 agreement.  There is no reference in that agreement to the plaintiff and her late husband having an entitlement to recover any sums other than the $237,500 paid pursuant to the agreement, together with any adjustment for improvements made to the land.

[112] The plaintiff drafted the agreement.  She chose the words.  She chose to make no reference to any entitlement to the joint funds transferred from the joint bank account.  That decision is consistent with the plaintiff and her late husband intending to advance to the defendant, for her benefit, those funds.

[113] The plaintiff submits the fact that the 2006 agreement did not refer to these earlier funds is consistent with recovery of those funds not being governed by that agreement, rather than an intention to advance the defendant.  I am satisfied these funds were not referred to in the 2006 agreement because it was the intention of the plaintiff and her late husband that the defendant permanently retain the benefit of those funds. 

[114] Had the 2006 agreement been operative, the plaintiff would only be entitled to recover fifty percent of the sale price of the Glen Aplin property.  She would not be entitled to recover the joint funds transferred from the joint account by the defendant, or the costs of renovations undertaken to the White House.

[115] The defendant contended that in the event the plaintiff was entitled to recover under the 2006 agreement, an adjustment ought to be made to allow for the fact that the plaintiff’s late husband had obtained the benefit of the life tenancy and, also, that the plaintiff had enjoyed the benefit of it for a period of time.  Had the 2006 agreement been operative, I would have been satisfied no such adjustment ought to be made. 

[116] A reasonable person would interpret the agreement as being one which provides for a life tenancy for the plaintiff and her late husband jointly.  Should one predecease the other, the survivor was to continue to enjoy the benefit of the life tenancy and, in the event of its termination, the benefit of recovering fifty per cent of the purchase price.  This conclusion is consistent with the text of the document, having regard to the surrounding circumstances. 

[117] The defendant accepts that, in her telephone conversation with the plaintiff in October 2008, she advised the plaintiff the arrangement was no longer working and that the plaintiff should leave.  It was in that context that a discussion occurred as to the amount the plaintiff should be paid by the defendant.  In response, the plaintiff sent the letter dated 30 November 2008 wherein she also terminated the life tenancy arrangement.  The defendant further agrees that in the message left on the plaintiff’s telephone in December 2008, she told the plaintiff to pack her things and leave. 

[118] Against that background, had I been satisfied the 2006 agreement was operative, I would have been satisfied it was mutually terminated by the plaintiff and the defendant. 

[119] Whilst the plaintiff returned to live at the White House in 2009, I accept she did so in an effort to see whether her relationship with the defendant could be returned to a harmonious one.  As the plaintiff and the defendant are mother and daughter, that was an entirely reasonable step.  However, I accept the plaintiff’s evidence that those months were far from harmonious, and that she left because there was no prospect of a resumption of their previous close relationship.

[120] Although the defendant now contends there is no reason the plaintiff cannot continue to reside in the White House, I am satisfied there is no prospect that occupation could be undertaken harmoniously in the future.  In those circumstances, it is unreasonable to contend the plaintiff should now have to remain.

Compromise

[121] The defendant contends the plaintiff compromised any entitlement to recover funds paid to the defendant by agreeing to accept a sum of $300,000.  This compromise was said to have occurred in their telephone conversation in October 2008.  The plaintiff denies reaching any such compromise.

[122] Having considered the evidence of the plaintiff and the defendant as to the contents of that telephone conversation, and of their subsequent communications, both orally and in writing, I am satisfied no such compromise was reached between the plaintiff and the defendant.  I accept the plaintiff’s evidence that while she agreed to leave the property, she wished to consider the amount she had contributed to the property.  This conclusion is consistent with the contents of the plaintiff’s letter dated 30 November 2008. 

[123] My conclusion is also consistent with the second telephone message left by the defendant on 12 December 2008.  I accept the defendant left this message.  Whilst the defendant denied doing so, the plaintiff’s evidence as to its content was supported by her letter dated 15 December 2008.  That letter was written before the commencement of the proceedings.  The existence of a second message was also supported by Mr Hepplestone.  I found Mr Hepplestone credible and reliable.

[124] The message left by the defendant was inconsistent with any compromise having been reached between the plaintiff and the defendant to accept a sum of $300,000.  If such a compromise had been reached, the defendant would have been asserting that fact in the telephone message.  Instead, the defendant was conveying a rejection of the plaintiff’s offer to accept $450,000. 

[125] I am satisfied, on the balance of probabilities, the plaintiff did not reach any compromise of her entitlement to recover funds contributed to the Glen Aplin property. 

Conclusions

[126] The plaintiff has established, on the balance of probabilities, that she is entitled to a sum equivalent to fifty per cent of the value of the Glen Aplin property. 

[127] The defendant contended that in the event of such a finding, the plaintiff should only be entitled to an equitable lien or charge.  However, such relief is impractical where there is a complete lack of relationship between the parties.  It is likely to lead to further proceedings.

[128] The plaintiff is entitled to declaration that she has an equitable interest in the Glen Aplin property to the extent of fifty per cent.

[129] I shall hear the parties as to the form of orders, and as to costs.