IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
General List

Case No. CI-21-02588

HILARY SALAMON	Plaintiff	
		
V		
		
MELISSA MARIE DOLPHIN	Defendant	

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JUDGE:	HER HONOUR JUDGE A RYAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3-5 and 8-10 August 2022, written submissions dated 19, 24 August 2022 and 15 September 2022
	
DATE OF JUDGMENT:	23 May 2023	
CASE MAY BE CITED AS:	Salamon v Dolphin	
MEDIUM NEUTRAL CITATION:	[2023] VCC 791		

REASONS FOR JUDGMENT
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Subject:	EQUITY & TRUSTS

Catchwords: 	Whether property owned by the defendant subject to a constructive or resulting trust in favour of the plaintiff as to a one third share interest – alternatively, whether the defendant is estopped from denying the plaintiff held a proprietary interest – proper characterisation of payments made by the plaintiff towards purchase and contributions to subsequent outgoings – whether detriment suffered.

Legislation Cited:     Transfer of Land Act 1958; Civil Procedure Act 2010

Cases Cited:	Calverley v Green (1984) 155 CLR 242; Hansen v Noble [2021] NSWSC 138; Shepherd v Doolan [2005] NSWSC 42; Plunkett v Bull [1915] 19 VLR 603; John Holland Pty Ltd v Kellogg Brown and Root Pty Ltd [2015] NSWSC 451; Watson v Foxman (1995) 49 NSWLR 315; Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413; Zekry v Zekry [2020] VSCA 336; Hohol v Hohol (1981) VR 221; Sobey v Sobey [2014] VSC 373; Nagi v Hussein [2020] VSC 401; Allen v Snyder [1977] 2 NSWLR 685; Roberts v Eckert [2016] SASC 197; Vlahos Pty Ltd v Vlahos [2017] VSCA 166; Donis v Donis (2007) 19 VR 577; Sidhu v Van Dyke (2014) 251 CLR 505; Falcke v Scottish Imperial Insurance Company (1886) 34 Ch D 234; Sacks (as Administrator of Estate of Klein (decd) v Klein [2011] VSC 451.
	
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr W G Stark	Anthony Raso & Associates	
			
For the Defendant	Mr J D S Barber	SGM Legal Pty Ltd	

Table of Contents
Background
The pleadings
The witnesses
Legal principles
Constructive trusts generally
Common intention constructive trust
Resulting trust
Proprietary estoppel
(i) Common intention constructive trust
Plaintiff’s submissions
Defendant’s submissions
Consideration and findings on common intention constructive trust claim
(ii) Resulting trust
Plaintiff’s submissions
Defendant’s submissions
Consideration and findings on resulting trust claim
(iii) Proprietary estoppel
Consideration and findings on proprietary estoppel claim
Hilary’s ability to claim ownership of Jill’s share
Conclusion

HER HONOUR:

1	The plaintiff in this proceeding, Hilary Salamon (“Hilary”), seeks to recover the sum of $150,807.10, being the net proceeds of sale of 25 Park Orchard Drive, Pakenham (“the property”). This sum is presently held in trust pending the determination of this proceeding and represents one third of the proceeds of sale.
2	Melissa Dolphin (“Melissa”), the defendant, is the former registered proprietor of the property. Melissa owned the property from March 2010 until February 2022 when the property was sold at auction. 
3	Hilary alleges Melissa purchased the property in her capacity as a trustee pursuant to an agreement made in late 2009. The common intention under the agreement was that Melissa, her father, Stephen Dolphin (“Stephen”), Hilary and Jill Dolphin (“Jill”), (Stephen’s mother and Melissa’s grandmother), would each hold a one third interest in the property.
4	Hilary claims her interest in the net proceeds of the sale of the property arises either by way of a common intention constructive trust or a resulting trust. In the alternative, Hilary contends Melissa is estopped from denying Hilary’s equitable interest as to one third.
5	In support of her claim, Hilary said that she and Jill contributed around $20,000 towards the purchase of the property and thereafter contributed financially to various recurring outgoings as to one third. This included what Hilary described as a weekly contribution to mortgage repayments on the property. 
6	Both Melissa and Stephen denied there was any agreement of the type alleged by Hilary. In late 2009, Jill and Hilary, who were both pensioners and had lived together for many years, were living in temporary accommodation. Stephen and Melissa wanted to help Jill find a suitable home. They said the arrangement struck between family members was that Melissa would buy a property with the assistance of a First Home Owner Grant and let Jill and Hilary live there. 
7	In recognition of the benefit of obtaining a secure home at a low rent and of her desire to help out her granddaughter, Jill agreed to contribute $16,500 in cash to cover various costs associated with the new home and to pay a third of the outgoings on the property. Melissa and Stephen also contributed the sum of $16,500 each towards the purchase. The financial contributions made by her father and Jill at the time of purchase were gifts to Melissa. 
8	Jill offered to pay $150 per week in rent which was all she and Hilary could afford. Melissa would pay the mortgage and if she was short on the repayments, Stephen would help out and contribute the remaining balance. The monthly payments made by Jill and Hilary to Melissa represented rent and were not mortgage repayments. Jill and Hilary did not assume any liability to the lender under the mortgage. 
9	Stephen and Melissa denied that Jill and Hilary or for that matter, Stephen were entitled to claim a third interest in the property, which at all times was owned by Melissa in her own right.
10	For the reasons that follow, I was not satisfied the plaintiff proved any of her claims, with the result that the proceeding must be dismissed. I will order that the balance of the proceeds of the sale of the property be released to the defendant.
Background
11	Hilary and Jill lived together in various locations from the mid-1980s until Jill died in 2021. From 2002 to 2009, they resided in a rented unit in Mill Park owned by Hilary’s son. They were both pensioners. In 2009, they had to leave the unit after Hilary’s son died tragically. His widow increased the rent to an amount they could not afford and would only give them a six-month lease. As a result, they left the unit and moved to a friend’s holiday house in St Andrews. Hilary subsequently brought a proceeding against her former daughter-in-law in this Court to recover sums she and Jill had spent on repairs and other items relating to the unit. This claim was settled, and Hilary received the sum of $20,000.
12	Jill and her son, Stephen, began searching for somewhere permanent for Hilary and Jill to live. At first, Stephen, Jill and Hilary looked into purchasing a cabin for use in a retirement village, but they could not afford the $100,000 asking price.  Stephen could not obtain a loan for that amount because he already had an existing home loan. He asked Melissa if she would be prepared to ask for a bank loan to finance the cabin. They enquired with their bank but were told Melissa would not be approved for a loan because the cabin did not meet the bank’s home loan eligibility requirements.  
13	Stephen then thought of a house and land package. He suggested to Melissa that she buy a block in a new housing estate and build a house on it for her, Jill, and Hilary to live in. Stephen’s evidence was that he told Jill “[p]robably the only other thing we could do was … get Melissa to buy a house and try to get a house and put you in it that way”. Melissa was then in her early twenties and not able to borrow much. But she was eligible to claim $18,000 from the First Home Owner Grant scheme to put towards the purchase of a house and land. Despite Melissa’s initial reluctance, Stephen persuaded Melissa it would be a good decision for her to get her own house. Melissa agreed to buy a house so that Jill and Hilary could have a roof over their heads and not have to rely on temporary accommodation. 
14	The parties diverge on their alleged intentions in buying a property. Hilary says it was agreed that if she, Jill, Stephen, and Melissa “went in together” then they would “be able to get a house but it would have to be always one third of everything,” with Hilary and Jill sharing one third interest, and Stephen and Melissa holding one third each. Melissa denies this and says she merely agreed to buy a house and land package where Jill and Hilary could live, on the condition they pay rent to her. Stephen supports Melissa’s version of events. He says the house was always going to be Melissa’s and he also denied that he would own a third interest in the property.
15	On either case, it is agreed that Stephen started looking at display homes. He visited several with Melissa, and at least one with Jill and Hilary. Melissa ultimately selected a display home by Rawdon Hill Constructions. Jill and Hilary approved her choice. The home selected had three bedrooms and a study. Stephen selected a particular corner block in the development because it was the cheapest block and had no neighbours. He camped outside the real estate agent’s office the night before the blocks in the development went on sale to ensure that he would be first in line to purchase that particular block. He was successful. On 17 October 2009, Stephen signed a contract of sale purchasing the block for $187,000 (“the contract of sale”). The contract of sale lists Stephen as the purchaser and records a 5 per cent deposit of $6,850. Stephen paid a holding deposit of $1,500 on 17 October 2009 and the balance of the deposit on 12 November 2009. 
16	Stephen calculated how much would be needed to pay for the land and house package. He said his mother gave him $16,500 towards the set-up costs for the house after he told her “everything that was gonna be costing for the concrete, the curtains, the heater” which he estimated at “around $48,000 to $50,000”. He stated that Jill made this payment to him in recognition of the fact that Jill and Hilary “were gonna live in the house and Melissa was gonna get the house later on”. Stephen and Melissa would also contribute $16,500 each. The balance needed to complete the house and land package was to come from borrowed funds and the First Home Owner Grant to be paid to Melissa. 
17	Hilary claims that she and Jill initially handed Stephen $16,500 in cash as a payment towards the purchase price on behalf of herself and Jill. Stephen and Melissa recalled Jill handing cash in the sum of $16,500 to Stephen which she took out of a black bag in the presence of Hillary and Melissa. Hilary denied this and said Melissa was not present when she handed the money to Stephen in Jill’s presence. Hilary gave evidence that both she and Jill contributed to the $16,500 handed to Stephen as they shared everything, and it was from their saved money. Despite the dispute as to the precise mechanics of the delivery of the cash, the parties agree this sum of $16,500 was paid in cash and given to Stephen.
18	Melissa said the $16,500 payment was a gift from her grandmother Jill, made in recognition of the fact that Melissa was helping her and Hilary by purchasing the house and providing them with affordable accommodation. Hilary denied the payment of $16,500 was a gift to Melissa and said she and Jill did not have money to give away. Stephen’s evidence was that Jill gifted the sum of $16,500 as a one third contribution towards the concrete, curtains, and heater for the property.
19	Hilary said she and Jill then made further smaller payments together towards specific set-up costs, for example, the internet and grey water connections, bringing their initial contribution up to approximately $20,000. Hilary claims that these payments represented one third of the initial costs relating to the purchase of the property. 
20	Melissa says that she used her grandmother’s gift, a $16,500 gift from Stephen, $16,500 of her own savings, and the $18,000 First Home Owner Grant in her own name, to purchase the block and pay for construction of the house on the property.  Hilary denies Melissa made an initial contribution on her own behalf beyond the First Home Owner Grant money. Hilary did not dispute that Stephen contributed $16,500 towards the purchase costs. Stephen gave evidence that the three lots of $16,500 paid were used to pay for various costs such air conditioning, curtains, heater, concrete, and gardening, all being items for the house. 
21	Stephen subsequently nominated Melissa as purchaser under the Contract of Sale. On 12 December 2009, Melissa entered a building contract with Rawdon Hill Constructions for a house to be built on the property (“the house”). The costs of construction of the house, after variation, was in the order of $195,402. Jill helped Melissa select colours and finishes for the house because as Melissa said, Jill was particularly good at that sort of thing. 
22	On 21 January 2010, Melissa applied for a bank loan through a mortgage broker to fund the balance of the purchase price under the Contract of Sale and construction under the building contract. On 17 February 2010, she entered into a home loan contract for a total amount of $291,001.35 with Bendigo and Adelaide Bank Limited (“the loan”). 
23	Settlement of the property occurred on 4 March 2010. On 5 March 2010, Melissa received confirmation of the First Home Owner Grant in the sum of $18,000. 
24	On 15 March 2010, Melissa was registered as sole proprietor of the property. A mortgage was registered on the same day, with Melissa named as mortgagor and Bendigo and Adelaide Bank Limited as mortgagee. 
25	Between February and October 2010, the mortgagee made periodic advances for progress payments as construction proceeded on the house. A certificate of occupancy was issued on 26 October 2010.
26	On 5 November 2010, Jill and Hilary moved into the house. Melissa moved in about a week later, but because she was working three jobs to keep up with repayments on the mortgage loan, she was not often present in the house beyond sleeping or eating meals. 
27	Jill and Hilary made payments to Melissa each week by way of deposits into Melissa’s bank account. Hilary says these payments were their contributions to the mortgage, made as co-owners, and that they varied from $250, $200, and $150, depending on what the total mortgage payment was at any one time. She also claims that she and Jill paid one third of the council rates, water rates and home insurance.  
28	Despite the absence of any formal tenancy agreement, Melissa claims the payments made by Jill and Hilary to her each month are properly characterised as rent. She says that Jill and Hilary understood this to be the nature of the relationship from the very beginning. Melissa confirmed that from the time Jill and Hilary moved in from November 2010 until April 2021, they paid her $150 per week.  Jill told Melissa that she and Hilary would only be able to afford $150 a week for rent. 
29	Melissa said that Hilary and Jill also agreed to contribute one third of the water rates, the council rates and the contents insurance, in recognition of the fact that their rent was relatively inexpensive. Pausing here, Hilary also claimed that she and Jill paid a third of the building insurance costs in addition, which was disputed by Melissa and Stephen when giving their evidence.  Melissa said Stephen initially collected money for these bills and paid them himself, but that she took over in April 2021. Council and water rates notices were both issued to Melissa in her name. The bill for services for South East Water were issued to Hilary in her name and named her as tenant of the property.
30	Melissa says that she lived in the house until May 2011, when she moved back to her parents’ house to care for her mother, who was unwell. She did not live at the property afterwards but visited her grandmother there frequently. Hilary denies that Melissa lived at the property for the whole of this period, saying she only stayed there for the first six or seven weeks. 
31	In March 2018, Melissa refinanced the loan with Macquarie Bank, redrawing an additional $71,000 in order to buy a car and pay some debts. Hilary claims that this refinancing reduced the weekly payments she and Jill made towards the property. 
32	In late 2020 or early 2021, Jill became ill with dementia and became aggressive at times. Hilary says that Jill became difficult to look after in about early 2021. Jill was admitted to Casey Hospital on more than one occasion. At this time, Melissa was in financial difficulty. Her working hours had been reduced due to the pandemic, she had a young child, and was having to pay mortgage instalments on the property, while also renting a house where she lived. 
33	On 31 March 2021, Jill obtained a place at Menarock Nursing Home in Pakenham. On 13 April 2021, Melissa served Hilary with an informal notice to vacate the property.  On 19 April 2021, Hilary lodged a caveat over the property claiming an “implied, resulting or constructive trust” (“the caveat”).  
34	In April 2021, Hilary stopped making weekly payments to Melissa and made no further payments to her thereafter. She stayed living in the property up until the settlement of the sale of the property following an auction in February 2022.
35	Jill’s health continued to decline. She died on 5 June 2021. Hilary organised the funeral. She agreed when giving evidence, that she had excluded Stephen and other Dolphin family members from attending the funeral and would not disclose to them the whereabouts of Jill’s ashes.
36	On 23 June 2021, the plaintiff commenced this proceeding. The caveat was removed on 14 July 2021.
37	Melissa’s financial position continued to deteriorate through 2021. On 3 August 2021, she commenced a proceeding in the Victorian Civil and Administrative Tribunal seeking to have Hilary vacate the property. By October 2021, she had sold her furniture to try to make ends meet. On 21 October 2021, she applied to Macquarie Bank for a repayment holiday of the mortgage, which was granted for three months.  
38	On 29 October 2021, Melissa and Hilary executed a deed settling their dispute as to the property and its ownership.  By this deed, they agreed the property should be sold, with any proceeds after the costs of the sale and discharge of the mortgage to be paid into a trust account, pending either written agreement between the parties or court order.  
39	The property sold at auction on 12 February 2022 for $730,000.  The net proceeds of the sale of the property was $381,423.99 in total, of which $230,616.896 (representing two-thirds of the proceeds) was released to Melissa. Hilary claims a constructive trust over the remaining one third of the net proceeds of the sale, adjusted for an additional amount borrowed by Melissa in March 2018; a total of $452,421.30, of which one third is $150,807.10. This amount is held in trust pending the outcome of this proceeding. 
The pleadings
40	In her statement of claim dated 23 June 2021, Hilary pleads that in late 2009, she and Jill agreed with Stephen and Melissa that they would all purchase the property together. This agreement was made based on the parties’ common intention that Stephen and Melissa would each hold a one third interest in the property, with the final third to be held jointly by Hilary and Jill (“the agreement”).  
41	Hilary alleges there were terms of the agreement as follows:
(a)	the property would be purchased in Melissa’s name;
(b)	Melissa would hold the beneficial title in the property as trustee for herself as to one third interest, for Stephen as to one third interest, and for Jill and Hilary as to one third interest;
(c)	each of these parties would contribute to the cost of purchasing the property and ongoing costs of holding the property in proportion to their interest;
(d)	the property would be mortgaged to the Bendigo and Adelaide Bank Limited, and each of these parties would contribute to the mortgage repayments in proportion to their interest; and
(e)	provided that each of the parties made the contributions specified, then Hilary and Jill could continue to live at the property for as long as they pleased. 
42	Hilary claims that when Melissa became registered proprietor of the property in 2010, she did so with notice of Hilary’s beneficial interest (shared with Jill) as to one third of the property. 
43	In reliance on the common intention, Hilary pleads that she and Jill contributed $20,000 towards the purchase price; paid a third of the ongoing costs of holding the property and contributed one third of the cost of the mortgage repayments. The amount pleaded for the mortgage contribution is $652, being one third of the $1,955 per month payable to the Bendigo and Adelaide Bank. (This sum equates to roughly $150 per week).
44	Hilary claims Melissa breached the agreement by seeking to remove Hilary from the property, denying her one third interest in the property and refinancing the original mortgage on 22 March 2018.  
45	Hilary further claims Melissa is estopped from claiming the entire beneficial interest to the property. She alleges that between 2009 and 2021, Melissa represented to Jill and herself that they enjoyed a beneficial interest of one third of the property, and she would hold their beneficial interest as trustee. Hilary and Jill relied on this representation by allowing Melissa to become registered as the sole proprietor of the property. Hilary pleads that she and Jill suffered detriment based on their reliance on Melissa’s representation, in that they never enjoyed legal interest or title in the property, despite paying one third of its purchase price and ongoing costs. Hilary claims it is unconscionable for Melissa to assert ownership of the property without holding it on constructive trust for Hilary to the extent of Hilary and Jill’s contributions. 
46	By way of relief, Hilary seeks, amongst other things, a declaration that she is the beneficial owner of a one third interest in the property pursuant to an implied, resulting, or constructive trust.
47	In her Defence dated 29 September 2009, Melissa denies that any agreement was reached as alleged. She alleges that because Jill and Hilary were unable to obtain finance for retirement village accommodation after losing their previous housing, Stephen offered to assist Melissa in buying herself a house and land package if Jill and Hilary could also live there and pay Melissa rent. Melissa agreed to do so, and Jill and Hilary agreed to pay her rent of $150 per week.  
48	Melissa asserts indefeasible title to the property under s42 of the Transfer of Land Act 1958. She refutes Hilary’s claim that any common intention arose between the parties regarding the purchase of the property. Specifically, Melissa claims that she purchased the property and paid for the construction of the house on it with her own money: being a combination of her own savings, a First Home Owner Grant in her name, gifts from both Stephen and Jill, and a loan from the Bendigo and Adelaide Bank Limited.  
49	Melissa admits that Jill and Hilary paid her $150 each week from 5 November 2010 until 16 April 2021. She also admits they contributed one third of the cost of the council and water rates together with building and contents insurance premiums from November 2010 until February 2021. 
50	Melissa pleads that Hilary has no standing to make any claim on behalf of Stephen or Jill. Melissa admits she has denied that Jill, who is deceased, or Hilary have any legal or equitable interest in the property. If the Court were to find that Hilary has an equitable interest in the property, Hilary would be required to shoulder a corresponding proportion of the cost of the purchase, improvement, and maintenance of the property since 2009, together with rent in respect of Melissa’s interest in the property in order to obtain equitable relief, which the plaintiff has not done.
The witnesses
51	Hilary gave evidence and called Donna Morante (Hilary and Jill’s friend).
52	Melissa gave evidence and called Stephen, Mary Martin (Jill’s niece), and Ricky Davis (Melissa’s partner).
53	The determination of the issues in this proceeding in part depends on the Court accepting evidence of what supposedly was said and done by a deceased person, namely, Jill. Both parties led evidence of conversations they had with Jill about the property. The Court must scrutinise this evidence very carefully to see whether it is true or untrue. There must be “an actual persuasion” of the occurrence of any conversation propounded by either party.
54	As many of the critical conversations in this case occurred many decades ago, the views expressed by McLelland CJ in Equity in Watson v Foxman bear repeating: 
“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
55	In terms of the witnesses generally, I found Melissa to be an honest witness, despite the plaintiff’s attacks on her credit. Melissa readily made a number of concessions in cross-examination about inaccuracies in her tax returns and loan application documents which were said to reflect adversely on her credit. However, I remained of the view that she was a truthful witness who gave her evidence in a straightforward manner. 
56	The plaintiff submitted Stephen was an unreliable witness. While Stephen was emotional and angry at times under cross-examination, I also accepted his evidence as truthful. Stephen was clearly very upset at having been excluded from his mother’s funeral by Hilary. He strongly rejected the evidence given by Hilary that she and Jill were in a domestic relationship. On this topic, Hilary gave evidence that she had never disclosed this relationship to the Dolphin family members so to that extent, their ignorance of the relationship alleged by Hilary is fully explainable.  But overall, I was not persuaded by the matters raised in the plaintiff’s closing submissions that Stephen was an unreliable witness. Like his daughter, he gave his evidence in a direct and matter of fact way and made concessions when appropriate to do so.
57	The plaintiff submits that Melissa and Stephen concocted the following evidence:
(a)	Hilary and Jill paid for the whole of the contents insurance and none of the building insurance, to avoid it amounting to an acknowledgement of part ownership; 
(b)	Jill said $150 a week was all she and Jill could afford for rent, in light of the further evidence that they offered to contribute more money for outgoings; and
(c)	Melissa recording Stephen’s alleged payments of $100 per week as extra rent in her income tax returns, despite Stephen not living at the property and not paying the money as rent.
58	Hilary further submits that Melissa and Ricky concocted the evidence of Jill stating that the house was Melissa’s, on the basis that there were minor differences between Melissa and Ricky’s evidence as to the location, and persons present, at said conversations.  As Jill is now deceased and cannot rebut the assertions, the plaintiff submits the Briginshaw v Briginshaw principle should be applied, such that the Court evaluates the evidence with great care.
59	I do not accept the plaintiff’s submission that Melissa concocted evidence with Ricky. The differences in the location of Jill’s alleged conversations were minor and the alleged statements and circumstances in which Jill made the statements were consistent. Nor was I persuaded that Stephen and Jill concocted their evidence in the manner outlined in paragraph 57 above. 
60	Similarly, I find both Mary Martin and Ricky Davis to be witnesses of truth. I am not convinced by the plaintiff’s submission that Ricky deliberately gave false evidence at trial because his partner stood to receive a windfall gain if she was successful in the proceeding. 
61	The defendant submits that Hilary’s evidence was riven with contradiction, inconsistency, implausibility, and evasion. 
62	I found Hilary to be an evasive witness at times, particularly, when asked questions in cross examination about an earlier proceeding in 2009 she brought against her former daughter-in-law. She was emphatic that she had not claimed a proprietary interest in that property where the pleading in question clearly showed she had done so by way of a life interest and/or a constructive or resulting trust or equitable charge. She gave evidence that she received the sum of $20,000 in settlement but that she won nothing due to legal costs being incurred. Whilst it might be accepted that Hilary would not appreciate the niceties of pleading equitable relief, nevertheless, her vehement denial that she was seeking an interest in that property ran hollow and was unconvincing. When questioned about the receipt of rental assistance from Centrelink by her and Jill of $78.15 per fortnight each, she was initially reluctant to accept that those payments were made. There was in evidence a Centrelink form signed by Hilary in which stated she was paying weekly rent in the sum of $230. She was therefore willing to advise Centrelink that she was paying rent but in this Court denied this was the case and said the weekly payments made to Melissa were not rent but contributions to the mortgage on the property.
63	Hilary’s demeanour when giving evidence was frequently confrontational and she was often vague. On the whole, I did not find her to be a particularly reliable witness and have therefore treated her evidence with some caution in the absence of supporting documentation.
64	The defendant did not challenge the evidence of Donna Morante. I considered her to be a witness of truth. Her evidence was of limited probative value relating to the issue of whether Jill and Hilary were in a domestic relationship as opposed to being friends. 
Legal principles 
Constructive trusts generally
65	In Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc, McMillian J helpfully described the remedy of constructive trusts as follows:
“The term constructive trust is used in various manners to identify a remedy provided by a court of equity. Some variations of constructive trusts create proprietary interests while some merely impose a personal liability. The chief motivation of the courts of equity in imposing a constructive trust over property is to ensure that, ‘when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.’ 
 The imposition of a constructive trust over property is a serious measure. A court will consider whether there is an appropriate equitable remedy that falls short of the imposition of a constructive trust. Although the catalyst for the imposition of a constructive trust may be unconscionability by a party in the assertion of a legal interest free of equitable encumbrance, the construction of such a remedy must be determined by reference to established equitable principles and not a vague notions (sic) of fairness or justice. In particular, mere unjust enrichment is not a sufficient basis for the award of a constructive trust. 
 There are a variety of recognised categories of constructive trusts. These categories are not closed. ….”
(Footnotes omitted.)
66	The Court of Appeal made the following observations in the decision of Zekry v Zekry:
“As the basis for relief is an equity owed by the registered proprietor to the party claiming a beneficial interest in land, the critical focus must be on the knowledge and conduct of the registered proprietor. It must be accepted that the conduct and knowledge of the registered proprietor before he or she becomes registered may be relevant to whether or not, once registered, he or she is liable to share or convey the land to another party pursuant to a constructive trust. The context in which the person became the registered proprietor, including whether he or she did so as a volunteer, will also be relevant to any assessment of whether a subsequent denial of a beneficial interest would be unconscionable.”
Common intention constructive trust
67	There are three elements Hilary must satisfy in order for the Court to impose a common intention constructive trust, namely that she must show:
(a)	there was a common intention between the parties regarding the existence of Hilary and Jill’s beneficial interest in the property;
(b)	Hilary and Jill acted in reliance on this common intention to their detriment; and
(c)	it would be an equitable fraud on Hilary for Melissa to assert Hilary holds no beneficial interest in the property.
68	In determining the existence of a common intention, McMillan J set out in McDonald v Dunscombe:
“… Whether there is a common intention that a party was to have a beneficial interest in a property is usually formed at the time of the transaction and may be derived from express agreement between the parties or from conduct of the parties that supports an inference of such a common intention. Evidence of any express statements or admissions creating that intention assist in establishing whether there was a joint relationship or endeavour, such that a beneficial interest… was created ....”
69	Hilary bears the onus of proof in asserting she holds a beneficial interest in the property. The Court must be satisfied, on the balance of probabilities, that she has made out her case on the evidence before making an order in her favour.
70	As noted by McMillan J in Nagi v Hussein, the Court can have regard to various matters when determining whether there was the requisite common intention, namely:
“The common intention between the parties requires that the claimant should have been intended to have some form of beneficial interest in the property. Intention can be established through the parties’ express statements and conduct, such as financial contributions to acquiring property, payment of mortgages and comments regarding ownership of property. The intention will usually form at the commencement of the purchase of the property or transfer of it, but can also arise after the acquisition of property. The inquiry is one of fact; the Court is concerned with determining the actual intentions of the parties rather than imposing what might be considered fair.” 
(Footnotes omitted.)
71	The party claiming the existence of the trust must prove that the parties either:
“… expressed an intention that the claimant would obtain an interest in property in defined circumstances, or that such an intention can be objectively inferred from their conduct.”  
72	As Glass JA explained in Allen v Snyder,  speaking of a title dispute between spouses:
“In the absence of writing to prove an express trust, the Court will give effect to an agreement as to the manner in which the beneficial interest is to be held … The oral agreement so enforced is one under which the claimant spouse, by contributions of one kind or another, has facilitated the acquisition of the home. …. 
The common intention to which the Court gives effect may be expressed in such an oral agreement, or it may be inferred from the conduct of the parties … What is enforced is an actual intention, inferred as a matter of fact … not an imputed intention which they never had … but would have had, if they had applied their minds to it.”
73	Hilary must also demonstrate she and Jill suffered detriment, helpfully summarised by Hinton J in Roberts v Eckert:
“Detriment is not a matter of unfairness. The relevant detriment is ‘that which would flow from the change of position if the assumption were deserted that led to it’. The detriment may lie in an opportunity or right forsaken in reliance upon the agreement, arrangement or understanding, which justifies holding the legal titleholder to the agreement, arrangement or understanding, or, in some positive act or contribution toward the obtaining by the legal titleholder of the title done on the strength of the agreement, arrangement or understanding ….”
(Footnotes omitted.)
Resulting trust
74	In the alternative to a constructive trust, Hilary claims a resulting trust over one third of the proceeds from the sale of the property.
75	A resulting trust arises where a legal estate in property is taken in the name of another in favour of the person who advances all or part of the purchase money.  
76	In the decision of Vlahos Pty Ltd v Vlahos, Kyrou JA summarised the principles of resulting trusts as follows:
“Where two or more parties make equal financial contributions to the purchase price, but the property is conveyed into the name of one party only, there is a presumption that the parties take a beneficial interest in the property as tenants in common in equal shares.
Where two or more parties make unequal financial contributions to the purchase price, but the property is conveyed into the name of only one of them, or in all their names, there is a presumption that the parties take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price.
…
The onus of establishing the payment(s) giving rise to a presumption of resulting trust lies on the party who is asserting the existence of the trust.
When a presumption of resulting trust arises, it performs a similar function to the civil onus of proof by requiring the person against whom the presumption applies to adduce evidence, or to point to other evidence in the case, that rebuts the presumption.
…
Where two or more parties financially contribute to the purchase price and the legal title does not reflect their respective contributions, the presumption of resulting trust can be rebutted by evidence that, at the time the contributions were made, the parties had a common intention that the beneficial interests are to be the same as the legal interests. Ordinarily, whether a common intention existed at that time is not to be determined by reference to the subjective, uncommunicated intentions of the parties. Rather, it is to be inferred by reference to the parties’ words and conduct and the prevailing context at that time, including the relationship that then existed between the parties. Evidence of subsequent statements or conduct, as distinct from those which are contemporaneous with the relevant transaction, will only be admissible as admissions against interest.
The strength of any presumption of resulting trust will vary from case to case, as will the weight of evidence required to rebut the presumption.
 In some circumstances, a countervailing presumption of advancement will operate. That presumption arises in favour of the person in whose name the property is purchased, where the relationship between that person and the purchaser or contributor is such that the latter has a ‘natural obligation to provide’ for the former, such as in a case of a father and child. It will be presumed in such a case that the purchaser or contributor intended to give the other a beneficial interest unless the presumption is rebutted.
 If a presumption of resulting trust arises and the relationship between the parties does not give rise to a presumption of advancement, the former presumption will give rise to a trust unless there is evidence that the person who financially contributed to the purchase price had a contrary intention at the time the contribution was made.” 
(Footnotes omitted.)
77	Gageler J in Bosanac v Commissioner of Taxation articulated the operation of competing presumptions of a resulting trust as follows:
“The presumption of a resulting trust is a presumption of fact, functionally akin to a civil onus of proof. The presumption will yield to an actual intention to the contrary found on the balance of probabilities as an inference drawn from the totality of the evidence. The weight to be given to the fact of a contribution having been made to the purchase price in drawing an inference as to actual intention will vary according to the totality of the circumstances of the case.
…
Whether any, and if so what, inference is then to be drawn about the actual intention of the contributor and the purchaser falls to be determined as an ordinary question of fact on the balance of probabilities. ‘It is the intention of the parties in such cases that must control, and what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act.’ Just as the standard of proof of intention is the ordinary civil standard, there are no special rules about proving intention. No predetermined weight is to be given either to the fact of a contribution having been made or to the categorisation of the relationship between the parties. The significance of each of those circumstances falls to be assessed within the totality of the circumstances of the case.”
(Footnotes omitted.)
78	As the principles concern the intention of the parties at the time of acquisition, mortgage repayments are not relevant to the determination of a resulting trust.  
Proprietary estoppel
79	In Donis v Donis, Nettle JA considered the principles of equitable estoppel in a case where the expectation which was encouraged was the acquisition of an interest in property. His Honour said:
“… In such cases the remedy relates to the understanding of the parties and the expectation that has been encouraged. Prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation which he or she has encouraged. The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. ….”  
(Footnotes omitted.)
80	In terms of the detriment, his Honour said:
“Where … the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature, it is in my view beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based.”
(Footnote omitted.)
81	In Sidhu v Van Dyke, the Court cited Donis v Donis and observed:
“This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created. ….” 
(i) Common intention constructive trust
Plaintiff’s submissions
82	Hilary submits there was an actual common intention of the parties as to their beneficial interest in the property. Hilary relies on her evidence that Stephen approached her and Jill and said he had come up with an idea for Melissa to get the First Home Owner Grant and, “if [Jill, Hillary, Melissa and Stephen] all went in together, then we’d be able to get a house but it would have to be always one third of everything.” 
83	Hilary gave evidence that she and Jill relied on the common intention to their detriment, in that they paid $20,000 towards the purchase of the property in circumstances where they had little money. Accordingly, it would be an equitable fraud to deny her a one third interest in the property. 
84	Hilary contends that without the joint contribution of $16,500 upfront and the ongoing contributions towards the maintenance of the property, Melissa would not have been able to purchase or maintain the property.
85	Hilary says she and Jill made a number of contributions towards the acquisition and development of the property, namely;
(a)	contributing $16,500 upfront as one third of the deposit;
(b)	contributing an additional $2,000 to connect the greywater service and NBN optic fibre to the property;
(c)	selection of styling elements for the property, including the tiles, curtains, carpets, glass glazing, basins in bathrooms, exterior bricks, oven and cook top, location of power points, cooling system and concrete for the garden;
(d)	continual payment of one third of the cost of all upgrade and maintenance works at the property;
(e)	continual payment of one third of the house, contents, and fire insurance for the property; and
(f)	continual payment of one third of the mortgage repayments, which was   adjusted when the property was refinanced. 
86	Hilary’s case is that she and Jill initially paid $250 per week towards the mortgage, which subsequently reduced to $200, and then $150.  Hilary claims that Stephen told her and Jill what one third of the mortgage was, adjusting when the mortgage was refinanced. Hilary did not produce any documents which evidenced the payment of weekly sums of $250 or $200. By contrast, Melissa’s bank statements in evidence showed that they paid $150 per week from 2017 onwards. This amount did not vary despite the mortgage repayment sum varying from time to time. 
Defendant’s submissions
87	The defendant submits that there is a paucity of evidence demonstrating agreement and a common intention as alleged by the plaintiff. She submits the plaintiff’s evidence does not amount to an agreement but rather a suggestion by Stephen, and there is no real evidence of Jill or Melissa’s participation in any alleged discussions.  In closing submissions, Melissa’s counsel emphasised that there is no evidence of assent by either Melissa or Jill to the agreement alleged by Hilary.
88	As to the $16,500 contribution for the purchase of the property, Melissa and Stephen’s evidence is that Jill gifted this money to Melissa. It is submitted that it is entirely understandable that Jill would make a substantial gift to Melissa when she was going to provide a place for Jill and Hilary to live. Melissa says the contribution being a gift points away from there being an agreement or common intention, as the plaintiff alleges. 
89	Melissa says it is implausible she would contribute her own savings, her First Home Owner Grant, and also take out a substantial loan in her own name in order to buy a property in which she would have only one third interest. 
90	The defendant accepts Jill and Hilary made financial contributions to the property but denies they paid an additional $2,000 for connecting the greywater service and NBN optic fibre to the property. She relies on Stephen’s evidence, where he said that these costs were in the building contract and included in the price paid for the house.
91	Melissa submits that Jill and Hilary’s contributions to outgoings were made in recognition of the fact that their rent was so cheap. The living arrangements were made in the context of a familial relationship without the formality of a tenancy agreement. Noting that Jill and Hilary did not pay the respective authorities directly, but rather straight to her, Melissa contends their contribution to the outgoings is properly characterised as a partial reimbursement between family members for an expense that Jill and Hilary recognised as benefitting them, as well as symbolic recognition that the rent they were paying her was relatively inexpensive.
92	Melissa says that Jill and Hilary’s selection of colours, finishes and additional features of the house do not provide any real or unequivocal support for the agreement or common intention that Hilary alleges. Instead, this was not a surprising arrangement to have been made between family members who were going to live together.
93	Melissa contends the weekly payments made by Hilary and Jill ought properly be characterised as rent, rather than as a contribution to mortgage repayments. This conclusion is supported by the fact that the mortgage repayments changed over time, while the weekly rent did not; that the payments were made to Melissa, rather than directly to the mortgage loan account; that both Jill and Hilary claimed, and received, rental assistance while occupying the property; that Jill wrote the amounts up in her own notebook as rent; and that Melissa declared the weekly payments as rental income from 2012 onwards. Melissa relies on contemporaneous documents where Hilary described her living payments as “private rent”, and Stephen’s evidence that he saw Jill recording the weekly payments as “rent” in her notebook.
94	While provision of accommodation for Jill and Hilary was a key purpose of Melissa’s acquisition of the property, the fact that they lived there is not indicative of ownership, an agreement, or common intention to that effect. It is at least equally consistent with a tenancy. Further, in light of the evidence that their periodic payments were regarded, at least by Jill and Melissa, as rent, Jill and Hilary’s occupation of the property points more towards a tenancy than towards any sort of ownership.
95	In summary, Melissa submits that Hilary’s claim fails because:
(a)	no agreement or common intention that would support a constructive trust is established on the evidence. There is no evidence that Melissa was party to the agreement that is alleged. To the contrary:
(i)	Stephen disavows the existence of the agreement; 
(ii)	the evidence shows a contrary intention on the part of Jill; and 
(iii)	Hilary did not say or do anything that would evidence with sufficient clarity such an intention on her part;
(b)	the claim fails to establish the necessary reliance to Hilary’s detriment, and her conduct at the relevant time was not such that she could not reasonably have been expected to so conduct herself, unless she was to have an interest in the property;
(c)	there is no evidence of any representation giving rise to an estoppel. Further, there was no relevant reliance to Hilary’s detriment;
(d)	Hilary was not a truthful or reliable witness. Her evidence cannot be accepted, save where it constitutes an admission against interest, or it is corroborated by contemporaneous documentary evidence or the testimony of a reliable witness;
(e)	Hilary does not come to equity with clean hands. Melissa says that Hilary and Jill both made claims for rental assistance from the Commonwealth from at least 2012, and probably from when they moved into the house in November 2010, which were fraudulent. These rental-assistance payments substantially funded the periodic payments they made to Melissa that Hilary says were contributions to the mortgage repayments, such as a co-owner might make. Since Hilary has no intention of reimbursing the Commonwealth for her or Jill’s benefits so received, a court of equity cannot, in good conscience uphold her claim;
(f)	if Hilary’s claim were to succeed, it could not succeed for more than a one sixth interest. Melissa notes that Hilary has no standing to make a claim on behalf of Jill who died on 5 June 2021;
(g)	further, if Hilary’s claim were to succeed, it would have to be reduced to account for occupation rent, in light of Hilary’s occupation of the property to the exclusion of Melissa.
Consideration and findings on common intention constructive trust claim
96	In order to establish a common intention constructive trust, Hilary has to prove the spoken words with a sufficient degree of precision to enable a court to be satisfied the allegation of a common intention is made out. 
97	Hilary gave the following evidence about the establishment of the common intention agreement:
Q:	“Sure. So, at that stage you were living in St Andrew's; what were you proposing for future living arrangements?---
A:	Well, we hadn't sorted it out, and then Steve approached us and, um, even Melissa, and said that they'd try - or Melissa would try and get into a retirement village. We looked at some of those, they're like a cabin; I don't know what you call them, just like a cabin, but around about $100,000 or something, and they said that they can't - she can't get finance because you'd never own the land in those places. And then Steve came up, he said he always wanted Melissa, he was always telling her to get some property, brick and mortar sort of thing, and he said - he'd come up with this idea that, you know, she could get the home grant loan and, if we all went in together, then we'd be able to get a house but it would have to be always one third of everything.
Q:	And this was Stephen's idea, you said?---
A:	Oh, yes, everything we did was dealt through Steve. One of her (indistinct) is that Melissa never really wanted to do it anyway, so ...
Q:	But at the time your discussions - who were you having the discussions with? Stephen initiated it?---
A:	Stephen. Basically, I think a couple of times Melissa might have been there, but everything about the house, the land, everything was all through Steve.”
98	Hilary’s evidence in this passage is rather equivocal and imprecise about the arrangement struck. It does not, in my view, amount to clear and compelling evidence of the oral agreement pleaded, which was said to have been made between Hilary and Jill, Stephen, and Melissa, namely, that they would hold a one third interest in the property, provided they each contributed towards one third of the purchase and maintenance of the property. Hilary did not say here that Melissa agreed to Stephen, Hilary and Jill having a one third interest in the property. Additionally, Hilary did not give evidence that Jill was agreeable to purchasing a one third interest in the property. Hilary’s evidence was to the effect that everything was done through Stephen.
99	In my view, and taking into account all of Hilary’s evidence, including cross-examination, she failed to prove even on her own case, that there was an express oral agreement reached between the four individuals in the terms alleged in the statement of claim. The alleged agreement as to co-ownership was not reduced to writing. This then leaves the question as to whether such an agreement can be inferred by reason of the parties’ conduct and the surrounding circumstances. 
100	Both Melissa and Stephen denied that there was any agreement to give Jill and Hilary a third ownership in the property. They were adamant that the property was to be owned by Melissa and her alone. I accept and prefer their evidence given my views about Hilary’s credibility. I also accept Melissa’s and Ricky’s evidence that Jill told them that the property was Melissa’s, and if Melissa ever wanted her house back, she could have it back. Hilary denied these conversations took place but given my findings relating to her credit, I prefer and accept both the evidence of Melissa and Ricky on this topic. I also accept the evidence given by Mary Martin that Jill told her that the property was Melissa’s house. 
101	The defendant noted that despite being told in March and April 2021 that Melissa would have to sell the property, neither in her text message responses nor as Hilary conceded in cross-examination, in any conversation did she say to Melissa or Stephen that she was a part owner of the property. As Almond J said in Sobey v Sobey:
“Had there been a departure from a previous representation or common intention to that effect one would have expected a contemporaneous complaint, a discussion or some reaction from [the plaintiff] consistent with the position now asserted.”
102	Hilary said she never told Stephen or Melissa that she was a part owner of the property as they already knew that she and Jill were part owners. Stephen gave evidence that ownership of the property was never discussed as it was always understood to be Melissa’s house. 
103	In considering all of the evidence regarding the establishment of the alleged common intention, I have taken into account the fact that there was no contemporaneous complaint made by Hilary to the effect that Melissa should recognise her interest as to a one third ownership in the property when Melissa told her she would have to sell the property. 
104	I have also taken into account that both Hilary and Jill each received rental assistance from the Commonwealth, which is inconsistent with the allegation that the payments made by them were contributions to the mortgage repayments in their capacity as a part owner. Their claim for and receipt of rental assistance is more consistent with them being tenants, as is the fact that South East Water’s records recorded Hilary as the registered tenant of the property from 10 December 2010 to 18 March 2022.
105	Considering Jill’s notation of the payments as “rent” in her notebook and Hilary and her receiving rental assistance from the government, the contemporaneous documents support the conclusion that they did not intend the weekly payments to be contributions to the repayments on Melissa’s home loan. Mary Martin gave evidence that Jill told her they were paying $150 per week in rent. Given all these matters, I find that Jill and Hilary’s payments into Melissa’s bank account are properly characterised as payments of rent and were not contributions to the mortgage repayments.
106	The parties’ conduct does not, in my view, support a conclusion that the four individuals actually intended for either Hilary, Jill or Stephen to have a proprietary interest in the property, whatever their initial contributions. I accept the evidence given by Stephen and Melissa that the intention was to provide a place for Jill and Hilary to reside, where there was no alternative housing available for them in exchange for them paying rent. I also accept the evidence given by Melissa and Stephen that Jill said that the sum of $16,500, which she handed to Stephen was a gift to Melissa, in recognition of the benefit she was getting by Melissa agreeing to let Jill and Hilary live at the property.
107	 As already noted, I was not persuaded that there was an oral agreement made out in the terms alleged by the plaintiff. The claimed common intention was denied by both Stephen and Melissa. Their evidence aligned with that of Ricky and Mary Martin. Overall, I am not satisfied that a common intention in the form alleged was established either expressly or by inference from the parties’ conduct. 
108	If I am mistaken as to the existence of a common intention, I was not however, satisfied that Hilary demonstrated any detriment which would warrant equitable relief. There is no evidence before the Court that Hilary and Jill would have acted differently had they known they were not acquiring a proprietary interest in the property. Prior to acquiring the property, Hilary and Jill were living in temporary housing and unable to finance alternative accommodation. The arrangement made was to their actual benefit in that they obtained a secure place to live at a modest rent, which was offset by Centrelink rental assistance, and only paid a third of the outgoings. They were able to live at the property for over a decade under this arrangement until Jill died. 
109	The detriment pleaded is that Hilary suffered a loss by contributing one third of the cost of purchasing the property and contributing to one third of the ongoing costs of holding the property. On her own evidence this sum came from both her and Jill’s savings in circumstances where she said they shared everything. That being so, her portion was more in the order of $8,250, being half of $16,500. Given the favourable circumstances of the arrangement to Jill and Hilary and the minor contributions made by Hilary, assuming she did contribute equally with Jill,  I am not satisfied that Hilary suffered any detriment which would justify equity intervening and granting her a one third proprietary interest, being the relief sought.
110	Accordingly, I find that Hilary has not made out her claim for a common intention constructive trust.
(ii) Resulting trust
111	The claim made relating to a resulting trust was not pleaded in the body of the statement of claim but was pleaded by way of declaratory relief in the prayer for relief.
112	In opening submissions, counsel for Hilary clarified that her claim is made: 
“… on the basis of a resulting trust, based upon a common intention between the parties … Because the property was registered solely in the name of the defendant … in accordance with the agreement that had been reached.” 
113	Counsel for the defendant claims that no such trust is known to equity, noting in closing submissions that: 
“[a] resulting trust is presumed where, upon purchase, title is vested in someone other than the person who provided the purchase money. The presumption is rebutted by evidence of an actual contrary intention of the purchasers at the time of the purchase. Anyway, the plaintiff’s pleaded claim, to which the defendant holds her … is not a claim for a resulting trust.”
114	The plaintiff clarified her position in closing submissions, submitting that, in circumstances where it is alleged three parties (namely Jill and Hilary, Stephen, and Melissa) provided the initial purchase money, but the property was put into Melissa’s name only, equity ought to recognise the creation of a resulting trust.
Plaintiff’s submissions
115	The plaintiff submitted in closing that she and Jill contributed $16,500 towards the deposit and $2,000 towards the establishment costs in respect of air conditioning and heating for the property.  
116	Hilary contends that Calverley v Green should be applied to find a presumption that Melissa holds the property upon a resulting trust in favour of Jill and Hilary, and Stephen in the shares in which they provided the purchase price. 
Defendant’s submissions
117	Melissa notes that the plaintiff’s pleaded claim is not a claim for a resulting trust, and she will hold the plaintiff to it.
118	Responding to the plaintiff’s submissions, Melissa contends that, on her and Stephen’s evidence, there is ample evidence of a contrary intention held by the contributors to rebut the presumption of a resulting trust. Further, it is submitted that Hilary cannot obtain relief that would confer an interest on Stephen that he disavows, as one cannot “confer a benefit upon a man against his will.”
119	If a resulting trust were to be found, Melissa submits that it should only be for a proportionate share of the contribution made by Hilary to the purchase price at the time of acquisition. She contends that any alleged subsequent payments of mortgage instalments have no impact in that interest. It is submitted that Hilary’s share would proportionally amount to half of the $16,500 she says that she contributed along with Jill. Melissa submits, as the total moneys which were contributed to the purchase and construction was $359,411, Hilary’s contribution of $8,250 amounts to a share in the property of about 2.3 per cent.
Consideration and findings on resulting trust claim
120	The plaintiff did not plead a resulting trust in her statement of claim. The defendant objected to the plaintiff seeking to rely upon this remedy in circumstances where it was not pleaded. The plaintiff submitted it was open to the Court to find a resulting trust having regard to the evidence led at trial, despite it not having been expressly pleaded. 
121	The parties seemingly overlooked the fact that a claim for a declaration was made in the prayer for relief in the form of an implied, resulting or constructive trust. 
122	Given the contributions made by Jill and Hilary were specifically pleaded, and a declaration for a resulting trust was sought, I consider the defendant was on sufficient notice of such a claim. The evidence led to rebut the common intention alleged by the defendant is the same evidence which would rebut the presumption of a resulting trust where capital contributions were made. I am of the view that permitting the plaintiff to rely upon a claim for a resulting trust is in the interests of justice and will facilitate the resolution of the real issues in dispute in accordance with ss7 and 49 of the Civil Procedure Act 2010. Therefore, I will allow it to be pursued as part of Hilary’s claim. 
123	I am satisfied that Jill and Hilary, Melissa, and Stephen did make capital contributions towards the purchase of the property, giving rise to a presumption of a resulting trust. The evidence was somewhat unclear as to how the moneys provided by each of them were applied but it can be accepted that the funds given by each went towards either the funds needed for settlement of the property or paid for various items installed in the house and garden at the property.
124	The onus, therefore, falls on the defendant to displace the presumption, by demonstrating the parties had a common intention that the beneficial interests were the same as the legal interests at the time the contributions were made. The common intention is to be inferred by reference to the parties’ words and conduct, and the prevailing context at that time, including the relationship that then existed between the parties.
125	For the reasons already stated, I was not persuaded on the evidence that it was ever intended that Hilary and Jill would have a proprietary interest in the property. As I have already found, the arrangement struck was to give Jill and Hilary the benefit of a place to live at low cost in a property which was to be owned by Melissa and by her alone. Therefore, I am satisfied on the evidence the defendant has rebutted the presumption of a resulting trust. That being so, the plaintiff’s resulting trust claim must fail.
(iii) Proprietary estoppel
126	Paragraph 8 of the statement of claim alleges a representation by Melissa to Hilary and Jill that, at all times between 2009 and 2021, Hilary and Jill enjoyed a one third beneficial interest in the property and that if they allowed Melissa to be registered as sole proprietor, she would hold their one third beneficial interest as trustee. The representation is said to be oral and made in around late 2009 and is also implied by the conduct of Melissa becoming the sole registered proprietor.
127	At paragraph 9 of the statement of claim, the reliance is said to have occurred in 2010, when Jill and Hilary allowed Melissa to become registered as sole proprietor.
128	In answer to this claim, the defendant says there is no evidence of any such oral representation made by Melissa. As to the implied representation, Melissa becoming the registered proprietor was not a representation that Hilary and Jill enjoyed a one third beneficial interest in the property, or that Melissa would hold such an interest from them. If becoming registered was a representation at all, it was a representation to the contrary effect.
129	The defendant notes that Hilary and Jill did not contribute one third to the purchase price. Jill contributed by way of gifting $16,500 in cash. Melissa matched this amount from her savings, as did Stephen. The remainder of the purchase price was funded by a First Home Owner Grant of $18,000 and a bank loan of $291,000. The last two amounts represent Melissa’s monetary contribution to the acquisition and nobody else’s. Jill’s contribution of $16,500 therefore represented a small percentage of the total cost and at best for Hilary, any contribution by her was half of that amount.
130	The ongoing contributions to holding costs made by Jill and Hilary did not commence until after Jill and Hilary had moved into the property in 2010, some seven-and-a-half months after Melissa was registered on title on 15 March 2010. The defendant argues that this cannot constitute reliance, as reliance cannot precede the representation upon which it is said to be based.
131	In any event, the defendant maintains that there is no detriment to be found, as is pleaded at paragraphs 10 and 12 of the statement of claim. The detriment required is detriment that would be suffered if, Melissa, was permitted to resile from the alleged representation. Jill and Hilary, received a substantial benefit from the arrangement in that they were provided with a place to live, which they occupied from 2010 to, in the case of Hilary, early 2022, at a cheap rent and a modest contribution to outgoings. Additionally, this is the basis which enabled them to claim and receive rental assistance from the Commonwealth. Therefore, no relevant detriment was suffered. 
Consideration and findings on proprietary estoppel claim
132	In my view, the plaintiff fails at the first hurdle, namely, I was not persuaded on the evidence that Melissa made the oral representation alleged at paragraph 8 of the statement of claim, nor can it in my view be found that such a representation was implied. Melissa consistently denied that she was to hold the property on trust for Jill and Hilary as to one third. She was adamant that the property was always hers and hers alone. For reasons given earlier, I accept and prefer Melissa’s evidence to Hilary’s where they conflict. The mere fact that Melissa became registered as the sole proprietor is not an implied representation that Hilary and Jill enjoyed a third beneficial interest in the property, or that Melissa would hold such an interest on the trust for them. 
133	But even assuming the representation pleaded was made, I do not consider that Hilary suffered any detriment of the type that is required to found relief in a claim for proprietary estoppel. She did not suffer any lifechanging decisions with irreversible consequences of a profoundly personal nature, such that equity should intervene. There was simply no evidence that she and Jill, for example, forewent an opportunity to purchase elsewhere, or would have conducted themselves in a different way had the alleged representation not been made. The evidence shows that the arrangement struck did in fact provide them with a substantial benefit. They were able to enjoy living at the property in which they had a substantial say in how it was to be decorated. They paid a low rent between the two of them and made a modest contribution to outgoings. The quantum of the rent was offset by the fact that both Jill and Hilary received ongoing Centrelink rental assistance. Their occupation of the property lasted from 2010 until 2021 when Jill died, when Melissa could no longer afford to keep up the mortgage repayments. 
134	In these circumstances, I am not satisfied Hilary suffered any relevant detriment of the kind required to warrant equity’s intervention in a claim for proprietary estoppel. Nor could it be found that Melissa, as registered proprietor, behaved in a way towards Hilary which was unconscionable. Accordingly, the estoppel claim fails.
 Hilary’s ability to claim ownership of Jill’s share
135	If, contrary to my findings, Hilary and Jill did hold an equitable interest in the property, the defendant disputes Hilary’s ability to claim to a one third share. Melissa argues Hilary cannot advance joint ownership of their shared interest when the matter was not pleaded. Melissa submits that Hilary has no standing to bring a claim on behalf of Jill who died on 5 June 2021. There was no evidence that a legal personal representative had been appointed to Jill’s estate.
136	The defendant says that, where there are co-owners of an equitable estate, equity prefers tenancy in common to joint ownership. She says the issue was not properly explored in evidence (including establishing the true source of Jill and Hilary’s $16,500 contribution) because it was not pleaded.
137	The plaintiff says she is entitled to Jill’s share under the right of survivorship under a joint tenancy and as such, it is not a matter that requires a grant of probate. Counsel for the plaintiff said in opening that the joint tenancy arises because Hilary and Jill were in a relationship, they held a joint bank account and conducted themselves as a couple. The common law presumption is that parties who co-own an interest in property own it jointly, so survivorship then applies if one of the joint tenants dies. 
138	While equity does sometimes treat co-owners as tenants in common, Hilary submits that equity will not alter Jill’s and her ownership where they were not business partners, unequal contributors to the purchase price of the property, or joint owners of a mortgage.
139	The plaintiff must satisfy the Court that she is entitled to the one third interest in the property as claimed. While the plaintiff submits she is entitled to Jill’s share under a right of survivorship as a joint owner of their equitable share, this was not expressly pleaded and only referred to in opening. If necessary, which Hilary submits it is not, the plaintiff said in closing submissions that this argument can be disposed of by Hilary amending paragraph [1](c) of her statement of claim to add the word “jointly”. Despite this issue being raised early and the defendant noting it was not pleaded and referred to by the plaintiff in closing written submissions, the plaintiff did not make any application to amend either during or after trial.
140	Had it been pleaded, the defendant says she would have sought to subpoena bank records to establish the true source of the $16,500 handed to Stephen by Jill. If that sum was not jointly contributed to by Jill and Hilary then that would go against a finding of joint tenancy and therefore, a right of survivorship by Hilary. The question of the relationship between Jill and Hilary may also have come under more scrutiny as that would bear on the nature of the claimed interest as a joint tenant. 
141	In my view, the entitlement of Hilary to take Jill’s share on survivorship as a joint tenant of an equitable interest is a material matter which ought to have been pleaded as a matter of procedural fairness. Had it been pleaded, then the defendant may have called further evidence and conducted her case differently. It is elementary that a party is entitled to know the issues in fact that are to be decided in a trial where these are determinative of its success or failure.  
142	Accordingly, in the absence of the joint tenancy and survivorship issue being pleaded, I would not have been satisfied that the plaintiff proved her entitlement to claim Jill’s share on the basis of a joint tenancy, with the result that Hilary could only claim one-sixth had she succeeded.
143	As I have found that the plaintiff is not entitled to any equitable relief, it is unnecessary to decide whether Melissa should be entitled to deduct occupation rent from 1 April 2021 until the property was sold from any amount otherwise payable to Hilary.
Conclusion
144	I will order that the plaintiff’s claim be dismissed. I will further order that the sum of $150,807.10, being the net balance of the proceeds of sale of the property, and currently held in trust be released to the defendant. I will hear from the parties as to whether interest has accrued on this sum and if so, what further amounts representing interest should be paid to the defendant.         
145	Unless the parties can point to any reason why costs should not follow the event, I propose ordering the plaintiff pay the defendant’s costs of the proceeding, including any reserved costs, on the standard basis to be taxed in default of agreement.
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Certificate
I certify that these 38 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 23 May 2023.
 
Dated: 23 May 2023
Associate to Her Honour Judge A Ryan