ARTHUR GEORGE CALVERLEY v. DIANNE LEA GREEN

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Brennan and Deane JJ.

ARTHUR GEORGE CALVERLEY v. DIANNE LEA GREEN

6 December 1984

Decisions

GIBBS C.J. For about ten years from 1968 the parties to this appeal lived in what is nowadays called a "de facto relationship" - i.e. although not married to each other, they lived together as though they were husband and wife. They first lived at Mount Pritchard, in a house owned by the appellant, Arthur George Calverley. He paid the respondent, Dianne Lea Green, $10.00 per week as a contribution to the cost of the provisions that she purchased for the household; although at first that sum represented about half that cost, as time went on it came to represent a much smaller proportion. The respondent had continued in her employment and she provided from her earnings the rest of the money necessary to pay for the household provisions. In 1972, in consequence of a disagreement, the respondent left the appellant, but after a few weeks there was a reconciliation and she returned to live with him again. Both parties then thought it wise to move to more congenial surroundings, and they jointly decided that they should move to Baulkham Hills if a house could be found there at a price that the appellant could afford. A house was found in about August 1973, but the appellant at first experienced difficulty in obtaining finance. Later he told the respondent that a loan had been approved, but that the finance company required the purchase to be in the joint names of the parties, and at his suggestion she joined with him in signing an application for finance in which she was represented to be his wife. Finance was approved and the house at Baulkham Hills was purchased for $27,250. The appellant paid the deposit, which is stated in the evidence to have been $9,000, from part of the proceeds of the sale of the house at Mount Pritchard. An amount of $18,000 was borrowed on a mortgage given by both parties and under which they were jointly and severally liable to pay the sum borrowed with interest. It does not appear from the evidence how the remaining amount of the purchase price, $250, was paid, but it appears to have been paid by the appellant. The land was transferred to the parties as joint tenants. They lived together in the house, under the same arrangements as before, until April 1978, when the respondent left.

2. It was held by Rath J. at first instance that the land at Baulkham Hills was put into the joint names of the parties for the purpose of enabling finance to be raised, and not to confer any beneficial interest on the respondent, and that she had no beneficial interest in the property. On appeal, the decision of Rath J. was reversed, and it was held by the Court of Appeal that, subject to the mortgage, the parties were joint owners in equity, as well as in law, of the land.

3. Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, for example, as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money: Robinson v. Preston (1858) 4 K &J 505, at p 510 (70 ER 211, at p 213); Ingram v. Ingram (1941) VLR 95 and Crisp v. Mullings (1976) EGD 730 (a decision of the English Court of Appeal).

4. As I have indicated, the general rule that in the situations mentioned it is presumed that a resulting trust arises in favour of the purchaser, or in favour of two purchasers in the proportions in which they contributed the purchase money, is subject to the exception created by the presumption of advancement. "It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title": Martin v. Martin (1959) 110 CLR 297, at p 303; in other words, it is "no more than a circumstance of evidence which may rebut the presumption of resulting trust": Pettitt v. Pettitt (1970) AC 777, at p 814. The presumption arises when a husband makes a purchase in the name of his wife, or a father in the name of his child or other person to whom he stands in loco parentis. The authorities have denied that it arises where a wife makes a purchase in the name of her husband (Mercier v. Mercier (1903) 2 Ch 98), or a mother in the name of her child (Bennet v. Bennet (1879) 10 ChD 474; Scott v. Pauly (1917) 24 CLR 274, at p 282; Pickens v. Metcalf and Marr (1932) NZLR 1278) or where the purchase is taken in the name of a sister (Noack v. Noack (1959) VR 137, at p 140), nephew (Russell v. Scott (1936) 55 CLR 440), son-in-law (Knight v. Biss (1954) NZLR 55) or grandchild (Soar v. Foster (1858) 4 K &J 152, at p 157 (70 ER 64, at p 66)), unless the purchaser is in loco parentis to the nominee. The principle on which these decisions have been rested is not altogether satisfactory. Lord Eldon said in Murless v. Franklin (1818) 1 Swans 13, at p 17 (36 ER 278, at p 280) that the presumption of advancement arises "where the purchaser is under a species of natural obligation to provide for the nominee". In Bennet v. Bennet Jessel M.R. also said that the presumption arises from the existence of an obligation on the one person to make a provision for the other (see at p 476); he went on to say (at p.477) that "the presumption of gift arises from the moral obligation to give"; later he referred to it as a "moral legal obligation ... (an) obligation according to the rules of equity" (see at p 478). Isaacs J. in Scott v. Pauly, at p 282, seems to have thought that in a case where the purchaser is the father the presumption of advancement "is an inference which the Courts of equity in practice drew from the mere fact of the purchaser being the father, and the head of the family, under the primary moral obligation to provide for the children of the marriage, and in that respect differing from the mother". However, Soar v. Foster is authority for the proposition that the existence of a moral obligation to support the person in whose name the purchase is taken is not enough to give rise to a presumption of advancement. In that case the purchaser had gone through a form of marriage with his deceased wife's sister after the passing of Lord Lyndhurst's Act which rendered null and void all marriages within the prohibited degrees of consanguinity or affinity; thereafter they cohabited together and treated each other as man and wife. It was submitted that if the purchaser had a moral obligation to provide for the other party, that could raise a presumption of advancement (see at pp.156-7 (p.66 of E.R.)). Page Wood V-C rejected the submission. He said (at p.161 (pp.67-68 of E.R.)):

"Then how does the inference arise that the purchase was intended as a provision for the Defendant? Not upon the ground of his being under a moral obligation to provide for the Defendant, for that argument would be equally applicable, if, instead of an invalid marriage of this description, the case had been one of bigamy by a person representing himself to be unmarried. In such a case there would be a clear moral duty incumbent upon the person supposed to provide for a woman whom he had so grossly deceived. The same argument would apply to a case of mere cohabitation without any form of marriage whatever. Any moralist would say that a man was bound to make provision for the woman with whom he had so cohabited. But it would be impossible for this Court to hold, if in either of the cases supposed an investment had been made by the man in the names of himself and the woman, that, upon the mere ground of his being under such moral obligation, the purchase could be presumed to have been intended by him as a provision of advancement."

5. The principle upon which the presumption of advancement rests does not seem to me to have been convincingly expounded in the earlier authorities, nor do the two presumptions, of a resulting trust and advancement, together always lead to a result which coincides with that which one would expect to occur in ordinary human experience. For example, a lady who placed deposits, each of 150 pounds, in the names of her niece and nephew, aged respectively two and six years, would not ordinarily be thought to intend that the infants should hold the deposits as trustees for her, but that is the result to which the authorities led Northcroft J. in In re Muller, Cassin and Another v. Mutual Cash Order Company Limited (1953) NZLR 879.

6. In Wirth v. Wirth (1956) 98 CLR 228 Dixon C.J. put the law on a more rational basis. That was not a case of a purchase in the name of another, but one of a voluntary transfer by an existing owner. The question whether a resulting trust is presumed in the latter case is not without complications, but it is unnecessary to discuss it here. Dixon C.J. who accepted, or at least was content to assume, the correctness of the view expressed by Cussen J. in House v. Caffyn (1922) VLR 67, at p 78, that if the land is under the Torrens system there is a presumption of a resulting trust, went on to hold, following Moate v. Moate (1948) 2 All ER 486, that a transfer of property by a prospective husband to his intended wife in contemplation of the marriage for which they had contracted raised a presumption of advancement. Dixon C.J. said, at p.237:
"While the presumption of advancement doubtless in
its inception was concerned with relationships affording 'good' consideration, it has in the course of its growth obtained a foundation or justification in the greater prima facie probability of a beneficial interest being intended in the situations to which the presumption has been applied." He referred to Soar v. Foster, but noted that in Murdock v. Aherne (1878) 4 VLR(E) 244, at p 249, Molesworth J. seems to have regarded the relation between a man and a woman whom the man had bigamously married and who knew it as within the presumption of advancement. Dixon C.J. went on to say, at p.238:

"No doubt in Moate v. Moate Jenkins J. applied the presumption of advancement where it had not hitherto been applied. But the application was not inconsistent with any decided case and it accords with reason. To say that a transfer of property to an intended wife made in contemplation of the marriage raised a presumption of a resulting trust but a similar transfer made immediately after the celebration of the marriage raised a presumption of advancement involves almost a paradoxical distinction that does not accord with reason and can find a justification only on the ground that the doctrine depends in categories closed for historical reasons. That is not characteristic of doctrines of equity."

7. Neither of the other members of the Court in that case found it necessary to decide whether there was a presumption of advancement when the property was transferred to the intended wife. However the principle as stated by Dixon C.J. is intelligible and is likely to lead to a just result and should in my opinion be accepted. The presumption should be held to be raised when the relationship between the parties is such that it is more probable than not that a beneficial interest was intended to be conferred, whether or not the purchaser owed the other a legal or moral duty of support. It is true that this may require a reconsideration of the correctness of the actual results reached in some of the earlier cases, but to regard that as a barrier to acceptance of the principle would be to treat the established categories as frozen in time. As Dixon C.J. said, that would not be characteristic of the doctrines of equity.

8. It then becomes necessary to apply the principle enunciated by Dixon C.J. in Wirth v. Wirth to the case in which a man purchases property in the name of a woman with whom he is living in a de facto relationship. I do not regard Napier v. Public Trustee (W.A.) (1980) 55 ALJR 1 as concluding the question in favour of the view that a presumption of advancement can never arise in such a case. In that case Aickin J., with whom Mason, Murphy and Wilson JJ. agreed, said, at p.3, that it is "well established that no presumption of advancement arises in favour of a de facto wife". However, the question was not argued in that case and it was not necessary to decide it for the purposes of the decision; I left the question open. The question is whether the relationship which exists between two persons living in a de facto relationship makes it more probable than not that a gift was intended when property was purchased by one in the name of the other. The answer that will be given to that question will not necessarily be the same as that which would be given if the question were asked concerning a man and his mistress who were not living in such a relationship. The relationship in question is one which has proved itself to have an apparent permanence, and in which the parties live together, and represent themselves to others, as man and wife. It is true that in some cases a person may maintain a de facto relationship for the very purpose of preventing the other party to the relationship from obtaining any right or claim to property, but the question now asked arises only when one party has taken the deliberate step of purchasing property in the name of the other. Once one rejects the test applied in Soar v. Foster as too narrow, and rejects any notion of moral disapproval, such as is suggested in Rider v. Kidder (1805) 10 Ves 360 (32 ER 884), as inappropriate to the resolution of disputes as to property in the twentieth century, it seems natural to conclude that a man who puts property in the name of a woman with whom he is living in a de facto relationship does so because he intends her to have a beneficial interest, and that a presumption of advancement is raised. Cases such as Soar v. Foster, where the relationship was based on an invalid marriage ceremony, or Murdock v. Aherne, where the relationship was founded on a bigamous marriage, would be a fortiori. For these reasons I consider that there was a presumption of advancement in the present case.

9. However, both the presumption of advancement, and the presumption of a resulting trust, may be rebutted by evidence of the actual intention of the purchaser at the time of the purchase: see Charles Marshall Pty. Ltd. v. Grimsley (1956) 95 CLR 353, at pp 364-5. Where one person alone has provided the purchase money it is his or her intention alone that has to be ascertained. In the present case however both purchasers contributed the purchase money. The amount of $18,000 borrowed under the mortgage was provided equally by the parties, for it was lent to them jointly, on terms which made them jointly and severally liable for its repayment, and, having thus been borrowed, was applied by them in part payment of the purchase price. Where there are two purchasers, who have contributed unequal proportions, but have taken the purchase in their joint names, the intentions of both are material. Even if the parties had no common intention, the intentions of each may be proved, for the purpose of proving or negating that one intended to make a gift to the other.

10. The evidence does show that the appellant had no intention to confer a beneficial interest on the respondent - it rebuts the presumption of advancement. When a purchase was contemplated, the question was whether the appellant could afford it. The appellant made no suggestion that the property be put in joint names until he experienced difficulty in obtaining finance. When he made the suggestion, he said that the finance company required the purchase to be in the joint names. It can be concluded, on the balance of probabilities, that the appellant did not intend to confer any beneficial interest on the respondent. The presumption of advancement thus being rebutted, it is presumed that the respondent held her one half interest in the property on a resulting trust in favour of the appellant, the extent of the trust being measured by the proportion of the purchase money which the appellant provided. Since the appellant already has a one half legal interest in the property, the trust is in respect of so much of his proportionate beneficial interest as exceeds one half - to that extent the respondent holds her legal one half in trust for the appellant, so that the appellant has in all a beneficial interest in the proportion which his contribution bears to the total purchase price. The question however then arises whether the respondent holds any greater interest in trust for the appellant - that depends on whether when she took the legal title she intended to create a further trust in his favour. The evidence does not show that the respondent intended to confer any beneficial interest on the appellant. She may have regarded her signature to the mortgage documents as an empty formality, but if a bystander had asked her whether she intended that the appellant should own the land beneficially, even if he paid nothing under the mortgage, and she were obliged to pay the whole mortgage debt with interest, it is most unlikely that she would have replied in the affirmative. So far as the evidence shows, she formed no intention at all as to the beneficial ownership of the property, and it has not been established that she intended to hold any part of her interest in trust for the appellant.

11. In other words, the evidence negatives an intention on the part of the appellant to confer a beneficial interest on the respondent and it does not reveal that the respondent had an actual intention that the land should be held beneficially by the appellant in any greater proportion than that in which he had contributed to the purchase price. The appellant may have had an actual intention that he should be beneficially entitled to the whole of the property, but his intention can only affect the question whether a resulting trust arises. In so far as no resulting trust arose in the appellant's favour, a trust could arise in respect of the legal interest of the respondent only if she intended that the appellant should have a beneficial interest greater than that to which the resulting trust entitled him. The result in my opinion is that the evidence is sufficient to rebut a presumption of advancement, but not sufficient to rebut the presumption of a resulting trust.

12. The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. The fact that the mortgage debt was repaid by the appellant is therefore not relevant in determining the extent of the interests of the parties in the land, although it may be relevant on an equitable accounting between the parties. The parties each contributed $9,000 of the amount borrowed, and it appears that the remainder of the price, $9,250, was provided by the appellant, although the evidence on that point is unsatisfactory and there is no distinct finding on the question. If the appellant did provide the whole of the deposit, the respondent's proportionate interest in the land was 9,000/27,250.

13. The learned members of the Court of Appeal approached the matter by taking as their starting point the fact that the respondent had a legal half interest in the property and then inquiring whether the evidence revealed that she had agreed, or had formed an intention, to hold her interest on trust for the appellant. They found that there was no such agreement or indication of intention. However this approach gave no effect to the presumption that the property was held on a resulting trust in favour of the parties in the proportions in which they had contributed to the purchase price.

14. It should be added that the evidence does not raise for consideration the question whether any further trust arose in favour of the respondent under the principles discussed in Pettitt v. Pettitt; Gissing v. Gissing (1971) AC 886; Allen v. Snyder (1977) 2 NSWLR 685; Boccalatte v. Bushelle (1980) QdR 180 and Heywood v. Giordani (1983) NZLR 140.

15. In taking accounts between the parties it will become necessary to consider that the appellant has been making the payments under the mortgage but that on the other hand he has been for some time in sole occupation of the property. Although the appellant may be entitled to credit for the amount of the mortgage payments which exceeded his share of the amount payable the respondent may, on the other hand, be entitled to receive an occupation rent in respect of the period during which the appellant had sole occupation of the house: see Bernard v. Josephs (1982) Ch 391, at pp 401, 405 and 409. Perhaps these credits may cancel out; at any rate it is to be hoped that the parties can agree on the accounts (if any) between them without further litigation.

16. I would allow the appeal and would make an order in the terms proposed in the joint judgment of my brothers Mason and Brennan.

MASON and BRENNAN JJ. The respondent, Dianne Lea Green (then known by her married name, Nelson) went to live with the appellant, Arthur George Calverley, in his house at Mt Pritchard, an outer Sydney suburb. They lived together in that house from 1968 to 1973 except for a short period. Then they decided to move to another area. They found a suitable property in another suburb, Baulkham Hills. The Mt Pritchard property was sold and the property at Baulkham Hills was bought. It was transferred to the parties as joint tenants of an estate in fee simple. The transfer and a following memorandum of mortgage were registered.

2. In time the parties separated and a dispute occurred about the ownership of the Baulkham Hills property. The respondent (to whom we shall refer as the plaintiff) sued the appellant (the defendant) in the Supreme Court of New South Wales, asserting her title at law as one of two joint tenants. As a "co-owner" within the meaning of that term in Division 6 of Part IV of the Conveyancing Act 1919 (N.S.W.), she applied for the appointment of trustees to hold the land on the statutory trust for sale. The defendant cross-claimed for a declaration that the plaintiff held her interest in the land in trust for the defendant and for an order that she transfer her interest to him. Rath J. dismissed the claim. On the cross-claim he ordered the plaintiff to execute a registrable transfer of her estate and interest in the land to the defendant on condition that he first procure "the release and discharge of the Plaintiff from the covenants on her part contained in Memorandum of Mortgage ... granted by the Plaintiff and the Defendant as Mortgagor to Alliance Acceptance Co.Limited as Mortgagee and from all her liability thereunder". On appeal, the Court of Appeal set aside his Honour's order and held the parties to be joint owners. The matter was remitted to the Equity Division to be disposed of consistently with the judgment of the Court of Appeal.

3. While the evidence does not disclose some of the financial details of the transaction, the general picture emerges clearly enough. The sale of the Mt Pritchard property yielded sufficient for the defendant to provide $9,000 or thereabouts towards the purchase of the Baulkham Hills property. Its price was $27,250. The major part of the purchase price was to be lent by Alliance Acceptance Co.Ltd. on the security of a mortgage over the property. The defendant told the plaintiff that Alliance Acceptance had approved a loan but "they need both our signatures". The plaintiff agreed to sign. The parties represented themselves to a mortgage broker and to the solicitor who acted for them in the purchase as husband and wife. In the memorandum of transfer and in the memorandum of mortgage the parties were stated to be "Arthur George Calverley ... (and) Dianne Lea Calverley his wife". The principal sum lent by the mortgagee was $18,000. The parties covenanted to repay that principal sum together with the sum of $29,556 interest by 240 equal monthly payments of $198.15. By the fifteenth clause of the memorandum of mortgage, the parties were bound jointly and severally to perform the covenants therein.

4. In fact the payments due under the mortgage were made by the defendant out of his own funds. This accorded with the financial arrangements made by the parties for meeting items of recurrent expenditure while they were living together. Rath J. found that the defendant provided the whole of the purchase price of the property. His Honour rejected the plaintiff's submission that "it should be inferred that the defendant intended to confer upon the plaintiff a beneficial interest commensurate with the legal joint tenancy", finding that the evidence did not show that the defendant had any such intention. His Honour said:

" There is no evidence of any discussion about the new home being put in their joint names until after the defendant had tried and failed to obtain finance himself. The purpose therefore of securing title in the joint names at this time was to enable the property to be purchased, not to confer an interest in the property on the plaintiff. That interest was conferred upon her so that the defendant could purchase a house that would be their home. To this end they both represented to the estate agents, the financiers and the solicitors that they were husband and wife. By this means the finance was arranged and the subject property purchased in their joint names. It was never intended that the plaintiff would make any contribution towards the deposit, or the repayment of principal and interest under the mortgage, or to the expenses of servicing the mortgage or maintaining the house."

He added, later in his reasons:

" I do not think that the requirement that the plaintiff join in the mortgage gave rise to any bargain between the plaintiff and the defendant that the plaintiff should have a beneficial interest in the property; nor does it tend to show an intention on the part of the defendant to confer on the plaintiff such an interest."

5. If Rath J.'s conclusion that the defendant contributed the whole of the purchase price of the property were correct, it would be difficult to attack his Honour's finding of a resulting trust in favour of the defendant. It would be a case of a conveyance into joint names, one of whom had contributed the purchase price. Equity presumes a trust in favour of the person who contributes the whole of the purchase price when the property is conveyed into the joint names of himself and another (Benger v. Drew (1721) 1 P Wms 781 (24 ER 613); Rider v. Kidder (1805) 10 VesJun. 360 (32 ER 884)) though the strength of the presumption varies from case to case (Fowkes v. Pascoe (1875) 10 ChApp 343, at p 352) and may be confirmed, rebutted or qualified by evidence of his intention (Russell v. Scott (1936) 55 CLR 440, at pp 449, 451-453; Marshal v. Crutwell (1875) LR 20 Eq 328). The presumption is displaced if the legal joint tenant who does not contribute any of the purchase price is the wife of the joint tenant who does. Then the presumption is that she takes her legal interest as a gift, not in trust for her husband, and that the beneficial ownership goes with the legal title. In the judgment of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin v. Martin (1959) 110 CLR 297, at p 303, their Honours said:

" It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title."

However, the weight of opinion in Napier v. Public Trustee (W.A.) (1981) 55 ALJR 1 was against a presumption of gift when a man buys property and places it in the name of himself and a woman with whom he is living not his wife. On the findings made by Rath J., the question was whether the presumption of a trust in favour of the defendant alone was rebutted by evidence that the defendant intended that the plaintiff should enjoy beneficially the legal joint tenancy vested in her.

6. In conjunction with other facts, the very fact that the plaintiff had become a joint tenant at the defendant's direction or, at least, with his consent may be a fact of some importance in deciding whether the defendant intended her to have a corresponding beneficial interest. It was a question of fact whether the defendant's intention was such as to rebut the presumption of a trust in his favour arising from his payment of the whole of the purchase money. His Honour's finding as to the defendant's intention would have been difficult to displace. However, the Court of Appeal departed from the findings of Rath J. as to the contributions of the parties to the purchase price of the property. Hutley J.A., in whose judgment Samuels J.A. agreed, said:

" Whether or not the money actually paid to the mortgagee came wholly from the (defendant's) wages is an irrelevant consideration, because in joining in the mortgage the (plaintiff) made a contribution to the purchase of the house. It cannot be argued that the (defendant) provided the whole of the purchase price. When, therefore, the (defendant) endeavours to set up that the (plaintiff's) interest is held on trust for him, it must be shown that at the latest, at the moment of the transfer being registered, which occurred on 16th November, 1973, the parties had jointly agreed that she would hold her interest in the joint tenancy on trust for him. This is not a case of a resulting trust, nor of a constructive trust. If the (defendant) succeeds, it must be a case of an express trust and an express trust at the time when the legal estates were acquired."

His Honour was unable to find any agreement by the plaintiff or any intention common to the parties that the plaintiff, though a contributor to the purchase price, should hold her legal interest in trust for the defendant. His Honour held that the legal joint tenancy prevailed. Mahoney J.A. was of the same opinion for substantially the same reasons. However, his Honour added a further reason for allowing the appeal. In Allen v. Snyder (1977) 2 NSWLR 685, at pp 702-705, his Honour had accepted that in some circumstances equity would impose a trust having regard, inter alia, to the relationship of the parties although there was no common intention that a trust be created, and he held that the circumstances of the present case did not warrant the imposition of a trust.

7. The first question is whether the plaintiff was a contributor to the purchase price of the property, as the Court of Appeal found, or whether she was not, as Rath J. found. The defendant's payment of the instalments due under the memorandum of mortgage, in accordance with the arrangement made between the parties, may be thought to be, or to be the equivalent of, the provision pro tanto of the purchase price of the property. After all, the only moneys which were actually paid out of what the parties had owned before settlement of the contract for the purchase of the Baulkham Hills property or out of what they had earned thereafter had come out of the defendant's pocket. The property was purchased on the basis that the purchasers should pay it off over 20 years, a basis familiar to many home buyers. It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed. In this case, the price was $27,250, of which $18,000 was borrowed from the mortgagee by the plaintiff and defendant jointly. The balance was paid by the defendant out of his own funds, being part of the proceeds of the sale of the Mt Pritchard property. Thus the plaintiff and defendant both contributed to the purchase price of the Baulkham Hills property. They mortgaged that property to secure the performance of their joint and several obligation to repay principal and to pay interest. The payment of instalments under the mortgage was not a payment of the purchase price but a payment towards securing the release of the charge which the parties created over the property purchased. We would agree with the view expressed by the English Court of Appeal in Crisp v. Mullings (1976) EGD 730, at p 733, a case in which the material facts are not distinguishable from the present:

" The situation, in our view, is that the defendant does not establish that he alone provided the purchase-price, any more than he would have, had the whole price been provided by a joint mortgage; and the resulting trust of the whole is therefore not established."

8. As both parties contributed to the purchase price, there could not be a resulting trust in favour of the defendant alone. It follows that the Court of Appeal was right to allow the appeal from Rath J. Then the Court of Appeal went on to hold that the legal estate prevailed unless there were an express trust created in favour of the defendant when the parties acquired the legal estate in the Baulkham Hills property. That was too large a step to take, for it was necessary to consider another equitable presumption which arises from the unequal contribution of the purchase price and which governs the present case unless some opposing presumption displaces it or the other facts of the case rebut or qualify it. Unless an equitable presumption of a trust is displaced by a counter-presumption or it is rebutted or qualified by evidence of the intention of the party paying the purchase price or of the common intention of the parties who contribute that price, the presumption determines the conclusion to be reached: Stewart Dawson &Co. (Vict.) Pty.Ltd. v. Federal Commissioner of Taxation (1933) 48 CLR 683, at pp 689-691; Carkeek v. Tate-Jones (1971) VR 691, at pp 695-696. Once it was found that both parties had contributed to the purchase price, the conclusion had to conform to the relevant equitable presumption unless it was displaced, rebutted or qualified. When two or more purchasers contribute to the purchase of property and the property is conveyed to them as joint tenants the equitable presumption is that they hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless their contributions are equal: Notes to Lake v. Gibson (1729) 1 Eq Ca Abr 291 (21 ER 1052) and Lake v. Craddock (1732) 3 P Wms 158 (24 ER 1011) in White &Tudor's Leading Cases in Equity, 9th ed. (1928), vol.2, p 882; Rigden v. Vallier (1751) 3 Atk 731, at p 735 (26 ER 1219, at p 1221); Robinson v. Preston (1858) 4 K &J 505, at p 510 (70 ER 211, at p 213); Aveling v. Knipe (1815) 19 Ves Jun 441, at pp 444-445 (34 ER 580, at p 582); Hill v. Hill (1874) 8 IR Eq 140.

9. This is the basic presumption, though it may be displaced in appropriate cases by the presumption of advancement or, perhaps, qualified by an inference of the kind espoused by Lord Upjohn in Pettitt v. Pettitt (1970) AC 777. His Lordship said (at p 815):

" ... where both spouses contribute to the acquisition of a property, then my own view (of course in the absence of evidence) is that they intended to be joint beneficial owners and this is so whether the purchase be in the joint names or in the name of one. This is the result of an application of the presumption of resulting trust. Even if the property be put in the sole name of the wife, I would not myself treat that as a circumstance of evidence enabling the wife to claim an advancement to her, for it is against all the probabilities of the case unless the husband's contribution is very small."

In some instances, the drawing of such an inference might work to the disadvantage of a wife who holds a legal interest in property greater than a joint tenancy and who would otherwise be entitled to rely upon the presumption of advancement to assert as large a beneficial interest as the legal interest which she holds. It is not necessary now to consider whether the founding of a joint beneficial tenancy in husband and wife upon their inferred intention "is the result of an application of the presumption of resulting trust". What is presently material is whether it is appropriate to draw the inference that the parties intended that they should have beneficially a joint tenancy in the Baulkham Hills property - an interest corresponding with the interest vested in them at law.

10. It may be conceded that Lord Upjohn's inference reflects the notion that both spouses may contribute to the purchase of assets during the marriage (as they often do nowadays) and that they would wish those assets to be enjoyed together during their joint lives and to be enjoyed by the survivor when they are separated by death. Such an inference is appropriate only as between parties to a lifetime relationship (like the presumption of advancement of a wife: Carkeek v. Tate-Jones, at pp 695-696). The exclusive union for life which is undertaken by both spouses to a valid marriage, though defeasible and oftentimes defeated, remains the foundation of the legal institution of marriage (Hyde v. Hyde and Woodmansee (1866) LR 1 P &D 130, at p 133; Khan v. Khan (1963) VR 203, at p 204) though it is no necessary element of the relationship of de facto husband and wife. The term "de facto husband and wife" embraces a wide variety of heterosexual relationships; it is a term obfuscatory of any legal principle except in distinguishing the relationship from that of husband and wife. It would be wrong to apply either the presumption of advancement or Lord Upjohn's inference to a relationship devoid of the legal characteristic which warrants a special rule affecting the beneficial ownership of property by the parties to a marriage. The presumption could not arise nor the inference be drawn in favour of the plaintiff in this case, which must be decided in the light of the basic presumption. Therefore it is unnecessary now to decide whether Lord Upjohn's inference should qualify the presumption of advancement in favour of a wife, but it can be said that the antiquity of the presumption of advancement does not preclude the elevation of such an inference to the level of a presumption to be applied where the absence of the spouses' common intention leaves room for its operation. The doctrines of equity are not ossified in history (cf. Wirth v. Wirth (1956) 98 CLR 228, at p 238).

11. Where the contributors to the purchase price are not husband and wife, the taking of a conveyance in their joint names is less likely to support an inference that they intend the right of survivorship to govern their beneficial interests. In a case where a man and woman are cohabiting though unmarried there is no presumption, either of equity or human experience, that they intend their relationship to have the same consequences upon their individual property rights as marriage has upon the property rights of spouses. An assumption that the parties to such an arrangement intend to maintain independent control of money and property and to retain a testamentary power to dispose of assets in which they have an interest is more likely to coincide with reality than an assumption of joint ownership. The provisions of ss.79 and 80 of the Family Law Act 1975 (Cth) now furnish a further ground for not applying the special rules governing the title to property in the case of spouses in order to resolve property disputes between parties who have cohabited but who have not married. On dissolution of a marriage, ss.79 and 80 confer a discretionary power upon the Family Court of Australia to alter the property interests of the parties to the marriage if it is just and equitable to do so. On the termination of an association between a man and a woman who are not married to each other, no discretionary power may be exercised and the jurisdiction of the courts of equity is simply to declare the proprietary rights of the parties - a jurisdiction which a court of equity is not at liberty to exceed either in the case of husband and wife or in the case of a man and woman who are not married: see Wirth v. Wirth, per Dixon C.J. at pp 231-232; Hepworth v. Hepworth (1963) 110 CLR 309, per Windeyer J. at p 317. Therefore, special rules affecting the title to property of husband and wife can have no application in the present case.

12. The next question is whether the equitable presumption applicable when unequal contributors to the purchase price who are not spouses and who take a conveyance to themselves as joint tenants is rebutted or qualified by the circumstances. The equitable presumption can be rebutted or qualified by evidence of a contrary intention common to the contributors of the purchase price. When a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say.

13. It may be that evidence of a sole purchaser's own state of mind at the time of the purchase can be received from him when the court is seeking to ascertain his intention (Martin v. Martin, at pp 304-305) but in the search for the common intention of two or more purchasers at that time, light will rarely be shed by evidence of their uncommunicated states of mind. Lord Diplock's speech in Gissing v. Gissing (1971) AC 886, at p 906, contains the principle ordinarily to be applied:

" As in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On the other hand, he is not bound by any inference which the other party draws as to his intention unless that inference is one which can reasonably be drawn from his words or conduct. It is in this sense that in the branch of English law relating to constructive, implied or resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are."

14. The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the Court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest (Shephard v. Cartwright (1955) AC 431, at p 445; Charles Marshall Pty.Ltd. v. Grimsley (1956) 95 CLR 353, at p 365). In some cases it is possible to treat the concurrence of one party with the other's payment of the mortgage instalments as an admission of the former's exclusive interest, but the circumstance attending the payment of mortgage instalments is no more than one of the relevant facts. Another relevant fact is the relationship between the parties at the time. In the present case there was evidence of both of those facts. The Court of Appeal, having regard to those facts, inter alia, found that there was no common intention between the plaintiff and defendant that the plaintiff was to hold her interest in trust for the defendant. Nor did they find any other common intention. Their Honours held that the legal interests of the parties must prevail. The error in this approach is not in the refusal to find a common intention but in the failure first to apply the presumption that comes into play when the legal owners who are unequal contributors to the purchase price are not shown to have a common intention inconsistent with a tenancy in common in shares proportionate to their contributions. Applying the relevant presumption, the Court of Appeal should have held the parties to be equitable tenants in common in the Baulkham Hills property in proportion to the contribution each made to the purchase price. That proportion has not been precisely ascertained. The matter will have to be remitted to the Supreme Court to determine that proportion if the parties are unable to agree upon it.

15. As there was no agreement made after the purchase to alter the equitable interests acquired when the property was purchased, the payments made under the mortgage work no alteration in those interests. This case cannot be likened to Bloch v. Bloch (1981) 37 ALR 55 where the relevant property which the parties intended to acquire was seen to be not the title to land subject to mortgage but the land freed of the mortgage (at p.64). In such a case the price paid to free the land of mortgage as well as the price paid for the title to the land itself must be taken into account in determining the parties' beneficial interests. Mortgage payments may quantify the parties' interests under a resulting trust of a property acquired as a mortgage-free investment, but they would rarely quantify the interests of parties under a resulting trust of a house property acquired as a home to live in. If it is right to regard the payment of the mortgage instalments as having been made by the defendant out of his own funds and on his own account - that is, if he made those payments not intending the plaintiff ultimately to have the benefit of those payments - the defendant may be entitled to contribution from the plaintiff for her share of the payments and to an equitable charge to secure the making of her contribution: see Ingram v. Ingram (1941) VLR 95, at p 102. That question was not argued on the appeal. Neither has any argument been raised to assert the existence of a beneficial interest under a constructive trust arising after the transaction of purchase was closed and overriding the beneficial interests then acquired. In Canada and in some cases in England, the device of the constructive trust has been invoked "to give relief to a wife who cannot prove a common intention or to a wife whose contribution to the acquisition of property is physical labour rather than purchase money" (per Laskin J. (as he then was) in Murdoch v. Murdoch (1973) 41 DLR (3d) 367, at p 388; and see Rathwell v. Rathwell (1978) 83 DLR (3d) 289 and Pettkus v. Becker (1980) 117 DLR (3d) 257). It is unnecessary to consider whether in some future case the device of a constructive trust might be relied on where property beneficially owned in particular proportions is maintained or enhanced by work done or contributions made in different proportions. If such a question arises in a contest between parties to a marriage it may be necessary to consider the extent to which the device is available in the equitable jurisdiction when ss.79 and 80 of the Family Law Act confer a statutory jurisdiction to alter proprietary interests and that jurisdiction may be exercised to give relief to a party to a marriage who has made a non-pecuniary contribution to the purchase of property.

16. We would allow the appeal and set aside the judgment of the Court of Appeal except for its orders allowing the appeal from Rath J. and setting aside his Honour's order. We would stand the matter over until 12 February 1985 in order to give the parties an opportunity to agree, in the light of this judgment, upon an order which might finally dispose of the issues outstanding between them. If no agreement is reached, it will be necessary to remit the matter to the Supreme Court of New South Wales to proceed in accordance with this judgment. In that event, it would be open to the Supreme Court to consider, as Mahoney J.A. suggested, whether the defendant is entitled to any relief against the plaintiff in respect of his payments of the mortgage instalments.

MURPHY J. Presumptions arise from common experience (see Actors Equity v. Fontana Films (1982) 150 CLR 169, 213-215). If common experience is that when one fact exists, another fact also exists, the law sensibly operates on the basis that if the first is proved, the second is presumed. It is a process of standardised inference. As standards of behaviour alter, so should presumptions, otherwise the rationale for presumptions is lost, and instead of assisting the evaluation of evidence, they may detract from it. There is no justification for maintaining a presumption that if one fact is proved, then another exists, if common experience is to the contrary.

2. I have reconsidered the law on presumptions of resulting trusts including the case of Napier v. Public Trustee (1980) 32 ALR 153 (in which I agreed with Mr Justice Aickin). My conclusion is they are inappropriate to our times, and are opposed to a rational evaluation of property cases arising out of personal relationships.

3. In the case of spouses, the Family Law Act 1975 provides for the alteration of the interests of the parties to a marriage in property where that is just and equitable (s.79). Similar State legislation is emerging dealing with those in de facto relationships. In the absence of such legislation, the old presumptions are not sustainable by common experience and should not therefore be applied.

4. The general presumption of a resulting trust when the purchaser of property causes it to be transferred to another should be discarded. The presumption that when unequal contributions are made to the purchase of property there is a presumption of a resulting trust in shares proportionate to the contributions should also be discarded. The position is said to be unclear where a voluntary transfer of land or personalty occurs (see Jacobs' Law of Trusts in Australia (4th Edn) 1977, pp.228-230). However there is no logical basis for distinguishing between a conveyance to another at the time of purchase and a voluntary transfer, so that a resulting trust will arise in one but not the other. It should not be presumed in either. The presumption of advancement, supposed to be an exception to the presumption of resulting trust, has always been a misuse of the term presumption, and is unnecessary. Transfer of the title of property wholly or partially to another is commonly regarded as of great significance, especially by those in de facto relationships. The notion that such a deliberate act raised a presumption of a trust in favour of the transferor, would astonish an ordinary person.

5. In the absence of those presumptions, the legal title reflects the interests of the parties, unless there are circumstances (not those false presumptions) which displace it in equity. False presumptions which override the registered title are destructive of an orderly Torrens Title system and should not be tolerated. The Torrens System permits the protection of interests by the use of caveats, so that the registered title reflects the true position and prevents the Torrens system becoming as complex as the old system.

6. In this case, the fact that the title to the property is in the parties jointly, is not displaced by anything in the circumstances. The circumstance that the contributions to the purchase were unequal, and that by arrangement the mortgage payments were made by Mr Calverley during their living together, while Miss Green paid most of the household expenses, raises no equity. The property is that of the parties jointly. The members of the Court of Appeal were correct in taking the view that there was no presumption which detracted from the legal title, which should previal. Their decision in this respect should stand, and if that were all, the appeal should be dismissed.

7. The fact that since the parting, although the mortgage payments were a joint obligation, they were made by Mr Calverley, may raise questions of contribution due to him, against which should be set-off the value of the occupation of the property by Mr Calverley. If the parties cannot agree on a settlement of these subsidiary questions, the case should be remitted.

DEANE J. This appeal turns upon presumptions of equity. The relevant presumptions are those applicable in determining the beneficial ownership of property which is purchased and transferred into the legal ownership of persons otherwise than in accordance with their respective contributions to the purchase price. Those presumptions evolved in times when a majority of adults laboured under restrictions and disabilities in respect of the ownership and protection of property and when it may have been wrong to assume that the fact that property was caused to be transferred into the legal ownership of a person without any express qualifying limitation was a prima facie indication of an intention that he should own it. Even in those times however, there was much to be said for the view that, except where they served the same function as a civil onus of proof and operated to resolve a factual contest in circumstances where the relevant evidence was either uninformative or truly equivocal, the worth of those presumptions was at best debatable. In present times, their propriety is open to serious doubt in any case in which they establish as the starting point for resolution of an issue of fact, a presumption - which "should not ... give way to slight circumstances" (Shephard v. Cartwright (1955) AC 431, at p 445; Charles Marshall Pty. Ltd. v. Grimsley (1956) 95 CLR 353, at p 365) - that a person who causes property to be placed in the legal ownership of another, either solely or jointly with himself, is not thereby evincing an intention that the other should, in a real sense, be the sole or joint owner of it.

2. The relevant presumptions are, however, too well entrenched as "land-marks" in the law of property (per Eyre L.C.B., Dyer v. Dyer (1788) 2 Cox 92, at p 93 (30 ER 42, at p 43) to be simply discarded by judicial decision. Indeed, the law embodying them has been said in this Court to be so clear that it "can ... no longer be the subject of argument" (per Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ., Charles Marshall Pty. Ltd. v. Grimsley, at p 364). If they are to be modified to avoid prima facie assumptions that a person intends the opposite to that which he does, it must be by legislative intervention which will not disturb past transactions which may conceivably have been structured by reference to them. The present case was resolved in the courts below by reference to one or other of those presumptions as a starting point. It must be so resolved in this Court.

3. There are three presumptions of equity which are here relevant. The first is that which was applied by Rath J. at first instance in this case but was held by the Court of Appeal to be irrelevant upon a proper appreciation of the facts. Worded in terms that are appropriate for present purposes, it is: where a person pays the purchase price of property and causes it to be transferred to another or to another and himself jointly, the property is presumed to be held by the transferee or transferees upon trust for the person who provided the purchase money. The second can properly be seen as complementary of the first. It is: where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.

4. The third "presumption", usually called the "presumption of advancement", is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of "advancement" with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title or, in the words of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin v. Martin (1959) 110 CLR 297, at p 303, that there is an "absence of any reason for assuming that a trust arose". "The child or wife has the legal title. The fact of his being a child or wife of the purchaser prevents any equitable presumption from arising" (ibid, at p.304, quoting Ashburner's Principles of Equity, 2nd ed., (1933), at p.110n).

5. The purchase of the Baulkham Hills land in the present case was in the joint names of Mr. Calverley and Miss Green who were unmarried but had been living together for some five years in what is commonly described as a "de facto relationship". The purchase price was $27,250. Of that amount, approximately $9000 was provided by Mr. Calverley and the balance represented the proceeds of a mortgage over the property under which Mr. Calverley and Miss Green jointly borrowed $18,000 which they were jointly liable to repay. The understanding between Mr. Calverley and Miss Green was that Mr. Calverley would, at least while they were living together in the house, bear the burden of repayments under the mortgage while Miss Green, who was working, would bear the bulk of the ordinary household living expenses.

6. The evidence indicates that Miss Green became a party to the purchase and the mortgage in order to facilitate the raising of finance. To that end, Mr. Calverley and she falsely represented that they were married and both the transfer and the mortgage referred to Miss Green as "Dianne Lea Calverley" and stated that she was Mr. Calverley's wife. Regardless of motivation however, the fact remains that the loan made pursuant to the mortgage was made to Miss Green jointly with Mr. Calverley and that, in the absence of a contrary understanding to the effect that the borrowed money should be Mr. Calverley's alone (and none was shown), the loan moneys applied in the purchase of the home were Miss Green's as well as Mr. Calverley's. That being so, the Court of Appeal was correct in concluding that the case could not properly be approached on the footing that the purchase price had been provided by Mr. Calverley alone. Upon a proper analysis, one half of the moneys which were jointly borrowed and applied towards the purchase were provided by Miss Green. The residue was provided by Mr. Calverley. In these circumstances, the second of the above presumptions was applicable unless the circumstances came within one of the cases in which equity assumes an intention of advancement, that is to say, unless the fact that Mr. Calverley and Miss Green had been for some years, and intended to continue, living together precluded a presumption that the property was held upon resulting trust for themselves in shares corresponding to their respective contributions to the purchase price.

7. The exceptional cases in which equity assumes an intention of "advancement" and thereby precludes a presumption of a resulting trust are defined by reference to recognized categories of relationships rather than by the actual presence of love or affection. Originally, those relationships were the ones which equity saw as involving obligations of support owed by the person providing the consideration to the person who would otherwise be presumed to hold upon implied resulting trust: a man to his child or other person to whom he stood in loco parentis; a husband to his wife. Those categories of relationships are not, however, finally settled or closed, at least in this Court (see, e.g., Wirth v. Wirth (1956) 98 CLR 228, at pp 238,241 and 248 where an intention of advancement of an "intended wife" was presumed and see the discussion in The Solicitors' Journal, vol. 119, (1975), pp.108-109 and vol. 120, (1976), pp.141-143). It is arguable that they should be adjusted to reflect modern concepts of the equality in status and obligations of a wife vis a vis a husband (cf. Moore v. Whyte (No. 2) (1922) 22 SR (NSW) 520 and Robinson v. Robinson (1961) WAR 56) and of a mother vis a vis a father (see Scott v. Pauly (1917) 24 CLR 274, at pp 281-282, and at p 285). Any adjustment of those relationships must however be made by reference to logical necessity and analogy and not by reference to idiosyncratic notions of what is fair and appropriate. In their judgment in the present case, Mason and Brennan JJ. advance what seem to me to be convincing reasons for denying that either logic or analogy warrant the extension of those categories of relationships to encompass the relationship which existed between Mr. Calverley and Miss Green at the time of the purchase of the Baulkham Hills property. It is, however, unnecessary that I form a concluded view in that regard since the question has, as I see the matter, been resolved by recent decision of this Court. In Napier v. Public Trustee (W.A.) (1980) 55 ALJR 1, at p 3, it was held by Aickin J., in a judgment with which Mason, Murphy and Wilson JJ. expressed general agreement, that "no presumption of advancement arises in favour of a de facto wife" to preclude the ordinary implication of resulting trust. That conclusion of Aickin J. provided the basis of his reasoning and of the decision of the Court that there was a resulting trust of an interest in remainder in the subject property in that case (see, per Aickin J., at p.5 and also per Mason J., at p.2).

8. In these circumstances, the starting point for the determination of the extent of the respective beneficial interests of Mr. Calverley and Miss Green in the Baulkham Hills property was a presumption that the property was held upon resulting trust for them according to their respective contributions to the purchase price. That presumption could be rebutted or qualified by admissible evidence which indicated either that Miss Green was intended to have a full half beneficial interest in the property or that Mr. Calverley was intended to have the whole beneficial interest. In Charles Marshall Pty. Ltd. v. Grimsley (at p 365), it was said in the judgment of the Court (Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ.):

"The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction".

This passage constitutes a guide to the evidence which will ordinarily be relevant and admissible to confirm or rebut a presumption of resulting trust or a "presumption" of advancement, namely, acts and declarations of the parties before or at the time of the vesting of the legal estate and admissions against interest. The passage should not, however, be accepted as good law to the extent that it purports to lay down that no evidence other than that mentioned will ever be admissible. Regardless of whether the circumstances are such as to bring the case into one of the categories of advancement, evidence of the relationship - both legal and factual - between the parties will always be admissible. More importantly, the subsequent judgment of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin (at pp.303-305) accepted, as correct, statements of Stuart V.C. and Cussen J. to the effect that, in a case where the subjective intention of a person is relevant, the evidence of that person of his intention at the time of the purchase is admissible notwithstanding that "it must in every case be liable to observations which tend to diminish its weight" (see also Devoy v. Devoy (1857) 3 Sm &G 403, at p 406 (65 ER 713, at p 714); Fowkes v. Pascoe (1875) 10 Ch App 343, at p 349). It is unnecessary to pursue here the question, which was not argued on the appeal, of the relevance of evidence of subjective intention of either party in a case such as the present where the purchase price was provided by two different active parties to the transaction (cf. Gissing v. Gissing (1971) AC 886, at p 906). In such a case, the primary question will be whether there was any arrangement between the parties which precluded or modified the trust which would otherwise result from their respective contributions to the purchase price. If that be the only question, evidence of a subjective uncommunicated intention of either party will not be admissible. It is, however, conceivable that, in a case where there was no relevant arrangement between the parties, the critical question may be whether there was an actual intention on the part of the person who contributed the bulk of the purchase price to benefit the other party. In such a case, it is difficult to see why the direct evidence of that person of his actual intention is, as a matter of principle, inadmissible.

9. The weight to be given to a presumption of a resulting trust in the resolution of what is essentially an issue of fact may vary in accordance with changing community attitudes and with the contemporary strength or weakness of the rationale of the rule embodying the presumption (see, e.g., Snell's Principles of Equity, 28th ed. (1982), at p.183 and the cases there cited, and per Mahoney J., Doohan v. Nelson (1973) 2 NSWLR 320, at pp 325-326). The generalization that a presumption of resulting trust "should not give way to slight circumstances" (see above) can no longer properly be accepted as an unqualified rule. Indeed, in a case where a presumption of resulting trust or a "presumption" of advancement applies in circumstances where the relationship between the parties does not, as a matter of modern experience, provide any firm rational basis for presuming either intention to retain the beneficial interest or an intention to confer it on the other party, the presumption may be found to be of practical importance only in those cases where the evidence, including evidence of the actual relationship between the parties, does not enable the court to make a positive finding of intention (cf. per Gibbs J. in Napier, at p 2 and per Lord Upjohn, Pettitt v. Pettitt (1970) AC 777, at pp 813-814).

10. The evidence in the present case is silent as to the intentions of Mr. Calverley and Miss Green on the subject of the beneficial ownership of the Baulkham Hills property and discloses no adequate grounds for an inference either that there was an arrangement between them or that either intended that the beneficial interest in the property should be otherwise than according to their respective contributions to the actual purchase price. In the context of the relationship which existed between Mr. Calverley and Miss Green at the time of the purchase, the presumption of a resulting trust in Mr. Calverley's favour of an approximate two-thirds interest in the property had little, if any, practical significance beyond that of determining questions of onus of proof. Even so regarded however, the presumption remained unrebutted by the evidence. In that regard, the fact that Miss Green was added as a purchaser and mortgagor to facilitate the arrangement of finance is equivocal ("amphibolous": Martin at p.305) in that it can be viewed as either an explanation of her acquisition of a beneficial interest in the property or as an explanation of her being but a trustee for Mr. Calverley. The fact that it was intended that, at least while they were living together, Mr. Calverley should pay the instalments of the mortgage is equivocal in the context that it was part of an overall understanding under which Miss Green was to bear the main part of the costs of the day to day household expenses.

11. I agree with the comments made by Mason and Brennan JJ. in the last three paragraphs of their judgment and in the orders which they propose. It should be mentioned that neither party sought to rely on the doctrine of equitable estoppel.

Orders

Appeal allowed with costs.

Set aside the judgment of the Court of Appeal of the

Supreme Court of New South Wales except for the orders allowing the appeal to that Court and setting aside the order of his Honour Mr Justice Rath made in the Equity Division.

Order that the appellant pay to the respondent her costs

of the hearing before Rath J. and of the appeal to the Court of Appeal.

Stand the matter over until 12 February 1985.

Order that if the parties do not apply on or before 12

February 1985 for an order by consent otherwise disposing of this appeal, the matter be remitted to the Supreme Court of New South Wales to proceed in accordance with this judgment.