Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Joudo v Joudo [2024] NSWCA 258 Hearing dates: 24 October 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Before: Bell CJ at [1]; Gleeson JA at [57]; Stern JA at [58] Decision: Dismiss the appeal with costs. Catchwords: EQUITY – trusts and trustees – constructive trusts – joint endeavour – where both parties had contributed to costs of the construction of a house purchased in the name of one party – where that party did not reside in the house – where the basis for contemplated arrangement that the other parties and their children would continue to live in the house was removed on the legal owner falling into financial difficulties – whether unconscionable for the legal owner to retain the benefit of contributions made by the other parties and the rise in the value of the house where this was not intended. Cases Cited: Australian Building & Technical Solutions Pty Limited v Boumelhem [2009] NSWSC 460; (2009) 2 ASTLR 336 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63 Makaritis v Makaritis (No 3) [2023] NSWSC 409 McKinlay v Woods [2021] NSWSC 1510 McKinlay v Woods [2024] NSWCA 122 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Thynne v Sheringham [2023] NSWCA 181 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 Category: Principal judgment Parties: Ravina Joudo (Appellant) Marie Joudo (First Respondent) Ronnie Joudo (Second Respondent) Representation: Counsel: A D Crossland with B Flaherty (Appellant) S Fitzpatrick SC with M Thompson (First and Second Respondents) Solicitors: Simon Diab & Associates (Appellant) David Legal (First and Second Respondents) File Number(s): 2024/147260 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2024] NSWSC 232 Date of Decision: 12 March 2024 Before: Pike J File Number(s): 2022/290628 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] In 2011, the Appellant, Ms Ravina Joudo (Ravina), purchased a property located at 25 Robey Avenue, Middleton Grange (the Property). Ms Maria (Marie) Joudo and Mr Ronnie (Ronnie) Joudo (together, the Respondents) are the Appellant's brother and sister-in-law. They resided in the Property from about 30 December 2011 until its sale on 17 July 2023. A breakdown in the relationship between the Appellant and the Respondents precipitated the proceedings. Ravina commenced proceedings on 27 September 2022 seeking the repayment of rental arrears said to be owed to her by Marie pursuant to an oral lease agreement purportedly entered into in about November or December 2011 in relation to the Property. Pike J (the primary judge) rejected the existence of any oral lease arrangement and found that, consistent with an Amended Cross-Claim filed by the Respondents, the parties had, in about February 2010, engaged in a joint endeavour in relation to the Property whereby Ravina offered to purchase and build the Property for Marie and her family to live in and to make mortgage repayments in relation to the Property, on the condition that Ronnie and Marie would assist in the construction of the Property, pay utilities and maintain the Property (the Joint Endeavour). His Honour found that the Joint Endeavour was subsequently varied to the extent that Ronnie made contributions in the form of various mortgage repayments. The primary judge then found that the Joint Endeavour had failed without attributable blame and ordered that the net proceeds of the sale of the Property be held on a constructive trust to repay both the Respondents and the Appellant their contributions with the residue to be divided between them in equal shares: Joudo v Joudo [2024] NSWSC 232. Pursuant to these orders, $220,880.03 of the net proceeds of sale of the Property was ordered to be repaid to Marie and Ronnie. That amount reflected contributions made by them to the Property in the form of mortgage repayments and contributions to the construction of the Property totalling $293,120.33 less the sum of $72,240.30 representing market rent for occupation of the Property which Marie and Ronnie accepted should be paid from the date of the breakdown in the relationship (15 April 2021) until the date of sale of the Property (17 July 2023). An amount of $305,610.26 was ordered to be repaid to Ravina. The Appellant sought to appeal from the primary judge's decision on the basis that the arrangement between the parties was not a joint endeavour of the kind that would cause equity to impose a constructive trust. In the alternative, it was contended that, even if the Joint Endeavour was capable of attracting relief by way of a remedial constructive trust, the declaration of a constructive trust over the proceeds of sale was flawed insofar as it did not take into account the fact that the Respondents had had the benefit of a long occupation of the Property rent-free. The Court held (Bell CJ, Gleeson JA and Stern JA agreeing), dismissing the appeal: 1. There was mutual economic benefit for both the Appellant and the Respondents associated with the Joint Endeavour. But there is no reason why "common benefit", to the extent that it is a requirement for the imposition of a remedial constructive trust, must be material in the sense of a financial benefit: [43]-[45]. McKinlay v Woods [2021] NSWSC 1510, McKinlay v Woods [2024] NSWCA 122, applied. 1. An argument that a constructive trust can only be imposed where the parties have not adverted to what will happen to a property the subject of a joint endeavour if the basis of the arrangement is removed had no basis in any authority and would impose an unattractive fetter on an equitable remedy the flexibility of which is central to its operation: [47]. Lloyd v Tedesco (2002) 25 WAR 360, distinguished. Muschinski v Dodds (1985) 160 CLR 583; Thynne v Sheringham [2023] NSWCA 181, West v Mead [2003] NSWSC 161, Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (1987) 164 CLR 137, referred to. 1. The mortgage payments made by the Respondents bore the objective character of contributions and could bear that character even though they were not initially contemplated when the Joint Endeavour was formed and were motivated by a desire to assist the Appellant discharge her immediate legal obligations in relation to the mortgage over the Property: [49]-[50]. 2. It was the entire nature of the agreement between the parties that the Respondents would live in the Property rent-free on the condition that they contributed to the construction, maintenance and improvement of the Property, which they did. To require the value of notional rent over a lengthy period to be taken into account and deducted from the contributions made by the Respondents and their share of any increase in the value of the Property would be to proceed on a basis entirely different from the arrangement which had been made by the parties, the underlying basis for which had been removed through no fault of theirs: [52]-[53]. Makaritis v Makaritis (No 3) [2023] NSWSC 409, referred to. JUDGMENT 1. BELL CJ: This is an appeal from a decision of Pike J (the primary judge) who ordered that the net proceeds of sale of a property located at 25 Robey Avenue, Middleton Grange (the Property) be held on a constructive trust to repay both the Respondents, Ms Maria Joudo (known as Marie) and Mr Ronnie Joudo (Ronnie) (together the Respondents), and the Appellant, Ms Ravina Joudo (Ravina), their contributions to a failed joint endeavour with the residue to be divided between them in equal shares: Joudo v Joudo [2024] NSWSC 232 (the primary judgment or PJ). 2. Pursuant to these orders, $220,880.03 of the net proceeds of sale of the Property was ordered to be repaid to Marie and Ronnie. That amount reflected contributions made by them to the Property in the form of mortgage repayments and contributions to the construction of the Property totalling $293,120.33 less the sum of $72,240.30 representing market rent for occupation of the Property which Marie and Ronnie accepted should be paid from the date of the breakdown in the relationship (15 April 2021) until the date of sale of the Property (17 July 2023). An amount of $305,610.26 was ordered to be repaid to Ravina. 3. The Property was purchased by Ravina in 2011. Marie and Ronnie are Ravina's brother and sister-in-law. They resided in the Property from about 30 December 2011 until its sale on 17 July 2023. A breakdown in the relationship between Ravina and Marie and Ronnie precipitated these proceedings. 4. The primary judge's orders were conditional upon Marie and Ronnie accepting an obligation to make allowances in favour of Ravina for a certain sum representing market rent for their occupation of the Property between the breakdown of the joint endeavour and the Property's sale. 5. By way of a Statement of Claim filed on 27 September 2022, Ravina commenced proceedings seeking the repayment of rental arrears at the rate of $600 per week said to be owed to her by Marie pursuant to an oral lease agreement purportedly entered into in about November or December 2011 in relation to the Property. His Honour rejected the existence of any such agreement and there was no appeal by Ravina from his Honour's conclusion. 6. By way of an Amended Cross-Claim filed on 7 February 2024, Ronnie and Marie contended that the parties had, in about February 2010, engaged in a joint endeavour in relation to the Property whereby Ravina offered to purchase and build the Property for Marie and her family to live in and to make mortgage repayments in relation to the Property, on the condition that Ronnie and Marie would assist in the construction of the Property, pay utilities and maintain the Property. This was the joint endeavour which the primary judge found to exist (the Joint Endeavour). His Honour also found that it was subsequently varied to the extent that Ronnie made contributions to the Joint Endeavour by making various mortgage repayments. Mr Crossland, who appeared for the Appellant with Ms Flaherty, accepted that a joint endeavour may change over time (consistent with Australian Building & Technical Solutions Pty Limited v Boumelhem [2009] NSWSC 460; (2009) 2 ASTLR 336 at [51]) but disputed his Honour's characterisation of the mortgage payments by Ronnie or, more accurately, an entity under his control, as a contribution to the Joint Endeavour. 7. His Honour also found that the Joint Endeavour had failed without attributable blame by 15 April 2021. The language "without attributable blame" was taken directly from Deane J's seminal statement of principle in Muschinski v Dodds (1985) 160 CLR 583 at 620; [1985] HCA 78 (Muschinski) and approved in Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148; [1987] HCA 59 (Baumgartner): "... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do." 1. On appeal, the Appellant did not challenge the primary judge's factual findings relied upon to establish the Joint Endeavour. Mr Crossland argued, however, that the arrangement between the parties was not a joint endeavour of the kind that would cause equity to impose a constructive trust. In the alternative, he contended that, even if the Joint Endeavour was capable of attracting relief by way of a remedial constructive trust, the declaration of a constructive trust over the proceeds of sale was flawed insofar as it did not take into account the fact that Marie and Ronnie had had the benefit of a long occupation of the Property rent-free. Factual background 1. Ronnie and Ravina are two of eight siblings. Marie is Ronnie's wife. They have three children to whom Ravina, their aunt, was particularly attached. The attachment was particularly strong in relation to one of the children, who had Down Syndrome. 2. The Joudo family have a long history of cohabitation and sharing financial resources. When Ronnie and Marie met in around 1987, Ronnie was residing with his mother and his other adult siblings in a two-bedroom farmhouse at Kemps Creek. Marie also commenced living there in 1990. 3. In 1992, the Joudo family moved to a property in Hinchinbrook (the Hinchinbrook Property). The legal title to that property is held by Ravina, Rita, Romina and Robert, all siblings. Rita, Romina, Sonia Senior (their mother), Ronnie and Marie permanently resided at the Hinchinbrook Property. Robert also periodically resided there. 4. In 1994, Ronnie and Marie purchased a property in Green Valley (the Green Valley Property). Green Valley is the suburb next to Hinchinbrook. Ronnie and Marie's three children were born in 2000, 2002 and 2004 respectively. 5. In 2008, Ronnie and Marie sold the Green Valley Property and moved back into the Hinchinbrook Property. After Ronnie and Marie returned to the Hinchinbrook Property, there were 10 people living in a three-bedroom home. The Hinchinbrook Property was very overcrowded and this was a catalyst for Ronnie, Marie and their children seeking to move out of that property. 6. In or around January 2010, Ronnie and Marie visited and placed a holding deposit in relation to a block of land in Twins Creek. Twins Creek is located approximately 40 minutes drive from the Hinchinbrook Property. 7. In February 2010, Ravina had a conversation with Marie in which she offered to build a house for Marie and her family much closer to the Hinchinbrook Property than the Twins Creek property. Later the same evening, a further conversation occurred between Ravina and Ronnie in which Ravina again offered to buy land and build a house for Ronnie and Marie's family. The undisputed motivation for this was that it would allow Ravina to continue to live in close proximity to Ronnie and Marie and their family, rather than much further away. Ronnie and Marie considered and then accepted this proposal although, on the evidence, there was no formality to their acceptance of it. 8. In late February 2010, Ravina, Marie and Ronnie visited a vacant lot in Middleton Grange and decided to purchase it. A deposit was placed on the land by Ravina with Lily Homes on the same day. Lily Homes was a project home builder. The primary judge referred to Ravina's own evidence in cross-examination that "she had a discussion before she entered into the contract with Lily Homes, whereby Ronnie would complete the driveway and landscaping": PJ [172]. 9. Later in 2010, Ravina and Marie had a further conversation in relation to the Property. At this time, Ravina indicated that she would not have sufficient funds to complete the construction of the home on the Property and that Ronnie and Marie would need to complete the construction, including the driveway and landscaping. This conversation, and Marie and Ronnie's acceptance of the need to contribute to the completion of the construction of the house on the Property, was central to his Honour's finding as to the existence of the Joint Endeavour. 10. In January 2011, Ravina entered into a Residential Loan Agreement with St George Bank in relation to the land and settlement of the Property occurred in February 2011. In March 2011, she entered into a further Residential Loan Agreement with St George Bank in relation to the construction of the home at the Property. The loans totalled $424,700. Ravina also contributed a further $18,000 of her own funds in relation to the purchase of the land and $9,588 in relation to the construction of the house. 11. Construction of the Property commenced in June 2011. In June or July 2011, Ronnie and Marie arranged and paid for excess dirt to be removed from the Property at a cost of $12,500. By November or December 2011, only the interior of the house was finished, and considerable further exterior works were required, including a driveway and landscaping. In rejecting Ravina's principal contention that there was no joint endeavour but an oral tenancy, the primary judge observed that the conduct of Ronnie and Marie immediately after they moved into the Property, in completing its construction and making capital improvements to the Property, was inconsistent with such an arrangement: at PJ [154]. Those capital improvements included completion of the driveway in addition to paying for landscaping, with Ronnie paying a contractor some $41,940 for both sets of works. In addition, Ronnie and Marie funded the installation of down lights, a doorbell and security cameras, the installation of drainage points and upgrades to the toilets and hot water systems, fencing and the installation of wardrobes in each of the bedrooms together with air conditioning. 12. All of this was consistent with the parties' initial discussions and understanding that the Property was to be Ronnie and Marie's, although, contrary to a submission made by Mr Crossland, there was no clarity on the evidence as to whether this was to be for the life of Ronnie and Marie, was to extend to the life of Ronnie and Marie's children or was to be a full beneficial interest in the Property. 13. The primary judge held that Ronnie and Marie contributed $60,200 towards the mortgage on the Property between 2014 and 2019, rejecting Ravina's evidence that these payments totalled only $22,400 and that they were by way of payment of rent. His Honour took these into account as contributions by Ronnie and Marie to the Joint Endeavour and this contribution was included in the total amount ordered to be repaid to Ronnie and Marie from the proceeds of the sale of the Property over which his Honour imposed a constructive trust. 14. His Honour concluded (at PJ [232]) that the total contributions by Ronnie and Marie to the improvement of the Property and mortgage contributions were: AJL Excavation – soil removal $12,500.00 X Electronics – lights $9,350.00 AUSREO – wall footing $1,161.60 Stancon Plumbing $9,350.00 SGS Bobcats $4,247.00 Wissam Riman – driveway and landscaping $41,940.00 Andreasens Green Wholesale – plants $491.70 Dial-A-Fence $1,460.00 Wissan Riman – wardrobes $11,110.00 Frost Air Conditioning $8,950.00 Mortgage contributions $60,200.00 TOTAL $160,760.30 1. By way of comparison, the primary judge held (at PJ [233]) that Ravina's contributions were $173,250.23. This figure took into account equity withdrawals by Ravina on refinance of her loans in both 2014 and 2016. 2. There was no dispute that, during their period of occupation, Ronnie and Marie paid water and also, from time to time, strata rates in relation to the Property. 3. The relationship between Ravina, on the one hand, and Ronnie and Marie, on the other, began to breakdown around the time of the death of Ravina and Ronnie's mother, Sonia Senior, in July 2019. 4. On 12 October 2020, Ravina texted Marie asking her "to leave the house in 4 weeks" on the basis that it would be sold "due to financial difficulties". 5. On 15 April 2021, Ravina's lawyers sent a notice to Marie and Ronnie requesting that they vacate the Property. A further letter was sent on 20 April 2022 to which solicitors for Ronnie and Marie responded on 3 May 2022 by stating that Ronnie and Marie had "an equitable right to the property" which they would seek to enforce. 6. On 2 September 2022, Ravina sent a termination notice to Marie stating that there had been a failure to pay the agreed sum of "$600 per week in rental income". 7. On 27 September 2022, Ravina commenced an eviction application in the New South Wales Civil and Administrative Tribunal. On the same day, she also commenced debt recovery proceedings in the District Court. 8. On 18 April 2023, Dicker SC DCJ made consent orders for Marie to provide vacant possession of the Property and for the Property to be sold. His Honour also ordered that the proceedings be transferred to the Supreme Court. 9. On 17 July 2023, the Property was sold for $1,054,000. $342,835.27 from the sale proceeds prior to the repayment of the mortgage was paid into Court pending the resolution of the proceedings. The mortgage in favour of St George Bank was then discharged in the sum of $459,775.32 and the remaining $167,158.45 was paid to Ravina. Primary judgment 1. The primary judge outlined the relevant legal principles in relation to Ronnie and Marie's claims at PJ [125]-[127] as follows: "It was not disputed that, in order to succeed in their joint endeavour constructive trust claim, Ronnie and Marie needed to establish three elements as identified by Parker J in Woods v MacKinlay (No 2) [2021] NSWSC 1510 (Woods v MacKinlay (No 2)) at [231]: a. The formation of a joint endeavour between the parties; b. The acquisition of property pursuant to that joint endeavour; and c. The premature termination of the joint endeavour, leaving one party with a legal interest which that party was not intended to enjoy beneficially in those circumstances. The following principles were also not in dispute: (1) For there to be a joint endeavour, there needs to be some sort of understanding between the parties, but the scope of that understanding can change from time to time. The understanding does not have to have the sort of precision required for a contract. If it did, the contract would cover the field and there would be no need for the failed joint endeavour doctrine; the whole point of the doctrine is that it covers a situation which the parties have not addressed, namely the failure of the endeavour which would leave one party with an unexpected windfall: see Makaritis v Makaritis (No 2) [2022] NSWSC 1690 (Makaritis (No 2)) at [164]. (2) The doctrine operates in a restitutive way: Makaritis (No 2) at [169]. (3) What happens is that, when the contingency not foreseen by the parties occurs, equity intervenes, but it does so by retrospective adjustment of the parties' rights so as to achieve a just outcome having regard to the parties' omission to deal with that contingency at the time that the property was acquired: Woods v McKinlay (No 2) at [260]. It was also not disputed by counsel for Ravina that if the Court was satisfied that there was a failed joint endeavour as contended for by Ronnie and Marie, the appropriate way to frame the relief was in the same manner as that framed by Parker J in Woods v McKinlay (No 2), namely: (a) declare a constructive trust over the properly at the time of sale; then (b) discharge any borrowings; then (c) out of the balance refund to the parties their respective contributions; with (d) the remainder being split equally." 1. At PJ [132]-[192], the primary judge set out his findings as to the nature of the agreement between the parties in relation to the Property. His Honour did not accept (at PJ [132]) that: "there was any conversation whereby Marie agreed to lease the Property from Ravina for $600 per week … I accept that conversations occurred to the effect contended for by Ronnie and Marie and that thereafter, the parties acted in accordance with a joint endeavour, whereby Ravina would purchase the Property and make mortgage payments and Ronnie and Marie would complete the construction of the house, improve it, maintain it, and assist with other payments where they could. The arrangement obviously changed over time with Ronnie agreeing to make some mortgage payments." 1. At PJ [153], the primary judge held that: "Ravina's financial position at the time of the purchase also suggests that she did not have sufficient funds to complete the construction of the house, particularly the exterior. This suggests that she needed the assistance of Ronnie and Marie in completing the construction, which is more consistent with Ronnie and Marie's version of the underlying arrangement." 1. The primary judge regarded the subsequent payment of various mortgage instalments as supporting the existence of the Joint Endeavour: at PJ [148]-[149]. 2. In response to a submission put by Ravina's counsel as to the absurdity of a joint arrangement whereby Ravina would buy the Property and make the mortgage repayments but allow Marie, Ronnie and their children to live in the Property rent-free for the rest of their lives, provided that they helped to complete the Property, maintain it and pay outgoings, the primary judge held (at PJ [181]-[184]): "… The arrangement is consistent with prior arrangements in the Joudo family and Ravina had an undisputed motive. The evidence demonstrated that the Joudo family were a close family where a number of family members lived under the one roof and the legal title did not reflect the reality of ownership interests. Title was held in the names of people who did not reside in the property. There was a pooling of resources. As to motive, it was not disputed that the Hinchinbrook Property was overcrowded. As part of their own versions, Ravina, Ronnie and Marie gave evidence of this as being the catalyst for moving out. Further, it was not in dispute that Ravina, her sisters and Sonia Senior were all very close to and fond of the children and took an active involvement in their lives. They had never lived more than one suburb away." 1. The primary judge's conclusions as to the nature of the agreement between the parties were set out at PJ [186]-[192]: "… I find that the initial arrangement was as contended for by Ronnie and Marie and reject Ravina's contention of an oral lease agreement. I also find that after the initial arrangement was struck, both parties acted in accordance with the joint endeavour and that over time the arrangement changed in the sense that Ronnie contributed to mortgage payments. It was not in dispute that if I find the existence of a joint endeavour as contended for by Ronnie and Marie, then such an endeavour has failed without attributable blame. Whilst the relationship began to deteriorate in around 2018 to 2019, it appears to have become irretrievably broken by 15 April 2021 when the first formal eviction notice was sent by Ravina's solicitors. I find that this is the date on which the joint endeavour failed. It was also not in dispute that the parties never discussed what would happen in a situation such as that which has occurred, nor where the Property has been sold. … Further, an outcome whereby Ravina receives all the money paid into Court, representing the significant increase in the value of the Property over the life of the joint endeavour, would be unconscionable. To the extent that this is a requirement for equity to intervene, this requirement is satisfied in the present case: Woods v McKinlay (No 2) at [256]-[261]; Makaritis (No 2) at [170]." Grounds of Appeal 1. Three grounds of appeal were pressed, although grounds 2 and 3 were pressed but lightly. The first and principal ground of appeal was that: "The Primary Judge's finding ([187] of the Reasons) that the arrangement reached orally between the parties (as set out at [53]-[55]) formed a 'joint endeavour' in the sense required to justify equity's intervention, was in error." 1. Ravina placed heavy reliance on Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63 (Lloyd) at [15]-[16] for the proposition that, in order to justify the imposition of a remedial constructive trust, there must be an arrangement "intentionally or deliberately entered into for the purpose of advancing the parties' mutual material wealth" (emphasis added). It was put that the arrangement between the parties "was notable for its one-sidedness" such that it was "in fact, … a gratuity or promise" which was incapable of attracting a remedy by way of constructive trust. 2. In Lloyd at [15]-[16], Murray J held: "The important consideration where a claim for equitable relief is based upon unconscionability said to arise in the context of non-material contributions by one de facto spouse is that such contributions be related, where a declaration of trust is sought, to the particular items of property over which it is said the trust should be declared. It may be that one party to a relationship makes an important contribution to the relationship by performing a role of support, a role as caregiver, homemaker and the like. No doubt contributions of that kind will be referable to the mutual affection and concern for each other which the parties have. But unless the purposes of the provision of a contribution of that kind go further and the court concludes that it is intended to enhance the material wellbeing of both parties, or to provide the contributing party with an interest in specific property, or that it is made upon the basis that that party would have an interest in such property, then it seems to me that equity will not hold to be unconscionable the retention of property in the beneficial ownership of the other party who has directly contributed to the acquisition, maintenance and enhancement of that material wealth or property: see Stowe at 373-4; Green v Green (1989) 17 NSWLR 343, 353 where Gleeson CJ with whom Priestley JA agreed said: 'It is clear that the mere existence of a matrimonial or de facto relationship, combined with express or implied undertakings to provide support and accommodation, will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the home occupied by the parties is created … In a legal system which does not include concepts of family or community property, and where an obligation on the part of a husband to house and provide for his wife is commonly regarded as an incident of the matrimonial relationship, an undertaking of the kind referred to cannot of itself confer upon a wife a legal or equitable interest in the matrimonial home. … The acceptance of an obligation on the part of the husband to house his wife would not normally be regarded as an undertaking to give her a proprietary interest in the home in which they live, and wives usually have reasons for living with their husbands other than an expectation that they will increase their assets.' Of course, the same observations will apply to de facto spouses and, I think, to a case where equitable relief is sought in a form other than a declaration of trust in respect of particular property. As will be seen, this I think is such a case." 1. Lloyd was directed to an entirely different factual context compared to the present case, namely "non-material" contributions by a de facto spouse, and the need to differentiate such contributions where made solely by reference to mutual affection and concern, and with a view to enhancing the "material wellbeing of both parties, or to provide the contributing party with an interest in specific property, or upon the basis that that party would have an interest in such property". In the present case, as has already been illustrated, extensive material contributions were made by Ronnie and Marie to the Property which, on the primary judge's unchallenged assessment, were approximately equal to the contributions made by Ravina: see [21]-[23] above. 2. The arrangement in the present case was entered into for the common benefit of the parties, namely the maintenance of physical proximity of an historically very close family. The initiative behind the arrangement was that of Ravina and she undoubtedly benefitted from it. But the benefit to her was material as well. She acquired an asset and benefitted from its accretion in value, including by being able to withdraw equity upon refinance. She maintained an interest in the Property referable to her equity contributions as well as benefitting from the completion of the Property by Ronnie and Marie in ways that no doubt enhanced its value. This was not a one-sided arrangement of the kind contended for by Ravina. Nor, contrary to her submissions, was it correct to diminish the value to Ravina of any remainder interest in the Property after the period of its occupancy by Ronnie and Marie, even if this was or was likely not to be available until after Ravina's passing. That valuable benefit would enure to her Estate. 3. Thus there was mutual economic benefit for both the Appellant and the Respondents in the Joint Endeavour, contrary to the Appellant's submission, and to the extent that Lloyd was said to stand for the proposition that there must be mutual economic benefit before a constructive trust may be imposed (which may be doubted), that proposition has been rejected in New South Wales in McKinlay v Woods [2021] NSWSC 1510 at [243]-[248], in reasoning that was not doubted on appeal: McKinlay v Woods [2024] NSWCA 122 (McKinlay v Woods). As Leeming JA said in that case at [105]: "The point of the qualification in Lloyd v Tedesco is to discount the valuable contribution commonly made in such cases in the form of unpaid care and domestic assistance, on the basis that that is attributable to the personal relationship between the parties (who are often de facto partners) and therefore not to be taken as directed to the joint endeavour." 1. His Honour observed that that observation was not apposite on the facts of McKinlay v Woods nor is or was it apposite in the present case. 2. Mr Crossland emphasised that the present case was very different from cases such as Baumgartner and West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [59] in which Campbell J observed that, in accordance with a passage his Honour cited from Baumgartner, "a plaintiff needs to establish that there is indeed a joint endeavour between the parties in which expenditure is shared for the common benefit". Apart from needing to be understood in the specific context of the facts of that case and in light of observations in Baumgartner to which Campbell J referred, as already explained, in the present case, there was "common benefit" in the Joint Endeavour for both Ravina and Ronnie and Marie. There is no reason in principle why the "common benefit", to the extent that it may be required to be shown (and Muschinski does not suggest that this is a requirement for the imposition of a remedial constructive trust), must be material in the sense of a financial benefit. 3. In written reply and oral submissions, Mr Crossland also advanced an argument which seemed to resolve into the proposition that Ronnie and Marie could have sought to restrain the sale of the Property by asserting an equitable life interest, and because they had not done so and allowed the sale of the Property to proceed, there was no basis for their seeking relief by way of constructive trust. He pointed to the fact that, in an earlier iteration of the Cross-Claim, they had sought a declaration that Ravina was estopped from denying their equitable life estate in the Property but noted that this prayer for relief was not pursued. 4. Allied to this argument was the submission that a constructive trust could only be imposed where the parties had not adverted to what would happen to a property the subject of a joint endeavour if the basis of the arrangement were removed, contending that the parties had agreed that Ronnie and Marie would have a life estate. There was, however, no such agreement found, either as a matter of law or equity. In any event, such an argument had no basis in any authority to which the Court was taken and would be to impose an unattractive fetter on an equitable remedy the flexibility of which is central to its operation: Muschinski v Dodds at 608, 615; Thynne v Sheringham [2023] NSWCA 181 at [7]. 5. As the passage from Muschinski extracted at [7] above emphasises, critical to the operation of the equitable doctrine is the removal of the substratum of a joint relationship or endeavour without attributable blame where the benefit of money or other property contributed by one party (here, Ronnie and Marie) on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party (Ravina) in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The present was a classic case for the application of that doctrine, and the primary judge, after a clear and closely reasoned process of fact-finding which was wholly unchallenged, applied the doctrine in an entirely orthodox and clearly correct way. 6. Contrary to the Appellant's second ground of appeal, the primary judge did not err by treating the series of mortgage payments made by Ronnie and Marie to discharge Ravina's obligations under the mortgage (see [21] above) as contributions to the Joint Endeavour. 7. The fact that they may have been requested by Ravina was entirely consistent with the existence and underlying purpose of the Joint Endeavour. It was to Ronnie that Ravina looked for assistance, just as she had looked to him and Marie in relation to the completion of construction on the Property. The primary judge rejected Ravina's attempt to characterise the payments as in effect payments of rent, and there was no suggestion put to Ronnie that they were made by way of gift to Ravina. They were plainly made by way of contributions to the Joint Endeavour and, as the primary judge held, represented an extension of the Joint Endeavour. The payments bore the objective character of contributions and could bear that character even though such payments were not initially contemplated when the Joint Endeavour was formed and were motivated by a desire to assist Ravina discharge her immediate legal obligations in relation to the mortgage over the Property. The second ground of appeal should be dismissed. 8. The third ground of appeal was that: "If despite Ground 1 the joint endeavour was formed, the primary judge nevertheless erred in ordering a remedial constructive trust because (a) the cross-claimants had received the benefit of occupation of the subject property over many years; so that (b) distribution of the property's sale proceeds in accordance with legal title would not have been unjust." 1. This ground of appeal should also be dismissed. It was the entire nature of the agreement between the parties that the Respondents would live in the Property rent-free on the condition that they contributed to the construction, maintenance and improvement of the Property, which they did. It was the departure from that agreement or arrangement, following the breakdown of the relationship between the parties, with the consequent move to evict Ronnie and Marie and their children from the Property, and the retention by Ravina of the benefits of their material contributions over many years in a way that was not intended, that rendered the circumstances unconscionable and warranted the imposition of a constructive trust. 2. To require the value of notional rent over a period of approximately 10 years to be taken into account and deducted from the contributions made by Ronnie and Marie and their share of any increase in the value of the Property would be to proceed on a basis entirely different from the arrangement which had been made by the parties, the underlying basis for which had been removed through no fault of theirs. The approach taken by the primary judge was consistent with the approach taken by Parker J in Makaritis v Makaritis (No 3) [2023] NSWSC 409 at [40] and was not in error. The primary judge's orders were moulded to the justice of the case in an entirely orthodox manner. 3. In reply submissions, the Appellant also accepted that the argument the subject of the third ground of appeal was not advanced at first instance in relation to the constructive trust remedy. 4. Ground 3 should be rejected. Conclusion 1. For these reasons, the appeal should be dismissed with costs. 2. GLEESON JA: I agree with Bell CJ. 3. STERN JA: I agree with the Chief Justice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2024