THE PUBLIC TRUSTEE v MARIE KUKULA [1990] NSWCA 174

THE PUBLIC TRUSTEE v MARIE KUKULA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and HANDLEY JJA 16 March 1990, 5 June 1990

[1990] NSWCA 174

DE FACTO RELATIONSHIPS — Equity — Promise of Marriage by married man — Parties working on each others farms without promise of reward — No permanent improvements — End of relationship — No constructive trust — No promissory or proprietary estoppel — Equitable charge for value of plaintiff's work declared by judge held: equitable charge for value of plaintiff's work could not be supported.

Samuels JA I agree with Handley JA.

Clarke JA I agree with the reasons given by Handley JA for concluding that, upon the facts of this case, the respondent has failed to establish a basis for the imposition of a constructive trust or the application of the principles relating to proprietary estoppels.

Accordingly, I agree with the orders proposed by his Honour.

Handley JA This appeal from a decision of Mr Justice Cohen in the Equity Division arises out of the personal and financial relationships between the plaintiff Marie Kukula and the late Jaroslav Bartos (the deceased). The deceased died on 3 May, 1979 intestate, and his next of kin, namely his mother and his sister, are resident in Czechoslovakia. In early March 1965 the deceased, then being married, formed a somewhat unusual de facto relationship with the plaintiff. Each continued to maintain separate homes and separate farming businesses. They did not pool their incomes or their assets. Because the deceased was married divorce was not seen as practicable until after December 1969 when the five year period of separation then available as a no fault ground for divorce under the Matrimonial Causes Act 1959 (Cwlth) had expired. However the deceased promised to marry the plaintiff when free to do so. They agreed that after their marriage they would sell the plaintiffs farm and live together on the deceased's farm and pool their assets in their joint names. In the meantime they would assist each other as much as possible in working their separate farms on a voluntary basis.