New South Wales Supreme Court CITATION : West v Mead [2003] NSWSC 161 HEARING DATE(S) : 6/3/03-10/3/03 JUDGMENT DATE : 4 April 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Constructive trust imposed on increase in equity during course of relationship in property not that in which parties lived, subject to right of occupancy of person presently residing in that property CATCHWORDS : TRUSTS - constructive trusts - arising on termination of de facto relationship - effect of payments being made from joint bank account for purposes for which both parties approve - effect of one partner owning property prior to commencement of relationship, the equity of which is increased during the relationship - whether constructive trust can be imposed on property not the home in which parties lived - effect of improvements being made to home in which parties lived - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - imposition of constructive trust on termination of relationship - EQUITY - equitable estates and interest - joint bank account - rights of account holders to money in account, money withdrawn from account, and property purchased with money drawn from account - EVIDENCE - miscellaneous matters - Browne v Dunn (1893) 6 R 67 - effect of failure to cross examine on evidence contained in affidavit served on opposite party before trial, and replied to by that party LEGISLATION CITED : Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Atwood v Maude (1868) LR 3 Ch App 369 Baumgartner v Baumgartner (1987) 164 CLR 137 Balfour v Balfour [1919] 2 KB 571 In Re Bishop; National Provincial Bank Ltd v Bishop [1965] Ch 450 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 Browne v Dunn (1893) 6 R 67 Croton v R (1967) 117 CLR 326 Ebner v Official Trustee in Bankruptcy, in the matter of Ebner [2003] FCA 73 Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744 In the Marriage of Fogarty (1976) 27 FLR 257 Forgeard v Shanahan (1994) 35 NSWLR 206 CASES CITED : Gage v King [1961] 1 QB 188 Giumelli v Giumelli (1999) 196 CLR 101 Heaton v Luczka New South Wales Court of Appeal, 3 March 1998, unreported Hibberson v George (1989) 12 FamLR 725 Jones v Maynard [1951] Ch 572 In the Marriage of L C & T C (1998) 23 FamLR 75 Lyon v Tweddell (1881) 17 ChD 529 Marelic v Comcare (1993) 121 ALR 114 Muschinski v Dodds (1985) 160 CLR 583 Palmer v Bank of New South Wales (1975) 133 CLR 150 In the Marriage of EH & K Pickard (1981) 7 FamLR 636 Re Reid; Clark v Reid (1998) 85 FCR 452 Russell v Scott (1936) 55 CLR 440 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Stern v National Australia Bank Limited (2000) 171 ALR 192 PARTIES : Susan Ellen West - Plaintiff Julie Mead - Defendant FILE NUMBER(S) : SC 4940/99 COUNSEL : M Bateman - Plaintiff L Aitken - Defendant SOLICITORS : John Hunter - Plaintiff Gray & Perkins - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J 4 April 2003 4940/99 SUSAN ELLEN WEST v JULIE MEAD JUDGMENT 1 HIS HONOUR: The plaintiff and the defendant are women who cohabited in a domestic relationship from 1983 until 1998. Prior to the start of the relationship, the defendant had interests in three pieces of realty. Over the period of the relationship the defendant's equity in that real estate increased. The plaintiff seeks a declaration of a constructive trust over some of that real estate, or alternatively an order for repayment of her contributions and a declaration that she is entitled to an equitable charge over some of the defendant's real estate, to secure that obligation to repay. The Course of the Relationship 2 The Plaintiff ("Ms West") was born on 13 July 1956. The defendant ("Ms Mead") was born on 30 June 1953. They commenced to live together in 1983, when Ms West was 26 years old and Ms Mead was 29 years old. Throughout the relationship they shared a house ("the relationship property") at 39 Caroline Street, Kingsgrove. 3 Ms West and Ms Mead had met in late 1982. At that time, Ms Mead was letting two spare bedrooms in the Kingsgrove house to a lodger. In the course of 1983, Ms Mead invited Ms West to come and live with her at the Kingsgrove house. The lodger moved out. At the time Ms West moved in, Ms Mead explained to her, "Its my mother's house. We have swapped places. She lives in my unit in Lakemba and I live in her house." 4 Ms West gives evidence, which I accept, that from the commencement of the relationship until about July 1998 she and Ms Mead "a. shared the physical facilities of the dwelling on the relationship property as the defendant's and my residence, and the residence of the children of the relationship … b. occupied the main bedroom of the dwelling on the relationship property and slept with each other in the same bed of the main bedroom of the dwelling on the relationship property, c. had sexual relations with each other, d. mutually and independently recognised our relationship with each other as that of a couple, e. shared meals together, f. carried out domestic duties, and other duties, in relation to the needs of each other, the children and of the household, g. carried out the personal needs of each other and of the children, h. shared common personal and social friends and acquaintances, i. socialised together, including with each other's respective extended families, and j. holidayed together." 5 At the start of the relationship, Ms West was working full time as a Community Information Officer with the Canterbury Council. Ms Mead was working full time for the Department of Youth and Community Services as a Child Care Worker. In July 1984 Ms West resigned from her job, and Ms Mead took six months leave without pay. They travelled around Australia for six months. Upon returning to Sydney, Ms Mead resumed her employment. Ms West had some months of unemployment, but in March 1985 obtained full time employment as a Crisis Care Worker with the Department of Community Services. 6 From the beginning of the relationship, they shared some expenses of the household, but did not share any expenses which resulted in the acquisition of any property of enduring value. 7 In the early part of 1986 Ms West and Ms Mead came to a decision that they should have a child. They agreed that it should be Ms Mead who would bear the child, because she was older, and because Ms West was in full-time employment, but that Ms West would act as a co-parent for the child, and have a big role in the raising of the child. 8 In early 1986, Ms Mead took three years unpaid leave from the Department of Youth and Community Services to undertake further education. In March 1986, she began full time study at a university. She applied for and obtained an Austudy allowance. During 1986 she became pregnant. Ms West and Ms Mead attended ante-natal classes together. At the beginning of 1987, when the birth was imminent, Ms Mead gave up her studies, and her Austudy allowance was discontinued. However, following the birth of her child in March 1987 she began receiving a sole parent pension. 9 On 21 March 1987 Ms Mead gave birth to a son, Joel. Ms West was at the hospital at the time of Joel's birth, and held him within minutes of his birth. He was brought home to live at the relationship property. 10 At the time of Joel's birth Ms West took six weeks leave without pay from her employment. During those six weeks she was involved in caring for Joel. At the end of those six weeks, Ms West returned to full time work. 11 Ms Mead never had full time work thereafter, though she had a variety of casual, part time jobs. Her income was supplemented by a single parent pension, and the governmental payment which was at one time called child endowment, and later called family allowance. She also had some rental income. 12 In about July 1988 Ms West commenced employment as a teacher at St George TAFE. She has continued in full time employment connected with TAFEs ever since then, though from time to time she has changed the locality where she works, and has been promoted to more senior positions. 13 In about April 1989 Ms West and Ms Mead discussed the possibility of bearing and raising another child. A consensus was reached that Ms West should bear this child, and that Joel and the new child should grow up in a family environment as siblings. A consensus was arrived at that Ms West should take six months leave at the time of birth of the child and then return to full time work, and that Ms Mead would care for both children during Ms West's work hours. 14 In late 1989 Ms West became pregnant. During the pregnancy, she and Ms Mead prepared Joel, in the way parents do, for the arrival of a little brother or sister. In July 1990 Ms West gave birth to a son, Tim. He also came to live at the relationship property. 15 After the birth of Joel, Ms Mead was always the one with primary, but not sole, responsibility for childcare. After Ms West had returned to work, following the six weeks leave she took at the time of Joel's birth, Ms West provided some assistance during the evenings and on weekends. From July 1988 to late 1997 or early 1998, Ms West arranged her working week so that she worked four days per week and one evening of one of those four days. She usually spent the other three days per week and six evenings per week with Ms Mead and the children. From about July 1988 to the end of the relationship, Ms West had about 11 weeks leave from her employment each year, which she spent with Ms Mead and the children. Ms Mead's mother, Nancy Veronica Mead ("Mrs Mead") came to the Kingsgrove house during the day on average three or four times a week for a number of years after Joel was born. Mrs Mead helped with Joel, and later Tim, and also with the housework. Tim had special medical and dietary needs from birth. He was lactose intolerant, which required constant care with his diet. From about 18 months of age he developed severe asthma, which required constant medical supervision and treatment and medical supplies. It was Ms Mead who took Tim to doctors and supervised his medical requirements much more than Ms West. Ms Mead's mother often minded the boys, either at the Kingsgrove house or at the Lakemba unit, if Ms West and Ms Mead were both working. Ms Mead, assisted by her mother, carried out the vast bulk of the domestic tasks from the start of 1987 onwards. Ms West was the source of the larger part of the money spent on household expenditure from the start of 1986 onwards. 16 The relationship between Ms West and Ms Mead came to an end in July 1998. Over a period from November 1987 to July 1998 they went to a counsellor, "to deal with some issues within the relationship". The Parties' Interests in Real Estate 17 At the start of the relationship between Ms West and Ms Mead, Ms Mead had interests in three pieces of real estate. The first was a two bedroom home unit, Unit 22, 25-27 Phillip Street Lakemba. It has an area of 76.5 square metres, and is entitled to an undercover car space with an area of about 25 square metres. It is in a multi-storey building about 30 years old containing 27 units. This unit had been purchased by Ms Mead and her then husband in 1976. The purchase price was $21,500. Of this amount, $18,000 was raised on mortgage from the New South Wales Permanent Building Society, while the balance was provided from their savings. Upon their divorce in 1980, Ms Mead's husband transferred his interest in the Lakemba unit to her, subject to the mortgage to the Building Society, in exchange for $7,000. Ms Mead paid this $7,000 by taking a second mortgage from the ANZ Bank in an amount of about $5,000, and meeting the balance from her savings. She had paid off the debt secured by the second mortgage by the early to mid 1980s, though the second mortgage remained on the title to the Lakemba unit, securing no debt, until the time of these proceedings. 18 Ms Mead still owns the Lakemba unit. It is now unencumbered. Ms Mead's mother lives in the unit, as she has done almost continually since 1978. The only exception is that during the six months that Ms West and Ms Mead were travelling around Australia in 1984, Mrs Mead moved back to the relationship property, the Lakemba unit was rented, and the rent was used to meet mortgage payments and other expenses. Ms Mead estimates the current value of the Lakemba unit as being $160,000. 19 The second property in which Ms Mead had an interest was the relationship property, at Kingsgrove. This was a freestanding three bedroom brick and tile house built in the 1930s. It had a separate lounge and dining room, a kitchen which had been fully renovated in 1978, and a bathroom which had been fully renovated in 1982. At the commencement of the relationship, the relationship property was furnished, had established grounds, and an aboveground swimming pool in the backyard. Ms Mead and her then husband had recarpeted it throughout when they moved into the house in 1978. Ms Mead had repainted the property internally in 1982, and had it rewired in that same year. 20 The relationship property had been the matrimonial home of Ms Mead's parents. Ms Mead's parents separated in 1971, and Ms Mead's mother continued to live in the property. Ms Mead's father died on 10 October 1975, and by his will left Ms Mead's mother a life estate in the property, and gave to Ms Mead and her brother the interest in remainder as tenants-in-common in equal shares. At the time that they acquired these interests, there was a mortgage on the title to the Kingsgrove property, which was refinanced from time to time until it was paid out in November 1998. Ms Mead's brother made all those mortgage payments. No evidence suggests that any part of the money raised by mortgaging the Kingsgrove property was used for paying expenses of Ms Mead or Ms West. 21 At some time in 1978 Ms Mead agreed with her mother that Mrs Mead would thereafter live in the Lakemba unit, and Ms Mead and her then husband would live in the Kingsgrove house. Ms Mead and her mother exchanged residences in 1978. In about 1980, Ms Mead and her mother agreed that Mrs Mead would thereafter pay the outgoings associated with the Lakemba unit such as council and water rates, strata levies and service charges, and that Ms Mead would pay the rates and service charges connected with the Kingsgrove house. They also agreed that Ms Mead would retain the responsibility for the mortgage on the Lakemba unit. Those arrangements were not fully observed during the period of the relationship between Ms West and Ms Mead – see paragraph 39 below. 22 In November 1999 the relationship property was sold by auction for the sum of $340,000. After deduction of selling expenses, net sale proceeds of approximately $330,000 remained. An interlocutory order made in these proceedings has required one half of the net sale proceeds to remain in a controlled money account pending the outcome of these proceedings. 23 The third property in which Ms Mead had an interest at the start of the relationship is a home unit known as Unit 8, 27 Baxter Avenue, Kogarah. This unit had been purchased by Ms Mead's father in about 1972, to accommodate his parents. After Ms Mead's father died in 1975, Ms Mead, her mother and her brother purchased the unit, so that Ms Mead's grandparents could continue to live there. The purchase price was $18,000. Of this, $4,000 was paid by Ms Mead's brother, and the balance was borrowed from the National Australia Bank. The grandparents remained in occupation of the unit until about 1985. During that period, the grandparents paid rent, which was consumed in paying the rates and strata levies for the unit and meeting the monthly mortgage repayments to the National Australia Bank. 24 The grandparents moved out of the Kogarah unit in 1985. Thereafter, it was rented to tenants who had no family connection to the Meads. Around July 1986 Ms Mead's brother paid out the balance of the mortgage due to the National Australia Bank, and the unit was remortgaged to Westpac. The monies raised by that mortgage were used by Ms Mead's brother. In 1992 the mortgage to Westpac was discharged, and a further loan was taken out by Ms Mead's brother, secured by the Kogarah home unit. Apart from a few expenses listed in paragraph 41 below, neither Ms Mead nor Ms West has been involved in paying expenses connected with the Kogarah unit. 25 Ms Mead, her mother and brother still own the Kogarah unit. Ms Mead puts its value at approximately $140,000. 26 At some time in the first half of 1985 Ms Mead began to receive the net rent from the Kogarah unit. Her brother allowed her to keep all the net rent from the Kogarah unit up to January 1988, after which time they shared the net rents. The net monthly rental over the 1985-1988 period was about $400. 27 Ms West had no real estate at the start of the relationship. In 1986, Ms West said to Ms Mead that she thought that she (Ms West) should begin purchasing some property. Ms Mead agreed that that was a good idea, and they inspected an apartment at Punchbowl. They did some calculations of their income and expenditure, and came to the conclusion that they could not afford it, with their existing commitments. Ms West did not thereafter purchase any real estate. Sources of Money During the Relationship 28 During the period of the relationship with Ms West after July 1984, Ms Mead had income not only from part time work, her pension, child endowment or family allowance, and the net rents of the Kogarah unit, but as well she received some sums of capital. Ms Mead gives evidence that around 1985 she found between $5,000 and $6,000 in cash in the Kogarah unit, after her grandparents had vacated it, and that her grandfather said she could keep that money. She gives evidence that she resigned from the Department of Youth and Community Services when her unpaid leave expired in 1989, and thereupon received an amount of between $3,000 and $4,000 as payment in lieu of long service leave. She also gives evidence that she had been made a signatory to two bank accounts of her grandfather, which contained a total of about $11,000. Ms Mead's father was the grandparents' only child, and after the death of Ms Mead's father, Ms Mead and her brother were the only living relatives of her grandfather. From about 1985 the grandfather began to lose his mental faculties. Ms Mead gives evidence that with her brother's approval, she used the money in her grandfather's bank accounts for her own purposes, apart from about $2,000 which she spent from time to time on her grandfather's needs. Both of her grandparents died intestate, so she and her brother would have been the people entitled on intestacy following the death of both her grandparents. As well, Ms Mead says she received gifts of cash from her mother and her brother from time to time. 29 Much of the income which Ms Mead received from part time work was paid to her in cash. There are no documentary records to support the amounts which she says she received for working during the period of the relationship. In answer to a subpoena, she did not produce any tax returns. The evidence does not enable me to reach a view about why she produced no tax returns in answer to the subpoena. In the course of cross-examination it was demonstrated that Ms Mead had made some significant errors in her evidence concerning financial matters relating to the relationship. Because of the lack of documentation, and having seen her in the witness box, I would not be prepared to accept her evidence about income she received or capital which she acquired during the course for the relationship, as being anything other than an estimate subject to a fairly large margin for error. In those circumstances, there is no point in setting out the detail of the evidence Ms Mead gives about her income from working during the period of the relationship. 30 Ms West had no significant capital available to her during the relationship, and no income apart from her salary. Her salary increased incrementally, from about $22,000 per annum at the start of the relationship, to just short of $58,000 per annum at the end of the relationship in July 1998. The Joint Account 31 In late 1986 or early 1987 Ms West and Ms Mead opened a joint account with the Kingsgrove branch of the St George Building Society. Though the St George Building Society at one time changed its name to St George Bank, that account remained open for the rest of the relationship. Ms West arranged for that account to be credited with the net salary which she earned from time to time. The account was "opened on the basis of needing a joint account to defray a large number of expenses". Throughout the whole of the relationship thereafter, ordinary living expenses of Ms West, Ms Mead, Joel and Tim were drawn from that account. As well, however, some of the household expenses were paid for by Ms Mead, using cash which she was paid for part time work. Cheques drawn on the joint account were not confined to ordinary living expenses of Ms West, Ms Mead, Joel and Tim. From 1988, some payments were made from the joint account for the care of Ms Mead's grandfather, who by this time was living in a nursing home. I will mention later some other amounts paid from the joint account which were not ordinary living expenses. 32 The joint account was the only cheque account which Ms West and Ms Mead had. Ms Mead had a savings account with St George, into which her share of the rent from the Kogarah unit was deposited. She also had a second savings account with St George, into which was paid first her Austudy payments, and later her sole parent pension and child endowment payments. 33 It was the regular practice of Ms West and Ms Mead, after the joint account had been opened, to sit at the kitchen table each month, go through the records of the joint account, look at bills they had recently received, and examine their credit card statements. They would discuss any queries which either of them wished to raise. There was never any objection, on Ms West's part, to the payment of any expenses connected with any of Ms Mead's properties from the joint account. Sometimes it was Ms West who drew the cheque for such expenses, and sometimes it was Ms Mead. 34 No record was kept by either Ms West or Ms Mead of the various expenses that each paid for, other than by writing a brief (and frequently quite incomplete) description of the purpose of a payment on the butt of a cheque drawn on the joint account. They never tried to reconcile whose money had been used for payment of which expenses at any time during their relationship. 35 While the evidence contained a detailed analysis of payments which had been made from the joint account, there was no corresponding detailed analysis of payments into the account. Rather, Ms West relied upon the fact that all her income went into that account, apart from an amount which was applied to her credit union account. That credit union account was one which related to a loan Ms West had taken out to pay for a motor vehicle. As well, some payments to the joint account were made from a separate bank account which Ms West maintained, and some other transfers to the account came from a bank account maintained in the name of Tim West. At least by September 1995 Ms West had given St George Bank an "auto sweep" instruction, whereby money would be transferred from her account to the joint account if ever the balance in the joint account ran low. 36 In affidavit evidence, Ms Mead identified deposits into the joint account which she said were made by her, from her earnings and resources, totalling a little under $60,000. Cross-examination showed that that claim was unsustainable, and that Ms Mead could recall only making a payment of $2,924 to the joint account. 37 Commencing from June 1987, repayments of principal and interest to the New South Wales Permanent Building Society (which later became Advance Bank) concerning the mortgage over the Lakemba property were made regularly from the joint account. During 1987 those payments were of amounts which appear to be precisely calculated (like $236, or $248). From the beginning of 1988 the payments were made in round sums, like $250 or $300. Payments were not made in this way from the joint account every single month, but a payment from the joint account for the loan on the Lakemba unit was made in the vast majority of months until the end of 1994. Payments were made from the joint account for the Lakemba loan on three occasions in 1995, once in 1996, and on two occasions in 1997. From the beginning of 1990 to the end of 1996 these payments were practically all in the sum of $300. The two payments in 1997 were each of $200. The total payments made from the joint account for the Lakemba mortgage over the period June 1987 to December 1997 were $23,518. (This figure is derived from pages 10, 11 and 12 of the summary of cheque butts in Exhibit A. It is the total of the amount shown under the headings "Lakemba" and "Loans Lakemba", apart from five cheques shown in the "Loans Lakemba", namely those drawn on 2 November 1988, 21 July 1987, 4 January 1988, 5 October 1987 and 17 August 1989.) 38 While there was a very noticeable falling off in the number of payments made from the joint account for the Lakemba loan during 1995, 1996 and 1997, the evidence does not establish whether payments were made monthly on that loan, but sometimes from a source other than the joint account, or whether payments were made less than monthly in those years. From January 1998, repayments of amounts due on the Lakemba mortgage were made from a St George Savings Account of Ms Mead. 39 As well, other expenses connected with the Lakemba unit were paid from the joint account, as follows: DATE ITEM AMOUNT 18.2.88 Council rates $301.40 13.2.89 Council rates $81.00 27.7.89 Water rates $107.00 17.8.89 Council rates $75.00 2.2.90 Water rates $106.93 2.2.90 Council rates $84.00 10.7.90 Council rates $171.20 17.9.90 Water rates $103.75 1.2.91 Council rates $348.00 22.2.91 Water rates $103.00 29.7.91 Water rates $107.00 12.2.92 Council rates $345.00 21.1.92 Water rates $108.00 27.4.92 Water rates $108.00 It is possible that other payments of council rates or water rates were made concerning the Lakemba unit from the joint account, because there were some cheques marked simply "council rates" or "water rates" without ascription to a particular property, which were drawn on the joint account. 40 Ms Mead gives the following evidence: "My agreement with my mother was that I would continue paying the mortgage instalments due on the Lakemba unit which were about $190 per month at the commencement of the relationship and I did so ." (emphasis added) "… I also drew cheques on the joint account to meet payment of some of my property expenses, including some payments of the mortgage instalments due on the Lakemba unit. I do not recall whether the plaintiff and I discussed these payments (ie the mortgage and other payments that I made in connection with my real estate) at any time but if not my understanding was that these payments were my sole responsibility. Accordingly, from time to time I paid monies into the joint account to compensate these withdrawals." I do not accept this evidence. 41 A small number of payments were made from the joint cheque account in connection with the Kogarah unit, as follows: DATE ITEM AMOUNT 21.7.87 Strata management fees $425.00 21.7.87 Water rates $290.00 5.10.87 Strata management fees $79.00 18.2.88 Council rates $71.64 2.2.95 Council rates $112.98 ??.95 Council rates $113.00 24.8.95 Council rates $125.00 6.6.96 Council rates $122.00 42 Certain expenses were paid from the joint account concerning the Kingsgrove house. As well as council rates and water rates, the following payments were made: DATE ITEM AMOUNT 22.11.87 Screen door $790 2.2.88 Pest control $165 4.3.88 Carpet cleaning $159 28.11.88 Pool – deposit $200 20.12.88 Pool – progress payment $2,924 30.12.88 Pool – progress payment $550 ?? 89 Guttering $500 ?? 89 Pest control $670 ?? 89 Structural modification of front verandah $461 6.1.89 Supply and erection of fence $400 21.1.89 Soil $15 18.1.89 Fence – further payment $885 21.7.89 Plumber $266 1.8.89 Supply and install verandah windows $924 10.8.89 Supply and install blinds $50 13.9.89 Supply and install blinds – further payment $310 29.9.89 Handyman $15 12.10.89 Soil $60 12.10.89 Carpet cleaning $80 14.11.89 Supply and install flyscreens $96 20.11.89 Pest control $98 24.9.90 Supply and erect fence $350 12.3.91 Carpet cleaning $125 18.12.91 Window $60 19.12.91 Carpet cleaning $120 9.6.92 Carpet cleaning $81 16.12.92 Carpet cleaning $94 43 At the time the cheque for $2,924 was drawn on the joint account to pay for the pool, Ms Mead made a payment into the joint account of $2,924. 44 It is possible that some other payments were made from the joint account for the purpose of the Kingsgrove property, but the cheque butt entries relating to that payment were not specific enough to enable it to be attributed to the Kingsgrove property. Financial Positions at the Beginning of the Relationship 45 At the start of the relationship, Ms West had a few household items of no great value, and a motor vehicle. Ms Mead had the interests in three items of real estate which I have already described, savings which she puts at approximately $2,000 to $3,000, and a motor vehicle. Financial Positions at the End of the Relationship 46 Soon after the end of the relationship, in March 1999, Ms West had accumulated savings of approximately $34,000 (including a loan to her brother of $10,000) and a balance standing to her credit in a superannuation fund of $29,000, some of which may well have been contributed by her employer. In March 1999 Ms West was entitled on immediate voluntary retirement to a superannuation lump sum of $56,891 (gross). As at that date, she was entitled to a retirement benefit at age 55 in the sum of $317,817. (I assume that that entitlement was contingent on her continuing to work to age 55, and making whatever contributions were required by the superannuation plan of which she was a member.) In addition, Ms West was entitled as at March 1999 to long service leave in a net amount of $7,201. She had no real estate. 47 At the end of the relationship Ms Mead had interests in the three items of real estate – the relationship property, the Lakemba unit, and the Kogarah property. Apart from this, she had only a small sum of money in her savings accounts, and no long service leave entitlements. Her last contribution to superannuation had been made in 1985. By the time of her resignation from the Department of Youth and Community Services in 1989, she had accumulated superannuation benefits of approximately $6,300. The evidence is silent as to whether those superannuation benefits had themselves increased, through the addition of investment income of the superannuation fund, in the period between 1989 and 1998. The Plaintiff's Claim 48 By her Further Amended Statement of Claim Ms West sought a declaration that Ms Mead held her interest in the relationship property, the Lakemba property and the Kogarah property as trustee for the two women, in shares proportionate to their contributions to the acquisition and improvement of all three properties. A first fallback position was a declaration that Ms Mead held her interest in all three properties as trustee for the two women in shares proportionate to their contributions to the acquisition of that real property, plus an order that Ms Mead pay Ms West "the sum which is properly attributable to the improvements effected on " the relationship property by Ms West. The next fallback position sought an order that Ms Mead pay Ms West "the sum which is properly attributable to the extent to which the plaintiff has contributed to" the acquisition of Ms Mead's interest in the three items of real estate, and improvements on the relationship property, plus an equitable charge to secure those amounts over the three items of real estate. 49 At the beginning of the hearing, Ms Bateman, counsel for the plaintiff, made clear that the only proprietary remedy which would be sought would be one relating to the Lakemba property. Part of the reason for taking this course was that Ms Mead's mother and brother had interests in the Kogarah property and the relationship property, and had not been joined as parties to the action. Legal Basis of the Claim 50 The Property (Relationships) Legislation Amendment Act 1999 amended the Property (Relationships) Act 1984, to permit claims to be made under that Act, including a claim under section 20 for adjustment of interests in property, by someone who had been involved in a domestic relationship with a person of the same sex. The 1999 legislation introduced a new section 6(2) which reads: "Without affecting subsection (1), this Act, as amended by the Property (Relationships) Legislation Amendment Act 1999, does not (except for Part 5) apply to or in respect of: (a) a domestic relationship that ceased before the commencement of this subsection, or (b) a person in so far as he or she was a party to a relationship referred to in paragraph (a)." 51 Section 2 of the 1999 Act provided that the amendments made by that Act commenced on a day or days to be appointed by proclamation. A proclamation made in the Government Gazette on 25 June 1999 named 28 June 1999 as that day. Because the domestic relationship involved in the present case ceased before the commencement of section 6(2), the amendments made by the 1999 Act do not apply to the present relationship. Hence, the plaintiff brings her claim under the general law concerning constructive trusts and equitable charges. 52 The decision of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137 involved a significant extension of the law of constructive trusts concerning property acquired in the course of a domestic relationship. The majority (Mason CJ, Wilson and Deane JJ) adopted the analysis which Deane J (with whom Mason J had agreed) had put forward in Muschinski v Dodds (1985) 160 CLR 583. That analysis applied in this area of domestic relationships, principles which Equity Courts had developed to decide property entitlements of participants in commercial ventures which fail. In Baumgartner at 147-148 the majority explained the result reached by Deane J in Muschinski v Dodds as one reached: "… by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. His Honour said ((1985) 160 CLR at 620) "… 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 the 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: cf. Atwood v Maude (1868) LR 3 Ch App 369 at pp 374-375 and per Jessel MR, Lyon v Tweddell (1881) 17 ChD 529 at p 531."" In deciding what would be "the extent to which it would be unconscionable for him so to do" the Court is guided by equitable principles, not by any idiosyncratic, unstructured or untutored concepts of unconscionability. 53 Case law provides various examples of equitable principles which could be applied. Atwood v Maude and Lyon v Tweddell, referred to in the passage of Deane J just quoted, were each cases involving a partnership of professional men, where an incoming partner had paid a premium, and the partnership was dissolved. In Atwood v Maude the partnership was agreed to be for seven years, but was dissolved after two years; because there was no relevant fault on the part of the partner who had paid the premium, he was entitled to receive back a proportionate part (but not all) of the premium paid. Lyon v Tweddell involved a partnership for no fixed term; the incoming partner had agreed to pay a premium in two instalments, and by the date of dissolution had paid only part of the first instalment. The Vice-Chancellor had ordered dissolution on the basis that the premium paid need not be returned, but neither need the premium not paid be paid. Jessel MR, at 531 said concerning this: "It is the duty of the Court when dissolving a partnership on equitable grounds to decide upon what fair terms the dissolution should be made. This has been treated in the argument as a simple question of return of part of the premiums. But that is only one element in the question. It is the duty of the Court to look at all the facts, and do what is equitable between the parties. The Vice-Chancellor has had all the facts before him and has come to a conclusion; and this Court ought not to interfere with his discretion except upon very sufficient grounds." James LJ said, at 531: "… I think that the terms of dissolution are a matter of judicial discretion for the judge who hears the cause, and I do not feel disposed to interfere with the Vice-Chancellor's conclusion." 54 Upon dissolution of a partnership, the usual equitable principle is that, after payment of partnership debts, partners are refunded their capital contributions, and any surplus is then divided in the proportions in which the profits of the partnership are shared. Profits of a partnership are shared equally, unless there is some agreement to the contrary. In Muschinski v Dodds the order which Deane and Mason JJ would have imposed was one: "… declaring a constructive trust of the Picton property to the effect that, on and after the day on which the reasons for judgment of this Court are published, Mrs Muschinski and Mr Dodds hold their respective legal interests as tenants in common upon trust (after payment of any joint debts incurred in improvement of the property) to repay to each her or his respective contribution and as to the residue for them both in equal shares." (160 CLR at 623-624) This order applied the equitable principles for distribution of assets of a partnership on its dissolution. 55 In Baumgartner the majority did not seek to follow this aspect of the judgment of Deane J in Muschinski v Dodds. Rather, their Honours looked at the contributions which had been made to the purchase price, and made some adjustments, arising from the facts of that particular case, to the proportionate interests arising from the contributions which had been made. Though their Honours did not identify the caselaw which articulated the principles which they were applying, those principles are demonstrated by the process of reasoning which their Honours engaged in. 56 One equitable principle which is inherent in their Honours' reasoning is that the beneficial title to an asset ought be proportionate to the contributions made to its purchase price. This is a notion which is familiar in the law concerning resulting trusts. It gets transmuted in several ways in being applied to this area of the law of constructive trusts. One way is that an extended notion of "contributions" is used, so that non-monetary contributions are taken into account. The majority in Baumgartner expressed this notion by saying, at 149: "The case is accordingly one in which the parties have pooled their earnings for the purpose of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise , to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent." (emphasis added) Similarly, the majority, at 149-150 spoke of the process of ascertainment of the parties' interests pursuant to such a constructive trust as involving: "… adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions, either financially, or in kind ." (emphasis added) 57 Extending the notion of contributions to include not only monetary contributions (which are readily measurable), but also non-financial contributions (not so readily measurable in monetary terms) raises the prospect of difficulty of application of this principle. In practice, that difficulty often does not become acute because of that way that presumptions, and the onus of proof, work in this area. 58 Before any particular asset can become subject to a constructive trust in accordance with the Baumgartner principle, one needs to have a joint relationship or endeavour, and an asset acquired in the course of, and for the purposes of, that joint relationship or endeavour. In Baumgartner at 149 the application of the principle proceeded thus: "The facts that the Leumeah property was acquired and developed as a home for the parties and that, at least indirectly, it was largely financed out of money drawn from the pool of their earnings, this being one of the purposes which the pool was to serve, combine to support an equality of beneficial ownership at least as a starting point. Equity favours equality, and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind." 59 In accordance with this approach, a plaintiff needs to establish that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is. Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non-financial, to that asset should be regarded as unequal. In practical terms, this way of proceeding will place the onus of attributing a value to non-financial contributions on the person who asserts that the title should be held unequally. 60 A second way in which the principle that beneficial ownership should be proportionate to contributions, which underlies the law of resulting trusts, is transmuted in the Baumgartner type of constructive trust, is in another aspect (besides counting non-monetary contributions) of what counts as a contribution to the purchase price. The payment of mortgage instalments, after a property has been acquired using money borrowed and secured by mortgage, has been accepted as a "contribution", in this context – Baumgartner at 148. This is unlike the resulting trust principle, in accordance with which it is only in unusual situations that a payment of such mortgage instalments is regarded as a contribution. (References concerning this aspect of resulting trusts are collected in Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 at [141]-[142]). 61 Even if one bears in mind that mortgage instalments usually include a component of each of principal and interest, it is still possible for the mortgage instalment to be taken into account in deciding the terms of a constructive trust. Continual payment of the interest on the loan which finances the family home is every bit as much a part of the joint endeavour of maintaining the family unit and providing for its future as is meeting other recurrent but necessary expenses like buying the groceries. But the fact that part of the instalment is a payment of interest means that the beneficial interest in property acquired as a result of paying an instalment is not likely to be equal in value to the amount of the instalment paid. It is the proportions in which contributions to the purchase price are made which matter in determining beneficial ownership, not the absolute amount of such contributions. 62 Another aspect of difference between the Baumgartner basis for a constructive trust, and a resulting trust, concerns the role which the intention of the parties plays. The Baumgartner type of constructive trust is imposed to prevent an unconscionable assertion of legal title, in circumstances where the parties had no explicit intention about how the legal title would be held in the circumstances which have arisen. By contrast, the presumption of a resulting trust is one which seeks to give effect to the intention of the parties, by making a presumption about what that intention was (Russell v Scott (1936) 55 CLR 440 at 451; authorities collected in Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 at [133]-[136]). Even so, that is not to say that the intention of the parties has no role to play in whether a Baumgartner constructive trust should be held to exist. Part of the justification for imposing the Baumgartner constructive trust is that the parties have jointly been building up assets, on the basis that those assets will be available for the joint endeavour in future. Part of the reason why it can be unconscionable to let the legal title lie where it falls, if the relationship fails, is that each knew that the other was contributing to a common pool on the basis that the pool, and assets acquired from it, would be used for their ongoing common benefit. It is unconscionable for the party who ends up, at the end of the relationship, with a disproportionate share of the assets which were built up during the relationship, to keep those assets when he or she knew that that was the basis on which the assets were being built up. 63 Another way in which the intention of the parties would be relevant would be if they had formed an express intention about what was to happen in the circumstance which has in fact arisen. If the parties have expressly contemplated the very situation which has arisen, and have, in advance, agreed how the assets built up as a result of their joint efforts should be divided in that situation, it would often be the case that there is nothing unconscionable in holding the parties to their agreement. 64 A further way in which the intention of the parties is relevant is that the Baumgartner basis for a constructive trust arises only when there is a premature termination of the relationship. To decide whether this has happened, one must look at what the intention of the parties was, about how long their relationship would endure. To take an extreme example, if one of the partners makes clear that he or she is making no commitment whatever to the relationship, and is free to walk out at any time and keep any property he or she has acquired during the relationship, it is hard to see how there is anything unconscionable in the property interests lying where they fall when the relationship ends. 65 In the present case, from the commencement of the relationship in 1983 Ms West and Ms Mead were sharing many aspects of their life, but there was no joint endeavour which resulted in the acquisition of any property for the purpose of their life together, other than property which was consumed or used up within a comparatively short time of being acquired. There is no reason to believe that any of the property which was acquired during the first few years of the relationship continued in existence past the end of the relationship; thus no question arises of any property which was acquired during the early years of the relationship being enjoyed, after the end of the relationship, by the owner in circumstances which were not contemplated at the time of the acquisition of that property. Further, during the early years of the relationship, the evidence provides no basis for concluding that the parties regarded it as anything more than a temporary expedient – both women were, in large part, in full time employment, and, apart from sharing the periodical expenses of a shared household, their financial affairs were not intertwined. Nor is there any basis in the evidence for concluding that they had, at the start of their relationship, any mutual commitment to a long-lasting relationship. In those circumstances, there is no basis for concluding that their relationship, during its early years, gives rise to a constructive trust of the Baumgartner type. 66 1986 and 1987 marked a significant change in scope of the relationship – Ms Mead gave up full-time employment and began attending university, and as well Ms West and Ms Mead came to a decision to have a child. In the course of reaching that joint decision, Ms West told Ms Mead that she would support her emotionally and financially. At that time Ms West talked to Ms Mead, without apparent demur, about them having a strong commitment to their relationship to each other. Having a child inevitably brings with it commitments and responsibilities lasting many years. 67 It was in 1986 or early 1987 that the joint account was opened, and in 1987 that payments of instalments of the Lakemba mortgage started to be made from the joint account. Payments of Lakemba mortgage instalments started to be made from the joint account a few months after Joel was born. Ms West gave evidence, on which she was not cross-examined, and which I accept that: "After the joint account was opened, I accepted that many of the defendant's financial commitments were met from joint account funds because I was in a committed relationship with the defendant that I expected to not cease. Accordingly, I accepted that the defendant's and my respective responsibilities be met by the relationship resources." 68 It was also in 1986 that Ms West considered, and rejected, the idea of purchasing some real estate of her own – the reason for her rejection being the joint realisation that they could not afford it with their existing commitments. 69 Mr Aitken, counsel for Ms Mead, submits that there is no basis for the imposition of a Baumgartner constructive trust here, because of legal principles concerning the beneficial ownership of property acquired from a joint bank account. 70 Jones v Maynard [1951] Ch 572 concerned a husband and wife who had a joint bank account which both were entitled to draw on. They had no agreement about their respective rights in the account, but referred to it as "a pool of our resources", "our savings", and "our joint savings". The husband had made the larger part of contributions to the account. After the wife had left the husband, the husband withdrew the balance and invested it in his own name. The wife claimed to be entitled to a half share in the final balance of the account, and in the investments purchased from it. Vaisey J held that the wife should succeed. He said, at 575: "In my judgment, when there is a joint account between husband and wife, and a common pool into which they put all their resources, it is not consistent with that conception that the account should thereafter (in this case in the event of a divorce) be picked apart, and divided up proportionately to the respective contributions of husband and wife, the husband being credited with the whole of his earnings and the wife with the whole of her dividends. I do not believe that, when once the joint pool has been formed, it ought to be, and can be, dissected in any such manner. In my view a husband's earnings or salary, when the spouses have a common purse, and pool their resources, are earnings made on behalf of both; and the idea that years afterwards the contents of the pool can be dissected by taking an elaborate account as to how much was paid in by the husband or the wife, is quite inconsistent with the original fundamental idea of a joint purse or a common pool. In my view the money which goes into the pool becomes joint property. The husband, if he wants a suit of clothes, draws a cheque to pay for it. The wife, if she wants any housekeeping money, draws a cheque, and there is no disagreement about it. That being my view, it follows that investments paid for out of the joint account, although made in the name of the husband, were in fact made by him in his own name as a trustee as to a moiety for his wife. If the investments out of the joint account had been made in the name of the wife alone, there is no doubt that the ordinary presumption of law would have applied and she would have been entitled to the investments; but as they were made in the name of the husband, it seems to me that the assumption of half and half is the one which I ought to apply. I think that the principle which applies here is Plato's definition of equality as a "sort of justice"; if you cannot find any other, equality is the proper basis. When moneys were taken out of the joint account for the purpose of making an investment, the intention which I attribute to the parties is equality, and not some proportional entitlement to be arrived at by an inquiry as to the amounts contributed respectively by the husband and wife to the common purse. Where one is searching for justice, as one must, and cannot find any other secure and sound basis, I think that equality is the best rule." 71 In In Re Bishop; National Provincial Bank Ltd v Bishop [1965] Ch 450 Stamp J considered a joint bank account of a husband and wife, which was drawn on from time to time to acquire investments in the name of the husband, and of the wife, individually. After the death of the husband a question arose as to beneficial ownership of both the investments purchased, and the balance of the account. Stamp J held that the investments belonged beneficially to the party in whose name they were purchased, and that the balance of the account passed to the widow by survivorship. He stated the following principles at 456: "Where a husband and wife open a joint account at a bank on terms that cheques may be drawn on the account by either of them, then, in my judgment, in the absence of facts or circumstances which indicate that the account was intended, or was kept, for some specific or limited purpose, each spouse can draw upon it not only for the benefit of both spouses but for his or her own benefit. Each spouse, in drawing money out of the account, is to be treated as doing so with the authority of the other and, in my judgment, if one of the spouses purchases a chattel for his own benefit or an investment in his or her own name, that chattel or investment belongs to the person in whose name it is purchased or invested: for in such a case there is, in my judgment, no equity in the other spouse to displace the legal ownership of the one in whose name the investment is purchased. What is purchased is not to be regarded as purchased out of a fund belonging to the spouses in the proportions in which they contribute to the account or in equal proportions, but out of a pool or fund of which they were, at law and in equity, joint tenants. It also follows that if one of the spouses draws on the account to make a purchase in the joint names of the spouses, the property purchased, since it is purchased in joint names, is prima facie, joint property and there is no equity to displace the joint legal ownership. There is, in my judgment, no room for presumption which would constitute the joint holders as trustees for the parties in equal or some other shares." 72 Stamp J distinguished the decision in Jones v Maynard on the basis that, when the husband and wife had agreed that the investments were to be "our savings" that gave the wife an interest in the investments made in the name of the husband ([1965] 1 Ch at 461-462). By contrast, in the case before him: "… not only do I find nothing to indicate that the joint account was opened for some limited or specific purpose or to preclude either spouse drawing money for the purpose of an investment in his or her own name, but positive indications that the account existed in order to enable this to be done; there is nothing whatever to suggest that either party suggested to the other that investments purchased were to be held on trust or that either party had the intention that the accumulations on the joint account should be invested and treated as "our savings" . 73 I accept that the law is as stated by Stamp J, so far as the rights of spouses to property purchased with money from a joint account is concerned. I will deal with Jones v Maynard not only by distinguishing it on its facts, in the way Stamp J did, but also by noting that the context for Vaisey J's decision in Jones v Maynard, was not the same context as Stamp J was operating in In Re Bishop. In In Re Bishop, Stamp J was concerned to ascertain who had beneficial interests in the investments, and the money in the joint account, for the purpose of administration of the deceased estate of the husband, when there was nothing unnatural, unexpected or untoward about the withdrawals from the joint account. Jones v Maynard was a case where the parties had separated and divorced. The legal test which Vaisey J applied in that situation was one which he set out at 574, which applied where a house had been purchased by a couple who later separated: "… The judge … should try to conclude what was in their minds at the time of the purchase and then make an order which, in the changed conditions, fairly gives effect in law to what the parties must be taken to have intended at the time of the transaction." 74 This test seeks to work out what is appropriate, given what the parties actually intended at the time of purchase, and taking that actual intention into account to decide what should happen in circumstances which the parties never envisaged, of their separation. It is a test to be applied in similar circumstances to those in which the Australian court comes to decide whether to impose a Baumgartner type of constructive trust, but the test which Vaisey J used looks to the intention of the parties, as judicially extrapolated, to decide whether there is such a trust. By contrast, Baumgartner recognises that the parties had no intention about how beneficial ownership was to lie in the circumstances which have actually arisen, and imposes the constructive trust by reference to equitable principles which do not simply seek to give effect to the parties' intentions. Because of the different context in which Stamp J made his decision, he had no need to apply the same legal test as Vaisey J had applied. And the legal test which Vaisey J applied is one which could not give rise to an express trust, and is inconsistent with Baumgartner as a basis for a constructive trust. 75 The law as laid down by Stamp J has been followed in Australia by Wood J in In the Marriage of Fogarty (1976) 27 FLR 257 at 264-5, referred to without disapproval (though distinguished on the facts), by Nygh J in In the Marriage of EH & K Pickard (1981) 7 FamLR 636 at 643, and followed by Heerey J in Re Reid; Clark v Reid (1998) 85 FCR 452 at 456, where his Honour said: "We are not concerned here with the question as to what is to happen to the balance in a joint account when the marriage breaks up. This is a very different question: Gage v King [1961] 1 QB 188" 76 The conclusion that one of the signatories to a joint account can withdraw and keep money withdrawn from the account, absent some binding limitation on doing so, appears in various other Australian cases. In Russell v Scott (1936) 55 CLR 440 at 454 Dixon and Evatt JJ said of an elderly woman who had put money into a joint account in the name of herself and her nephew: "In equity, the deceased was entitled in her lifetime so to deal with the contractual rights conferred by the chose in action as to destroy all its value, namely by withdrawing all the money at credit." 77 In Croton v R (1967) 117 CLR 326 at 334 Barwick CJ (with whom McTiernan J agreed) said of a man who had withdrawn all the money from a joint account he and his de facto kept (and whose conviction for larceny the High Court overturned): "I have indicated my doubt that it was established that he came under an obligation to account to Mrs Webster, or to apply the money in any particular way, at the time he received from the bank the amount withdrawn from the bank account. It was a joint account, with a right in each to withdraw. Whether or not there was evidence of a legally-binding arrangement as to the ultimate use of the amount standing in it may be doubted: and in default of such an arrangement it may be that either could withdraw the whole or any part without coming under any obligation to account…. If the correct conclusion of fact is that there was a binding arrangement of a kind to be legally enforceable that the credit in the account should only be used for a sufficiently defined purpose, and that the withdrawal of the balance in the account by the applicant, itself evidenced his intention to use the proceeds for some purpose unconnected with the agreed to purpose (which I doubt), the applicant none the less, in my opinion, would not commit larceny, but might be found guilty of misappropriation." 78 In Palmer v Bank of New South Wales (1975) 133 CLR 150 at 157 Barwick CJ (with whom Gibbs, Stephen and Mason JJ agreed) said, of the parties to a joint account: "she had a right of withdrawal in her lifetime for her own benefit of the whole or any part of the money to the credit of the account: and, if she survived him, she was to have for herself the balance then remaining in the account. On the other hand, the deceased, as one of the parties to the joint account, had a right to withdraw the whole or any part of the amount in the account, not merely the amount of his contribution to it." 79 In Ebner v Official Trustee in Bankruptcy, in the matter of Ebner [2003] FCA 73 at [27] Finkelstein J said that: "In any event, to the extent that Mrs Ebner relies upon Re Bishop I think the case is of doubtful authority. In Rathwell v Rathwell [1978] 2 SCR 436 Dickson J, who delivered the leading judgment of the Supreme Court of Canada said of the case (at 459): "I have difficulty in understanding the basis upon which it can be said that the joint owner who reaches the bank first can divert jointly-owned funds to the purchase of investments upon which the other joint owner will have no claim. In a decision of this court Re Daly; Daly v Brown , at p.148, a joint bank account case, McLellan J said: 'In a case of joint tenancy neither party is exclusive owner of the whole. Neither can appropriate the whole to himself'." (Footnotes omitted). " 80 I share, with respect, his Honour's doubts that it can be correct that "the joint owner who reaches the bank first can divert jointly owned funds to the purchase of investments upon which the other joint owner will have no claim." However, the concern arises from the notion of "diversion" – that assumes that there is some limitation on the authority on the party who has reached the bank first, which does not enable him or her to use the funds in the way he or she has in fact used them. That concern is fully catered for in Stamp J's statement of principle, because his rule applies only "in the absence of facts or circumstances which indicate that the account was intended, or was kept, for some specific or limited purpose". 81 When husband and wife have money in a joint bank account, that is, in law, a debt which the bank owes to the two of them jointly Russell v Scott (1936) 55 CLR 440 at 448, 450, 457; Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 at 82-83. If the bank is to be discharged from its legal obligation to pay that debt, it must act in accordance with an authority which the two of them have given to the bank. If the two of them have given authority to the bank entitling it to honour cheques or other documents seeking payment which are signed by one of them alone, then the bank will be discharged from its debt if it acts in accordance with that authority. By the very act of joining in signing an authority to the bank whereby either may withdraw from the joint account, the spouses are also conferring on each other authority to withdraw from the joint account. If there is nothing more than the spouses conferring that authority on each other, then either spouse will be able to withdraw the whole of the money contained in the joint account. However, there is no legal necessity for the scope of the authority which exists as between the spouses, to be the same as the authority which the spouses confer on the bank. It is perfectly possible for the spouses to agree, as between themselves, that, even though the bank is given authority to pay out the whole or any part of the money in the joint account on the request of either of them, that authority will be used only in limited circumstances, or for limited purposes. Even if there is no expressly stated limitation as between the spouses on the authority which they have, it might be the case, depending on the facts in a particular instance, that the court will imply or infer some limitations on the authority which the spouses give to each other to draw money from the account and apply it for their own purposes; if such limitations are proved to exist, and those limitations are exceeded, property purchased with funds from the joint account remain, in equity's eyes, subject to the joint ownership. It is at the level of fact-finding, about whether there is any limitation on the authority of one spouse to withdraw money from the joint account, that any consideration of whether legally binding relations are intended to arise from dealings between husband and wife may find a role: Balfour v Balfour [1919] 2 KB 571; Gage v King [1961] 1 QB 188 at 192-193. Thus, withdrawals can be made by either spouse from a joint account for matters within the mutually intended course of dealing with that account, and any property purchased for a spouse's own purposes with such a withdrawal will belong to the spouse who has made the withdrawal. This avoids, in many factual situations, the conclusion that spouses own 50% of each other's clothes purchased with money from the joint account. It avoids the conclusion that if one spouse withdraws money from the account and spends it in some social activity with his or her friends, without having specifically obtained permission from the other spouse to do so, spending the money so withdrawn involves a breach of trust. It also provides a proper basis of principle (provided that there is also a proper basis of fact established in the instant case) for concluding that, for example, a husband is acting beyond the authority conferred on him in withdrawing money from the joint account for the purpose of presenting his new girlfriend with a sports car. The limits on the authority which husbands and wives confer on each other to make drawings on a joint account may, in many factual situations, be imprecise, but that will not necessarily stop a court from deciding that those limits have, in examples like the one I have just given, been exceeded. 82 Beneficial ownership of items purchased from money in a joint account can, of course, depend upon factors other than the authority which spouses give to each other to draw from the account – a question of whether expensive furniture purchased from a joint account was jointly owned would depend partly on the authority which spouses gave to each other to draw cheques on the account, and also, partly, on the intentions which the spouses express to each other concerning that furniture. 83 Applying Stamp J's principle to the drawings which were made from the joint account in the present case for the purpose of paying the Lakemba mortgage, those monies became the property of the payee, the mortgagee. They were made within the scope of the authority which Ms West and Ms Mead conferred on each other to make withdrawals from the joint account. No trust attached to the money in the hands of the mortgagee. At the time each payment was made, no equity arose in Ms West by virtue of the payment having been made. 84 None of what I have said so far, however, prevents a constructive trust from arising on the Baumgartner principle. The principles which Stamp J expounded in In Re Bishop are ones which decide what legal and equitable rights exist in money withdrawn from a joint account, and property purchased with such money, immediately upon the money being withdrawn, or the property purchased. Baumgartner is concerned with a different subject matter. A constructive trust on the Baumgartner principle can arise no earlier than the time when the conditions for its exercise are in existence – that is, than the time when the relationship has broken down, without attributable fault, and one of the parties seeks to assert legal rights in relation to property acquired in the course and for the purposes of the joint relationship, in a way which is unconscionable. It is only because Ms Mead has an increased equity in the Lakemba property, as a result of payments made from the joint account during the relationship, that the occasion arises to impose a constructive trust. It is perfectly possible to accept the analysis which Stamp J gave of how drawings from a joint account operate, yet still impose a constructive trust. 85 Mr Aitken also submits that the present case goes beyond any previous case in that here Ms West seeks the imposition of a constructive trust over a piece of real estate which is not the home in which the parties to a relationship lived. That is not in itself a sufficient reason for not imposing a constructive trust. The reason why Ms Mead was living in the relationship property, at the commencement of her relationship with Ms West, was because Ms Mead and her mother had swapped their dwellings. The condition upon which Ms Mead was able to live in the relationship property was that she made the Lakemba unit available for her mother to live in. Making the Lakemba unit available for her mother to live in involved payment of the mortgage on Lakemba. Thus, payment of that mortgage was in a real sense a cost of Ms West and Ms Mead living together at the relationship property. 86 Further, payment of the mortgage on the Lakemba unit was part of the joint endeavour which Ms West and Ms Mead engaged in from the time the joint account was opened, and was for the purpose of that endeavour. It is not in accordance with equitable principle for Ms Mead to keep for herself all of the increase in equity in the Lakemba unit which she acquired in this way, now that the basis on which Ms West contributed to that acquisition has been destroyed. It follows from this that the pre-conditions for the declaring of a constructive trust, in accordance with Baumgartner, have been established. 87 Mr Aitken reminds me of the statement in the joint judgment of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101, at 113, that: "Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust." 88 In the present case, I do not see that there is a suitable remedy short of imposition of a trust. The fact that Ms West made contributions to the mortgage for the Lakemba property by putting money into the joint account, and that the money, when it came out of the joint account for that purpose, was being applied in accordance with her mandate, means that it cannot be said that in any direct sense it was her money which went into the Lakemba property. If any presumption of resulting trust applied to Ms West's payments into the joint account, her intention that the joint account be used to pay the expenses of herself and Ms Mead would rebut that presumption: Russell v Scott (1936) 55 CLR 440 at 449, 451-453; Palmer v Bank of New South Wales (1975) 133 CLR 150 at 157-158. Hence it cannot be said that any of her money can be traced into the Lakemba property. (I leave aside the fact that, as well, there was no fiduciary relationship between Ms West and Ms Mead). Thus, there is no adequate basis for fixing the amount of a charge over the Lakemba property. As well, as the valuation figures of the Lakemba property show, the value of the Lakemba real estate has gone up at a rate greater than inflation, or interest, in the period since the end of 1986. Particularly when, as part of the joint relationship, Ms West gave up, in 1986, her plans to acquire real estate for herself, it seems to me that her situation calls for an appropriate interest in the Lakemba real estate to be granted to her. 89 Ms West claims that she should receive a credit, in fixing the quantum of any constructive trust over the Lakemba property, by virtue of the fact that she contributed to the joint account, in ways which resulted in expenditure on the relationship property. The expenditure on the relationship property from the joint account nearly all occurred in early years of the joint account being on foot – see paragraph 42 above. Some of the payments which were made were in the nature of maintenance, rather than in the nature of improvements. While the making of these payments is part of the evidence to establish that there was a joint endeavour between Ms West and Ms Mead, insofar as the payments were in the nature of maintenance, they have not given rise to any asset upon which a constructive trust can be imposed. Ms Bateman accepts that, so far as improvements are concerned, it is the increase in value of the property as a result of effecting the improvements which ought be taken into account, not the cost of the improvements themselves. That seems to me to be right in principle. It is in accordance with the equitable principle upon which an allowance for improvements is made upon a partition suit between co-owners (Forgeard v Shanahan (1994) 35 NSWLR 206 at 223). However, there is no evidentiary basis for concluding that the money expended from the joint account on the relationship property increased its eventual sale price. That is a sufficient reason for not allowing Ms West any credit by virtue of having contributed to the joint account, and the joint account having made those payments. It is not necessary to consider the additional complications posed by the fact that the relationship property was one in which Ms Mead had only a half interest in remainder, and that an interest in Lakemba is sought as a consequence of payments made in connection with the relationship property. 90 The payments which were made in connection with the Kogarah unit were ones which did not increase anyone's equity in it. There is no explanation for how they came to be made. There were comparatively few of them. I would not be prepared to infer, from the fact of making of the payments alone, that the joint endeavour of the plaintiff and defendant extended to the Kogarah unit. Ms West is not entitled to have those payments increase the quantum of any constructive trust over the Lakemba unit to which she is otherwise entitled. The 1996 Acknowledgement 91 In paragraph 181 of her affidavit in chief Ms West gave evidence as follows: "On a day in or about mid-1996 the defendant said to me, words to the effect, "I know you have put a lot into improving Caroline Street and making loan repayments on the units and paying other expenses that we've had, because of that, I'm going to look at arranging for us to own Phillip Street together '50-50' or I'll sell Phillip Street or my share in Baxter Avenue, and with the money I get when I sell, we can buy another place together." By: a. 'Caroline Street' the defendant was referring to the relationship property, b. 'Phillip Street' the defendant was referring to the Lakemba unit, and c. 'Baxter Avenue' the defendant was referring to the Kogarah unit." 92 Ms Mead later filed an affidavit which, amongst other things, responded to the plaintiff's affidavit in chief. In that affidavit Ms Mead said: "I refer to paragraph 181. At about the time of Joel's birth in 1987, the plaintiff and I discussed purchasing a home together. Otherwise, I deny having a conversation with the plaintiff in the terms of that alleged in paragraph 181 either in mid-1996 or at any time. At no time did I have any intention of transferring an interest in the Lakemba unit to the plaintiff nor did I ever promise or suggest to the plaintiff that I would do so. At the time of this alleged conversation, the relationship between me and the plaintiff had become strained at best and from time to time it was hostile." 93 There was no cross-examination of Ms Mead about the topic of this alleged 1996 conversation. In submissions, Ms Bateman relied upon that 1996 conversation as both showing an intention on the part of Ms Mead that Ms West should have a beneficial interest in some of her real estate, and also as an admission that it was appropriate for title to the Lakemba property to be split 50/50. Mr Aitken submitted that it was not open to Ms Bateman to put that submission, when the 1996 conversation had not been put to Ms Mead in cross-examination. Mr Aitken's submission was founded on Browne v Dunn (1893) 6 R 67. 94 Browne v Dunn is a decision concerning the common law on adducing evidence at trials. Even so, "the rule in Browne v Dunn remains alive and well under the regime of evidence law introduced by the Evidence Act 1995 (NSW)" (per Beazley JA, (with whom Cole and Stein JJA agreed), Heaton v Luczka New South Wales Court of Appeal, 3 March 1998, unreported at page 3). 95 In Browne v Dunn at 70-71 Lord Herschell LC stated an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted: "If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity to make any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." 96 However, Lord Herschell LC said that there was no obligation to raise such a matter in cross-examination where it is: "… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." 97 In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J made a thorough review of later cases applying Browne v Dunn, and concluded (at 26): "I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings." In the present case, the serving of Ms West's affidavit in chief gave notice to Ms Mead and her advisers that Ms West proposed to rely upon the matters contained in paragraph 181. Ms Mead took the opportunity, in her own affidavit in response, specifically to reply to that allegation. Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness's account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness' account is not challenged in cross-examination. – Marelic v Comcare (1993) 121 ALR 114 at 120 (pre trial exchange of medical reports gives adequate notice), Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744 at [52] (statement of issues, stated case and service of documentary evidence can give adequate notice), Stern v National Australia Bank Limited (2000) 171 ALR 192 at [44] (adequate notice given by pleadings), Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 per Mahoney JA (adequate notice given by "the nature of the defendant's case and the particulars given, and otherwise the conduct of it" ), In the Marriage of L C & T C (1998) 23 FamLR 75 at [39] (affidavits give adequate notice). Cross On Evidence , 6th Australian edition, paragraph [17460] footnote 12 says: "… the rule in Browne v Dunn did not apply where all parties were on notice of the evidentiary issues, eg by reason of affidavits having been exchanged …" 98 The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement. 99 Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. However, the submission which Ms Bateman seeks to put on the basis of paragraph 181 of Ms West's affidavit in chief involves no drawing together of strands of evidence to create some overall theory or inference of fact, but is a submission as to the legal consequence that should be drawn from the facts plainly asserted in paragraph 181. Nothing in the rule in Browne v Dunn prevents her from putting that submission. 100 Even though Ms Bateman is free to put the submission, it does not advance Ms West's case. I accept that the conversation deposed to in paragraph 181 occurred. However, the evidence contained in paragraph 181 of Ms West's affidavit in chief lacks the certainty needed before it could amount to an express declaration of trust. When there is no reason to believe that Ms Mead had in 1996 the slightest idea about the principles upon which constructive trusts are imposed, neither would I regard the statement attributed to her, about looking at arranging for the Lakemba property to be owned 50/50, as an admission which was entitled to any weight concerning the terms of any possible constructive trust. Insofar as the evidence in paragraph 181 of Ms West's affidavit in chief is an admission by Ms Mead that Ms West had made contributions to improving the Kingsgrove property and making loan repayments on the units and paying other expenses, it admits no more than what has been established by other evidence. The Extent to Which Equity in the Lakemba Unit Increased 101 If a Baumgartner style constructive trust were to be imposed in the present situation, on the Lakemba property, it would be imposed on the equitable interest in the Lakemba property which came to be acquired through the joint contributions of Ms West and Ms Mead, for their common future. Acquisition of that interest occurred during the period when payments were being made from the joint account for the Lakemba mortgage instalments. Thus, working out what interest in the Lakemba property Ms Mead acquired over that period requires one to know both the value of the property, and the mortgage secured on it at the beginning and end of that period. Because the contributions were made over a long period, during which there was significant inflation, the appropriate way of measuring the equity is to work out what proportion of the total equity in the property Ms Mead had at the commencement of that period, and what proportion of the total equity she had at the end. 102 Valuation evidence establishes that the market value of the Lakemba unit was $58,000 in December 1982, $50,000 in December 1986, and $125,000 in July 1998. December 1986 is close enough, for practical purposes, to the start of the period when payments began to be made from the joint account for the Lakemba mortgage instalments. The Lakemba mortgage instalments stopped being made from the joint account at the end of 1997. Establishing the amount of equity which Ms Mead had in the property at those various dates, requires one to know the amount secured by mortgage over the property at those dates. Here the evidence is quite sketchy. I have already found (paragraph 17 above) that the Lakemba property was subject to a mortgage of $18,000 when it was purchased in 1976, and that that mortgage stayed in place, with payments being made on it from time to time, during the relationship (paragraph 37 above). The mortgage on the Lakemba property was paid out in 1999. No documentary evidence was tendered, to show the balance owing on the Lakemba mortgage from time to time. Cross-examination of Ms Mead elicited the following concerning the amount owing at the beginning of the relationship: "Q. Now do you know what the amount of the liability in relation to the Lakemba Unit was at the commencement of the relationship with Ms West? A. No. 103 Later in cross-examination, Ms Mead gave the following evidence: "Q. Your liabilities at the commencement of the relationship in relation to the Lakemba unit consisted of two mortgages? A. Yes. Q. One of them, I am putting to you was about $18,000 or slightly less than that? A. Yes. Q. And the other was about $5,000 or slightly less than that, is that right? A. Yes." 104 Given that the initial amount secured on the New South Wales Permanent mortgage was $18,000, and the initial amount secured on the ANZ mortgage was $5,000, but that the ANZ mortgage had been paid off before the commencement of the relationship, I do not take that evidence as involving a concession by Ms Mead that, at the commencement of the relationship, the amount owing on the mortgage to New South Wales Permanent was $18,000 or slightly less. 105 There was no cross-examination concerning the amount owing on the mortgage at the time the paying off of the Lakemba property came to be part of their joint endeavour, in the period around the end of 1986 or middle of 1987. Given that the mortgage had been on foot since 1976, it seems to me unlikely that at the end of 1986 or middle of 1987 it remained of the order of $18,000. While it is true that, in a mortgage payable over many years by instalments of principal and interest, the early years' instalments relate mainly to interest, there would still have been some principal reduction over the course of ten years. Bearing in mind that the plaintiff bears the onus of proof of what quantum of constructive trust is appropriate, it seems to me that, in the circumstances where the plaintiff has left the evidence in the unsatisfactory state it is, I should proceed on the basis that the amount owing on the mortgage at the end of 1986 or middle of 1987 was $12,000. On that basis, and given that the value of the Lakemba unit at that time was $50,000, Ms Mead had 76% of the equity in the property at that time. 106 Concerning the amount owing at the end of the relationship, the following cross-examination occurred: "Q. It is the case that at July 1998 at about the time of the cessation of the relationship that there was very little owing on the mortgage for Lakemba; is that right? A. Yes. Q. An amount of less than a thousand dollars, do you accept that? A. I do not know. Sorry. I do not know. HIS HONOUR: Q. In the answer you just gave, you accepted there was very little owing. Can you give me an idea of what you meant by very little. To some people $5 is very little. To some others $50,000 is very little? A. I meant it was less than it was in the beginning of the relationship." 107 Later in the cross-examination, Ms Mead was also taken back to the question of how much was owing on that mortgage at the end of the relationship. She reiterated that she did not know. Ms Bateman then proceeded as follows: "Q. If I just show you this document and I have opened it at a relevant page, that is the loan statement or part thereof (shown). Now as at the date of the cessation of the relationship with Ms West, do you accept that all liabilities secured on the Lakemba property were of a value less than a thousand dollars? A. Yes." 108 The "Loan Statement or part thereof" was never tendered. 109 There was further cross-examination of Ms Mead as follows: "Q. Now when the mortgage was coming to a close in that it was very small in the liability and the mortgage was very small, you wished to make payments in reduction of the mortgage to have it paid off as quickly as possible, is that right? A. Yes. Q And accordingly, you took over the payment of the mortgage at some stage. At some stage just prior to it being paid out completely you made payments in relation to the mortgage, is that right? A. Yes. HIS HONOUR: I do not understand whether that is said to be before or after the end of the relationship. BATEMAN: Q. There is a point in time close to the end of the relationship with Ms West whereby you took in responsibility for the mortgage instalments, is that right? A. I do not understand what you mean about responsibility. Q. Well, for a long while there the mortgage payments were being paid out of the joint account, do you accept that? A. Yes. Q. And then on a day in about 1998, they stopped being paid out of the joint account, do you accept that? A. Yes. Q. You started to pay them by yourself? A. No, I got it automatically taken out. Q. Out of your account? A. Yes. Q. And you paid as much as you could afford to pay, is that correct? A. Yes. Q. There was a period when the payments were not made by you or anyone for that matter, do you accept that? A. Yes. Q. And then you entered into an arrangement with the bank whereby you paid a smaller sum on a periodic basis than was previously being paid in relation to the mortgage instalments, is that right? A No. Q. I put to you that when the monies were coming out of the joint account the instalments were paid in sums of three hundred, two hundred, two fifty types of amounts? A. Mmm. Q. And when you took over the payments you negotiated to be able to pay, with the bank, periodic payments of $50; do you accept that? A. $50 a week? Q. $50 a week. Is that your evidence? A. No, I do not know what the $50 is." The cross-examination then turned to another topic. 110 At the time that contributions to the Lakemba mortgage stopped being made from the joint account, at the end of 1997, there is no reason to believe that the value of the property was any different to the value it had at the end of the relationship in July 1998, namely $125,000. While the amount owing on the mortgage at the end of the relationship was less than $1,000, that balance was arrived at after Ms Mead had paid "as much as [she] could afford to pay", during the first six months of 1998. The general evidence about her means suggests that her capacity to pay was not great. In my view, a reasonable estimate, in light of the evidence, of the amount owing on the mortgage at the end of 1997 is $2,000. Thus, at the time contributions ceased being made to the Lakemba mortgage from the joint account, Ms Mead owned (in round terms) 98% of the equity in the Lakemba unit. Thus, I am satisfied that Ms West has shown that by virtue of the contributions made from the joint account, Ms Mead had built her equity in the Lakemba unit up by 22%. Division of the Increase in Lakemba Unit 111 Ms Bateman submitted that the equity in the Lakemba property which was acquired as a result of the joint efforts of Ms West and Ms Mead, should be divided in a way other than equally. She submitted that Ms West had made by far the larger proportion of contributions to the joint account. Further, while Ms Mead had engaged in more homemaking and child-rearing tasks than Ms West had, Ms West had still been able to make a substantial contribution in that area, through being at home three days a week during those weeks when she worked, and having 11 weeks a year when she did not work. 112 I am not persuaded that there is a sufficient basis to depart from the starting point that equality is equity. So far as financial contributions go, it is not sufficient to take into account the contributions to the joint account on their own. In Hibberson v George (1989) 12 FamLR 725 at 742 McHugh JA (with whom Hope JA agreed) said that, for a Baumgartner constructive trust "… It is not necessary that there should be a physical pooling. It is probably enough that by mutual arrangement the parties have each spent monies for the purpose of their joint relationship knowing that part of it was to be spent in financing the purchase of the home." 113 While undoubtedly Ms West contributed by far the larger amount of the money which went into the joint account, there was also money used for the purpose of the joint endeavour which Ms Mead earned, and spent, as cash, of an indeterminate amount. I also accept that Ms Mead made at least some contributions of cash, in capital form, to their joint enterprise, although I am not able to make a finding about the amount of such contributions. While Ms Mead's financial contributions to their shared expenses as a whole were less than those of Ms West, it was as a result of joint decisions of Ms West and Ms Mead, that Ms Mead should have a child, that Ms West should have a child, and that Ms Mead should act as primary carer for Ms West's child, that Ms Mead came to be in a position whereby her financial contribution was less. Ms Mead's homemaking contribution was greater than that of Ms West. As well, Ms Mead made a real contribution to the joint enterprise by arranging with her mother and brother for the Kingsgrove house to be available to herself, Ms West and their children, on the basis that the only payment which needed to be made was of outgoings connected with that property, and the mortgage payments on the Lakemba unit. Given the significantly more extensive facilities connected with the Kingsgrove home by comparison with the Lakemba unit, that would have provided a significant contribution to the quality of their shared life during the relationship. 114 I conclude that, subject to one matter I will deal with soon, the plaintiff is entitled to a declaration that 11% of the equity in the Lakemba unit is held for her. The basis for this conclusion can be summarised by saying that Ms West has demonstrated the existence of circumstances which make it inequitable for Ms Mead to retain for herself the entire benefit of assets which were built up during the relationship and for the purposes of the relationship – but that the extent to which assets were built up in that way was comparatively small. Terms for Grant of Relief 115 At all times Ms West has known that Mrs Mead was living in the Lakemba unit. Ms West has known, at least in broad terms, the basis on which Mrs Mead was living there. The arrangement between Ms Mead and her mother, under which Mrs Mead came to live in the Lakemba unit, predated the circumstances which give rise to the constructive trust. There was nothing in the arrangements between Ms West and Ms Mead which suggested that, insofar as equity in the Lakemba unit was being built up through their joint efforts, that equity would be actually enjoyed by them while Mrs Mead continued to live in the unit. Further, insofar as Ms West lived, for 13 years, in the relationship property which the knowledge and consent of Mrs Mead, Ms West has already taken a benefit deriving from the arrangement under which Ms Mead and her mother swapped residences. Any constructive trust would need to be subject to Mrs Mead's right to continue to live in the Lakemba unit for as long as she likes, on the same financial basis as was agreed between Mrs Mead and Ms Mead, at the time of the house swap. 116 On the basis of the evidence in this case, I would be inclined to hold that those terms were that Mrs Mead paid the council rates, water rates and strata title outgoings on the Lakemba unit. However, Mrs Mead is not a party to the present case. I would make a declaration of a constructive trust concerning the Lakemba unit only if Mrs Mead were notified, and given an opportunity to present such further evidence and submissions as she might wish, about the terms on which she is entitled to occupy the Lakemba unit. Orders 1. Direct the plaintiff to provide Nancy Veronica Mead with a copy of these reasons for judgment within 7 days. 2. Direct that, in the event that Nancy Veronica Mead wishes to place before the Court any further evidence or submission about the terms on which she is entitled to occupy the Lakemba unit, she file and serve such evidence as she wishes to rely upon within 28 days after provision to her of these reasons for judgment. 3. In the event that Nancy Veronica Mead does not file any evidence within that 28 day period, direct the plaintiff to bring in Short Minutes of Order to give effect to these reasons for judgment. 4. In the event that Nancy Veronica Mead files further evidence within the said 28 day period, direct that this matter be restored, on a date arranged with my Associate, before me for further directions. ********** Last Modified: 04/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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