ARTHUR v. PUBLIC TRUSTEE Evidence - Trusts and Trustees

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ARTHUR v. PUBLIC TRUSTEE      
Evidence - Trusts and Trustees
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Muirhead A.J.(1)

CWDS
  Evidence - Hearsay rule - Res gestae exception - Statements as to
contemporaneous state of mind admissible - Weight carried by conversations
with a deceased person.
  Trusts and Trustees - Resulting trust - De facto relationship - Purchase of
real property - man as sole transferee - Paid from his own monies save for
deposit - No express declaration of trust in favour of woman - No writing save
for transfer - No contractual liability assumed by her - No common intent that
she have a beneficial interest before their marriage - No resulting trust to
extent of deposit - Statute of Frauds 1677 ss.7 and 8.
  Cases referred to:
   Allen v. Snyder (1977) 2 NSWLR 685
   Calverley v. Green 56 ALR 483
   Commissioner of Stamp Duties v. Joliffe (1920) 28 CLR
   178
   Gissing v. Gissing 1971 AC 886
   Kauter v. Hilton (1953) 90 CLR 86
   Muschinski v. Dodds 62 ALR 429
   Nemeth v. Nemeth 17 ALR 500
   Sugden v. St. Leonards (Lord) (1876) 1 PD 154
   Tomkins v. Executor Trustee and Agency Co. Ltd. 3 NTJ
845

HRNG
DARWIN
#DATE 15:4:1987
  Counsel for the Plaintiff:     T.I.Pauling QC
  Solicitor for the Plaintiff:   Ward Keller
  Counsel for the Defendant:     A.J.Besanko
  Solicitor for the Defendant:   McCormack and Co.

ORDER
  Claim dismissed.

JUDGE1
  The Plaintiff is a single woman, now aged 39 years who works in a
responsible capacity with the Department of Health in the Territory.  The
Defendant Public Trustee is Administrator of the estate of the late Michael
Kevin Crouch who died, intestate, on the 7th July 1982, when the vehicle he
was driving left the Stuart Highway and crashed.  At that time the Plaintiff
and the deceased were living in a de facto relationship, they were engaged to
be married and their wedding was planned to take place late in August 1982.
Not long before his death the deceased, then accompanied by the Plaintiff,
agreed to purchase a home, situated on a 5 acre block at Howard Springs near
Darwin.  The Plaintiff and the deceased moved into the house, which was
intended as the matrimonial home, on 18th June 1982.  The deceased, in
consultation with the Plaintiff, negotiated the purchase direct with the
vendors on 5th June 1982.  No agents were involved in the transaction.
Solicitors were instructed to prepare the documentation and settlement took
place on 1st July 1982, a week before the deceased's death.  The solicitors
were instructed by the deceased.  The transfer named him as sole purchaser and
the property was accordingly registered in his name as sole registered
proprietor.  On the occasion when oral agreement for sale and purchase of the
property was reached, there was as far as I know, no contract or written
memorandum evidencing the transaction. The Plaintiff paid the agreed deposit
of $500 by tender and acceptance of a cheque drawn on her personal current
account.  At settlement, the balance of purchase monies, approximately $87,000
was paid by the deceased.
2.  The funds in this account had their source in a 'Tattslotto' draw by which
the deceased won $198,000 on or about 17th April 1982.  At no stage did the
parties operate a joint bank account of any description. However, from early
December 1981 when they commenced living together in a flat the Plaintiff
rented at Nightcliff, there was some mixing of monies in the Plaintiff's
current account.  From this account the Plaintiff had paid considerable
amounts for their mutual benefit. There is no dispute as to these background
matters.
3.  It is clear that by the date of his death much of the deceased's winnings
from the Tattslotto draw had been disbursed, to a significant extent in the
purchase of the property which it appears is now the only substantial asset in
the estate.  The deceased was previously married.  That marriage was dissolved
in July 1979.  He was the father of two infant children of that marriage. Upon
the intestacy they are jointly entitled to his estate.
4.  In these proceedings, commenced by Writ in 1984, the Plaintiff seeks the
following declarations:
    (a)   A declaration that the Defendant holds one half
    of the beneficial interest in the property situated
    at 25 Mahaffey Road, Howard Springs in the Northern
    Territory of Australia and registered in the name of
    MICHAEL KEVIN CROUCH (now deceased), the improvements
    thereon and the furniture, furnishings and fittings
    therein upon trust for the Plaintiff.
    (b)   An order directing the Defendant to transfer a
    one-half interest in the said land and improvements
    thereon to the Plaintiff.
    (c)   Such further or other orders as the court
    thinks just or appropriate.
5.  In the Statement of Claim the Plaintiff seeks a more expansive
declaration, namely, that the Defendant holds "the whole of the beneficial
interest" in the property upon trust for her;  but as I understood Mr Pauling
QC's closing submission the relief sought is a declaration in terms of the
Writ.
6.  The Plaintiff's case quite simply is that by virtue of matters said or
done by her and the deceased, prior to death, she is entitled to a one-half
share of the property upon the basis that by operation of law a trust to that
extent was created in her favour prior to his death which enured for her
benefit.  The principal matters upon which the Plaintiff relies are statements
made by the deceased to her or others as to the monies he had won, as to
future plans concerning the property, and the fact that at the deceased's
request she paid the entire, albeit small, deposit on the property from her
bank account.  These matters, it is argued, viewed against the general
background of the relationship and mutual plans for the future should lead to
a finding that she is beneficially entitled to a one-half share in the
property.
7.  The Plaintiff was the principal witness in her own cause.  I found her to
be an intelligent non-assertive witness.  She did not exaggerate and I
consider her evidence to be trustworthy.  In fact, no submission was made to
the contrary. The other witnesses called on her behalf spoke only of isolated
incidents and I have no doubt that in drawing on their memories over the
intervening years they told me the truth to the best of their recollections.
Two affidavits were tendered without objection as part of the Plaintiff's
case, one sworn by Neil Halfpenny, the deceased's solicitor who drew the
Memorandum of Transfer, the other by Jacqueline Peterson, a sister of the
Plaintiff who resides in Perth.
8.  The Defendant Public Trustee naturally enough in the circumstances called
no evidence, his counsel's submission being that the evidence merits no
finding that a trust express, implied, resulting or otherwise has been proved.
9.  An evidentiary question arose early during the hearing as to the
admissibility of certain isolated words spoken by the deceased with reference
to the ownership of the money he had won and subsequently as to the property
itself.  Such expressions have, generally speaking, been regarded as hearsay
(at least in Australia and England) but a perusal of the authorities indicates
how frequently such evidence is received, not necessarily standing alone as
evidence of intention, but more frequently as evidence of state of mind which
when considered with other matters may be evidence of intention.  To this
extent such statements may be admitted under the doctrine of res gestae as
exception to the hearsay rule.  Mellish L.J. observed in Sugden v. St.
Leonards (Lords) (1876) 1 PD 154 at 251 "Whenever it is material to prove the
state of a person's mind, or what was passing in it, and what were his
intentions, there you may prove what he said, because that is the only means
by which you can find out what his intentions were."  The author of the 3rd
Australian edition of Cross on Evidence deals with statements as to
contemporaneous state of mind at pp 991-997 (19.18 to 19.23).  They conclude
"The result of the authorities appears to be that declarations of intention
are admissible to establish its existence under an exception to the rule
against hearsay.  They may be used to support an inference of its anterior or
subsequent existence on the ordinary principles of relevancy ..."
10.  Of course when a claimant gives evidence of such conversations with a
deceased person, the evidence requires careful scrutiny, the more so where the
words are not linked closely in time with an act or transaction which may be
more cogent evidence of the deceased's state of mind or intention.  But to
absolutely exclude such evidence, particularly as the principles of equity
have developed, may reap injustice especially where the evidence points to
mixing of the parties' funds and intended joinder of their future fortunes.
The weight one attaches to such evidence will vary, but if its veracity is
established it should, in my view, be taken into consideration.  On this
aspect, for instance, I would pay scant regard for phraseology used in
relation to parties bound by matrimonial or emotional ties. The use by the
deceased of the words "we've won nearly $200,000" when he informed the
Plaintiff of his Tattslotto success at the airport means little.  It may
indicate the deceased's sense of union with his finance - but it does little
more.  It is common for people living in close relationship to talk as to what
has befallen one,  in terms embracing both.  I have decided to admit into
evidence the deceased's statements to the Plaintiff and to others but I stress
that when not associated closely in time with a transaction - they carry
limited weight.  Such evidence has previously and frequently been admitted in
this Territory and elsewhere.  (See Nemeth v. Nemeth 17 ALR 500, Tomkin v.
Executor Trustee and Agency Co. Ltd. 3 NT Judgments 843).
11.  I previously referred to some general background which was not in
dispute.  I now set out in more detail my findings of fact relevant to the
issues.
12.  The Plaintiff and the deceased, (who I refer to collectively as the
"parties") met in Darwin in July 1981. They were both 34 years of age, both
free to marry. They developed an affection one for the other and commenced
living together in the Plaintiff's rented flat at Nightcliff in December 1981.
The Plaintiff held a responsible administrative position with the Department
of Health, the deceased was a car salesman.  His earnings cannot be
established with certainty.  It is probable I find that the Plaintiff then
commanded a slightly higher earning capacity than the deceased.  She was, I
suspect, the more responsible and business like person.  Monies contributed by
the deceased were banked by her in her own bank accounts.
13.  They decided to marry and early in 1982 advised their friends
accordingly.  Soon after they travelled together in Asia on holiday, the
Plaintiff then spending much of her own funds on air fares, travelling cheques
and the like.  (See Exhibits P3 and P3A).  Before leaving for Asia the
Plaintiff paid for air tickets to enable the parties to visit Perth soon after
their return, to visit her family.  In Asia, materials, rings and the like
were purchased, with an eye on the marriage they were planning. Upon return
they announced their engagement and proposal to marry on 20th August 1982.
Plans for the wedding proceeded, the church was booked, invitations prepared.
It is not practicable to ascertain the amount the deceased contributed to the
funds after they started to live together.  Her bank account was utilised.
Before he won the money referred to he appears to have dealt mainly in cash.
Undoubtedly, he contributed to household expenses generally in cash.  On
occasions the Plaintiff used such cash for direct purchases, sometimes it was
banked in her account.  There were occasions when significant deposits were
placed in her current account of monies due to the deceased (described in
Exhibit P3A as "cheque - owed to Mick").  I am satisfied her bank accounts
were mainly (if not wholly) utilised for management of both income and
outgoings including household expenses at Nightcliff.  The Plaintiff told me
that after they commenced living together she regarded their assets as joint
assets.  The records available tend to verify that this was the arrangement,
although I find it probable that it was, in kind, to the deceased's benefit.
I have, as prefaced before, reached the view, that with financial matters the
deceased was careless and probably content to allow the Plaintiff at this
stage to be "the banker".  In fact she also had a savings account with the
Home Building Society and a similar account with the Public Service
Cooperative Credit Society.  The Plaintiff's salary was paid into the latter
account.  The rent for the flat was deducted from her salary.  In May 1982 she
drew a cheque for 'equipment' to the deceased's car and in June she drew a
cheque for an air fare to enable the deceased's mother to attend the wedding.
She appears to have paid electricity and phone charges from her account.  The
parties made no attempt to keep a strict record of their respective
contributions and outlays to and from the Plaintiff's account.
14.  I find that in looking to their marriage the parties planned to purchase
a house and start a family as soon as practicable.  In fact, in February or
March, the Plaintiff advised her employer of her intention to resign. Their
plan was that she would cease work and rear the child or children.  Such was
the position when the Plaintiff travelled to Brisbane on or about the 14th
April 1982 and she was in that city when the deceased learned of his
substantial win in Tattslotto.  The deceased, at the time the parties started
to cohabit, brought nothing, save monetary contributions, in the way of assets
- in the Plaintiff's words "only his clothes". I also find that when the
parties first discussed the raising of a deposit to purchase a house the
deceased suggested "we could start off by selling my car."  Up to the date of
his Tattslotto success I find that whilst there was a pooling of resources,
the Plaintiff made an equal and possibly the higher contribution to their
joint support and expenditure.  It is to be noted that at all material times
the deceased was a consistent punter, the more so after his win.
15.  The deceased learned that he had won almost $200,000 whilst the Plaintiff
was in Brisbane and apparently he could not communicate with her in that city.
He greeted her on her return with the words "we've won nearly $200,000".  He
learned of his success on or about 17th April 1982.  Shortly after, on 21st
April 1982 he opened a savings account in his name only by deposit of $1,000.
Within 6 days this was withdrawn.  On 5th May 1982  his residual winnings of
$194,947 were banked and on 10th May 1982 he withdrew $150,000.  One month
later he deposited $151,972 in the account, but the Plaintiff did not know for
what purpose this sum was used in the interim period. She suspects, probably
rightly, that it was a short term deposit in another fund.  On the 10th June,
the date of settlement of the property transaction, the deceased drew $109,000
and it is proved that on that date he paid $87,000 into his Solicitor's Trust
Account for purchase of the property. Leaving aside the latter amount and the
withdrawal of $150,000, which I will assume was for deposit elsewhere, the
bank statements tendered indicate that between the date he opened this account
(No.7-3648) and the date of death, approximately 11 weeks later, the deceased
drew from the account funds in excess of $80,000.  The Plaintiff says that the
deceased purchased the car, in which he died, for about $20,000, a car
registered in his name.  About $5,000 was expended on the purchase of 3
racehorses and an interest in another and I am satisfied that very substantial
amounts were lost by the deceased in betting transactions.  Some funds
withdrawn from his Savings Bank were deposited in the current account he
opened (Exhibit D10) but at the date of his death the balance held in that
account (No.114-2364) was only about $2,400.  The Plaintiff believes the
deceased may have paid some monies in respect of the purchase of a "sausage
factory" at Katherine which he contemplated, but there is no evidence of this
(see Exhibits D10 and D11).  I find that the deceased having heard of his win,
made arrangement for the opening of the Savings Account in his name alone,
into which his winnings were paid during the Plaintiff's absence in Brisbane
and I do not overlook that within a day or so the parties travelled to Perth
for 2-3 weeks. There is no dispute as to the veracity of the affidavit of the
Plaintiff's sister Jacqueline Petersen (Exhibit P8) as to conversation with
the deceased in the Plaintiff's parents home in Perth when he stated inter
alia "The first thing we will do probably is to get a house;  we also wouldn't
mind a business, but we haven't thought that far ahead" and "It is not my
money, it is our money".  I also accept that in general conversation with the
witness Warren Paine the deceased expressed gratitude for his fiance's past
support and spoke of his future intentions to repay her.  The fact is of
course that the deceased made no effort to open a joint account of any nature.
Save for the house property with which I will deal later, the money seems to
have been devoted basically to his own ends.  It is true the Plaintiff drove
the new car from time to time but it was registered in his name and the
evidence falls short of proof that it was a gift to her.  She counselled the
deceased as to the volume of his bets and she accompanied him to the
racecourse.  But she did not have access to his bank accounts and her
understanding of his expenditure and the proposed business venture was far
from precise.  In short, his actions and his expenditure were at odds with the
notion that the monies therein were joint or that the Plaintiff had any
beneficial interest therein.  She does not appear to have been consulted
concerning expenditure save in the limited fashion referred to.  He spent his
winnings very much as he wished.
16.  In these circumstances the Plaintiff has not established that the
deceased created or intended to create a trust in her favour of the Tattslotto
funds.  No precise language is required in the creation of such a trust
(Commissioner of Stamp Duties (Qld) v. Joliffe (1920) 28 CLR at 181) nor is it
necessary that the donor should be proved to understand the nature of the
relationship he may create. "If his language is such that an intention to
create such a legal effect is manifested, then a trust will be created whether
he uses the word "trust" or "trustee" or not. (Jacobs Law of Trusts in
Australia (5th Ed.) 501. Essentially the matter is one of evidence and equity
will only enforce a trust to the extent to which the intention to create a
trust is clear. Kauter v. Hilton (1953) 90 CLR 86. Words alone may suffice but
where those words are at odds with the donor's action proof may be lacking.
Hence I have reached the conclusion that the deceased had no intention of
creating a situation of joint ownership in the fund nor of imposing upon it a
beneficial right in the Plaintiff.  He may have intended that he would utilise
it in her interests, or their joint interests including the purchase of a
matrimonial home, but I fear the evidence takes it no further.  It is common
ground that save for the deposit paid by the Plaintiff from mixed monies the
purchase price was paid from the Tattslotto fund, not as Mr Pauling termed it
from "mutual monies".  The claim that a trust whereby the deceased vested a
one-half beneficial interest in the Plaintiff is not proved.  His conduct, his
spending with little or no consultation (save in respect of the property) is
totally at odds with the notion of a trust.  His expressions such as "our
money", "we have won" and the like viewed with his behaviour are not
sufficient to satisfy me that he intended his fiance' to have a beneficial
interest in the monies he banked after his win.
17.  But that is not the end of Mr Pauling's argument and I turn to consider
his second argument that the words and conduct of the deceased, in relation to
the purchase of the property, evidenced an intention to create a declaration
of trust in favour of the Plaintiff to the extent of a one-half share.
18.  At this juncture I mention the submission of Mr Coulehan who appeared by
leave for the deceased's next of kin that by virtue of s.7 of the old 1677
Statute of Frauds as amended, which I accept operates in the Territory, the
Plaintiff's claim for recognition of her beneficial interest in the property,
is statute barred in the absence of writing.  I agree with Mr Pauling's
argument that trusts imposed by operation of law or resulting trusts are not
affected by reason of s.8 of that Statute.
19.  I find it was at all times within the contemplation of the parties that
they would mutually own the matrimonial home.  I accept the Plaintiff's
evidence, that before his Tattslotto win the parties had discussed the
necessity of acquiring funds to pay a deposit on a home.  I accept the
Plaintiff's evidence, which I mentioned earlier, that the deceased suggested
she should sell her car as a source of the deposit, a suggestion not likely if
the deceased contemplated he would be sole owner.  Clearly, at that stage, the
Plaintiff's resources and earnings were important to the acquisition of a home
but his success in Tattslotto altered the situation.  He had adequate funds. I
find they sought and found the home in company.  By this time finance
presented no problems.  They inspected the home at Howard Springs together on
29th May and subsequently on 5th June.  Before leaving home on the latter
date, the deceased requested the Plaintiff "to bring along your cheque book".
At this stage the deceased had opened his cheque account and on that date it
was in credit to an amount exceeding $1,200.  She acceded to his request.
They conferred privately together when discussing and negotiating the sale
with the vendors.  I will not deal with the evidence of the vendor Mr Collins
specifically.  He was an excellent witness and he was clearly given to believe
when the pending marriage was discussed that the Plaintiff and the deceased
were to be, to use an imprecise term, co-owners of the home.  I have already
commented that the Plaintiff's current account mainly consisted of her own
monies - although I accept that by then she regarded it as a mutual fund.  I
have no evidence as to the form of a receipt (if any) for the deposit and it
is unlikely that any other memorandum existed to evidence the transaction. I
have little evidence of events concerning the proposed purchase between that
date, 5th June and 1st July when settlement was effected, save that the
parties took up residence in the house on 18th June.  The parties desired
early finality.  I find the deceased instructed Neil Halfpenny and Associates,
solicitors, to prepare the documents on or about 10th June. Mr Halfpenny's
affidavit is in evidence (P9).  He states "During the course of the conference
the deceased instructed me that his name was to go onto the Contract as the
sole purchaser.  He added that he was engaged to be married and intended
transferring the property into joint names of himself and his new wife after
the marriage was celebrated. I cannot recall the exact words used by the
deceased but the above is, to the best of my knowledge and belief, an accurate
record of the substance of my conversation with the deceased."
20.  I am satisfied that after she paid the deposit the Plaintiff's belief was
that the land would be registered in both names.  I am also satisfied that she
was in her office awaiting to attend settlement when she received a message
her attendance was unnecessary.  It is speculative to say why the deceased
made this decision without consulting the Plaintiff;  it may have been the
result of legal advice as the deceased apparently explained, but the evidence
consistently points to his intention that the property would be in joint names
after marriage.
21.  The facts in this matter, when considering the authorities, are certainly
unusual.  Here, of course, the deceased's evidence is not available and in so
far as his intentions may be relevant, inferences must be made from the
available evidence including the evidence as to the steps he took prior to his
death.  The issue simply put is whether the Plaintiff is entitled to a
declaration that she upon the deceased's death had an enforceable beneficial
interest as tenant in common to the property. It is not in dispute that he
intended to transfer a legal title after the marriage had been solemnized.  At
that stage the doctrine of advancement, assuming it still applies in
Australia, would have come to the Plaintiff's aid in determination of
beneficial interests.  If the Plaintiff's claim fails, the deceased's children
are entitled to the whole of his interest upon his intestacy. As I have
stressed there is no evidence of any contract of sale or purchase with the
vendors, pursuant to which the Plaintiff assumed any contractual liability
(Muschinski v. Dodds 62 ALR 429 per Gibbs C.J. at 437). There was, I find, no
express declaration of trust to operate in favour of the Plaintiff from the
date the purchase was agreed, no evidence of any writing save for the
subsequent transfer which I find was prepared upon the deceased's instructions
and in which he was named as sole transferee.
22.  I find that after the sale had been negotiated the deceased asked the
Plaintiff whether she had her cheque book with her and made some jocular
remark to the effect "Funny, here I am buying a house and I haven't got any
money.  I'll have to call on the Treasurer".  The deceased had advised the
witness David Collins of the pending marriage and he also said words to the
effect "The place is going to be half hers so she might as well learn how to
put some money into it".  I also find that upon settlement there was a
discussion in Collins presence as to whether or not the title was to be in
"both names" and the deceased stated inter alia "No, no, put it in my name,
its only a few weeks until we get married and then we won't have to change
Geraldine's name on it ...".  The deceased's conversation with his wife, after
settlement, to the effect that he had been advised to await marriage before
the registration of his then wife's name on the title, does not fully accord
with Mr Halfpenny's recollection, nor with that of Collins at settlement.  It
may be that the deceased in talking to the Plaintiff may have been referring
to advice received on a prior occasion and it does appear likely that the
transfer, I assume prepared on his instruction, was prepared before the
conversation at settlement of which Collins spoke.  But after consideration of
the evidence I am satisfied that the deceased, who paid the purchase price
from his own monies (save for the deposit of $500 which was paid from mixed
funds in the Plaintiff's cheque account) intended to retain the entire
interest in the property until after the marriage which unhappily fate
intervened to prevent.
23.  I have considered the authorities to which I have been referred by
counsel and which over the past two decades have, to use the words of Glass J.
in Allen v. Snyder (1977) 2 NSWLR 685 at 689, "produced some new legal rules"
to reflect "the velocity of social change".  The principles to be applied to
meet the host of circumstances are referred to by Glass J. at pp 689-691. See
also Gissing v. Gissing 1971 AC 886 per Lord Diplock at pp 904:
   "Any claim to a beneficial interest in land by a
   person, whether spouse or stranger, in whom the legal
   estate in the land is not vested must be based upon
   the proposition that the person in whom the legal
   estate is vested holds it as trustee upon trust to
   give effect to the beneficial interest of the claimant
   as cestui que trust.  The legal principles applicable
   to the claim are those of the English law of trusts
   and in particular, in the kind of dispute between
   spouses that comes before the courts, the law relating
   to the creation and operation of "resulting, implied
   or constructive trusts." Where the trust is expressly
   declared in the instrument by which the legal estate
   is transferred to the trustee or by a written
   declaration of trust by the trustee, the court must
   give effect to it.  But to constitute a valid
   declaration of trust by way of gift of a beneficial
   interest in land to a cestui que trust the declaration
   is required by section 53(1) of the Law of Property
   Act, 1925, to be in writing.  If it is not in writing
   it can only take effect as a resulting, implied or
   constructive trust to which that section has no
   application.
   A resulting, implied or constructive trust - and it is
   unnecessary for present purposes to distinguish
   between these three classes of trust - is created by a
   transaction between the trustee and the cestui que
   trust in connection with the acquisition by the
   trustee of a legal estate in land, whenever the
   trustee has so conducted himself that it would be
   inequitable to allow him to deny to the cestui que
   trust a beneficial interest in the land acquired.  And
   he will be held so to have conducted himself if by his
   words or conduct he has induced the cestui que to act
   to his own detriment in the reasonable belief that by
   so acting he was acquiring a beneficial interest in
   the land.
   This is why it has been repeatedly said in the context
   of disputes between spouses as to their respective
   beneficial interests in the matrimonial home, that if
   at the time of its acquisition and transfer of the
   legal estate into the name of one or other of them an
   express agreement has been made between them as to the
   way in which the beneficial interest shall be held,
   the court will give effect to it - notwithstanding the
   absence of any written declaration of trust.  Strictly
   speaking this states the principle too widely, for if
   the agreement did not provide for anything to be done
   by the spouse in whom the legal estate was not to be
   vested, it would be a merely voluntary declaration of
   trust and unenforceable for want of writing. But in
   the express oral agreements contemplated by these
   dicta it has been assumed sub silentio that they
   provide for the spouse in whom the legal estate in the
   matrimonial home is not vested to do something to
   facilitate its acquisition, by contributing to the
   purchase price or to the deposit or the mortgage
   instalments when it is purchased upon mortgage or to
   make some other material sacrifice by way of
   contribution to or economy in the general family
   expenditure.  What the court gives effect to is the
   trust resulting or implied from the common intention
   expressed in the oral agreement between the spouses
   that if each acts in the manner provided for in the
   agreement the beneficial interests in the matrimonial
   home shall be held as they have agreed.
   An express agreement between spouses as to their
   respective beneficial interests in land conveyed into
   the name of one of them obviates the need for showing
   that the conduct of the spouse into whose name the
   land was conveyed was intended to induce the other
   spouse to act to his or her detriment upon the faith
   of the promise of a specified beneficial interest in
   the land and that the other spouse so acted with the
   intention of acquiring that beneficial interest.  The
   agreement itself discloses the common intention
   required to create a resulting, implied or
   constructive trust."
24.  In the present case I do not find "the common intention required to
create a resulting, implied or constructive trust" at the time the deposit was
paid or when the transfer of the legal title to the deceased was effected. I
do not doubt the understanding or common intention of the parties that upon
marriage an interest both beneficial and legal would be transferred to the
Plaintiff and indeed it undoubtedly was the Plaintiff's understanding prior to
settlement that she would be registered as a proprietor on that date.  But I
find on the probabilities that the deceased had decided, having the means at
that stage to pay for the property, that he would retain it entirely as his
own until after the marriage had taken place and that his plans to transfer
title to his future wife were contingent upon such marriage.
25.  Mr Pauling QC submitted in effect that this would be reading too much
into the deceased's decision and that it was probably merely his wish as a
layman, perhaps influenced by religious factors, to have his intended wife's
name on the title under her married name, which motivated his decision and
that a beneficial interest was vested in her from payment of the deposit and
which enured for her benefit after his death.
26.  I think this unlikely.  Registration of marriage or change of name on the
title would have been a simple matter - simpler perhaps than the necessity of
a subsequent transfer.  This is not of much importance perhaps, but in
examining the evidence, including what can be implied from the deceased's
conduct, I find that registration of the property in his name alone was
prompted by the deceased's wish to retain his asset in his own hands until
after marriage - an intention certainly not at odds with his use of the other
monies he had won.  So it is that in the absence of writing to constitute a
declaration of trust, in the absence of a contract for sale and purchase which
cast a contractual obligation qua the vendors upon the Plaintiff, in the
absence of evidence of a common intention prior to marriage and in view of my
finding that the deceased paid for the property from his own monies the
Plaintiff has failed to establish her entitlement to the declaration sought.
It cannot, in my view, be contended that it is in the circumstances
inequitable to deny the Plaintiff a beneficial interest, that the deceased's
conduct induced her to act to her detriment.
27.  I find myself left somewhat in the situation of the judge at first
instance in Gissing v. Gissing, the subject of comment by Mahoney J.A. at 708.
"Upon this basis I do not think that the defendant in this case has
established the proprietory interest she claims.  I do not think that she has
established a trust arising at the time of acquisition of the property.  ----
His Honour rejected her claim that the Plaintiff had agreed that the defendant
should have an interest in the house and he refused to draw from the
Plaintiff's evidence the inference that the defendant was to have any or any
particular interest in the house, at least unless and until they married ..."
28.  There remains the question of $500 paid as deposit by the Plaintiff's
cheque.  I cannot determine how much of that sum had in fact its origins in
money handed by the deceased to the Plaintiff.  It is probable, I think, that
most of the funds in her current account were her own monies but I cannot make
more precise findings.  In Muschinski v.Dodds (above) at 454 Deane J.
commented on the position where a consensual but non-contractual arrangement
between parties may fail upon the collapse of a consensual venture or personal
relationship "without attributable blame".  He stated "If, in the last
mentioned case, the relevant relationship is merely contractual and the
contract has been frustrated without fault on either side, the present
tendency of the common law is that contributions made should be refunded at
least if there has been a complete failure of consideration in performance."
29.  Mr Pauling submitted that I should at least declare a resulting trust in
favour of the Plaintiff to the extent of $500.  There are obvious difficulties
in this course. Only a proportion of the deposit was the Plaintiff's money,
the purchase price was paid by the deceased and an item of furniture to the
value of at least $500 was included which may have been regarded as the
Plaintiff's property.  I understand she continues to reside on the property
but the arrangements of such occupancy are unknown to me;  I do not know what
consideration, if any, the Plaintiff has received.  The difficulties in making
a declaration of a resulting trust in these circumstances emerge upon
consideration of Calverly v. Green 56 ALR 483 per Gibbs C.J. at 485. (See also
Jacobs Law of Trusts in Australia 5th Ed. at 1210). I am not prepared to make
a declaration of trust to this limited extent.  It would be more appropriate,
I believe, to regard the payment of the deposit as an advance by way of loan.
The proportion of this advance which was contributed by the deceased being
incapable of ascertainment an order cannot be made. Bearing in mind, however,
the benefits the deceased appears to have gained by living rent free in the
Plaintiff's flat for some months and the other advances the Plaintiff appears
to have made to his benefit an ex gratia payment by the defendant Trustee to
the Plaintiff, of the sum of $500, would certainly be appropriate.
30.  For these reasons the claim must be dismissed.  I will hear counsel on
the question of costs.