June Margaret Cunningham is the mother of Kelly Therese Peterson and their dispute about the ownership of a property at Gillieston Heights in NSW was resolved on 29 July 2026 in the judgment of Justice Richmond (Cunningham by her tutor Cunningham v Peterson [ 2026] NSWSC 774).
June and Kelly purchased the property in October 2024 for $1,050,000 as tenants in common in equal shares. June was born in June 1937 and had been legally blind for 10 years. The agreement between June and her daughter Kelly was that because Kelly didn’t have sufficient funds to pay her share her mother would pay and she pay her mother back for her share and that it was not a gift. June paid the 5% deposit of $2,625.
At the time of the purchase June owned another property at Hamlyn Terrace and it was her intention to sell that property and apply the proceeds to the purchase of the Gillieston Heights property.
However, because there had been no sale of the Hamlyn Terrace property two loans were borrowed from Westpac. The first was a bridging loan to be repaid on the sale of the Hamlyn Terrace property and the second a loan of $350,000 secured by a mortgage over the Gillieston Heights property.
After adjustments and expenses the total paid at the settlement of the Gillieston Heights property was $1,094,996.63.
June and Kelly opened a joint account at Westpac and authorized monthly payments to Westpac to reduce the home loan. These deductions continued until Kelly withdrew $74,000 leaving insufficient funds for the payments to be made.
The total amount deposited by Kelly into the joint account was $11,829.48.
After settlement there was a surplus of $14,226.24 from the bridging which June paid into the joint account.
On the settlement of June’s Hamlyn Terrence property $786,228.16 was paid to Westpac to discharge the bridging loan. The balance owing on the home loan was $347,088.91.
Regular payments of $531 per week on the home loan were deducted from the joint account.
In March 2025 June had a fall and after some time in hospital arrangements were made for her to live in a retirement village, which required a refundable deposit of $695,000 and pending receipt of that payment a daily fee of $103.20.
Kelly was informed of the need to sell the Gilleston Heights property to fund the retirement village payment. Because of Kelly’s failure to cooperate a court application was made and the property sold.
In December 2925 proceedings were commenced on June’s behalf claiming that the one-half share of the property held by Kelly was held on trust for June under a resulting trust or alternatively a resulting trust. June also claimed the return of the $74,000 that Kelly had withdrawn from the Westpac account.
The matter for the court to decide was where June had paid the deposit and the majority of the purchase price from the sale of the Hamlyn Terrace property would it be unconscionable for Kelly to retain the whole of her share of the proceeds of Gillieston Heights property following its sale. The established law is that if a joint endeavor fails equity will restore to the party contributions they made if it was not intended that the other part should enjoy them. Equity will not assist a party to retain the contribution if it is unconscionable for it to do so .
The courts have found that a joint endeavor arises if there is some sort of understanding between the parties. The joint endeavor trust doctrine covers circumstances where one party would receive an unexpected windfall because of the failure of the endeavor.
The purpose of the doctrine is to achieve an outcome having regard to the party’s failure to deal with unexpected circumstances.
In this case the court found that the joint endeavor was the purchase of the Gillieston Heights property in which June and Kelly would live, financed through two loans from Westpac. In addition, Kelly agreed that she would pay her share of the purchase price.
The court found that June’s contributions were $869,925.76 and Kelly’s $6,829.48. In its consideration of such a trust the court must take regard to non-financial contributions. There were none in this case.
The court found that the joint endeavor failed for no fault of June. It arose because of her need to move to a care facility following her fall.
Finally, His Honour found that it would be unconscionable for Kelly to retain her interest in the Hillieston Heights property given the disparity in the financial contributions by each of them to the joint endeavor .
The usual order in such a trust is for the surplus after the repayments of contributions to be shared between the parties. In this case however His Honour departed from the usual practice to hold that Kelly held her half interest on trust for June. This decision was made for the following reasons: 1, there was not likely to be any surplus, 2 June’s contributions far exceeded Kelly’s and 3 by withdrawing $74,000 from the joint account Kelly had withdrawn all her precious contributions to the joint endeavor.