Interpretation Act 1984 (WA)

Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360

Anderson v Jordan [2001] WASC 98

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Green v Green (1989) 17 NSWLR 343

Jandric v Jandric & Anor [1999] WASC 22

John v Federal Commissioner for Taxation [1989] HCA 5; (1989) 166 CLR 417

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

Kais v Turvey (1994) 11 WAR 357

Langley v North West Water Authority [1991] 3 All ER 610

Lewis v Attorney-General [2000] UKPC 35; [2001] 2 AC 50

Lloyd v Tedesco [2001] WASCA 288

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Parij v Parij [1997] SASC 6771; (1997) 72 SASR 153

Planned Parenthood of Southeastern Pennsylvania v Casey [1992] USSC 112; (1992) 505 US 833

R v National Insurance Commission; ex parte Hudson [1970] 1 QB 477

Stowe and Devereaux Holdings Pty Ltd v Stowe (1995) 15 WAR 363

Stowe v Stowe, unreported; SCt of WA (Owen J); Library No 960354;

Stowe v Stowe, unreported; SCt of WA (Owen J); Library No 970389;

Willets v Marks [1994] QCA 006

1 JENKINS J: This action arises out of the breakdown in 1999 of the relationship between the plaintiff and the defendant. The plaintiff claims a declaration as to his interest in the proceeds of the sale of a property jointly owned by the parties. The defendant denies that claim and counterclaims for a declaration and compensation as a consequence of what she says was a joint endeavour between the parties arising out of their de facto relationship.

2 The plaintiff's claim is in respect to one item of property only; that being a home at 11 Lambasa Place, Waikiki ("the Waikiki property"). The statement of claim pleads that the plaintiff was unable to obtain approval for a loan and so in late 1988 he and the defendant agreed that the defendant would assist in the purchase of the Waikiki property but that the plaintiff would be wholly responsible for all payments in respect of the property. It was part of the agreement that the defendant did not want anything to do with the property ("the 1988 Waikiki agreement"). At this time the plaintiff and the defendant were "in a relationship together" (par 3). In early 1989 the parties purchased the Waikiki property by way of a joint loan from the Westpac bank which was secured by a mortgage on the Waikiki property ("the Westpac mortgage"). The parties were also registered as the joint tenants of the Waikiki property. The plaintiff further pleads that in order to assist in the purchase of the Waikiki property additional funds were borrowed by the parties from the plaintiff's parents which were agreed to be secured against the Waikiki property ("the plaintiff's parents' loan") (par 9). It is pleaded that the plaintiff and the defendant commenced living together in the Waikiki property in or about October 1989 and in June 1990 the plaintiff left the Waikiki property to reside and work in Newman. Further, that in November 1990 the defendant left the Waikiki property and commenced to reside with the plaintiff in Newman.

3 It is pleaded that the plaintiff made all payments in respect of the Westpac mortgage from his own account, from the date of commencement of the loan until June 1991. At this time it is pleaded that the plaintiff and the defendant opened a joint bank account ("the joint account") and that they paid their wages into the joint account from June 1991 until January 1993. In this period the plaintiff and the defendant paid mortgage payments of a total of $12,100 from the joint account being 11 monthly payments of $700 and eight monthly payments of $550.

4 It is then pleaded that in or about July 1992 the parties ceased living together for a period of approximately two months and that in January 1993 the parties agreed to resume cohabitation but to terminate any joint financial arrangements including the joint account. The plaintiff pleads that in or about January 1993 the parties agreed in writing that the defendant would have no interest in the Waikiki property (par 20).

5 The plaintiff pleads that from February 1993 he made all the mortgage repayments on the Waikiki property. The plaintiff pleads that in or about 1998 the plaintiff agreed to allow the defendant to use the Waikiki property as security for an equity line credit contract dated 20 May 1998 between the defendant and the Bank of Western Australia ("the defendant's loan").

6 It is pleaded that in April 1999 the parties separated and consequently ceased living together. The plaintiff pleads that at the time of the separation the parties verbally agreed:

"(a) When the Waikiki Property was sold each would receive half of the value after payment of the Plaintiff's Parents' Loan and all costs and that the Defendant would pay the Defendant's loan from her share;

(b) The Defendant would be solely entitled to various shares purchased by the Plaintiff in the Defendant's name;

(c) The Defendant would take the 1992 Nissan Pulsar SSS ('the Pulsar');

(d) The Defendant would be solely entitled to various household goods as selected by her at that time, and her personal effects including jewellery, clothing and make-up;

(e) The Plaintiff would be solely entitled to the other household goods;

(f) All other assets in the Plaintiff's or the Defendant's name would belong to that party and the other party would have no further claim against each other's assets."

7 The plaintiff pleads that he complied with this agreement. He pleads that the Waikiki property was sold in early 2001 with settlement affected on 14 March 2001. At the time of settlement the defendant's loan was paid out, the plaintiff's parents' loan was repaid and the balance of the proceeds of the sale in the sum of $37,145.66 was paid into the settlement agent's trust account.

8 The plaintiff pleads that one-half of the proceeds of sale less costs exclusive of the defendant's loan is $30,259.03 and that in breach of the separation agreement the defendant has refused to instruct the settlement agent to release that sum to the plaintiff. The plaintiff claims a declaration that the money held in the settlement agent's trust account is held on trust for the plaintiff and defendant in proportions of $30,259.03 for the plaintiff and $6,884.63 for the defendant.

9 The defence admits that the parties were in a relationship and that it was a de facto relationship which existed from in or about Christmas 1987 until on or about 10 June 1999. She pleads that the relationship included:

(a) a commitment by both parties to an exclusive permanent relationship as man and wife;

(b) a sexual relationship from in or about late 1987 until mid-1999;

(c) an expressed and common intention to live together;

(d) the completion by her of domestic tasks and the contribution to domestic costs to facilitate the parties' cohabitation as a de facto couple in addition to her fulltime employment;

(e) an expressed and common intention to have children together;

(f) an expressed and common intention to pool their financial and non-financial resources for the benefit of them equally; and

(g) joint contributions and investments by the parties in pursuance of a joint endeavour, particularly the joint intention of the plaintiff and the defendant to provide for their permanent mutual financial security and benefit as man and wife.

10 The defendant denies that the existence of the 1988 Waikiki agreement but admits that the parties purchased the Waikiki property as joint tenants using a joint loan.

11 The defendant does not admit the allegations regarding the plaintiff's parents' loan save to admit that the plaintiffs' parents provided $16,000 to the parties as a de facto couple to assist them at this time.

12 The defendant pleads that at all material times during the course of the de facto relationship the parties applied their capacities and skills for work in their respective roles in the de facto relationship, as detailed previously, in a joint endeavour, one purpose of which was the parties common and mutual intention to provide for their permanent mutual financial security and benefit as man and wife in equal shares and also that of any children of the de facto relationship ("the joint endeavour"). Particulars of the intention to provide for the parties' permanent mutual financial security are that:

(a) the plaintiff told her, in effect, that his work in the joint endeavour was for the purpose amongst other things of providing for the parties' shared future and providing for their permanent mutual financial security and benefit as a couple as well as any children of the relationship;

(b) the parties agreed that the defendant would only engage in full time employment in a manner that facilitated the plaintiff's capacity to pursue his career and contribute to the joint endeavour and she would devote herself to a particular role as detailed in the next paragraph; and

(c) the plaintiff on a number of occasions said to the defendant that she would be entitled to a one-half interest in the assets that formed part of or resulted from the joint endeavour (par 6).

13 The defendant pleads that during the period of and pursuant to the joint endeavour and in contemplation of the financial security and benefits the joint endeavour would provide the defendant devoted her capacity and skill to the joint endeavour. She further pleads that she contributed wealth to the joint endeavour by contributing as a de facto wife, moving from metropolitan Perth to assist the plaintiff in pursuit of the joint endeavour, working as a bank clerk including contributing her wages and affecting access by the parties to discounted interest rates and the waiver of bank fees by virtue of her employment as a bank clerk, by facilitating the acquisition of real estate by the parties by committing herself to mortgages as a joint mortgagor with the plaintiff and making payments as required from time to time, renting and managing the properties owned by the parties in Perth and rearranging her financial affairs to facilitate and minimise the parties taxation liability as a de facto couple (par 7).

14 The defendant pleads that during the period of the joint endeavour and pursuant thereto the plaintiff devoted his capacity and skilful work as an electrician to maintain and increase his wealth.

15 The defendant admits that the plaintiff and later the defendant left Perth to live and work in Newman as alleged by the plaintiff.

16 The plaintiff's pleading up to and including the separation agreement are denied by the defendant except to admit that shares were purchased in her name pursuant to the joint endeavour. The defendant does admit that she moved to Melbourne leaving the Pulsar and some of her household goods at the plaintiff's residence but not leaving a forwarding address. She admits that she subsequently contacted the plaintiff and that he agreed to and did forward the Pulsar and household goods to her sister in Perth. The plaintiff admits that the Waikiki property was sold as alleged by the plaintiff but she denies that money was paid out of the proceeds as alleged by the plaintiff. She does acknowledge that the settlement agent currently holds $37,145.66.

17 The defendant counterclaims that during the joint endeavour the parties made investments, acquired assets, purchased property and otherwise pursued the objects of the joint endeavour with the common and mutual intention that she has pleaded in her defence. As a consequence she pleads that during and pursuant to the joint endeavour the plaintiff was able to and did increase his wealth whereby:

"(1) The Plaintiff became the sole registered proprietor of the Ocean Reef house and ultimately sold the Ocean Reef house for $255,500.00 on or about 29 August 2000;

(2) The Plaintiff has retained the nett proceeds from the sale of the Ocean Reef house to the exclusion of the Defendant;

(3) The Plaintiff has, until the sale of the Ocean Reef house, received rent from the Ocean Reef house to the exclusion of the defendant;

(4) The quantum of the nett proceeds of the sale of the Waikiki house remains in issue but $37,145.66 is held by VIP Settlements as pleaded at paragraph 17 of the Defence pending the outcome of these proceedings,

(5) the Plaintiff has, until the sale of the Waikiki house, received rent from the Waikiki house to the exclusion of the Defendant,

(6) The Plaintiff has the sole benefit of his superannuation to the exclusion of the Defendant which the Defendant estimates at between $200,000.00 - $300,00.00 (sic);

(7) The Plaintiff has the sole benefit of his Provident Fund to the exclusion of the Defendant which the Defendant estimates at $200,000.00,

(8) The Plaintiff retains the benefit of his significantly higher income as an electrician (to the Defendant's as a bank clerk) for the duration of the de facto relationship to the exclusion of the Defendant, and

(9) The Plaintiff has retained the following assets to the exclusion of the Defendant (at the values estimated by the Defendant): -

(a) Shares estimated at $60,000.00;

(b) Furniture and furnishings estimated at $50,000.00;

(c) 1996 GXL Toyota Landcruiser estimated value of $30,000.00;

(d) CBR 900 Fireblade motorcycle estimated value of $12,000.00;

(e) Motor-cross motorcycle estimated value of $11,000.00;

(f) Swarovski crystal estimated value $3,000.00;

(g) Coin collection estimated value of $2,500.00, and

(h) YZ Yamaha motor cycle estimated value of $2,000.00,

18 The defendant claims that the de facto relationship came to an end through no fault of the parties and the plaintiff has retained the increase in the plaintiff's wealth and has failed and refused to account to the defendant for the plaintiff's failure to fulfil the parties common and mutual intention to provide for their permanent mutual financial security and benefit as man and wife in equal shares. The defendant pleads that her work and financial contributions were contributed to the joint endeavour in the expectation, and pursuant to the parties' common and mutual intention that she would enjoy permanent mutual financial security and benefit with the plaintiff as man and wife in equal shares. She further pleads that in these premises the plaintiff's retention of the increase in the plaintiff's wealth for his sole benefit to the exclusion of the defendant is unconscionable conduct.

19 The defendant pleads that she is entitled to the benefit of such financial security and benefit afforded by an equal share with the plaintiff in the wealth generated by the joint endeavour and to be compensated in a sum representing so much of the increase in the plaintiff's wealth during the de facto relationship that equates to such a share. In the alternative she pleads that she is entitled to be compensated in a sum representing so much of the increase in the plaintiff's wealth during the de facto relationship that equates to the value of her contributions. She seeks declarations and orders for compensation to these effects.

20 In his reply and defence to counterclaim the plaintiff denies that there was a de facto relationship between the parties and the particulars given of the relationship. However, the plaintiff's counsel at trial did not maintain that there was never a de facto relationship between the parties. The length of time and the nature of the relationship remain in dispute between the parties.

21 In his reply and defence to the counterclaim the defendant denies the existence of the joint endeavour and the common and mutual intention. He admits that he has retained assets to the exclusion of the defendant. The plaintiff denies that the relationship came to an end through no fault of the parties, that he has failed to account to the defendant, that his retention of certain property amounts to unconscionable conduct and that the defendant is entitled to compensation.

22 Both parties gave evidence. Additionally, the plaintiff called his parents to give evidence. The defendant called her father and sister to give evidence. She also tendered, by consent, statements from friends. She called an accountant who had provided advice to both parties and an actuary as an expert witness on the value of superannuation policies.

23 The parties and the family witnesses were apparently trying to give truthful evidence. Despite this, some inconsistencies between their evidence, particularly between the evidence of the parties, cannot be explained simply by unreliable memories due to lapse of time. The inconsistencies can only be explained by their interest in this matter as either members of one family or the other. This is not to say that the parties and other witnesses have deliberately coloured their evidence. Rather, as a fact of human nature, their recollection of past events reflects their prejudices and sympathies. This is also seen in their inability to agree on even minor matters. Therefore it has been necessary for me to take care when making findings of fact. I have sought objective evidence to support each witness's version of events. I have also applied commonsense and logic to the evidence of the witnesses in order to discern the truth.

24 Despite the use of over a hundred pages of witness statements as evidence-in-chief, the transcript of evidence approaches 500 pages. This judgment would be unnecessarily long if I attempted to summarise each witness' evidence. Instead I will simply state my findings of fact. Where the finding is important and the parties are in disagreement on it I will give further reasons as to why I prefer one version of facts as opposed to another.

25 The parties commenced a relationship as boyfriend and girlfriend in approximately June 1987. At this time the plaintiff was 19 years of age, living with his parents and was an apprentice electrician with the Water Authority. The defendant was 17 years of age, being 17 months younger than the plaintiff. She was living with her parents and employed as a receptionist. A short time later they commenced a sexual relationship and the relationship quickly became a serious one for both of them. At this time, neither party had any assets of significant value.

26 There is a dispute between the parties as to whether they became engaged and if so when.

27 The plaintiff said that although they talked about getting married he did not ask the defendant to get engaged and it was spoken about as something that may occur in the future. Whereas the defendant said that they became engaged in December 1987 when the plaintiff suggested that they get married. She said that the plaintiff spoke to her father and asked him for her hand in marriage and her father consented. She said that she was in the room next door and overheard this conversation. She said that the plaintiff purchased an engagement ring for her on lay-by which was picked up in January 1988.

28 The plaintiff's mother, Joan Albert, testified, in essence, that the parties had told her around this time that they intended to get married in the future. However, there was no formal announcement of the engagement and she did not believe that other people were told.

29 The plaintiff's father, Julien Albert, testified that he did not recall the parties saying that they were engaged. By the time Mr Albert Senior gave evidence he was frail and had sight and hearing difficulties. I do not put much weight on his evidence in respect to this issue.

30 The defendant's father, Alan Tyler, testified that in November 1987 around the time of the defendant's birthday the plaintiff said to him "I would like to marry Claire is that all right?" He said that he replied that the plaintiff could marry the defendant but that she could not cook and he suggested that he look at the state of her bedroom. He said that that night the plaintiff, the defendant, he and his wife celebrated the engagement. The following weekend the plaintiff and his parents came to their house for drinks to celebrate the engagement. The plaintiff and his parents denied any such celebratory event.

31 I find that the parties did discuss getting married and there was at this time an agreement between them that one day in the future they would get married. To reflect this, the plaintiff told the defendant's father that he would like to marry the defendant and purchased a ring for her which she, thereafter, wore on her engagement finger. I am of the view that the plaintiff and his parents have downplayed the nature of the relationship between the parties at this time whereas the defendant and her father have done the opposite. The truth lies somewhere in between.

32 With respect to the purchase of the Waikiki property, the plaintiff gave evidence that during 1988 he was considering buying land as an investment and saw an advertisement for a house and land package in Waikiki. He said he was unsuccessful in obtaining finance on his own to purchase the package and so asked the defendant if she would help him to get finance for the purchase of the property by jointly applying for a loan with him. He said that she agreed provided that it did not cost her anything. Subsequently the Waikiki property was purchased for about $60,000.00 with the assistance of a joint loan secured by the Westpac mortgage in joint names. The plaintiff testified that after the finance application was made he needed more security for the loan because he was seeking to borrow almost the whole cost of the package. He asked his parents if they would put up the title to their property as a guarantee for the loan and they agreed to do so. He said that when a short time later, his parents sold their property they lent the parties $16,000 which was used to reduce the Westpac mortgage. He said that they drew a private loan agreement for the $16,000 which was secured against the Waikiki property.

33 The plaintiff testified that the Waikiki house was built between February and October 1989. On 7 April 1989 $16,000 was credited to the loan account. The final progress payment was drawn down against the loan on 18 August 1989. He said that he would routinely go to the building site to see how the building was progressing and that he could not recall the defendant having any particular interest in how the building was going. He said that his mother assisted him to choose the interior decoration of the house.

34 The plaintiff testified that his decision to purchase the property caused conflict between him and the defendant because she was of the view that he could not afford it. Consequently their relationship became strained.

35 The defendant gave evidence that they made the decision to buy the house together because they wanted a home of their own. She said that she rang around financial institutions to make appointments to find out how much they could borrow in their joint names. She believed that they opened a joint account at this time and started saving for the purchase. She agreed that they purchased the Waikiki property using the Westpac mortgage and that the balance of costs and fees were paid from their joint savings. The defendant testified that after the house was built and in about November 1989 the plaintiff's parents loaned them $16,000 to enable them to purchase carpets, paint the property and put in a driveway etc. She acknowledged that she and the plaintiff signed a mortgage document with his parents in relation to that loan. She said that the agreement was that if the property was sold Mr and Mrs Albert would be paid from the proceeds of sale and that they would pay simple interest of 2 per cent per annum on the loan. She said that she and the plaintiff laid the carpet, painted the house, landscaped the garden and put in a driveway.

36 The plaintiff's mother did not shed much light on any arrangement between the parties as to the purchase of the Waikiki property. She testified that she was aware that her son wished to purchase the property but did not have any conversations with the parties about the defendant's position. She testified that she did not see the defendant do much work to prepare the property to be lived in. She conceded that she saw the parties completing a planter box. She said that she helped the plaintiff put in the driveway and that she did not see the defendant do any painting. She conceded that the defendant may have done some when she was not there.

37 Similarly, the plaintiff's father did not shed much light on any arrangement between the parties as to the purchase of the Waikiki property.

38 The defendant's father testified that he paid for some fencing and gates at the Waikiki property and did some gardening work there. He said he did not recall the plaintiff doing any work at that property.

39 I do not accept the evidence of the plaintiff that the decision to purchase the Waikiki property was his alone and that the arrangement between he and the defendant was a business arrangement only so as to enable him to purchase the property. The parties at this time were intending to marry and as soon as the property was finished they moved into it together. They remained living in it until they moved, albeit at slightly different times, to Newman. I accept that to some extent both parties' parents made a contribution to the home. I find that the intention of the parties was to purchase the property jointly with the intention that it would provide a home for both of them, although not in the long term.

40 In or around April/May 1989 the defendant fell pregnant to the plaintiff. The pregnancy was terminated. It is clear that at this time neither party wished to proceed with the pregnancy.

41 In October 1989 the parties moved into the Waikiki property. This commenced their de facto relationship. I have come to this conclusion because the parties had been going out as boyfriend and girlfriend for over two years and by October 1989, they were living together in a home which they had purchased jointly and on which they had a joint debt to the bank. They had announced an intention to marry in the future. They presented themselves to their family and friends as an engaged couple. Whilst they did not have any children and, in my view, did not plan to have any in the immediate future they then had plans to have children when they married.

42 The first loan repayment was made in October 1989 in the sum of $648. I accept, as it does not appear to be disputed by the defendant, that until the parties established the joint account in 1991 all the repayments on the loan were made from the plaintiff's money, from money received under the First Home Owner's Scheme or subsequently from rent received for the premises after the parties moved to Newman. However, there is no evidence before me that the defendant paid rent to the plaintiff whilst she lived in the house.

43 By early 1990 the parties were struggling financially. The defendant did not work for approximately three months in early 1990. The reason for this is unclear. The plaintiff looked for better paying work and found a job as an electrician with BHP in Newman. He commenced working there on 10 June 1990. In the financial year ending 30 June 1991 he earned a gross income of approximately $41,000. By that time the defendant had a receptionist's position earning approximately $650 per fortnight or approximately $17,000 per annum.

44 The plaintiff moved to Newman by himself and commenced living in single person's quarters. He applied for a flat citing the defendant as his spouse. Until suitable accommodation in Newman was obtained the defendant remained living in the Waikiki property.

45 The plaintiff moved back to Perth in September 1990 and remained there until November 1990 in order to have a knee operation and to recuperate from it. At this time the parties obtained a $9,000 extension on the Westpac mortgage. This money was used to effect improvements in the house. I accept that the plaintiff did a lot of the work himself. However, the defendant also assisted to some extent. This finding is consistent with the fact that the plaintiff went to Perth because he had a knee injury. He was not wholly fit at this time.

46 There were also arrangements to be made for the letting of the Waikiki property. I accept that the defendant did most of the work in respect to the letting of the property.

47 Both parties returned to Newman in mid-November 1990. They commenced residing together in a BHP supplied flat. The rent for the flat was deducted directly from the plaintiff's pay.

48 The defendant said that before the parties left Perth they sat down and discussed their plans for moving to Newman. The defendant, in essence, said that they had a five year plan to earn as much as possible in Newman with the object of paying off the Waikiki property as soon as possible and then returning to Perth to start a family. She said that the plan was for the plaintiff's income to pay for accommodation and to make increased mortgage repayments whilst the plaintiff's wage would be sufficient for food and living expenses.

49 The plaintiff denied any such conversations leading to the formulation of such a five year plan. In his third witness statement he said that the only discussion the parties had about children was that they did not plan to have them. Yet in his second statement, at par 50, he said that when they were first in Newman they did discuss on occasions their potential future and that they may have kids at some stage in the future.

50 In my opinion the plaintiff has minimised the nature of the relationship between the parties and the plans that they had for their future. Apart from the plaintiff's evidence the objective facts support the defendant's contention that at this stage of their relationship they were planning a future together, that part of that future involved them moving to Newman to earn higher wages so that they could pay off the Waikiki property more quickly and afford to return to Perth to start a family at some point in their future. However, I am not prepared to accept the defendant's evidence that the parties had a formal five year plan.

51 In early 1991 the defendant obtained a position at the R&I Bank, later BankWest ("BankWest") in Newman as a bank clerk. She commenced work on a base wage of approximately $22,000 per year.

52 At least from that time the defendant was responsible for liaising with the real estate agent responsible for the management of the rental of the Waikiki property. This was logical as the defendant had access to a telephone and fax machine and was readily contactable during office hours as compared to the plaintiff.

53 Some time in the first half of 1991 the parties opened the joint account at BankWest in Newman. Their salaries were paid into this account and expenses paid from it. These included the mortgage repayments on the Waikiki property. There were benefits to the parties in operating such an account as through the defendant's employment some bank fees were waived. She also obtained a discount on interest rates on loans.

54 In April 1991 the parties borrowed $14,000 from BankWest by way of a joint personal loan. They used the funds to purchase a $10,000 stereo. They repaid $2,000 to the defendant's parents for a motor vehicle that they had purchased for her in 1990 and gave a further $2,000 to the plaintiff's parents. The defendant said that she believed that this was a part payment of the loan that the plaintiff's parents had made to them. The plaintiff said that whilst that money may have been paid it was a gift and was not made in reduction of the loan. Mrs Albert testified that they did receive a cheque for $2,000 and that it was sent with a note from the plaintiff thanking them for their help and saying that he did not want them to have concrete floors over winter in their new home. She said that they used the money to put flooring into the home. It seems to me that it would be unlikely that, as the parties owed Mr and Mrs Albert money, they would make a payment to them of $2,000 other than by way of reduction of the loan. The partial repayment may well have been so that the plaintiff's parents could afford to carpet their home but this does not necessarily make it a gift. Further, in light of the fact that it is agreed that the $2,000 that was paid to the defendant's parents was in reduction of the loan from them, it is logical that similarly the $2,000 to the plaintiff's parents was also in reduction of their loan.

55 In April 1991 the defendant applied for membership of the Tower Superannuation Fund including life insurance. The beneficiary under the policy was stated to be her "de facto", the plaintiff. The first contribution of $150.00 was withdrawn from the joint account on 5 July 1991. A monthly withdrawal in this amount, increasing to $154.90 on 4 May 1992, continued until April 1993. Over this period payments totalling $3,358.80 were made from the joint account in respect to this policy.

56 Around the same time the defendant commenced an investment with Scottish Australia. The precise nature of this investment is not known to me. However, payments of $625.14 per month starting 10 July 1991 increasing to $634.52 on 11 May 1992 and continuing until 10 March 1993 were withdrawn from the joint account in respect to this investment. Over this period $12,596.60 was withdrawn from the joint account and paid to Scottish Australia.

57 The plaintiff said that the defendant said to him that because payments were coming from the joint account to pay for the mortgage on the Waikiki property she wanted to have similar payments going to investments for her benefit. He says that he agreed and it is implicit in his evidence that this was an acknowledgement by both parties that the Waikiki property was an investment on his behalf. Whereas the defendant said that it was the plaintiff who suggested that they open these two investment accounts. She said that she signed the documentation at the plaintiff's request.

58 The parties' then accountant was the broker for both of these funds. It is obvious that he would have suggested and promoted the investments to the parties. I am unconvinced by either party's explanation as to how the investments came to be in the defendant's name. As I have found, the Waikiki property was in their joint names and the mortgage was being paid from the joint account into which both their salaries were deposited. They were living together in a de facto relationship at this time and were looking forward to a lifelong relationship. In this context it seems highly unlikely to me that the investments in the defendant's name would have been made as the plaintiff says. On the other hand the defendant's explanation that these investments were instigated by the plaintiff and she signed the documentation at his request hardly has the ring of truth to it either. It seems to me to be likely that she played a greater role in the investments than that.

59 After the commencement of the joint account, the plaintiff continued to operate a separate cheque account with BankWest. However, his salary was not paid into the account. Rather, the account seems to have been funded by cash or cheque deposits. There is no direct evidence before me that the defendant maintained a separate account at this time. However, it is possible that one of the accounts in her name was open during this period.

60 In April 1992 the defendant commenced a secret sexual relationship with another man in Newman. The defendant acknowledges that any commitment by her to an exclusive relationship between herself and the plaintiff came to an end at this time. It is relevant to the manner in which the parties conducted their household affairs that the defendant also acknowledges that she used to use the excuse of going out to collect takeaway food for herself and the plaintiff to meet her lover.

61 In August 1992 the plaintiff discovered the existence of the relationship between the defendant and the other man. I accept that he was devastated by this news and that up until that time he had believed that he and the defendant were in an exclusive relationship and planning a lifelong commitment.

62 There is a disagreement between the parties as to the length of the separation that occurred after the plaintiff found out about the other relationship. The plaintiff said that they separated for about three weeks and then he moved back in with the defendant. He denied that they resumed their relationship from where it had been prior to the discovery by him of the affair. He gave a history of a more lengthy separation than the defendant did and with a reconciliation that was half-hearted on his behalf. He said that this was one of the bases for the decision in 1993 to separate their finances.

63 Whereas the defendant said that whilst there was a brief separation when the plaintiff discovered her affair they quickly reunited, she recommitted to the relationship with the plaintiff as did he with her and they continued as if nothing had changed.

64 After the plaintiff discovered the affair, he contacted the defendant's sister, Kathleen Caparo, and asked her to come to Newman to provide support to the defendant. Ms Caparo did so and stayed in Newman for five or six days. She said that when she was there the plaintiff and the defendant were sleeping in the same bed and by the time she left they appeared to have resolved their differences. However, she did not have any in-depth conversations with either party as to their attitude toward the relationship. Indeed she said that she did not ask her sister why she had commenced the other relationship or why she chose to stay with the plaintiff. Thus it seems she is only relying upon some outward appearances for her opinion as to the extent of the parties' reconciliation.

65 Of course it is notoriously difficult for outsiders, including Judges, to assess other people's relationships. Even a party to a relationship can misunderstand another's commitment to it. An example of such misunderstanding is the plaintiff's misunderstanding of the defendant's commitment to the relationship between April and August 1992. During these months he believed that their mutual commitment to an exclusive relationship continued whilst the defendant had unilaterally terminated it.

66 It may well be that the defendant, upon deciding to give up her lover, recommitted to the relationship with the plaintiff and assumed that he had done so also. However, that may not necessarily have been the case. I accept that the plaintiff had been deeply hurt by his partner's infidelity. He was a conservative and cautious young man. I find it contrary to his nature and logic that he recommitted to the relationship as if the affair had never occurred. The defendant acknowledged in her evidence that the plaintiff is not a particularly articulate or communicative person. In my view it is likely that this may have allowed the defendant to assume that nothing or little had changed between them when in fact the plaintiff had withdrawn some of his commitment to the relationship.

67 In any event, the fact is that after a short period the parties resumed cohabitation. They continued to present themselves to the Newman community and their families as a de facto and/or engaged couple.

68 In the financial arrangements that they subsequently made there is evidence of some reassessment of their relationship.

69 In 1992 the parties received advice from their accountant that it would be in their interests for the plaintiff to purchase a property and for tax purposes to negatively gear it, that is to borrow the money to purchase the property and to offset the interest paid on the loan and other expenses related to the property against the income derived from the property. This is a form of investment that is most advantageous to a person in a high tax bracket. Thus it was an investment that was most advantageous to the plaintiff. For that reason the property and the loan had to be in the plaintiff's name.

70 However, for the investment to be tax effective it was not necessary for the plaintiff to operate a separate bank account. The accountant confirmed in evidence that this was the fact. It was possible for the plaintiff's salary to be paid into a joint account and as long as the expenses in respect to the property were paid from the same account the plaintiff would be able to gain the tax advantage in respect to the negative gearing of the property. However, the accountant acknowledged that it would be easier to organise if it was in a single account rather than a joint account.

71 In early December 1992 the plaintiff signed a contract to purchase a display home at 68 Santiago Parkway, Ocean Reef ("the Ocean Reef property") for $205,000. The contract was conditional upon the sale of the Waikiki property. I note that the contract also stated that the purchase was to be funded by a loan of $195,000. Therefore, it is difficult to know why the plaintiff needed to sell the Waikiki property to fund the purchase of the Ocean Reef property and in fact he did not do so.

72 The plaintiff said that he purchased the Ocean Reef property as an investment and that he had no intention of the defendant ever having a financial interest in it. He said that he cannot recall any conversation with the defendant which would indicate that he did. He also testified that he went to Perth to view the property and he alone made the decision to purchase it. Whereas the defendant said that, after receiving tax advice, she and the plaintiff discussed buying another house as an investment property. She said that she found the particular display home that they subsequently purchased and on seeing the plans which were faxed to her at her work the parties agreed that they would purchase it and that they would eventually live in it and raise their family there. She said it was always described as "our" house. There is evidence in correspondence with the subsequent managing agent that the defendant referred to it as "our" house.

73 Of course both parties cannot be correct. There is a significant difference in their evidence in respect to the purchase of the Ocean Reef property which cannot be explained simply because one of them has an unreliable memory.

74 I am persuaded by the evidence that when the Ocean Reef property was purchased by the plaintiff it was purchased as a negatively geared investment to obtain some tax relief for him. I am satisfied that as part of the defendant's care for the plaintiff she helped him to select the property, obtain finance for it and subsequently, to manage its rental. However, it was the plaintiff's property and he paid the expenses of it from a bank account in his sole name.

75 I do not accept that it was the parties' mutual intention at the time the Ocean Reef property was purchased that it was to be their future family home or that they would have equal shares in it. In this respect I am not prepared to accept the defendant's evidence, unsupported as it is by any objective evidence that this was the case. The defendant sought to support her case with a video which the plaintiff made when he inspected the property prior to its purchase. It was put to the plaintiff that the sound track of the video included the plaintiff describing various rooms of the house as being "ours". The video is in evidence and the soundtrack consists of the plaintiff describing various rooms of the house but there is no identification of the house or rooms in it as their house. The soundtrack does not support the defendant's case.

76 The defendant did not make any financial contribution to the purchase of the Ocean Reef property. It was purchased on 12 March 1993 with a loan in the sum of $210,000 from the Challenge bank in the plaintiff's sole name secured by a first mortgage over the property and a guarantee from the plaintiff's parents. The property was registered in the plaintiff's name.

77 At this point the joint account was closed. The defendant's half share of the closing balance of the joint account was deposited in another BankWest account in her name. The plaintiff's pay recommenced being paid into his cheque account with BankWest. Periodical payments of $2,108 per month were withdrawn from this account and were deposited in the Challenge Bank loan account to reduce the home loan.

78 The closure of the joint account at this time indicates more than an intention by the parties to facilitate the negative gearing of the Ocean Reef property. This is because it would have been possible and practical to negatively gear the Ocean Reef property without closing the account. That could have occurred by having the plaintiff's income from and expenses of the property going through the joint account or by the plaintiff operating a separate account for his income from and expenses of the Ocean Reef Property and continuing to use the joint account for household and personal expenses. By operating his sole account for personal as well as investment purposes, as he seems to have done, the plaintiff would have had to isolate, for tax purposes, the expenses related to his investment from his personal expenses just as he would have had to do if he had used the joint account for both purposes. He would not have had to do this if he had continued to operate the joint account for all personal expenses and the sole account for investment purposes.

79 Consequently I accept the plaintiff's evidence that the closure of the joint account was done to separate the parties' general finances as well as to facilitate the negative gearing of the Ocean Reef property. The plaintiff says that the separation of finances was due to the defendant "draining" him of funds through the joint account and a realisation that the relationship was not going to work out in the long run. As to the first point, looking at the balances in the joint account as opposed to his sole account there was some improvement in the plaintiff's financial position after the split. As to the second point it is difficult to fully accept this as the parties' other arrangements did not alter at this time. I think it more likely that the plaintiff was simply implementing his more cautious and less committed approach to the relationship having regards to the events of 1992.

80 The plaintiff says that when the parties separated their finances they drew up a document to record that the defendant was to have no interest in the Waikiki property as she was going to have the benefit of the Tower Life and Scottish Australia investments. He claims to have lost this document. The defendant denies that it existed. This is a case of one party's word against another. On the basis of the plaintiff's uncorroborated evidence I am not prepared to find that such a document existed.

81 From the time the joint account was closed the plaintiff made the mortgage repayments on the Waikiki property. However each party declared half the income from the property and claimed half the expenses of the property in their tax returns. The defendant made the monthly payments on the Tower Life and Scottish Australia investments.

82 The defendant claims that at the time the Ocean Reef property was purchased the plaintiff extracted a promise from her to "stand by him" so that the purchase was financially and otherwise achievable. I do not accept that this was the case as the defendant's financial contribution was not necessary to the purchase. As I have said, the plaintiff's financial position (as far as readily available cash was concerned) improved after the purchase despite the fact that he was then paying rent on the premises the parties were residing in, the Westpac mortgage and the Ocean Reef mortgage. Although I acknowledge that rent for these premises was also paid into his account. As to non-financial contributions, whilst I accept that the defendant made some such contributions I do not see that they were essential in order to achieve the purchase of the Ocean Reef property.

83 In the first half of 1993 the defendant traded in her Sigma motor vehicle and purchased a Holden Camira. This car cost less than $10,000.00. The defendant also cashed in her Scottish Australia investment and used the proceeds to assist her to purchase the Camira in her name. The refund from Scottish Australia made on 10 May 1993 was $10,605.10.

84 The defendant said that she ceased making payments on the Tower Life policy because the plaintiff said that his superannuation would be sufficient for their retirement. The plaintiff said that he encouraged the defendant to maintain both this and the Scottish Australia investment but that she said she could not afford to pay them. I find that the defendant could not afford to fund these investments from her own income and that is why she surrendered them.

85 After separation of their finances the plaintiff's income appears to have been used to pay rent, utilities, his personal expenses (primarily related to his interest in motor bikes), some daily living expenses and the expenses of the two properties. Whereas the defendant's income was used to pay daily living expenses and her personal expenses. I also accept that she purchased smaller household appliances and the like.

86 Whilst the joint account was open the parties' day to day living expenses were drawn from it. After the account was closed there was not a formal arrangement for payment of grocery and other household bills. The defendant contends and I accept that she did most of the purchasing of food and clothing. The plaintiff does not strike me as someone interested in such matters. As to payment of the bills the defendant says that she paid for most of these items. The plaintiff says that he gave the defendant contributions that would easily have covered his day to day living expenses. He also points to evidence that he regularly ate at the BHP canteen using meal tickets he purchased. The plaintiff's payslips prove that the plaintiff purchased meals at the canteen approximately three times per week. Further, at work, he had access to snacks without the need to produce a meal ticket.

87 I find that the plaintiff's financial contributions did cover his day to day living expenses. I accept that the defendant bought clothing for him from time to time but his requirements in this regard were not great.

88 As to the performance of household chores I find that the defendant would have done most of these, including the cooking, but I also accept the evidence that housekeeping was not a particular priority for her.

89 Further, the housekeeping only required maintaining the flat and later the house for two people who were working full time and, thus, not often home. I also find that the plaintiff made his own non-financial contributions to the maintenance of the home by doing some household chores and maintaining the parties' motor vehicles.

90 As the years progressed the plaintiff's income rose. His gross income (rounded up to the nearest $100) between 1992 and 1999 was:

91 The defendant's gross income for the same years (where available) was:

92 In round figures the plaintiff was earning three to three and a half times more than the defendant.

93 In March 1993 the parties moved to a house rented from BHP at 11 Leete Place, Newman ("the Leete Place property"). The defendant said that at this time she and the plaintiff had a conversation in which she declared her wish to have children. She said that the plaintiff said that they should wait until they were more financially secure. The plaintiff denied that such a conversation took place. I am not persuaded that such a conversation took place. It seems highly unlikely that the defendant, knowing that the plaintiff was making a significant commitment with the purchase of the Ocean Reef property, would have been suggesting that it was an appropriate time for them to move back to Perth and start a family.

94 In December 1993 a Honda Fireblade motor cycle was purchased in the plaintiff's name for $14,000 and the Pulsar was purchased in the defendant's name for $22,000. To finance the purchases the defendant traded in the Camira and obtained a staff loan from BankWest for approximately $24,000. This loan was paid off by direct debits taken from the defendant's bank account. However the plaintiff gave the defendant some lump sum payments to assist in repayment.

95 On 14 May 1995 the plaintiff entered into a contract to purchase the Leete Place property from BHP. The plaintiff obtained a BHP housing loan in his name to enable him to purchase it. All repayments on the loan as well as outgoings with respect to the house were paid by the plaintiff. The defendant said that at this time the parties agreed that when they moved from Newman back to Perth the proceeds from the sale of the house would be used to pay off the mortgage debts on the other properties. I accept that this may have been the plaintiff's plan. I do not accept that the plaintiff made any acknowledgement to the defendant that the Leete Place property was jointly owned or that the proceeds from its ultimate sale would be used to pay off joint debts.

96 Probably sometime in 1995 the Ocean Reef property had to be prepared for rent as the developers no longer wished to use it as a display home. The plaintiff said that the defendant did not assist in this work. The defendant said that she did. I accept that it is likely that the defendant did some work at the house as would be consistent with her role as the partner of the plaintiff. I also accept that the defendant spoke to the real estate agent who was to manage the property. Consistent with her role in respect to the Waikiki property the defendant completed the agency paperwork and her name and business contact details were given to the agent.

97 In 1995 the parties prepared Wills whereby they left their property to each other or, if the other party did not survive them, to any children of their relationship. The plaintiff's Will provided that if the defendant predeceased him and there were no children of the relationship, two thirds of his estate went to his parents and one third went to the defendant's parents. The defendant's Will had the same bequest.

98 In 1996 the plaintiff broke both his legs in a motorcross race. The defendant took a week's leave to assist him at this time.

99 The parties decided that the plaintiff should have a new motorbike. The plaintiff purchased a new bike for $8,500 with funds drawn from the equity in the Waikiki property. The defendant arranged the purchase. The plaintiff repaid the loan from his income.

100 At the end of 1996 the defendant became secretary/treasurer of the Newman Enduro Motorcycle Club. The plaintiff said that he did not ask her to do this but I am satisfied that she did it in order to take an active role in the plaintiff's sporting endeavour.

101 On 19 January 1996 the defendant purchased 1,100 shares in BankWest pursuant to an employee share ownership plan. The plan enabled the defendant to borrow the purchase price from her employer. The purchase price appears to have been approximately $1,800.00. On 16 July 1996 the plaintiff purchased 500 BHP shares for $8,626.15. He paid for these from his bank account. However, he purchased the shares in the defendant's name. A BHP document dated 12 October 1998 shows that as of that date the plaintiff held 334 BHP ordinary shares. Two hundred of these had been purchased on 19 May 1995 and 134 were purchased on 28 July 1997. On 28 July 1997 the plaintiff also purchased a further 134 shares for the defendant. It is not clear to me why the plaintiff purchased shares for the defendant.

102 In September 1997 the parties took a joint holiday to Melbourne during which they attended the AFL Grand Final and the Motor Bike Grand Prix Race on Phillip Island. The plaintiff met some members of the defendant's extended family in Melbourne. He said that at this time he thought that his relationship with the defendant was going well. He purchased a ring for the defendant in Melbourne. The defendant said that it cost $1,200 and that the plaintiff referred to it as her "ten year ring". The plaintiff said that it cost approximately $800 and he did not use that phrase. I find it unnecessary to resolve this conflict. I am satisfied that the ring was a substantial gift to the defendant which was consistent with their then de facto relationship.

103 During the trip to Melbourne the defendant took the plaintiff to meet her childhood sweetheart, John Hill. At that time he was engaged to marry another woman. The defendant later wrote an account for a magazine of her relationship with Mr Hill who she has married since the breakdown of her relationship with the plaintiff. I am satisfied on the basis of this account and the evidence generally that this meeting rekindled her feelings for Mr Hill.

104 The plaintiff purchased a Landcruiser 4WD for approximately $36,000. The parties say that this was in early 1998. However, what appears to be bank statements relating to the personal loan used to purchase the car indicate that the loan was dispersed in January 1999. The date is probably not critical. The defendant arranged the loan by contacting another employee at BankWest. The plaintiff paid off the loan by periodic payments from his bank account.

105 On 28 August 1997 the defendant purchased, using the employee share ownership plan, a further 359 BankWest shares for approximately $1,000. On 5 November 1997 the plaintiff purchased 1,000 Telstra shares in the name of the defendant.

106 On 25 February 1998 the Westpac mortgage over the Waikiki property was discharged.

107 On 20 May 1998 the defendant obtained an equity line facility from BankWest which permitted her to borrow up to $20,000. The purpose of the facility was to enable the defendant to trade shares and to offset the cost of the bank facility against income from the shares for tax purposes. The equity line facility was guaranteed by the plaintiff and secured against the Waikiki property.

108 It is obvious that at this stage both parties were interested in share trading. The defendant testified that the parties received tax advice from their accountant to obtain a loan for the purpose of buying shares. In another statement she said that the equity line facility was the plaintiff's suggestion on the basis of that advice. She said that they decided that the loan should be in her name because she did not have any negatively geared investments. In another statement she said that it was put in her name because she could get a lower interest rate. The defendant said that she and the plaintiff arranged the loan. As to the share trading, the defendant said that the plaintiff told her what shares to buy, the amount and in whose name they were to be purchased. She would then contact the broker and place the order. She said that she did not study the share market and she trusted the plaintiff's judgment. Consequently, the defendant said that the plaintiff should have been well aware of the debit balance of the equity line facility. $120 per month was withdrawn from the defendant's account to reduce the debit balance of the equity line.

109 On 10 August 1998 $7,000 was withdrawn from the equity line account. The particulars in the account statement says "to Mick" indicating that the money was for the plaintiff. The plaintiff says that he wanted to buy some shares but did not have the money available so he asked the defendant if he could have $7,000 from the equity line facility. She agreed. There is evidence that the plaintiff repaid $2,200 by the end of April 1999.

110 The defendant denied that the $7,000 was a loan to the plaintiff or that his later deposits into the account were repayments of the loan. She said that the plaintiff asked for the $7,000 to buy shares and she gave it to him.

111 The defendant's account does not make sense. According to her, if the plaintiff wished to purchase shares he did not have to take a lump sum from the account. Rather, he could have simply told her which shares to buy, the amount and in whose name they were to be purchased. In my opinion the withdrawal of $7,000 from the account for the plaintiff together with his deposits into the account up until the time of separation is only consistent with him borrowing the lump sum from the defendant and then partially repaying it.

112 The defendant claims that in approximately mid-1998 the plaintiff joined the BHP medical insurance scheme and obtained "family cover". The defendant says that this was because the parties were planning to have children in the near future.

113 In cross-examination the plaintiff said that he recalls in early 1999 including the defendant in his medical insurance. He said this was because the parties were in a de facto relationship and both he and the defendant had to be insured so that he could claim the tax rebate. He said that her inclusion was not because of any discussion about children. He testified that his child who has been born to a later relationship was delivered in the public health system and he did not use his private health insurance for that purpose.

114 The plaintiff's pay slips indicate that in August 1996 deductions of $33.60 each pay were made for "G.M.F. single". I infer that this was for singles cover from the Goldfields Medical Fund. In September 1998 the deductions were increased to $71.20 but the entries merely say "Goldfields MED" so it is not possible to determine what sort of cover was provided. The issue is further complicated because in February 1999 the deductions dropped back to $49.80 per pay.

115 This issue is basically the plaintiff's word against that of the defendant. I accept that the plaintiff's addition of the defendant on his medical insurance was consistent with their then status as a de facto couple but I am not satisfied that it was done in contemplation of the parties commencing a family.

116 The defendant said that in late 1998 the parties agreed that she should cease taking the contraceptive pill so that they could attempt to conceive a child. Whereas the defendant said that by this time their relationship was deteriorating and they were not having sex, let alone planning a family together. He says she may have ceased taking the pill because they were not having sex.

117 I am not persuaded by either party on this issue but it seems to me that it matters little. This is because even if the defendant is correct, she did not fall pregnant and they did not have a child. Further, by early 1999 Mr Hill and the plaintiff were regularly in touch with each other. Mr Hill's relationship with his fiancée had finished and he had contacted the defendant for moral support during this difficult time. I am satisfied that the defendant's and Mr Hill's relationship progressed over the next six months to a point where, although they did not see each other, they became very close. I do not accept, as she claims, that throughout this time the defendant's commitment to her relationship with the plaintiff, did not falter. The defendant acknowledged that many of the 14 SMS messages that she made between 5.44 am and 6.50 am on 24 March 1999 on her mobile phone were to Mr Hill. This was a time when the plaintiff would have been on his way to work. There were apparently a similar number on 26 March. However, most telling is where the defendant went to when she and the plaintiff broke up in June 1999. She flew to Melbourne. The defendant says that initially she stayed by herself in a hotel for two to three weeks and then moved in with Mr Hill, at first on a platonic basis. The flight to Melbourne is, in my view, only consistent with wanting to be with Mr Hill. This view is supported by her subsequent magazine account of their relationship where she said:

"My own relationship ... wasn't going well either. We barely saw each other and when we did, we argued. Eventually, after 12 years together, we broke up too. I rang John and told him ... 'Come stay with me. It'll be like old times', he replied. So impulsively, I quit my job ... and flew to Melbourne."

118 However, there were further developments in Newman prior to the parties' separation. In April 1999 the defendant resigned from her job at BankWest because she was unhappy at the amount of work she was expected to do. She also said that it was not a difficult decision to make because she was actively trying to have a child. As I have said I am not persuaded that at this time she was trying to conceive. Further, it seems illogical to resign from a job that presumably would have provided her with maternity benefits. A short time later the defendant got a job with another firm.

119 In early May 1999 the defendant sold her BHP shares for $11,477.09. These had been purchased for her by the plaintiff. On 6 May the defendant withdrew $11,120.00 from her account. The defendant gave $11,000.00 of this to the plaintiff. The plaintiff's account shows a cash deposit of $2,000.00 at the same time as this withdrawal. There is also a deposit of $2,500.00 into his car loan account at the same time. The balance was paid by way of a bank cheque in the sum of $6,500.00. The plaintiff said that he purchased a Kawasaki KX250 motor bike for $5,000.00 at about this time which he sold 12 to 18 months later for about $3,000.00. He says that about $1,500.00 being the balance of the money given to him by the defendant was kept at Leete Place and that he gave it to the defendant when they separated. The defendant said that she knew of no money kept at Leete Place and did not receive any at the time of separation. I accept the evidence of the bank cheque and find that the bike cost the balance, being $6,500.00. Consequently $1,500.00 of the $11,000.00 could not have been left at Leete Place.

120 When the defendant stopped working at the bank the plaintiff was required to do more of his own banking. When doing so he discovered the extent to which the defendant had drawn down the equity line facility, which by the end of May 1999 was $19,098.00 in debit. The defendant said that this should not have come as a surprise to the plaintiff. However, from his acknowledged reaction I accept that it was. At this time the defendant's financial position was poor and she was not in a position to reduce this debt. Indeed it is clear from the account statements that she was transferring available funds from that facility to her every day account.

121 The parties can not even agree about the details surrounding their separation. I find that shortly before 14 June 1999 the plaintiff discovered that the equity line facility was near its limit and this precipitated him telling the defendant that their relationship was over and that she was to leave the Leete Place property. There was then nothing to keep the defendant in Newman.

122 The plaintiff said that in the following days they discussed the division of property between themselves and this resulted in a verbal agreement that is pleaded in the statement of claim. The defendant denied that they discussed a property settlement.

123 In the face of the conflicting evidence and no objective evidence to support the evidence of either party, I am unable to conclude that there was a verbal settlement agreement as pleaded by the plaintiff.

124 The defendant's group certificate shows that her employment in Newman had ceased by 6 June 1999. On about 7 June she sold some shares for $9,688.08 which was deposited into her general account on 10 June 1999. On 10 June she also booked a one way airfare to Melbourne from Perth for $881 which was debited to her Citibank credit card account. I conclude that 10 June 1999 was the date on which the parties' de facto relationship finished.

125 On 14 June the plaintiff drove the defendant to Perth. There is a dispute between the parties as to whether the plaintiff gave the defendant any cash when she left. The plaintiff says that he gave the defendant around $4,000 cash from home. He initially said that he thought that $1,500 of this was part of the proceeds of the sale of BHP shares. In his last witness statement he acknowledged that this could not be the case. He also said that she took approximately $4,000 that was in the parties' safety deposit box.

126 The defendant denied that she received any money from the plaintiff when she left Newman. She said that before they left Newman the plaintiff took her to an ATM and she withdrew $1,000.

127 As to the safety deposit box the defendant says that she only knew that she had put $300 in the box at one time but she did not access the box before she left Newman. She said that, through the bank, she gave authority to the plaintiff to close the box in about August or September 1999. She said that in late 1999 when she received the Pulsar motor vehicle her birth certificate, which had been in the box, was in the glove box of the car.

128 The parties' bank account records show that at 7.50 am on 14 June, the date they drove to Perth, the plaintiff withdrew $500 from his account and the defendant withdrew $1,000 from her account. This evidence supports the defendant's version of events. It suggests that she is correct in saying first, that the plaintiff drove her to the ATM before they left Newman, second that she withdrew $1,000 and third that she was not given other money. This is because it would have been entirely unnecessary for her to withdraw $1,000 if she was carrying $8,000 cash.

129 As to the safety deposit box the bank's records disclose only that the parties started the box on 30 June 1997 and closed it on 22 March, in an unspecified year.

130 In respect to whether the plaintiff kept $4,000 at home, it seems to me to be unlikely. The plaintiff has been shown over a number of years to be careful with his money and keen to pay off his debts as quickly as possible. He had debts outstanding at this time. I am not satisfied that he had $4,000 cash at hand to give to the defendant.

131 On the basis of the whole of the evidence I am not persuaded that the plaintiff gave the defendant $4,000.00 when she left Newman nor that she took $4,000.00 from the safety deposit box.

132 The parties stayed together for a couple of nights in Perth before the defendant flew to Melbourne. The defendant said that she took only one suitcase of personal possessions with her to Perth whereas the plaintiff says that the defendant took with her many personal possessions which filled the Landcruiser. In this respect I accept the plaintiff's evidence. I cannot accept that the defendant, who was leaving Newman for the last time, at the end of her relationship, did not take her possessions, or as many of them as possible, with her.

133 Later in 1999, the plaintiff drove the Pulsar to Perth and left it with the defendant's sister. It was subsequently taken to Melbourne. At the same time I am satisfied that the plaintiff delivered even more of the defendant's property to her, including some household items used when they were living together.

134 During the remainder of 1999 the defendant sold a number of her shares and received the proceeds therefrom.

135 On 15 September 2000 the plaintiff entered into a contract with BHP for the purchase of another property in Newman. He sold back the Leete Place property to BHP at this time. The parties have agreed that the plaintiff's equity in this property was $25,914.00.

136 Shortly before this the plaintiff sold the Ocean Reef property for $255,500.00 and after paying out the balance of the home loan he received $88,243.04.

137 On 16 January 2001 the parties sold the Waikiki property for $85,000.00. Of this sum $23,348.80 was paid to BankWest to discharge the defendant's loan, $19,733.00 was paid to the plaintiff's parents as repayment of the principal and interest of the loan they made to the parties to purchase the property and the balance of $37,145.66 was and still is held in trust, in an interest bearing account, by the settlement agent.

138 On 1 October 2001 the defendant surrendered the Tower Life policy for $9,271.36 or $7,278.04 net.

139 In respect to the plaintiff's claim I have found that I am not satisfied that the parties entered into the agreement at the time of the separation as the plaintiff alleges. Consequently, his claim for a declaration to reflect the terms of the agreement fails and there are no legal principles to consider in respect to it.

140 The defendant's counterclaim has similar features to that pleaded in the leading Western Australian decision in this area of Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360. In that case the appellant pleaded, as the defendant does in this case, that a feature of the parties' de facto relationship was a joint endeavour between them entered into with the intention "that the parties would jointly work towards the provision of their joint future financial security and benefits". Also, as in this case, the appellant pleaded that she was entitled to a half share of all the assets resulting from the joint endeavour.

141 As to the law applicable to such a claim Murray J (with whom Hasluck J agreed) said at [4] - [8]:

"It is the sort of pleading which would lead one to anticipate that the claim of a beneficial interest in proprietary assets would be protected by a declaration of trust. That would be a claim for an implied or a resulting trust in the sense that the trust would be said to arise out of the intention of the settlor, the respondent in this case, or the intention of both parties to the transaction, the trust then being implied by law because of the intention of the parties.

Such a remedy might also be termed a constructive trust arising by implication from the common intention of the parties: see Maharaj v Jai Chand [1986] AC 898 at 907; Stowe v Stowe (1995) 15 WAR 363 at 367-368. The central principle in such a case is that equity will imply a trust in such circumstances because it would otherwise be unconscionable to allow the defendant to retain sole legal and beneficial ownership of the property in question.

The concept of a constructive trust in the remedial sense is much broader. It may be imposed upon a defendant as a remedy affecting his or her legal and beneficial ownership of particular property in any case where circumstances and the conduct of the parties are such as to make it unconscionable not to impose the trust. In that regard the inquiry will not be for the actual or presumed agreement or intention of the parties and, indeed, the remedy may be imposed contrary to that intention: see Kais v Turvey (1994) 11 WAR 357.

The elucidation of the law in this regard owes much, in my respectful opinion, to the judgment of Deane J in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and particularly at 613-615. It is important, however, not to confuse the remedy with the cause of action by way of a claim for relief based upon the application of equitable principle. The equitable principle with which the Court is concerned is not to be found in what Deane J in Muschinski at 615 described as "the indulgence of idiosyncratic notions of fairness and justice", although, as his Honour recognised, notions of fairness and justice would necessarily be involved in the application of principle. The particular principle of equity identified in Muschinski was that which may simply be described as 'unconscionability': see Parij v Parij [1997] SASC 6771; (1997) 72 SASR 153 at 161 per Debelle J.

What then does the principle of unconscionability involve? The answer, I think, will depend upon the multitudinous circumstances of different cases and I do not think there can be any exhaustively defined list of circumstances which will constitute unconscionable conduct of a kind which will prompt the intervention of a court of equity, but for present purposes it is sufficient, in my opinion, to return to the judgment of Deane J in Muschinski (at 620) where his Honour described particular circumstances which would constitute unconscionable conduct in the following way:

'Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.'

Of course that statement of principle was made having regard to the particular circumstances of the case and the claim for a beneficial interest in particular property."

142 His Honour later dealt with the law relating to the worth of indirect contributions in the following manner (at [11] and [12]):

"In Muschinski, although that case did not involve the need to examine the worth of indirect contributions, Deane J (at 622) referred to the fact that:

' ... any assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a "de facto situation" contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In the forefront of those special considerations there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, homemaking and family care.'

Therefore it seems to me that there is no doubt that the remedy of a constructive trust may be employed in various circumstances establishing unconscionability. In a case such as this where a joint relationship or endeavour of a particular kind is relied upon, if there is found to have been a 'pooling' of resources, at least in the sense of a mutual commitment of resources, both financial and otherwise, directed towards the acquisition of or otherwise related to an asset, the Court will be more inclined to hold it to be unconscionable for one party to retain the entirety of the legal and beneficial ownership of that asset. The pooling of resources of which the courts have spoken has not been confined to financial resources. The courts do not draw artificial distinctions between the situation of a plaintiff who makes a direct financial contribution to an asset, one who makes a financial contribution which enables his or her partner to expend more of that person's money upon the asset, or one who contributes time and effort directed towards an asset rather than simply towards the maintenance of the relationship itself."

"The important consideration where a claim for equitable relief is based upon unconscionability said to arise in the context of non-material contributions by one de facto spouse is that such contributions be related, where a declaration of trust is sought, to the particular items of property over which it is said the trust should be declared. It may be that one party to a relationship makes an important contribution to the relationship by performing a role of support, a role as caregiver, homemaker and the like. No doubt contributions of that kind will be referable to the mutual affection and concern for each other which the parties have.

But unless the purposes of the provision of a contribution of that kind go further and the court concludes that it is intended to enhance the material wellbeing of both parties, or to provide the contributing party with an interest in specific property, or that it is made upon the basis that that party would have an interest in such property, then it seems to me that equity will not hold to be unconscionable the retention of property in the beneficial ownership of the other party who has directly contributed to the acquisition, maintenance and enhancement of that material wealth or property: see Stowe (at 373-374); Green v Green (1989) 17 NSWLR 343 at 353 where Gleeson CJ with whom Priestley JA agreed said:

'It is clear that the mere existence of a matrimonial or de facto relationship, combined with express or implied undertakings to provide support and accommodation, will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the home occupied by the parties is created ... . In a legal system which does not include concepts of family or community property, and where an obligation on the part of a husband to house and provide for his wife is commonly regarded as an incident of the matrimonial relationship, an undertaking of the kind referred to cannot of itself confer upon a wife a legal or equitable interest in the matrimonial home. ... The acceptance of an obligation on the part of the husband to house his wife would not normally be regarded as an undertaking to give her a proprietary interest in the home in which they live, and wives usually have reasons for living with their husbands other than an expectation that they will increase their assets.'

Of course, the same observations will apply to de facto spouses and, I think, to a case where equitable relief is sought in a form other than a declaration of trust in respect of particular property. As will be seen, this I think is such a case."

144 The unsuccessful appellant in Lloyd v Tedesco (supra) sought special leave to appeal to the High Court. She was also unsuccessful in obtaining special leave to appeal. McHugh J, on behalf of the Court, gave ex tempore reasons for the decision not to grant special leave to appeal. In those reasons he said:

"Some statements in the reasons of the trial judge in [sic] the Full Court have given us some concern because, arguably, they do not appear to give full effect to the principles of law applicable in a case such as the present."

145 It is difficult to know precisely which statements and which principles of law his Honour was referring to. However, it seems reasonable to conclude from the comments of Kirby J, in particular, during the course of the hearing, that the statements were those which suggested that a court should only grant a remedy as a consequence of a joint endeavour where there had been a pooling of financial resources. The relevant principle of law being that whilst pooling of resources is a relevant factor it is not a precondition to relief.

146 I find that this is not a case where it can be said that the plaintiff acquired assets in his name with an intention that the defendant would have any interest in them, let alone a one-half share. My findings of facts do not support the view that the plaintiff had such an intention. However, the defendant may succeed in obtaining the alternative relief sought in her counterclaim by proving:

1. the existence of a joint endeavour between the parties for the purpose of providing mutual future security and benefit;

2. valuable financial or non-financial contributions by the defendant to the joint endeavour;

3. an increment in wealth having accrued to the plaintiff as a result of the joint endeavour; and

4. that it is unconscionable for the plaintiff to retain that wealth to the exclusion of the defendant.

147 If these matters are proved the Court will order that the defendant be compensated for the value of her contributions to the joint endeavour: Lloyd v Tedesco (supra) at [22] - [23]. The plaintiff did not contend that compensation, as opposed to a constructive trust, was not an available remedy if these circumstances were proved.

(a) the mere existence of a de facto relationship;

(b) express or implied undertakings by the plaintiff to provide support and accommodation to her; and

(c) the contribution by her of non-financial contribution that arose from her then love, care and support of the plaintiff.

Application of Principles to the Present Case

149 I am satisfied that, but for a period in 1992 when the defendant had an affair, between 1987 and 1999 the parties were intentionally engaged in a joint endeavour for the purpose of providing for their mutual future security and benefit. However, I do not accept that it was the common intention of the parties that they should have equal shares in any increase in wealth from the joint endeavour, as the defendant pleads.

150 Evidence of this joint endeavour is provided by their de facto relationship over a period of approximately 12 years, their intention to marry and have children in the future, their purchase of the Waikiki property in joint names, their move to Newman to improve their financial position, their pooling of financial resources on occasions, the assumption of joint debts on occasions, the terms of their Wills and their common household.

151 Against these matters I have taken into account that despite a relationship of approximately 12 years they did not fulfil the main purpose of the joint endeavour, that is, to marry and have a family. I have also taken into account the adjustment in commitment and pooling of resources that occurred after the defendant's affair in 1992. I remain satisfied that the parties were committed, albeit at different levels at different times, to the joint endeavour over the course of their relationship. I am not satisfied that this included a joint intention, particularly not on behalf of the plaintiff, that the parties should thereby obtain an interest or equal shares in each other's property before marriage.

152 Pursuant to this joint endeavour the defendant made both financial and non-financial contributions. The defendant's financial contributions consisted of her financial contribution to the Waikiki property including the assumption of legal responsibility for the debt over it. I am also satisfied that the defendant made a slightly greater financial contribution to day-to-day living expenses than the plaintiff. Also, that she purchased more household chattels than the plaintiff and much of the plaintiff's clothing.

153 In respect to indirect financial contributions I accept that her employment at BankWest facilitated access by both parties to discount interest rates and the waiver of some bank fees to the benefit of both parties.

154 I further accept that whilst employed at the bank the defendant contributed to the joint endeavour by being the contact point for real estate agents managing both the Waikiki and Ocean Reef properties. I do not accept that her contribution in respect to the Ocean Reef property included agreeing to that property being registered solely in the plaintiff's name and agreeing to keeping a separate bank account, as pleaded. These were decisions made by the plaintiff and cannot be construed as contributions made by the defendant. I agree that the defendant made some phone calls for the plaintiff to assist in arranging finance for the purchase of the Ocean reef property but this was not a significant contribution.

155 The evidence does not support a finding that the defendant sacrificed a more lucrative career for the benefit of the joint endeavour. The position the defendant obtained in the bank in Newman was as good as, if not better, than she could have obtained in Perth or Melbourne. Over the course of the relationship she did not display any frustrated wish to improve on that position.

156 As to other contributions, it is true that the defendant originally did not desire to live in Newman but after a short while she came to enjoy it and her residence in Newman was not a sacrifice.

157 The defendant made non-financial contributions as a homemaker, although these contributions must be placed in perspective. The parties only had themselves to look after as there were no children of the relationship. Both parties worked full time. There is no evidence that they entertained often. For about half their relationship they lived in a small flat. The plaintiff often ate at BHP's canteen which provided more than adequate meals all day and night. They also purchased take away meals. Consequently the defendant's role as homemaker was limited.

158 I find that as a consequence of the joint endeavour the plaintiff's wealth increased over the course of the 12 years. There is a difference between the plaintiff's increase in wealth over the period of the joint endeavour and his increase in wealth as a consequence of the joint endeavour. In respect to the former it is not disputed between the parties that the plaintiff's increase in wealth at the time of the termination of the joint endeavour included the value of his motor vehicles, including motor bikes, equity in the Ocean reef and Leete Place properties, shares, sundry chattels to the value of $4,000.00, crystal and coin collections and cash at bank less a visa card debt. The defendant alleges that the value of the plaintiff's wealth was approximately $195,000.00. In addition, he had accrued interest in superannuation policies of approximately $85,000.00. Whilst the plaintiff disputes some values he substantially agrees with this valuation. This excludes the plaintiff's interest in the Waikiki property.

159 However, only a small amount of this increase in wealth occurred as a consequence of the joint endeavour. This leads me to the final issue, being whether it is unconscionable for the plaintiff to retain the increase in his wealth.

160 Before I deal with that issue it is relevant to note that the parties also agree that the defendant's wealth increased over the course of the joint endeavour. At the conclusion of the joint endeavour the defendant retained approximately $36,000 of assets being the value of her motor vehicle, jewellery, shares, chattels and cash in hand less credit card and tax debts. She also had superannuation policies valued at approximately $17,000.00. This also excludes her interest in the Waikiki property.

161 I find that it is not unconscionable for the plaintiff to retain the significant majority of the assets he acquired during the course of the joint endeavour. There are two main reasons for this. The first is the manner in which the parties conducted their relationship. Whilst I have found that it was a joint endeavour for at least the last six years of it, the parties did not pool most of their income, they pursued individual financial interests, the defendant did not make significant, if any, personal sacrifices for the purpose of achieving the aims of the joint endeavour and there was not a common intention for the parties to have shares in their accumulated property. The second is my assessment of the contributions each party made. The vast majority of the plaintiff's assets were acquired solely through his financial contributions. The defendant made financial contributions to the parties living expenses, the purchase of the Waikiki property, in which she held a half-interest and to some of the $4,000.00 odd worth of chattels retained by the plaintiff. Otherwise the assets were acquired by the plaintiff through the income he obtained by working for BHP. It would be unjust if the plaintiff was deprived of his assets acquired through his contributions.

162 As well as acquiring assets in his own name the plaintiff made financial contributions to the purchase of the Waikiki property in joint names, plaintiff's daily living expenses by paying the parties' rent, the airconditioning and solar fees levied by BHP, the defendant's private medical insurance when it was obtained and by making a contribution to the parties' general living expenses.

163 As I have found the defendant made other contributions and she also contributed as a homemaker. Without in any way wishing to denigrate the role of a homemaker, I do not accept that the defendant's role in keeping house for herself and the plaintiff was a significant one. I have already mentioned a number of reasons which I have taken into account in arriving at this conclusion.

164 Thus, in my opinion most of the increase in the wealth of the plaintiff was not a consequence of the joint endeavour and the defendant did not contribute to it. This is not to say that the defendant should not receive any compensation for the contributions she made. In my opinion of the assets held solely by the plaintiff it is unconscionable for the plaintiff to retain the proceeds from his interest in the parties' main place of residence, the Leete Place property, to the exclusion of the defendant. Of course, it is very difficult to assess the dollar value of the defendant's financial and non-financial contributions to the joint endeavour. The parties' incomes over the period of the joint endeavour provide a guide as to their respective financial contributions. I must simply do the best I can to determine the value of the defendant's non-financial contributions. It is also important to remember that the defendant's contribution to the purchase of the Waikiki property were made as a joint owner of that property and the defendant's entitlement to a half-share of the proceeds of the sale of that property is not disturbed by me. Consequently, I do not believe that the defendant's contributions to that property should be taken into account when quantifying the value of her contribution to the joint endeavour.

165 The Leete Place property was the parties' home and the property to which the defendant made a contribution by way of homemaker. Further, it could be said that by making her contribution to the management of the Ocean reef property and by facilitating loans from BankWest to the plaintiff she freed the plaintiff and some of his money to enable him to acquire equity in this property. After considering all her contributions, both financial and non-financial, I find that the defendant is entitled by way of equitable compensation to the whole of the plaintiff's equity in the Leete Place property being $25,914.00.

166 I do not accept that the non-financial contribution the defendant made to the Ocean Reef property renders it unconscionable for the plaintiff to retain the value of that property. It was the plaintiff's investment property, purchased with his money at his risk. The defendant submitted that because the income from the Waikiki property went into the plaintiff's account from which periodical payments were made towards repayment of the Ocean reef property that the defendant made financial contributions to it. I do not accept this. Until the mortgage over the Waikiki property was discharged on 25 February 1998 the income from the Waikiki property was used to service the mortgage over it as well as pay the other expenses relating to the property. After the mortgage was discharged the income was still used to pay these expenses. The defendant has not satisfied me that there were any financial contributions made by her to the purchase of the Ocean Reef property.

167 Neither do I accept that the defendant made a contribution to the accumulation of the plaintiff's superannuation assets. I can not see how it could be said that it would be unconscionable for the plaintiff to retain these assets which were obtained solely by his financial contributions to the relevant funds.

168 With respect to the only property held in both parties' names, the Waikiki property, there remains some problems in that from the proceeds of the sale of the property two debts were repaid that are in issue. The first is the defendant's loan in the sum of $23,348.80. The plaintiff says that this sum should be deducted from the defendant's half share of the proceeds of sale. Whereas the defendant says that the debt was secured by the Waikiki property and thus it should be deducted equally from both their share of the proceeds.

169 The plaintiff obtained some benefit from the defendant's loan in that he borrowed $7,000.00 of it from the defendant for his own benefit. I also take into account that the plaintiff had agreed that the Waikiki property should be security for the defendant's loan. It has now been repaid from the joint proceeds of the sale of the Waikiki property. That may well give the plaintiff a right to be indemnified by the defendant but that right was not pleaded or proved by the plaintiff. In my view that current situation should remain.

170 The second repayment made out of the proceeds was the plaintiff's parents' loan. The defendant says that this was overpaid by $2,000 and interest thereon as the parties had already repaid and this sum in April 1991. I have found that this did occur. However, having regard to the fact that the right to account is both parties' right from the plaintiff's parents I do not believe that it is appropriate that I make any adjustment as if this repayment was an asset that the plaintiff has unconscionably retained.

171 The balance of the proceeds of the sale of the Waikiki property should be divided equally between the parties.

172 The defendant is entitled to a declaration that the joint endeavour is at an end and that she is entitled to the value of her contributions to the joint endeavour. I assess the value as $25,914.00 plus interest thereon.