Beltran v Hudspith

Court of Appeal (NSW)|2011-06-07|Before: McColl JA, Campbell JA, Coll JA

Judgment 1McCOLL JA : I agree with Tobias AJA. 2CAMPBELL JA : I agree with Tobias AJA. 3TOBIAS AJA : The parties to this appeal were in a de facto relationship from May to September 2005 and from June 2006 to July 2007, being an aggregate period of approximately 18 months. As a child was born to the parties in 2007, each was entitled to enliven the jurisdiction of the Court pursuant to s 17(2)(a) of the Property (Relationships) Act 1984 (the Act) notwithstanding that the relationship had not endured for the usual minimum period of two years: s 17(1). 4Relevantly to the issues in the appeal, the parties purchased a property in Vaucluse (the Vaucluse property) on 27 April 2007 for the price of $1,350,000. The property was acquired by the parties as tenants in common in unequal shares. The appellant's interest was 80 per cent and that of the respondent 20 per cent. On 16 February 2009, the appellant filed a statement of claim claiming an order pursuant to s 20(1) of the Act adjusting the interests of the parties in the Vaucluse property. She sought the transfer by the respondent to her of his 20 per cent interest in that property so that she became the sole registered proprietor thereof. 5The proceedings were heard by McLaughlin AsJ who on 9 April 2010 ordered that the interests of the parties in the Vaucluse property be adjusted by increasing the interest of the appellant in that property from 80 per cent to 90 per cent and reducing the interest of the respondent from 20 per cent to 10 per cent: Beltran v Hudspith [2010] NSWSC 264. His Honour also ordered that the appellant pay one half of the costs of the respondent of those proceedings. It is from those orders that the appellant appeals to this Court. The respondent cross-appeals against his Honour's order, seeking a reinstatement of his 20 per cent interest in the Vaucluse property. It should be noted that the respondent represented himself, both before the primary judge and on the appeal.

The background facts 6The appellant was born in Spain in 1969 and at the time of trial was aged 40. The respondent was born in Australia in 1976 and at the time of trial was aged 34. At all material times, he was employed as a shipwright. 7The appellant arrived in Australia in 2003 on a two year employment contract as managing director of Ferrovia Airports. She held a working visa, referred to in the evidence as a " 457 visa ". Subsequently, she studied for and was awarded the degree of Master of Business Administration (Executive) by the University of Sydney. The parties met in March 2004 and commenced a relationship shortly thereafter. Throughout the initial period of their de facto relationship from May to September 2005, the parties resided in Spain. At the time of the commencement of the relationship, the appellant had assets to a value of approximately $1,100,000 and liabilities of approximately $300,000. Her main asset was a home unit in Madrid. At the same time, the respondent's assets totalled approximately $15,000, comprising a motor vehicle, trade tools and furniture. 8Throughout the entire period of their de facto relationship and especially after she commenced employment as a fund manager with AMP in January 2006, the appellant's income far exceeded that of the respondent. In the last financial year of their relationship (2006-2007) the appellant received a salary of $215,000 together with a bonus of $200,000. The respondent's total income for the entire period of their relationship (about 21 months) was $79,200. 9The parties returned separately to Australia from Spain in December 2005. Subsequently, the appellant again visited Spain and returned to Australia in January 2006, when she commenced employment with AMP. His Honour found that she returned to Australia on what was referred to as a " de facto visa " granted on account of her status as the de facto partner of the respondent. From June 2006 until January 2007, the parties resided in rented accommodation in Paddington. They then moved to rented accommodation in Rushcutters Bay where they remained until April 2007. In February 2007, their son Thomas was born. 10The parties purchased the Vaucluse property in early 2007. The purchase was settled on 27 April 2007. As I have indicated, it was purchased for the sum of $1,350,00 together with stamp duty and legal costs. It was not disputed that the purchase was funded as follows: Appellant's savings: $250,000 Appellant's bonus from employment: $100,000 Appellant's additional mortgage upon her residential unit in Madrid: $100,000 Mortgage from the Commonwealth Bank of Australia (CBA) in the joint names of the parties: $1,000,000

11The respondent's contribution to the acquisition of the Vaucluse property was his entitlement, in the sum of $7,000, to a First Home Owner Grant, as well as a cash contribution in an amount asserted by him, but contested by the appellant, to have been about $15,000. 12According to the primary judge, there was evidence given concerning the circumstances in which the parties eventually agreed to the respondent having a 20 per cent interest in the Vaucluse property. Initially, the appellant wished only that the respondent's interest should not exceed 10 per cent, but they ultimately agreed on 20 per cent. That agreement is relied upon by the respondent in his cross-appeal, it being submitted first that his Honour erred in failing to take the agreement into account as evidence not only of the parties' intentions but also of the value of the parties' respective contributions to the relationship and, second, that the agreement should have been taken into account at least as evidence of the parties' respective contributions to the acquisition of the Vaucluse property. It was contended that the agreement constituted, at the time it was entered into, what the parties considered to be the fair division of ownership of the Vaucluse property, having regard to their respective contributions to its acquisition and, consequently it was " just and equitable " that the bargain struck between the parties as to the division of interest in that property should be maintained. 13From the time of its purchase the appellant made repayments to the CBA upon the mortgage loan in respect of the Vaucluse property in the amount of $7,000 per month. She continued those payments up to trial. 14The primary judge observed (at [18]) that throughout the relationship the household outgoings and expenses of the parties were essentially paid by the appellant. However, in about January 2007 the respondent started making some contribution to their living expenses by way of direct transfer from his bank account and which, on the undisputed evidence, amounted to the sum of $4,300 over a 10 week period. He also maintained that he made cash payments of about $4,000-$5,000 towards household and living expenses, an assertion which was denied by the appellant and which, so it was submitted, the defendant was unable to support by any documentary evidence. 15At the termination of their relationship in July 2007, the appellant had the following assets: 80 per cent interest in the Vaucluse property: $1,080,000 Home unit in Madrid: $700,000 20 per cent interest in a flat in Spain: $100,000 Volkswagen motor vehicle $40,000 Furniture, in an unquantified amount Superannuation, in an unquantified amount

Her liabilities at that time comprised 80 per cent of the mortgage to the CBA over the Vaucluse property in an estimated amount of $800,000 and a mortgage secured over her home unit in Madrid in a sum of $400,000. 16At the time of termination, the respondent had a 20 per cent interest in the Vaucluse property, which he valued at $270,000, a motor vehicle to which he ascribed a value of $30,000, furniture of an unquantified value and trade tools to the value of $5,000. He had liabilities of $225,000, being 20 per cent of the mortgage to the CBA secured over the Vaucluse property in a sum of $200,000 and a personal loan of $25,000. 17At [23] of his reasons, the primary judge noted that the respondent did not dispute that the direct and indirect financial contributions of the appellant to the relationship far exceeded his own. However, he asserted that he made significant contributions to the relationship as homemaker and parent, especially after the birth of Thomas in February 2007. The extent of the respective contributions of each party as homemaker and parent was in issue between them. 18Finally, it was asserted by the respondent that it was only on account of his participation in the purchase of the Vaucluse property as an Australian resident that the parties were entitled to obtain a mortgage from the CBA, as the appellant as a non-resident at the time of its purchase would not, alone, have been able to have obtained such a loan. The respondent further alleged that it was only as a consequence of the appellant being entitled to a de facto visa due to their relationship that she was able to re-enter Australia and earn the income she did. The appellant alleged that although she did obtain a de facto visa, she could have obtained an employer-sponsored visa had she wished, but that it was convenient to obtain a de facto visa at the relevant time.

The relevant statutory provisions 19The statutory provisions relevant to the determination of this appeal are ss 19 and 20(1) of the Act which are in the following terms: "19 Duty of court to end financial relationships In proceedings for an order under this Part, a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them. 20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties."

The decision of the primary judge 20After dealing with the legal principles applicable to the claim for adjustment of the interests of parties in property pursuant to s 20(1) of the Act which are not in dispute, his Honour found that at all material times from the commencement to the termination of the relationship, the income and assets of the appellant overwhelmingly exceeded those of the respondent. However, his Honour noted, the effect of the relief sought by the appellant would be to deprive the respondent entirely of any recognition of his contributions to the relationship. 21The primary judge's findings with respect to the respective contributions of the parties were as follows: "32 Those contributions were financial (but very small, compared to those of [the appellant]), and non-financial. The non-financial contributions included the co-operation and assistance of [the respondent] in enabling [the appellant] to obtain what was referred to as a de facto visa, granted to her on account of their relationship; also the fact that [the appellant], not being a permanent resident of Australia at the time, could not alone have obtained the mortgage from the Commonwealth Bank, and that she required the participation of the Defendant in that application for the mortgage. 33 Moreover, [the respondent] assumed a joint liability with [the appellant] in respect to that mortgage. It is all very well to assume that the financial circumstances of [the appellant] were such as to make it most unlikely that any default would have occurred, or that [the respondent] would be called upon to meet his mortgage liability. Nevertheless, he assumed a legal liability and a financial risk in that regard. 34 Further, [the respondent] made contributions as homemaker and, after his birth, as parent to their son Thomas. Those contributions were significant, and should not be treated as being merely nominal. In addition, although there was a dispute as to their extent, [the respondent] did make some contributions of a physical nature towards the maintenance and improvement of the Vaucluse property." 22It will be apparent from the foregoing findings that his Honour did not consider it necessary to resolve the disputes between the parties as to the precise extent of the respondent's financial and non-financial contributions to the relationship. Although he found that the respondent's financial contribution was " very small compared to those " of the appellant, he did not seek to quantify them or to resolve the dispute referred to in the last sentence of [12] above. Nor did he seek to resolve any detail of the dispute between the parties as to the extent of the non-financial contribution of the respondent to the relationship, regarding those contributions as " significant " and not merely nominal. 23At [35], his Honour considered that in the light of the contributions of the respondent to which he had referred, the latter should not be totally deprived of any interest in the Vaucluse property. His contributions, although far less than those of the appellant, entitled him to some interest in that property which his Honour determined (at [36]) at 10 per cent.

The primary judge erred 24The appellant submitted that the primary judge made two errors in his approach to the appellant's application. The first was his observation at [30] that although there was considerable evidence given concerning events and matters which occurred after the termination of the relationship up to the date of trial, that evidence was totally irrelevant to a consideration of the respective contributions of the parties of the nature referred to in s 20(1) and, therefore, would be disregarded. This was a clear error and it is sufficient for this purpose to refer to the judgment of Campbell JA, with whom Santow JA and Bryson AJA agreed, in Manns v Kennedy [2007] NSWCA 217. In particular, s 20 of the Act empowers the court to make an order adjusting the parties' interest in their property as it exists at the date of the order and it follows that contributions made by the parties to the acquisition, conservation and improvement of any of the relevant property after the termination of the relationship but prior to the making of the order are capable of being relevant to any adjustment of their respective interests in that property. In particular, contributions made in the capacity of a parent by either of the parties to the relationship to the welfare of a child of the parties up to the time of making of an order is also relevant. Accordingly, his Honour's disregard of any contributions, financial or non-financial, after July 2007 up to the time of the making of his Honour's order, involved an error. 25The second error was his Honour's failure to have regard to s 19 of the Act. The effect of his Honour's order was to leave the parties in a continuing financial relationship, whereas the court has a duty to make such orders as will finally determine the financial relationship between the parties, although it does not have a duty to make orders that will end a non-financial relationship, such as the mutual caring for a child of the relationship. Accordingly, it was inappropriate for his Honour to leave the respondent with a 10 per cent interest in the Vaucluse property which would inevitably involve a further financial dispute between the parties. The financial relationship should have been brought to an end. 26It follows from the foregoing that, error having been established, it falls to this Court to determine the appropriate order which ought to have been made under s 20(1) of the Act.

A consideration of the evidence and the parties' submissions thereon 27The appellant accepted that exercising the discretion under s 20 required the primary judge, and this Court in any re-exercise of the discretion, to identify and, so far as possible, determine the value of the contributions to be taken into account and identify, so far as possible, the value and extent of the property concerning the interests in which it was sought to adjust. The final step in the process of arriving at an order is to make an " holistic value judgment ", that is to say, an adjustment of property which seems just and equitable, having regard to the contributions identified in s 20(1)(a) and (b): Manns v Kennedy at [64]; Hayes v Marquis [2008] NSWCA 10 at [107]. 28In the last-mentioned case, McColl JA, with the general agreement of Beazley JA, noted (at [108]) that the Court has " a broad discretion " in determining the approach to adopt in considering what order to make under s 20. Although two approaches were usually referred to, namely, the global approach and the asset item-by-item approach, it is apparent from the primary judge's reasoning that he preferred the former approach, at least so far as his assessment of the parties' respective contributions, both financial and non-financial, were concerned. 29As I have indicated, the appellant first challenged the finding of the decision of his Honour to disregard events and matters which occurred after the termination of the relationship up to the date of trial. It was submitted that after that termination the respondent failed to contribute to the mortgage, outgoings or maintenance of the Vaucluse property in which Thomas and the appellant were residing. The appellant's evidence was that after separation, she paid mortgage contributions of about $190,000 and maintenance work to a value of approximately $95,000. It was further submitted that the evidence established that the respondent failed to pay any child maintenance for the period after separation until October 2008 and that from that date until the date of hearing he paid only $1,600. 30The respondent accepted that after July 2007 he did not make any payments towards the mortgage on the Vaucluse property, although he asserted that prior thereto he was paying more than 20 per cent of the mortgage payments, a proposition the appellant denied. It would appear that in October 2008, the respondent was ordered to pay child support payments of $17 per week, which were backdated so that the $1,600 he paid related to back payments of child support. 31The respondent maintained that he had therefore complied with his child support obligations and that he had had no say in how much child support he was required to pay, it being determined by the Child Support Agency. This may be so, but the fact that he was ordered to only pay $17 per week (which no doubt was a reflection of the income he was then earning) did not of itself prevent him, had he wished, from making a greater financial contribution had he had the funds to do so. He maintained that as he had to pay rent after leaving the Vaucluse property, he has been unable to increase his child support payments. 32In cross-examination the respondent agreed that his income tax assessment for the financial year ending 30 June 2008 identified a taxable income of $43,000; that he continued in employment and that at the time of hearing, his income was " a little bit higher ". When asked whether he agreed that since separation the appellant had contributed to the property by way of paying the mortgage in an amount of almost $190,000, the respondent indicated that he thought it was more than that. 33It was further submitted that the appellant was not dependent upon the respondent to obtain a visa when she moved back to Australia in 2005. The latter agreed under cross-examination that although he assisted her with a de facto spouse visa, they had had a discussion in which the appellant had said she could obtain a visa from her then employer, AMP, a proposition with which he agreed. He then conceded that she may have been able to obtain entry to Australia with the assistance of her employer, had he not assisted her with a de facto spouse visa. 34It was also submitted that the appellant could have obtained a loan from the CBA without the assistance of the respondent, particularly as the respondent had a poor credit history. In this respect, he agreed that he did not have " a perfect credit rating, that is correct ". Clearly, the respondent's income at the time of the acquisition of the Vaucluse property was significantly less than that of the appellant, as his Honour found, so that it is somewhat difficult to accept that she would not have been able to obtain a loan from the CBA without his assistance, notwithstanding that she was not an Australian resident. Be this as it may, and even if their de facto relationship contributed to their ability to obtain the loan, the fact remained that it was the appellant rather than the respondent that shouldered the costs associated with the acquisition of the Vaucluse property and that his financial contribution, if anything, was relatively minor. 35In other words, even if it be correct, as the respondent maintained, that the appellant needed a co-signatory on the loan who was an Australian citizen, that fact does not detract from the substantial contribution which the appellant made towards that acquisition which dwarfed whatever financial contribution the respondent was able to make thereto. However, it could be said that the fact that he was a co-signatory to the mortgage constituted at least a non-financial contribution to the acquisition of the property. 36There was also a form of contribution from the respondent constituted by the fact that he was a party to the mortgage and, therefore, at some risk of having to account for the repayment of the loan secured by the mortgage. However, I would regard that risk as somewhat theoretical, given that according to the evidence, the value of the property exceeded the amount of the loan and that all repayments were being made by the appellant whose income, as the primary judge found, far exceeded that of the respondent as, therefore, did her ability to repay the loan. Even if there be default under the mortgage, the respondent's assets were such that he was at very little risk of being financially called upon by the CBA to contribute to the repayment of so much of the loan, if any, as might exceed the sale proceeds of the security. Although as the primary judge found at [33], the respondent assumed a legal liability to repay the loan, in my opinion it was insignificant in real terms, whereas that of the appellant, given her assets and income, was significant. 37The appellant also challenged the primary judge's finding that the respondent made contributions as homemaker and, after his birth, as a parent to their son Thomas and which he regarded as " significant ". Although the respondent contended before his Honour that he had added value to the Vaucluse property by carrying out work thereto, this was disputed by the appellant and the primary judge did not make any express finding with respect to that issue. 38Thus, the respondent in his affidavit evidence said that he repaired all windows around the house as they were all stuck closed after painting; repaired all internal doors; installed insulation in the floor and installed wiring and light fittings in the garage and basement. The appellant's response was that the respondent did not repair any windows; that his repair to the internal door consisted of him adding a five centimetre piece of wood at the end of five doors after which the appellant painted them; that any installation of insulation in the floor that was undertaken by the respondent occurred in respect of the rumpus room floor at the back of the property and a denial that the respondent had attended to installing any wiring and light fittings in the garage and basement of the property, although he attempted to do so for approximately half an hour, after which the work was completed by a licensed electrician. 39It is impossible to resolve the conflict in this evidence in the absence of a finding of the primary judge as to the reliability and/or credibility of the parties. However, I do observe that even on the respondent's evidence, his contribution to the acquisition and preservation of the Vaucluse property between April and July 2007 was hardly extensive and could not be regarded as significant. In this context I note that in cross-examination the respondent conceded he had a drug problem during the relationship and that at least some of his income (described by him as " very little ") was spent on his drug habit. On the other hand, as noted at [27] above, after termination of the relationship the appellant maintained, and it does not appear to have been disputed, that she expended approximately $95,000 on improvement work to the property.

Application to tender fresh evidence 40By notice of motion filed on 8 July 2010 supported by an affidavit sworn 7 July 2010, the appellant sought leave of the Court to tender evidence which established that Thomas had been diagnosed with Autism Spectrum Disorder on or about 26 February 2010. The evidence sought to establish that as a consequence of this diagnosis the appellant requested and received 12 months leave without pay in order that she could remain at home with Thomas and provide full-time care and assistance for the special needs arising out of his medical condition. As it is necessary for this Court to consider the evidence and to determine its own view as to whether it is just and equitable to adjust the interest of the parties in the Vaucluse property, the evidence was admitted. It establishes that the appellant up to the date of the hearing of the appeal has been the primary carer of the child, although this was never really in dispute by the respondent. It would be reasonable to infer that the appellant was the primary carer of the child from the time he was born and particularly after the date of separation. Nevertheless, it cannot be denied that the respondent has had access to the child and has carried out his parenting duties during those periods of access. 41The respondent also filed an affidavit sworn 18 May 2011 in which he sets out his understanding of when Thomas was diagnosed with autism and in which he asserts that the appellant had been aware of Thomas' condition for a lot longer than she would have the Court believe. It would appear that at least from April 2008, there was some concern with respect to Thomas' conduct and condition, although there seems little doubt that his actual condition was not eventually diagnosed until February 2010. The respondent's affidavit in paras 10-20 provided a mixture of evidence and submissions. That part which was evidence could not be characterised as fresh evidence and should be disregarded. To the extent that the paragraphs referred to could be construed as a submission, I have had regard to them.

What orders should be made? 42In my view, as referred to in the authorities, it is appropriate in the present case to make an holistic value judgment in adjusting the parties' interests in the Vaucluse property in a just and equitable manner. The present is not a case in which mathematical calculations of any accuracy can be made, particularly in view of the fact that there is a deal of disputed evidence which it is impossible to resolve where it comprises allegation and counter-allegation. One thing, however, is clear and that is that pursuant to the exhortation in s 19 of the Act the Court should, so far as practicable, make such orders as will finally determine the financial relationship between the parties. In the context of the present case, that involves an order that the respondent transfer to the appellant his 20 per cent interest in the Vaucluse property. 43However, that does not mean that the respondent should be deprived of any recompense with respect to the somewhat limited contributions he has made, both financial and non-financial, to the acquisition, conservation and improvement of the Vaucluse property and to his probably greater non-financial contribution in the capacity of a parent to the child, Thomas, as well as to his relatively limited but not necessarily insignificant contribution as a homemaker. As the primary judge observed at [35] of his reasons, he was not persuaded that the respondent should be totally deprived of any interest in the Vaucluse property, although in my view that should be reflected in the payment by the appellant to the respondent of a cash sum. 44The determination of the amount which, in my view, should be paid by the appellant to the respondent as being a just and equitable response to the transfer by the respondent to the appellant of his 20 per cent interest in the Vaucluse property involves a value judgment incapable of any precision. In all the circumstances, in my view, the amount of that cash payment should be $30,000. 45As far as the cross-appeal is concerned, I do not accept the respondent's submission that the agreement between the parties in April 2007 by which it was agreed that the respondent would have a 20 per cent interest in the Vaucluse property should be given determinative weight or, for that matter, any weight insofar as it is submitted that it represents the true financial contribution by the respondent to the acquisition of that property. Although it is a factor to be taken into account, it is not one which in my view should be given any significant weight in the determination of the appropriate order which should now be made.

Conclusion 46In my view, the appellant has succeeded in the sense that an order should be made that the respondent transfer his 20 per cent interest in the Vaucluse property to the appellant. On the other hand, the appellant has failed to establish her primary position that this should occur without any quid pro quo moving from her to the respondent. The financial and non-financial contributions, such as they are, which the respondent has made need to be recognised as a matter of justice and equity. In this respect, I note that the appellant indicated on the hearing of the appeal that even if she succeeded she did not seek an order that the respondent pay her costs of the appeal. 47As in one sense both parties have had some success on the appeal, in my view there should be no change to his Honour's order that the appellant pay one half of the costs of the respondent of the proceedings at first instance. 48The orders I propose are, therefore, as follows:

Appeal allowed;
Cross-appeal dismissed;
Set aside order (1) made by McLaughlin AsJ on 9 April 2010 and in lieu thereof order that on or before 19 August 2011 the respondent provide to the appellant, at the expense of the appellant, a transfer in registrable form of his 20 per cent interest as tenant in common in the Vaucluse property to the intent that upon registration of that transfer the appellant will then be the sole registered proprietor of that property;
At the time of provision of the transfer of the respondent's interest in the Vaucluse property referred to in the preceding order, the appellant shall: (a) pay to the respondent the sum of $30,000; (b) provide to the respondent an executed Deed of Indemnity in favour of the respondent whereby she indemnifies the respondent against any obligation imposed upon him under the mortgage held by the Commonwealth Bank of Australia as security over the Vaucluse property and against any claim by the said Bank against the respondent with respect to either the principal or interest payable on the loan so secured by that mortgage;
The appellant shall use her best endeavours to have the respondent released by the Commonwealth Bank of Australia from his liability under the said mortgage;
Each party is to pay his or her own costs of the appeal;
Liberty to either party to apply to vary the terms of orders (4(b)) and (5) above but only within 14 days of the date the orders are made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2011

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