(e) Ms Brown also claims that Mr Axam claims that she needs to pay him $25,000 for his contribution to the purchase of the property. She admits that he did make contributions to the payment of the mortgage on the property but only in the amount of $15,936. Solicitors acting on behalf of Mr Axam in an earlier part of these proceedings claimed this entitlement of $25,000. I accept Ms Brown's figure of $15,936 as the correct amount of Mr Axam's contributions to the property. I do so principally because I can infer from the sound substantiation that Ms Brown has provided for most of the monies she claims, that she has kept good records of her financial dealings with Mr Axam and with the financial institutions with which they were both dealing. The calculation of this amount of $15,936 is to be derived from the kinds of documents she has already adduced in evidence. The inferences which arise from these facts can be more confidently drawn because of Mr Axam's failure to contest them.
22 Ms Brown says that there has been some text message communication between herself and Mr Axam since their separation. These messages have in part concerned arguments about the money that he wanted. He is said to have made threats to her. I do not need to decide the details of these questions now. It is conceivable they could become the subject of other proceedings. I have not heard Mr Axam's side about these particular communications. Nevertheless I accept that there were some communications after separation. These communications assist the inference that Mr Axam has chosen deliberately not to participate in these proceedings.
23 It is now necessary to consider the issues of service upon Mr Axam, the operation of s 17(2)(b) Property (Relationships) Act and the three steps necessary for the exercise of jurisdiction under s 20 Property (Relationships) Act.
Service on Mr Axam
24 I am satisfied that Mr Axam has adequate notice of the existence of these proceedings and that the fact they were listed on 9 March 2010. I am not satisfied that he is adequately notified of the possibility that final orders were to be made against him on 9 March 2010, even though the inference that the making of final orders was likely is reasonably clear on the materials sent to him. After these proceedings were commenced on 2 October 2009 service of originating process and the affidavits on Mr Axam proved impracticable. Upon Ms Brown's application the Court made orders for substituted service under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 10.14 on 19 January 2010. Instead of personal service on Mr Axam the Court ordered the statement of claim and Ms Brown's affidavit to be served at his current employer's address for his attention, and at Farry & Co Solicitors, his former solicitors, and at an address at Albion Park Rail associated with him. The solicitors said they no longer acted for him and did not know where he was. He was not found at the Albion Park Rail address. Service at his current employer in the manner specified was a reasonable way of bringing these proceedings to his attention. There was sufficient evidence before the Court both in support of the application for substituted service and in the reports upon the execution of those orders to conclude that this material has come to the attention of Mr Axam.
25 The affidavit of Megan Jane Woodley of 9 February 2010 and the affidavit of Gregory John Bigene of 2 February 2010 show that service was effected in accordance with the Court's order of 19 January 2010. Rule 10.14(4) UCPR indicates that such steps are then taken to constitute personal service on Mr Axam.
26 Evidence that Mr Axam has notice of this hearing though is less adequate. The covering letter dated 25 January 2010 from Messers Reimer Winter and Williamson, the lawyers acting for Ms Brown, accompanying the statement of claim, Ms Brown's affidavit and the substituted service orders said "we note that this matter is before the Supreme Court of New South Wales on 9 March 2010 at 9am" (Exhibit A). This statement was apt to indicate that a further step was likely to be taken in the proceedings by Ms Brown on 9 March 2010. It was not clear enough to indicate that a hearing for final relief would take place. For that reason I direct in the orders below that a copy of this judgment and the orders that are made but temporarily stayed should be served at Mr Axam's employers premises and a further 28 days allowed to go by. If Ms Brown's attorneys receive any notice that Mr Axam has ceased to work with that employer then the matter should be relisted for supplementary directions.
Prerequisites for Making the Order
27 This is clearly a case where the applicant has made substantial contributions of the kind referred to in s 20. These are set out in the survey above. This survey shows that but for an amount of approximately $15,000 Ms Brown has provided the whole of the contributions for the Werrington Downs property. Something has been provided by Mr Axam but it is minimal.
28 Ms Brown would not otherwise be adequately compensated for these contributions unless an order under s 20 was made. There is no ready legal basis on which it can be inferred that once the Werrington Downs property was put in joint names that there was any joint default arrangement in which the parties could have placed its value in Ms Brown's hands upon Mr Axam's non performance of his side of their arrangements. That is what the justice of the case requires.
29 In these circumstances, where two persons contribute to the purchase of the property which is conveyed to them in their joint names, the equitable presumption is that they hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless the contributions are equal: Calverley v Green (1984) 155 CLR 242. Here Mr Axam would be able to argue in equity for the retention of some interest in the property. The important field of operation of Property (Relationships) Act in this case is that it would authorise the complete transfer of the whole of Mr Axam's share in the property to Ms Brown, which may well not be the result at general law. She has made "substantial contributions" of the kind referred to in s 20, within s 17. These contributions significantly exceed the $15,000 approximately that he has contributed to the property and would otherwise be the foundation for his claimed interest in it. The general law would probably not adequately compensate her for all her contributions to the joint financial resources of the couple through a declaration of interest in the property. She may have to look to him as an unsecured creditor in respect of the loans that she made to him. The making of an order under the Property (Relationships) Act serves to give her immediate satisfaction in respect of her effective full contribution to the acquisition of the Werrington Downs property and avoid future litigation between the parties.
30 The justice of making an order in this case is also compelling because the relationship is only one month short of the requisite 24 months that would mean that s 17(1) would otherwise be satisfied.
Joint Property of the Parties
31 As I have indicated above it is not possible to establish what is the joint property of the parties beyond the Werrington Downs property. For that reason it is appropriate for the orders to be limited in the manner suggested by the plaintiff.
32 The lack of evidence about the property is cured by the orders proposed by Ms Brown. Other personal property and shares held by the parties are to be retained by each of them. The principal asset in contention between them is the Werrington Downs property. I have little evidence as to its actual present value, only evidence about relative contributions. The parties seem to have led separate lives in some respects. It was the joint bank accounts and the contributions to the Werrington Downs property that were within the scope of their joint contemplation and is therefore the realistic subject of this assessment.
Relative Contributions under s 20
33 Ms Brown's money contributions completely neutralised those of Mr Axam. Even if it is accepted that he contributed $25,000 to the mortgage payments she has paid far more than that sum in other loans and outgoings to him.
34 There is no evidence of disproportionate non-financial or homemaker contributions under s 20(1)(a) and (b) between the parties so it is reasonable to say they were roughly equal in this short relationship.
35 The financial contributions evidence shows that Ms Brown paid $18,194.12 plus other monies amounting to $5,606.08, being $23,800.20 to him. She was not repaid and Mr Axam has not contributed any equivalent sum to her. There is no evidence of his paying any more to their joint resources than what she concedes of $15,930.
36 Ms Brown has effectively taken complete responsibility for their financial stability.
The Adjusting Order
37 The appropriate adjusting order to be made in this case is the one sought by the plaintiff transferring the Werrington Downs property to her but requiring her to take over all mortgage obligations over it and not transferring any other property. This reflects the reality that she has more than fully paid for the Werrington Downs property herself, when the performance of all their domestic financial arrangements is considered.
Conclusions and Orders
38 In the result I have found that there was a de-facto relationship between Ms Brown and Mr Axam between November 2006 and 14 October 2008. Although the relationship falls short of the requisite 2 year threshold for the making of orders under Part 3 of the Act, Ms Brown has made substantial contributions of the kind referred to in s 20 Property (Relationships) Act. She would not be adequately compensated for these contributions if a s 20 order were not made. A failure to make an order would result in a serious injustice to her.
39 I have found that the only property of the parties about which there is any certainty is the Werrington Downs property. Before the intervention of the Court Ms Brown is entitled to at least 50% of that property. She is entitled in equity on a resulting trust because of her advances of a substantial proportion of the purchase price and because of the strong inference that arises from placing the title in joint names. She has made s 20 financial contributions, that substantially outweigh Mr Axam's financial contributions to the property. There is no evidence that he has made any other substantial financial or non-financial contribution to their joint resources. The parties did not make any agreement as to what would happen to the property if one of them failed to perform his or her side of their financial arrangements. That is where the Act can provide a solution. In the circumstances the adjusting order that she seeks is the appropriate one. Accordingly I make orders as follows. These orders include the orders foreshadowed above in relation to further service of these orders on the defendant and a temporary stay on their operation.
40 The Court orders: