Chippindale v Wyatt

Supreme Court of NSW|2010-09-30

CITATION : Chippindale v Wyatt [2010] NSWSC 927 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18/05/10, 19/05/10, 20/05/10, 28/06/10 (Final submissions 12/08/10)

DECISION : I dismiss the proceedings with costs.

PARTIES : Peter Chippindale v Rebecca Ann Wyatt

COUNSEL : Mr Peter Chippindale appeared in person Mr MW Anderson for defendant

SOLICITORS : Tonkin Drysdale Partners for defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/290226 (formerly 4248/09) Peter Chippindale v Rebecca Ann Wyatt JUDGMENT 1 HIS HONOUR: This is the hearing of proceedings brought by the plaintiff, Mr Peter Chippindale, in respect of the following claims:

a. An application for adjustment of the parties' interests under the s 20 of the Property (Relationships) Act 1984 (NSW) (the Act).

b. A claim for unjust enrichment as a result of work done by Mr Chippindale on the property owned in part by the defendant, Ms Rebecca Wyatt.

c. A claim for a constructive trust over a property owned in part by Ms Wyatt. Application for adjustment of parties' interests under s 20 of the Property (Relationships) Act 2 In respect of this application the parties are at issue as to whether there was a de facto relationship between them. It is plain that they had contact over the period from 2001 to 2008 and this included the period when Mr Chippindale was a builder by trade and worked for Ms Wyatt and her husband, Mr John Maddigan, on their property at Baulkham Hills. 3 Mr Chippindale was born in 1955. Prior to the events concerned with this case he was married and had four children. 4 Ms Wyatt was born in 1969. In 1993 she met Mr Maddigan and they married in 1996. 5 Mr Maddigan was discharged from the Air Force in 1999. 6 Ms Wyatt and Mr Maddigan purchased a property at Baulkham Hills as joint tenants in September 2000. 7 In late 2000 or early 2001 Ms Wyatt first met Mr Chippindale at the Birkenhead Point Marina where she was working. He had a boat moored at the Marina. 8 In 2000 and 2001 Ms Wyatt and Mr Maddigan obtained a development consent and an owner builder permit to undertake renovations to their property at Baulkham Hills. 9 In 2001 Mr Maddigan re-entered the Air Force where he is currently employed. 10 After some alterations to the building plans, renovation work started in 2003. From time to time Mr Chippindale helped with the major building works and stayed at the home at Baulkham Hills. 11 Ms Wyatt suggests that she and Mr Maddigan paid Mr Chippindale $45,097.17 during this period for performing the building works. 12 Apart from staying at Ms Wyatt and Mr Maddigan's property during the building, the evidence suggests that Mr Chippindale also lived on his boat. In the first part of 2005, Mr Chippindale moved with his boat to Queensland and later that year he returned to Lemon Tree Passage to live on his boat. That is where the boat is currently moored. The Law

13 Under the Act a de facto relationship is a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.

14 The Act applies to domestic relationships which are defined in s 5 as follows:-

(1) For the purposes of this Act, a domestic relationship is:

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 15 The definition of de facto relationship itself appears in s 4 and is in the following terms:

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 16 This definition apart from the provisions of subclause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act: see Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. 17 In his application Mr Chippindale only presented his case as being based upon the existence of a de facto relationship and he did not suggest that there was a close personal relationship within the meaning of that expression in the Act. 18 It is convenient to deal with some of the evidence under the headings referred to in s 4 of the Act. Duration of the relationship 19 It is to be appreciated in this case that Ms Wyatt denies there was ever a sexual relationship between her and Mr Chippindale. Certainly she asserts in these proceedings that there was no de facto relationship, however, she concedes she spent time with Mr Chippindale. 20 It appears from Mr Chippindale's evidence that he and Ms Wyatt met in 2000 when they were both working at the Birkenhead Point Marina. In his affidavit evidence Mr Chippindale suggested that a sexual relationship commenced in March 2001 and that in June 2001 he started to spend nights at Ms Wyatt's home. It should be appreciated that throughout the period in which Mr Chippindale says there was a de facto relationship between him and Ms Wyatt, Ms Wyatt was married and living with Mr Maddigan at their property at Baulkham Hills. 21 It is also to be appreciated that it is common ground that Ms Wyatt and Mr Maddigan employed Mr Chippindale to undertake renovations at their property in the years from 2001 to 2005. 22 On his version of events Mr Chippindale says that in 2008 his relationship with Ms Wyatt became difficult and that in February 2009, Ms Wyatt told him that she did not wish to see him again. Nature and extent of the common residence 23 Mr Chippindale suggested that from March 2001 they commenced a sexual relationship and from June 2001, he and Ms Wyatt spent every night together either on his boat or at her house. 24 The renovations at the property seem to have commenced in late 2002 or early 2003 and they continued until 2004. Mr Chippindale, Ms Wyatt and Mr Maddigan were all involved in the renovation work and they all agree that they allowed Mr Chippindale to stay at the property from time to time in 2003 and 2004. This was because Mr Chippindale had difficulty driving as he did not have a driving licence and his marriage had ended. According to Ms Wyatt the longest period Mr Chippindale stayed at the property was two weeks and that Mr Maddigan was living at the home when Mr Chippindale stayed there. Mr Chippindale slept in the third bedroom or on the lounge while Ms Wyatt and Mr Maddigan occupied the main bedroom. 25 A number of witnesses gave evidence as to the extent of the common residence and I will deal with some witnesses which are of assistance in resolving this problem. 26 A witness Julie Constable, was a friend of Ms Wyatt and Mr Maddigan. She became acquainted with Ms Wyatt in February 2006 and at one stage stayed at the house for 6 months. She gave evidence that Mr Chippindale stayed over night at the home on ten occasions. He did not reside there in this period. This was plainly after the building work was completed. She observed Ms Wyatt and Mr Maddigan sleeping in the same bedroom and showing each other affection. On occasions she attended special events with Ms Wyatt and Mr Maddigan when they were present as a couple. She says she did not see anything that would suggest that Mr Chippindale and defendant were in sexual or romantic relationship. Her observations of Mr Chippindale at the house on these ten occasions was that he stayed in a separate room. I accept her evidence. 27 A neighbour, Linda Walton, who had lived next to Ms Wyatt and Mr Maddigan since August 1999 gave evidence that they had all spent time together socialising. She observed Mr Chippindale working on the property and she was aware that he stayed overnight at Ms Wyatt's home from time to time. When the renovations were completed she observed Mr Chippindale calling in at Ms Wyatt's home. Mr Chippindale did some work on her own house and at one stage in 2007 she let him stay in her house for a week to mind it while she was away. Her evidence was acceptable. 28 Ms Wyatt's aunt, Judith Sinclair, gave evidence that in 2001 she was in frequent contact with Ms Wyatt. She recalled an event in October 2005 when Mr Chippindale and Ms Wyatt, together with other friends, were at a jazz festival at Pearl Beach on the Central Coast. She recalled Mr Chippindale saying that the renovations were nearly finished and once they were completed he would be sailing his boat up the coast. This was in fact what happened. 29 In cross-examination it transpired that she first met Mr Chippindale in 2005 at Birkenhead Point when he told her he was living on his yacht. She was criticised about the length of her conversation with Mr Chippindale but I do not accept that criticism given the nature of the occasion. 30 The mother of Ms Wyatt, Robyn Anstee, also gave evidence. She met Mr Chippindale at Ms Wyatt's home at Baulkham Hills in 2002. She lived about an hour's drive away from her daughter' home and she used to visit her daughter once or twice every six to eight weeks. On one occasion when Mrs Anstee spent about three weeks living at the Baulkham Hills home she noticed that Mr Chippindale was also living there. She was told that Mr Chippindale was a friend who was undertaking renovations and that he had financial problems. She gave evidence that Mr Chippindale would vacate the spare room for her when she stayed at the home and on those occasions he would sleep on a mattress in the living room. Ms Wyatt and Mr Maddigan would sleep in the main bedroom. Mrs Anstee observed that by 2005 when she moved to Alice Springs most of the renovations had been completed and Mr Chippindale was no longer spending nights at the home. After 2005, she used to return on holidays and she would spend up to a month each year with her daughter. She saw nothing to suggest there was any relationship between Mr Chippindale and Ms Wyatt other than that they were friends. The only domestic chores she saw Mr Chippindale undertake was when he fed the cat and cleared the table after a meal. Although she was Ms Wyatt's mother and at times became heated during cross-examination, I am satisfied that she gave an accurate account of what she observed. 31 A friend of Ms Wyatt and Mr Maddigan, Barbara Jackson, also gave evidence for Ms Wyatt. She first met Mr Chippindale when Ms Wyatt and Mr Maddigan took Mr Chippindale to a jazz festival in 2004. Ms Wyatt and Mr Maddigan told them that Mr Chippindale had nowhere else to go due to the breakup with his former partner and Mr Chippindale asked if he could stay with Barbara Jackson. She gave evidence that Ms Wyatt and Mr Maddigan stayed in a room at her home and Mr Chippindale was in a separate guest bedroom. The same thing happened on another occasion. She gave many other instances of Ms Wyatt and Mr Maddigan being with her and her husband at different locations. There is no reason not to accept her evidence and I do so. 32 It is to be remembered that Mr Maddigan rejoined the Air Force in April 2001. Mr Maddigan was based at an airbase near Sydney, Sydney, up until December 2006. The nature of his work with the Air Force required him to travel extensively and be away from home. The details of Mr Maddigan's posting with the Air Force are set out in exhibit E4 which is compiled from his log books and other documents. I accept that exhibit E4 accurately sets out his movements as they are based upon his service records. There is no basis to suggest that they are not accurate. 33 In June 2002, Mr Maddigan was overseas until the end of July 2002. He was overseas again for a short time in September 2002. He remained at the RAAF Base near Sydney until he was posted to an RAAF Base in Queensland on 1 January 2007. Because he was based in Queensland he qualified for extended leave and he was able to obtain weekend leave to return home. 34 It will be recalled that Mr Chippindale conceded that in 2005 he moved his yacht to the Gold Coast. There is evidence from Mr John Bennett that he had dinner and drinks with Mr Chippindale and Ms Wyatt at a boat show at the Gold Coast in 2003 and again in late 2004. 35 In 2005 after he moved with his yacht to the Gold Coast, Mr Chippindale agrees that he returned with his yacht to live at Lemon Tree Passage, which is near Port Stephens north of Newcastle. 36 There was evidence given by Shelly Clinton and her partner, Darren Hendrie, who saw Mr Chippindale and Ms Wyatt at the Lemon Tree Marina. Shelly Clinton recalls meeting Ms Wyatt when she came to Lemon Tree Passage and stayed on Mr Chippindale's yacht for the weekend. She says Mr Chippindale introduced her as his girlfriend. Shelly Clinton observed Mr Chippindale and Ms Wyatt occasionally over the next two years and saw them on the yacht on weekends. She puts it at mostly every second weekend. Her observations of Mr Chippindale and Ms Wyatt were such that there was plainly some relationship between them and that they were staying together. Shelly Clinton gave evidence that one evening after they had been drinking everyone went skinny dipping. After that was finished she saw Mr Chippindale and Ms Wyatt head off for the cubicle where the showers were located. 37 Darren Hendrie confirmed his partner's evidence that Ms Wyatt arrived at Lemon Tree Passage on the weekends in her burgundy Toyota motorcar when she stayed with Mr Chippindale on his yacht. 38 Although Ms Wyatt made some concessions that she did visit Lemon Tree Passage at some time, she suggested that she worked a twelve day roster and she did not visit as frequently as Shelly Clinton and Darren Hendrie alleged. She said that either or both of the skinny dipping episodes and having a shower with Mr Chippindale were not correct. However, she did not deny their allegations that she would stay with Mr Chippindale on his yacht when she visited. 39 Shelly Clinton and Darren Hendrie were believable and they had no reason to favour any particular party. There was a good explanation of how the incident happened and their evidence was wholly believable. Ms Wyatt in this case has a problem not only with the case but presumably with Mr Maddigan about these years. I prefer the evidence of Shelly Clinton and Darren Hendrie to that of Ms Wyatt. 40 Dr Johannes Els gave evidence that from January 2007 to March 2008 when he was at Lemon Tree Passage he saw Mr Chippindale and Ms Wyatt spend four weekends together on the yacht. Dr Els and his wife had dinner with Mr Chippindale and Ms Wyatt on two occasions. Ms Wyatt concedes that she met them and was at the same pizza restaurant. Dr Els recalled one occasion when they arrived together. His observation of Mr Chippindale and Ms Wyatt in the yacht were only of them being on the boat together. 41 It is interesting to note that in his first affidavit Mr Chippindale deals with the commencement of the relationship and living arrangements but does not provide any details thereafter of where they lived. It was left to inference, and later affidavits did not address this absence. The suggestion of how the relationship started gives no detail of the living arrangements. 42 There was evidence from Anne Brammage, the Strata Secretary, that Mr Chippindale had worked on units at Northcote Road, Hornsby in 2006 and 2007. Anne Brammage gave evidence that she held a function following the work on the building at which Mr Chippindale and Ms Wyatt were present. 43 A consideration of all the evidence does not substantiate Mr Chippindale's claim that he and Ms Wyatt lived together full-time on Mr Chippindale's yacht or at her home at the commencement of the relationship. The independent evidence and observations of the parties and Mr Maddigan at the time the renovations were carried out all point to Ms Wyatt and Mr Maddigan being together in the main bedroom and Mr Chippindale sleeping in a separate room on the occasions he stayed at the property. Given the intermittent nature of the renovations, which continued for some years, it is likely that Mr Chippindale only spent part of his time at the property and certainly the extent of the renovations would not have meant that he was living at the property on a full-time basis or for any extended period of time - such as one year or two years. Other than various assertions by Mr Chippindale, it is plain that there is no evidence to suggest that he spent time at Ms Wyatt and Mr Maddigan's house when Mr Maddigan was away. 44 It is also plain that after Mr Chippindale moved his yacht, which was in effect his residence, to the Gold Coast in 2005, he was occasionally visited by Ms Wyatt. He moved to Lemon Tree Passage to live on his boat in 2006 and 2007. It is also plain from the evidence that from time to time on weekends Ms Wyatt would drive to Lemon Tree Passage to stay with Mr Chippindale over a weekend. Whether or not a sexual relationship existed 45 Ms Wyatt denies a sexual relationship existed. However, given the clear evidence that she spent time with Mr Chippindale on his yacht at Lemon Tree Passage such a relationship would in the ordinary course have existed. There are several hundred photos in evidence taken at different times. A large number of them were taken on the same day at the same location at a photo shoot at Bantry Bay from which the Court is asked to infer that Mr Chippindale and Ms Wyatt had a sexual relationship. There are 108 photos that are said by Mr Chippindale to have been taken by him. According to Ms Wyatt these photos were taken by a photographer, Mark Tabone, who was present with his wife, Jane. The photographs depict Ms Wyatt naked or in various stages of undress in the bush and in an abandoned building at Bantry Bay. Mr Chippindale is not present in any of the photos. According to Ms Wyatt the photos were taken for private purposes for Mr Maddigan's benefit. Although Mr Maddigan said he was aware of the occasion and that the photos were taken for his benefit he did not ever receive them or see them. 46 Ms Wyatt suggested that she had kept these photos at home and that at some stage they went missing from her home. The inference was that at some stage Mr Chippindale, who had access to her home, had taken the photos. 47 Neither Mr Mark Tabone or his wife were called as witnesses by Ms Wyatt. According to her, Mr Tabone did not want to get involved and she did not subpoena him to attend to give evidence, a course which was available to her. Other than saying he took the photos at the photo shoot, Mr Chippindale gives no evidence of the circumstances surrounding it or the purpose of the photo shoot. I am prepared to accept the plaintiff's explanations of the photo shoot at Bantry Bay. 48 There were 21 photos of Ms Wyatt in a spa bath in which she appeared to be naked and inebriated. Ms Wyatt had no recollection of this event. Mr Chippindale claims that he took these photos when they were away together. 49 There were another 10 photos of Ms Wyatt all taken at the same location and depicting Ms Wyatt on a bed naked in various poses. Ms Wyatt cannot recall the occasion. 50 There were 10 photos showing Ms Wyatt playing golf. There are other photographs depicting a concert in a vineyard, some whales, Floriade in Canberra, photos of a boat and one photo of Ms Wyatt holding some flowers. These photos were taken at events where Ms Wyatt concedes that Mr Chippindale and she were present together. 51 There are a number of photos of Mr Chippindale and Ms Wyatt taken on Mr Chippindale's yacht. Some photos depict Ms Wyatt wrapped in a towel and another of her cooking a meal on the yacht. See for example, photos 65, 67, 224. These domestic scenes appear to indicate more than just a photo shoot at Bantry Bay early in their relationship. 52 There was also cross examination of Ms Wyatt concerning clothes which were alleged to have been left by her on Mr Chippindale's Yacht. She denied this and Mr Chippindale did not give evidence of them having been left on the boat. 53 Plainly, in my view, there was a casual sexual relationship between Mr Chippindale and Ms Wyatt. The degree of financial interdependence and any arrangements for support between the parties 54 There is no suggestion that the parties supported each other apart from the arrangement for the building work, which was one which involved payment for work done by Mr Chippindale. I will return to this aspect when considering the claims for building work. Plainly, at Mr Chippindale's request, many payments were made at Mr Chippindale's direction no doubt to suit his own purposes. The ownership, use and acquisition of property 55 There is no evidence to suggest the ownership, use and acquisition of property together. Mr Chippindale assisted Ms Wyatt's business of Boatique at one stage by building a stand for it at a boat show. There is little evidence of any real involvement in that business. The degree of mutual commitment to a shared life 56 This aspect is denied by Ms Wyatt but it obviously played an important part in Mr Chippindale's life. However, it is also plain that Ms Wyatt had a firm commitment to Mr Maddigan which has continued to this day and they plan in the future to have children together. The care and support of children 57 Mr Chippindale and Ms Wyatt have no children. Mr Chippindale suggested that Ms Wyatt had two miscarriages during the course of their relationship. There is no independent evidence on this aspect and Ms Wyatt denies Mr Chippindale's suggestion. The only occasion when she had a miscarriage was when she and Mr Maddigan tried to have a child by IVF. Ms Wyatt's evidence was that she was infertile and unable to conceive without the assistance of IVF. She tendered a report from a doctor concerned with the treatment. She had received IVF treatment which unfortunately resulted in a miscarriage. 58 Having regard to this history, I do not accept Mr Chippindale's uncorroborated assertions in respect of the two miscarriages. The performance of household duties 59 Given the minimal evidence of the actual time the parties might have spent in a household together there is no relevant evidence on this aspect. Reputation and public aspects of the relationship 60 The evidence of the witnesses at Lemon Tree Passage that they observed Mr Chippindale and Ms Wyatt in public as a couple was obviously correct. A number of other witness were called by Mr Chippindale, who reported what had been told to them by Mr Chippindale, and suggested that Mr Chippindale and Ms Wyatt were a couple. Surprisingly there are no photos of Mr Chippindale and Ms Wyatt as a couple on family occasions or out with friends. Apart from the evidence of the witnesses at Lemon Tree Passage, there is no evidence of substance on this aspect. Discussion 61 In this matter it seems clear that throughout the period of the relationship between Mr Chippindale and Ms Wyatt, Ms Wyatt was married. The marriage was important to her and it is plain it continues to this day. In my view the evidence indicates that Mr Chippindale had an affair with Ms Wyatt which was short lived and involved no permanent residence or household together. 62 Having regard to this aspect and the other matters I have mentioned I am of the view that there was no de facto relationship between the parties. 63 However, in case someone else may take a different view, I record the parties' assets at the commencement and conclusion of the alleged relationship. 64 During June 2001, Ms Wyatt's financial circumstances were as follows: Assets Estimate Property at Baulkham Hills $141,500 Savings $1,000 Self Managed Superannuation Fund $11,500

Liabilities Westpac Mortgage XXXX2 $94,500 Westpac Mortgage XXXX0 $12,000 Westpac Credit Card $2,000

65 In addition to the above, during June 2001, Mr Maddigan's financial circumstances were as follows: Assets Estimate Property at Baulkham Hills $141,500 Savings $1,000 1995 Honda motorcycle $7,000 Minnie St Southport Qld $32,666.66 Eugaree St Southport Qld $243,000 Self Managed Superannuation Fund $11,500

Liabilities Westpac Mortgage XXXX2 $94,500 Westpac Mortgage XXXX0 $12,000 Mortgage over Minnie St Southport Qld $28,000 Mortgage over Eugaree St Southport Qld $180,000 Citibank Ready Credit $12,500 Commonwealth Credit Card $3,000

66 The net worth of Ms Wyatt and Mr Maddigan as at June 2001 was approximately $152,166.66 excluding Mr Maddigan's Airforce Superannuation.

67 In relation to the above Ms Wyatt disclosed that "…at this time the company RW Consulting Pty Ltd owned a 1998 BMW vehicle worth about $27,000.00 which had a loan attached to it in the sum of $30,000.00. This company was wound up in 2004 following the failure of the business and at that time the company's liabilities outweighed its assets".

68 She also disclosed that at this time Mr Maddigan was involved in a three way partnership involved in property investment. That property was sold in July 2001 for the sum of $98,000.00 and following discharge of the mortgage in the sum of $84,000.00 and payment of the usual sale costs there was no dividend paid to the partners. The Eugaree St property was sold in September 2002 with Mr Maddigan's one-third share of the proceeds applied to pay off the Citybank Ready Credit loan above, with the balance put towards the costs of renovating the property at Baulkham Hills. The partnership ended following the sale of the Eugaree St property. 69 She also disclosed that Mr Maddigan also had and continues to hold superannuation interests with the military the detail of which was not in evidence.

70 During February 2009, Ms Wyatt's financial circumstances were as follows: Assets Estimate Property at Baulkham Hills $290,000 2005 Toyota Corolla Hatch $11,000 Self managed superannuation fund $13,000 Joint superannuation $5,500 Colonial superannuation $5,000 Savings $3,000

Liabilities Westpac Mortgage XXXX2 $56,000 Westpac Mortgage XXXX0 $9,750 Westpac Mortgage XXXX3 $67,000 Westpac Mortgage XXXX7 $35,000

71 In addition to the above, during February 2009, Mr Maddigan's financial circumstances were as follows: Assets Estimate Property at Baulkham Hills $290,000 Self managed superannuation fund $13,000 Colonial joint superannuation $5,500 Savings $3,000 1995 Honda motorcycle $8,000

Liabilities Westpac Mortgage XXXX2 $56,000 Westpac Mortgage XXXX0 $9,750 Westpac Mortgage XXXX3 $67,000 Westpac Mortgage XXXX7 $35,000 Commonwealth Credit Card $3,000

72 The net worth of Ms Wyatt and Mr Maddigan in 2009 was $308,500 excluding Airforce Superannuation. 73 Both of the new mortgage accounts related to the property at Baulkham Hills. Ms Wyatt and Mr Maddigan were jointly and severally liable for that debt. Proceeds from Westpac Mortgage XXXX3 were applied towards the renovations to the property at Baulkham Hills. Proceeds from Westpac Mortgage XXXX7 were used on a variety of things including the sum of $25,000 towards the renovations as well. 74 Ms Wyatt's current financial circumstances are as follows: Assets Estimate Property at Baulkham Hills $300,000 2005 Toyota Corolla Hatch $10,000 Colonial superannuation $6,000 Joint Colonial superannuation $7,000 Self managed superannuation fund $13,000 Savings $4,500

Liabilities Westpac Mortgage XXXX2 $49,500 Westpac Mortgage XXXX0 $9,500 Westpac Mortgage XXXX3 $65,500 Westpac Mortgage XXXX7 $31,500

75 Mr Maddigan's current financial circumstances are as follows: Assets Estimate Property at Baulkham Hills $300,000 Self managed superannuation fund $13,000 Joint Colonial superannuation $7,000 Savings $4,500 1995 Honda motorcycle $7,000

Liabilities Westpac Mortgage XXXX2 $49,500 Westpac Mortgage XXXX0 $9,500 Westpac Mortgage XXXX3 $65,500 Westpac Mortgage XXXX7 $31,500 Commonwealth Credit Card $10,000

76 The net worth of Ms Wyatt and Mr Maddigan is currently $350,000 excluding Airforce Superannuation.

77 Ms Wyatt submits that she will also have considerable legal fees to pay following the conclusion of this matter. To date legal fees of $23,738.20 have been paid. It is unclear what further legal fees will need to be paid. They will be in excess of $20,000. 78 Mr Chippindale put his assets as at 2001 as follows: Asset Estimate Dean Street, West Pennant Hills (one half share) $312,500 Charter boat "MV Sydney" (one half share) $55,000 Fly bridge motor cruiser, called Bewitched, sold shortly after relationship began $195,000 60 foot yacht, the Christina, purchased in late 2000 $210,000 1928 Ford Roadster sold during relationship $35,000 Itek Building Pty Ltd (with two 4WD motor vehicles, tools of trade and a trailer) $57,000 Superannuation in a self managed fund $2,000 Savings $35,000

Liability Mortgage on West Pennant Hills property $390,000

79 Plainly, following the divorce from his wife in 2002 or 2003 Mr Chippindale no longer held the property at West Pennant Hills as his ex wife received the proceeds of some $390,000 on its sale. His charter boat was sold and at least half the $110,000 sale proceeds was paid to his sister. 80 Mr Chippindale does not deal with his assets as at the conclusion of the relationship or at the time of the hearing. 81 So far as contributions are concerned Mr Chippindale contributed his labour to the renovations. He was paid for this contribution. Ms Wyatt and Mr Maddigan soley contributed to the purchase and financing of the house and also financed the substantial materials component of the contractor costs. 82 Mr Chippindale did contribute to Ms Wyatt's business Boatique before its demise by building a show stand for $3000. Apart from these there were no other financial or non financial contributions of any substance. Unconscionable conduct 83 This is based on Mr Chippindale's claim that he performed substantial renovation work for which he has not been paid. Mr Maddigan gave detailed evidence supported by records of payments to Mr Chippindale. His evidence demonstrated and I accept that $45,097.17 was paid by them to Mr Chippindale. In addition there were two other payments of $4,000 for traffic fines and $1,000 for a marina fee which Mr Chippindale concedes were paid on his behalf. I am satisfied that $50,097.17 was paid to Mr Chippindale. 84 Mr Maddigan gave detailed evidence of the range of work and hours involved in the building work. Ms Wyatt and Mr Maddigan spent $197,688 on materials and other contractors. This sum does not include the payments made to Mr Chippindale. Mr Maddigan's evidence was the basis for evidence from a quantity surveyor, Mr Beencke, who assessed Mr Chippindale's contributions to the building work at $45,603. 85 It is important to note that the hearing was adjourned to give Mr Chippindale an opportunity to have his own quantity surveyor make a report to reply to Mr Beencke's evidence but he did not avail himself of that opportunity. 86 Mr Chippindale criticised Mr Beencke's evidence in his submissions on the basis that: Mr Beencke used Cordell commercial cost guide rather than a domestic alteration rate. The ratio between material and labour indicated Mr Beencke had under-valued the labour. Mr Beencke applied the same rate to Mr Maddigan as he had applied to Mr Chippindale. 87 On the first point it appears from Mr Beencke's cross-examination that he agreed with Mr Chippindale that the appropriate rate was $45 per hour, which was the rate Mr Beencke used. 88 On the second point, although Mr Beencke accepted that as a general proposition one might say over all trades that materials and labour would have the same level, he could not comment on it as he did not know the details of what was involved in the material costs of $160,000. In the absence of any other evidence I would not reject Mr Beencke's evidence. 89 The third point was not relevant to the question before the witness. 90 Mr Beencke was not cross-examined on the crucial question, which was his acceptance of the times put forward by Mr Maddigan compared with those put forward by Mr Chippindale. There was also no cross-examination of Mr Maddigan on this aspect. 91 Accordingly, I accept Mr Beencke's evidence. 92 In these circumstances it is plain that Mr Chippindale has been paid for the building work he carried out on Ms Wyatt and Mr Maddigan's home at Baulkham Hills. Constructive trust 93 This matter seems to be based on some evidence that Mr Chippindale gave in his affidavit dated 21 August 2009 at paragraphs 64 - 74 in these terms: "64. During the period that I was in a relationship with the defendant the arrangement about me working on the home changed. 65. Shortly after I gave an initial quote to the defendant to perform some of the work on the property, we changed the arrangements so that I did not any longer expect to be paid for the time that I was spending on the project. 66. I expected rather that the property would be developed and it would be sold and that the profit be realised and that I would share in that with the defendant. 67. The understanding that I believe existed was that John (who paid for the materials and worked on the project during the periods that he was in Sydney) would receive half of the proceeds of the project and that the defendant and I would receive the other half. 68. As between the defendant and myself, my understanding with her was that each of us would share equally in what was produced when the property was sold. 69. I recall raising it with the defendant and she indicated words to the effect of "We've got two options, one we can buy John out or we can sell the property when it is finished and split the proceeds." 70. I said words to the effect of "what do you mean, split the proceeds with John?" 71. She replied words to the effect of "Yes, he'll take his share and we will take our share and use it to buy another property together." 72. We did not specifically sit down and thrash out a business arrangement, what our percentage entitlements were. That was not expressed. I understood that she and I agreed that we were going to equally be entitled to the fruits of this project. We were in a relationship with each other and my understanding was that anything that we accumulated together was shared between us as a couple. 73. We had discussed our futures and she had said to me words to the effect of "I'm going to divorce John and we can get married." 74. I had accepted during the period that I was performing the work on the property that we had a long term future together, that her relationship with John was over, that she was going to divorce him, that we were going to be married and that we were in a long term committed relationship." 94 It is extraordinary that Ms Wyatt's first affidavit sworn on 10 September 2009 did not address Mr Chippindale's affidavit in any detail and instead dealt with her version of their relationship. As a result she has not addressed the allegations in this part of Mr Chippindale's affidavit. 95 Mr Chippindale's suggestion in paragraph 65 that he did expect to be paid for the time that he was spending on the project is directly inconsistent with his own statement in paragraph 67 that Mr Maddigan was paying for all the materials. It is plain from the evidence given in respect of the renovations that Mr Chippindale was paid for all the work he undertook on the project. I do not accept Mr Chippindale's assertion in paragraph 65. 96 In paragraphs 69 to 71 Mr Chippindale refers to a proposed plan by Ms Wyatt. He does not give any evidence that the proposal was accepted. This is evident from his expression of only his "understanding" in paragraph 72. 97 The pleading is couched in terms of Ms Wyatt inducing Mr Chippindale to act to his detriment. The present situation is not uncommon and is commented on by White J in Cambouya Pty Limited v Buchanan; Buchanan v Cambouya Pty Limited [2005] NSWSC 743 in these terms: "39 Nor do I accept the plaintiff's submission that if Mr John Buchanan and Sir Dennis had an actual common intention that the beneficial interest in the properties would be held by Mr Buchanan, that in itself would be sufficient to establish the existence of a trust, irrespective of whether Mr Buchanan had acted to his detriment on the faith of that intention. In support of that submission, counsel for the plaintiff relied on the judgment of Glass JA in Allen v Snyder [1977] 2 NSWLR 685 at 693. His Honour was there concerned to demonstrate that for a trust to arise on the basis of the common intention of the parties, and as explained in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886, the parties must have had an actual intention that the beneficiary have a beneficial interest in the property, rather than the court imputing such an intention to the parties on the basis of what it considered to be fair or just. His Honour considered that where a trust arises on the basis of the parties' actual common intention, it is properly categorised as an express trust which may be enforceable notwithstanding the want of writing, rather than a constructive trust. It is unnecessary to enter that debate. Later cases have accepted that one circumstance in which a constructive trust may arise is where the parties have an actual intention that one of them should have a beneficial interest in property whose legal title is held by the other and where the former party has acted to his or her detriment in a way referable to the parties' agreement or intention that he or she have an interest in the property. ( Green v Green (1989) 17 NSWLR 343; Brandling v Weir [2003] NSWSC 723; Carruthers v Manning [2001] NSWSC 1130 at [124]; Parianos v Melluish (2003) 30 Fam LR 524; Grant v Edwards [1986] Ch 638). 40 As the Privy Council said in Austin v Keele (1987) 10 NSWLR 283 at 291 when talking of trusts arising from the parties' common intention rather than express declarations of trust: "A trust does not come into being merely from a gratuitous intention to transfer or create a beneficial interest. There has first of all to be the additional ingredient of an intention or at least an expectation that the cestui que trust will act in a particular way, normally, though not necessarily exclusively, by making some contribution towards the cost of acquisition of the property in which the interest is intended to subsist. Moreover, Lord Diplock's formulation of the principle in Gissing v Gissing involves the further essential element that the trustee has so conducted himself that it will be inequitable to allow him to deny to the cestui que trust the beneficial interest which it is proved that he was intended to have. There has to be some conduct detrimental to the cestui que trust, even if only in the sense of an irrevocable change of legal position, which is referable to the common intention proved and undertaken on the footing of the grant of the beneficial interest claimed." 41 Thus Mr Buchanan would have to show that he acted to his detriment in a way referable to the agreement or intention that he have an interest in the property, in this case beneficial ownership. ( Carruthers v Manning [2001] NSWSC 1130 at [124].) To qualify, the conduct in question must be such that Mr Buchanan could not reasonably have been expected to embark upon it unless he were to have an interest in the property. ( Grant v Edwards per Nourse LJ at 648). " 98 In the present case, given the payment to Mr Chippindale for his labour throughout the period from 2001 to 2005, he plainly has not acted to his detriment on the basis of what was suggested, apparently at the very commencement of the building works. 99 In my view this claim cannot succeed. 100 I dismiss the proceedings with costs.

18/10/2012 - removed references to details of properties - Paragraph(s) various

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(2003) 30 Fam LR 524

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