Davies v Dabela

Supreme Court of NSW|2010-12-13|Before: Ms J

Background Facts 1HIS HONOUR: This is an application brought by a man against his former de facto partner, seeking an adjustment of property interests. Since, on the pleadings, the parties agree that their relationship ended before 1 March 2009, the Property (Relationships) Act 1984 ("the Act") is the relevant legislation under which the case must be decided. The Act provides a legislative scheme to resolve disputes about property adjustment and maintenance in circumstances where a de facto relationship has ended. As will be seen, the sole question, in this case, is what, if any, orders should be made for adjustment of the parties' interests with respect to property pursuant to s 20 of the Act. 2There is no dispute that the Plaintiff and the Defendant were parties to a de facto relationship, and, therefore, parties to a "domestic relationship": s 5(1)(a) of the Act. A de facto relationship is one in which the parties live together as a couple, but are not married or related by family: s 4(1). It is also not in dispute that there were no children of the parties' relationship.

Procedural History 3The Plaintiff commenced these proceedings by statement of claim filed on 28 August 2008. He filed an amended statement of claim, on 14 May 2009, in which, in summary, he sought an order for the sale of a property, situated at Cremorne, New South Wales ("the Cremorne property"), which is registered in the sole name of the Defendant, and the division of the net proceeds of the sale between the parties, as to 25 per cent to him and the balance to the Defendant. On the evidence, his claim appears to be for about $482,500. 4The Defendant filed a defence on 28 November 2008. In that defence, whilst admitting that the de facto relationship ended in April 2008, she stated that it commenced in August 1997 (rather than in 1995, as was asserted by the Plaintiff). No cross-claim was filed by the Defendant. It was submitted, at the hearing, that the Plaintiff's claim should be dismissed, as a proper assessment of the relevant circumstances would show that the parties should simply retain that property which was, currently, in each of his, or her, name and that any adjustment of property interests was neither just nor equitable. 5On the first day of the hearing, the Plaintiff acknowledged, that the de facto relationship commenced in about August 1997 and ended in about April 2008. It was a relationship, therefore, of about 10.75 years. (This concession was in the written submissions made by Ms J E Healey, counsel for the Plaintiff, which submissions were received on the morning of the hearing.)

The Statutory Framework 6Section 14 of the Act, which is headed "Applications for orders under this Part", provides: "(1)Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both." 7There is no claim for maintenance in the present proceedings. 8Section 15 of the Act provides two pre-requisites for the making of an order, namely, residence within New South Wales for a substantial period of the de facto relationship, and also substantial contributions of the kind referred to in s 20(1)(a) or (b) having been made in New South Wales by the Plaintiff. 9Section 17 of the Act provides a further pre-requisite, namely, one relating to the length of the relationship. Relevantly, the Court cannot make an order unless it is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than 2 years, or that there is a child of the parties to the application. 10Under s 18, an application to the Court for an order can only be made within two years after the date on which the relationship ceased, except where the Court is satisfied that for the reasons set out in s 18, it is appropriate to grant leave to extend the time period. 11Section 19 of the Act provides that the in proceedings for an order, 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. 12It is a necessary consequence of s 19 that the claims and counterclaims of the parties to a domestic relationship should, so far as is practicable, be resolved at the one time, and in the one court. Even though there has been no cross-claim filed by the Defendant, she has raised, as a relevant fact, that she had loaned the Plaintiff amounts totalling approximately $35,000. 13The Plaintiff does not deny that the Defendant lent him various amounts, but does not admit the total amount that was lent. He also says that he has repaid about $11,900. I have been requested by the parties to deal with any amount found to remain unpaid upon the basis of s 19. 14The court is able to do what is "practicable" (under s 19) and, as will be seen, what is "just and equitable" having regard to the requirements, relevantly, of s 20(1). I am of the view I can deal with this part of the matter in the way suggested. 15In support of this view, I respectfully refer to Vitali v Stachnik [2001] NSWSC 408; (2001) 28 Fam LR 142 at 153-155, in which case Barrett J commented upon the need, in a property relationships case, for the court not to allow aspects that might potentially be made the subject of separate proceedings about financial dealings between the parties to be left outside the determination of the application. Orders were made, in that case, precluding the parties to the domestic relationship from resorting to separate proceedings that the financial dealings between them might otherwise have warranted. 16His Honour adopted a similar approach in Caplice v Aroogah Investments Pty Ltd [2005] NSWSC 287 at [13]. I shall follow the same approach in this case. 17Section 20 of the Act provides: "(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. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property." 18The underlying presumption of s 20 is that the de facto relationship has ended, that the parties have joint, or several, property, and that it may be just and equitable to adjust those existing property entitlements having regard to past contributions of the type described, so that the financial relationship between the parties may be finalised: Green v Robinson ( 1995) 36 NSWLR 96 per Cole JA, at 115-116; referred to in Van Zonneveld v Seaton [2004] NSWSC 1223 at [13], and Sullman v Sullman [2002] NSWSC 169 at [247]. 19There is no definition of "contribution" in the Act. It can be seen, however, that s 20(1)(a) is directed to financial and non-financial contributions to the acquisition, conservation, or improvement, of the property of the parties, or either of them, or to their financial resources. The contributions of both of the parties must be taken into account ("of the parties to the relationship"). Further, it is the property of both parties, and the financial resources of both, which need to be taken into account. However, it is not any contribution that is made by a party in the context of the de facto relationship that counts. It is a contribution with a particular purpose, or effect, such that it can properly be described as a contribution "to the acquisition, conservation or improvement of ... property" at [246]. 20Section 20(1)(b) is concerned, substantially, with contributions to the welfare of the other party, or of the family constituted by the parties and any child, or children, of them. However, by using the word "including" in the first line of paragraph (b), it is possible for a contribution to the welfare of the other party, or to the welfare of the relevant family, to be made in some capacity other than as homemaker or parent. 21Also, there is nothing in the language that requires contributions, which count for the purposes of paragraph (b), to be non-monetary: Sullman v Sullman . Contributions as homemaker, or by way of emotional support, are not less relevant, or less deserving, of weight than the material and financial contributions of the breadwinner and, in that sense, all forms of contribution are equal: Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550. 22On the application to adjust interests with respect to property, the Court is empowered to make such order adjusting the interests of the parties in the property "as to it seems just and equitable", having regard to the financial and non-financial contributions described in s 20(1)(a) and in s 20(1)(b). 23It is clear that the reference in the Act to "adjustment" of property interests does not convey an invitation to engage in an unbounded exercise in distributive justice: Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland, CJ in Eq at 79. The court does not commence with a presumption that, upon the conclusion of a de facto relationship, s 20(1) is intended to produce the result that each party will emerge with equality of property value. As Clarke JA made clear in Black v Black (1991) 15 Fam LR 109 at 113, a court is not entitled to work on any preconceived notions or adopt any formula as a starting point. 24In Evans v Marmont , it was observed that considerations of fault are not mentioned in the Act and there is no reference to means and needs of the kind referred to in the Family Law Act 1975 (Cth). 25Section 38(1) empowers a court exercising jurisdiction under the Act to make a range of orders, including, relevantly to this case, an order for the transfer of property, an order for the sale of property, and the distribution of the proceeds of sale in such proportions as the Court thinks fit, an order that any necessary deed, or instrument, be executed as is necessary to enable an order to be carried out effectively, and that such documents of title be produced, or to provide security for the due performance of an order, an order for the payment of a lump sum, and any other order, whether or not of the same nature as those mentioned in the other paragraphs of subs 38(1), which the Court thinks is necessary in order to do justice (s 38(1)(a), (b), (c), (d) and (k)). 26The definition of "property" in s 3 of the Act is, unless the context or subject matter otherwise indicates, or requires: "in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property." 27As can be seen, the definition is a wide one. Furthermore, the relevant property, for the purposes of s 20, is not only property held jointly by the parties, but also property held by one of the parties alone.

General Principles 28In such an application, in order to determine whether and, if so, what, property order is justified in a particular case, the Court is required to: (a)Identify and value the property of the parties which determines "the divisible pool of property" - that is, "the property of the parties to the relationship or either of them"; (b)Determine whether any, and if so what, contributions of the type contemplated by s 20(1)(a) and s 20(1)(b) of the Act have been made and by which party - that is, the evaluation and balancing of the respective contributions of the parties of the types referred to; (c)Determine what, if any, order is just and equitable - that is, what order, if any, is required sufficiently to recognise and compensate the applicant's contributions? 29This approach has been followed in many cases, including, Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402; Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360; Kardos v Sarbutt ; Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96. 30While the Court has "a broad discretion" in determining the approach to adopt in considering what order to make under s 20, two approaches are usually referred to, global and asset-by-asset: Saric v Steward [2006] NSWCA 260 at [63] per McColl JA (Handley and Santow JJA agreeing); Kardos v Sarbutt at [51]; Bilous v Mudaliar [2006] NSWCA 38 at [42]; (2006) 65 NSWLR 615 per Ipp JA (Giles and McColl JJA agreeing). Care must be taken when either is adopted to conduct that might be described as a cross-checking process as described by Ipp JA in Bilous v Mudaliar at [43]: "43 If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets." 31Contributions by either party, after the termination of the relationship, are also relevant for the purposes of s 20. Thus, for example, any payments made by the Defendant, after the relationship ended, in respect of the Cremorne property, may be a relevant contribution for the purpose of s 20. 32An important issue of principle, in this case, is the way in which the Court should treat the Cremorne property, which is, and was prior to the commencement of the relationship, registered in the Defendant's name alone, both in regard to the overall value of that property, and, importantly, as to the increase in its value during the period of the relationship. 33A Court may award the capital appreciation of a property introduced into a relationship by one of the parties either to that party, or to each of the parties in a certain proportion. That issue has been considered in a number of cases including Burgess v King [2005] NSWCA 396; (2005) 64 NSWLR 293, in Howlett v Nielson , Kardos v Sarbutt and in Bilous v Mudaliar . 34It should not be assumed that just because there was a relationship and one party was the proprietor of property which increased in value because of the natural increase in value of properties in the area, and so at the end of the relationship that party's assets are proportionately greater when compared with the other party's to the situation at the start of the relationship, that the person with the asset needs to have his, or her, rights adjusted downwards: Burgess v King [2005] NSWSC 231 at [9]. 35Yet, in Burgess , on appeal, Hodgson JA (with whom Mason P and MW Campbell A-JA agreed) at 298, held that a party who had made a particular contribution to the acquisition of a property was entitled to share in the capital appreciation of the property over the course of the relationship. In other words, the prima facie position is that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship. 36In Kardos , Brereton J said that there was no general rule that a contribution made by a party was only to be valued as at the time it was made, and without regard to capital appreciation. He said at [61]: "The approach which was adopted in Burgess v King is one which gives due weight to the time value of money, and recognises that capital gains are the product of the initial introduction of the property, rather than of ongoing contributions. On the other hand, the approach adopted in Howlett v Neilson , in my respectful opinion, may, in at least some cases, result in the serious undervaluation of initial contributions. It treats any increment in capital value of an asset held at the outset of the relationship as if it were part of the fruits of the relationship, when it is not: it is the result of the asset having been held by one of the parties at the commencement of the relationship, and not the result of joint efforts of wage earning, homemaking and parenting, and mutual support of the type described by Deane J as producing 'fruits of the relationship'. It disregards the 'time value of money'. It is likely to produce erratic results, because under it the significance of any particular asset in the ultimate evaluation will depend on its value when it was introduced. If one party has a house worth $250,000 at the outset, and it appreciates during the relationship to be worth $750,000, the contribution is of a house which at separation is worth $750,000 - not of money worth $250,000." 37In Bilous , Ipp JA (with whom Giles and McColl JJA agreed) said that there was no rule that, for the purposes of determining the order to be made under s 20(1), any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed the assets. His Honour went on to say (at 627 [61] - [63]): "[61] Brereton J expressed the opinion that in at least some cases Howlett v Neilson may result in "serious undervaluation of initial contributions". He went on to comment on the approach in Howlett v Neilson in a way that could be construed as a departure from the views expressed by Hodgson JA. [62] By "the approach adopted in Howlett v Neilson " Brereton J appears to have meant the apportionment of the increase in value of the assets initially contributed. His Honour appears to have stated a rule to the effect that, for the purposes of determining what order should be made under s 20(1) of the Property (Relationships) Act, any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed those assets. If that is what his Honour intended, I do not agree. [63] Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because "of joint efforts of wage earning, homemaking and parenting, and mutual support". In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from "joint efforts of wage earning, homemaking and parenting, and mutual support"." 38In Kozjak v Oswin [2010] NSWCA 260, Hodgson JA (with whom Beazley JA and Handley AJA agreed) said: "[44] I would approach a decision under s 20 of the Act in the following way. I would take the assets of the parties at the commencement of the relationship, and consider to what extent the value of those assets has increased up to the present. (I leave out of account motor vehicles, furniture and personal effects.) I would not take the date of separation as the cut-off point in this case, because it is from existing assets that any adjustment must be made, and any adjustment should be made on the basis of present day values; and also because the difference between the value of assets at the date of separation and the value at the date of hearing is simply due to movements in values of property held at both dates. I would consider whether the value of the assets now held by each, apart from the effect of any s 20 order, is appropriate, having regard to contributions of both parties; and if not, consider what adjustments should be made." 39Even though it was said in the context of the Family Law Act , I should mention what was said by the Full Court of the Family Court in Williams & Williams [2007] FamCA 313 at [26]: "We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship." 40Ultimately, in my view, the financial contribution by the party who brought the relevant asset into the relationship should be regarded as the most significant pointer to the extent to which each party should participate in the capital appreciation of that property ( LW v GAB [2007] QCA 386 at [40]). That is particularly so, if, as here, the period of co-habitation is not sufficiently long enough to justify any substantial erosion of the fact that the party brought a substantial asset to the relationship. Then, one considers the contribution by the other party to that asset. If that contribution requires an adjustment to be made, that adjustment may include one calculated by reference to the capital gain in the relevant asset. 41The authorities warn against the danger of double counting when the court considers any notional rent applicable when one party occupies the property of another during a domestic relationship as Ipp JA in Bilous v Mudaliar at [122]: "The respondent's provision of the family home was a contribution to her by the partnership, and appropriate weight should be accorded to it. It could be wrong in principle however to accord it weight and then require a notional rental in respect of the appellant's accommodation in the home to be deducted from the value of his contributions. That would be impermissible double counting." 42Brereton J said in Kardos v Sarbutt at [79] "... whilst it is true that in a sense Ms Kardos provided the Woonoona home as accommodation for the parties, a relationship has to be conducted from some place of co-habitation." 43What the Court should not do, in cases under the Act, has been considered by Master McLaughlin (as his Honour then was) in Rose v Richards [2004] NSWSC 315, in which he said: "37In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act , it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff and, in particular, her present needs, should not be taken into consideration. The Court should not be diverted from the clear words of the statute in exercising its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable". The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See, Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Matheson [2002] NSWCA 350.) 38 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon . The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs. 39 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships) Act to disregard evidence concerning her present and likely future needs. 40 Similarly, I propose also to disregard evidence concerning various financial transactions (for example, withdrawal of moneys from the business), which occurred after the termination of the relationship. Those transactions can be in no way determinative of the outcome of the present proceedings. 41 In approaching the claim for the adjustment of interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act , the Court should make a holistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises) (see Davey v Lee (1990) 13 Fam LR 688)." 44His Honour added in Fletcher v Furnance [2008] NSWSC 132: "52 In considering the claim of the Plaintiff (and also the cross-claim of the Defendant) the Court should not be diverted from the clear words of the statute, where by section 20 (1) the Court is required to have regard to the respective contributions of the parties of the nature described in that subsection. The Court is not required to proceed upon the basis that the Defendant might have made greater contributions than he in fact made, if he had done other than he in fact did. 53 Each of the parties submitted that I should approach the matter upon the basis of what was described as the asset pool of the parties. (Indeed, the Defendant even went so far as to adopt what was referred to as a "three pool approach".) I would here interpolate that I do not find the phrase "asset pool", or even such a concept, as being particularly helpful in a claim under the Property (Relationships) Act . As I have already observed, the Court should not be diverted from the clear wording of the statute, which looks to past contributions that have been actually made by the parties. 54 The Plaintiff based her claim in part upon what was referred to as "a premature distribution" from the asset pool, and sought what was referred to as a "notional restoration" of certain assets to the asset pool. I consider such concepts, howsoever they may be appropriate to claims under the Family Law Act 1975 , to be quite inappropriate to a claim under the Property (Relationships) Act , a statute of New South Wales. The State Act looks only to past contributions, whereas the Commonwealth Act looks also to present and future needs. 55 To the extent that the claim of the Plaintiff is grounded in some way upon the failure of the Defendant to contribute more than he actually did contribute to the relationship, I reject that claim. The Court is required to look to the contributions of the nature set forth in section 20 (1) which were actually made by each of the parties. The Court cannot proceed upon some conjectural basis. Such concepts as a "premature distribution" from the asset pool or a "notional restoration" to that asset pool seem to me to be incompatible with the task imposed upon the Court, to exercise its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to" the contributions of the nature set forth in section 20 (1) of the Act. Moneys which were invested by one of the parties (as, for example, in the instant case, in superannuation funds by the Defendant) do not constitute such contributions. I do not see how those funds can be characterised in the fashion in which they have been in the written submissions of the parties (especially those of the Plaintiff, for the purpose of performing a detailed, and somewhat convoluted, arithmetical exercise, in order to establish a monetary entitlement to the Plaintiff)." 45Furthermore, as was noted by Slattery J, in Ryan v Kalocsay [2010] NSWSC 620, at [19]: "The court is not required in proceedings under Property Relationship Act s 20 to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be eliminated by the requisite financial adjustment in the s 20 order. Rather the court is required to make a holistic value judgment in the exercise of a discretion of a very general kind. Mathematical calculations, however, are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision making: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [36] and [49] and Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149." 46There are dicta in Howlett v Neilson at [36] that the court is not authorised to make orders by reason of lost opportunities of a party to the relationship (but see, Powell v Supresencia [2003] NSWCA 195 at [83]; (2003) 30 Fam LR 463 per Einstein J). The role of the court is not to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate a party for disappointed or unfulfilled expectations. As stated, where the fault for the breakdown of the relationship may lie, is irrelevant. 47The Act focuses on the just and equitable division of property and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship: Hogg v Roberts [2003] SASC 410; (2003) 87 SASR 248 at [11]- [19].

Demeanour and general credibility of the parties 48Even though some of the relevant events took place over 10 years ago, the Defendant has produced "meticulous" (to use the description given by the Plaintiff's counsel) contemporaneous documents to assist in the fact finding, at least so far as the financial contributions of the Defendant are concerned. 49The principal factual issue relates to what non-financial contributions were made by each party to the relationship, including the nature and value of work done by the Plaintiff on the Cremorne property. 50The Plaintiff also produced some financial documents but these were neither as complete, nor as extensive, as those of the Defendant. Unfortunately, there was very little documentary corroboration of the alleged contributions by the Plaintiff towards the living expenses of the parties or the cash amounts he allegedly paid to her. 51In regard to evidence, there are several aspects of the Plaintiff's evidence that deserve mention because they caused me some disquiet. The first was his assertion, even after the Defendant's evidence was served on him, and as late as February 2010, that the de facto relationship had commenced in 1995, and was, therefore, of 13 years duration. 52I found his statement, in cross-examination, that the wrong date had simply been a "overlooked" and "a mistake", unconvincing. His failure to admit the date of the commencement of the relationship, prior to shortly before commencement of the hearing, was unfortunate, and, in my view, was not adequately explained. 53The second is that the Plaintiff tendered a DVD, the whole of which, he stated he was "quite certain", had been filmed two days before he left, finally, the Cremorne property. He had also asserted that the DVD revealed the Cremorne property both before, and after, its purchase by the Defendant. This was acknowledged to be wrong, as the film depicted the Cremorne property after the work had been done. 54In cross-examination, he accepted that, in relation to at least some of the DVD, it was "quite possible" that it must have been taken some months before August 2008, since he had sold the car, depicted in the DVD, more than two days, and in fact, several months before, August 2008. 55In re-examination he said that, in fact, his evidence had been correct and that he did film the events recorded at, or about, the time he left, but that the occasion was when he left in January 2008, which was not the date on which the relationship finally ended. There had been no evidence, in any of his affidavits, or previously in his oral evidence, relating to an earlier period of separation, or a time when the relationship had almost come to an end and to him then leaving the Cremorne property. 56The third aspect related to what he had contributed financially, particularly following the sale of a property at Sanctuary Point. Firstly, he maintained that the amount received by him as the First Home Owner Grant, had been used to pay the deposit on the Sanctuary Point property. This was incorrect. His own documents showed that the amount ($7,000) had been paid into his bank account on 6 January 2003 and had been used by him to reduce his home loan. 57He maintained, also, that an amount of $17,000, which was part of the deposit refunded by the real estate agent following completion of the sale of the Sanctuary Point property, had been used by him to pay for a motor cycle and for his share of holiday expenses, with the Defendant, overseas. In fact, his own bank records confirmed that he had received the whole of the balance of the deposit following the sale, and had paid $17,000 to the Defendant (as confirmed by her own bank records) and by the amounts disclosed on the settlement sheet. 58It follows that his contribution to the holiday referred to was less than he asserted. I do not accept that he contributed any more than $2,000, which essentially, was used to pay some of his own expenses, to the costs and expenses of the holiday in Thailand that was referred to. 59He also asserted, in his affidavits, that " I contributed my income towards the costs of the renovation and improvements that were carried out and to the living expenses of [the Defendant] and I ". In his oral evidence, he conceded that it was the Defendant who would mainly buy the necessary materials, but there would be occasions when he would buy some items as well. Based upon the records he produced, the amount he spent was, in total, about $9,400. 60In another affidavit, he referred to "often" paying for utilities, electricity, and telephone accounts. However, at its highest, his evidence reveals that he paid about $2,000 towards all of these costs over the period of the relationship. 61In relation to the Plaintiff's contributions to household expenses, his documents demonstrated that his total contribution for food shopping was a little over $10,000 for the whole period of the relationship. This equates to less than $100 per year or about $2 per week. He may have paid additional amounts in cash, but in my view, those contributions would not have been significant. In cross-examination, he accepted that the Defendant would have paid more than he did. 62In my view, the Plaintiff's evidence about the extent of his payments was exaggerated. During his cross-examination, I had the firm impression that his evidence, particularly on financial matters, was not based on his memory, but on speculation about what might have occurred. His counsel correctly conceded that the Plaintiff was a poor historian in respect of financial matters. 63Although there was a statement in the Plaintiff's affidavit that the Defendant was aware of his online banking access passwords, the Plaintiff stated that he had included the evidence other than to suggest that she used these inappropriately. She states, and I accept, that when she transferred funds from his account, she did so with his knowledge and consent. 64To the extent that the Plaintiff deposed that he gave the Defendant various amounts in cash during the relationship, which she vehemently denied, there is no corroborative evidence that he did. To make such payments would be inconsistent with the way in which the parties appeared to conduct themselves, which was, principally, through internet banking. In the circumstances, I cannot be satisfied that he made such cash payments to her. 65The Defendant, also, did not remain unscathed in cross-examination. There were two aspects of the Defendant's evidence that were established to be inaccurate. First, she maintained that she had advanced to the Plaintiff, various amounts totalling $29,647, which had been used by him, to make mortgage repayments on the Sanctuary Point property. She had also asserted that she had loaned to him, at different times, various amounts totalling $35,264. During cross-examination, it appeared that the Defendant conceded that the $29,647 was part of the amount of $35,264. Second, some of the amounts advanced to the Plaintiff had been reimbursed to her. 66Second, the Defendant did not appear to accept that, following the sale of the Sanctuary Point property, she had received more than the amount to which she was strictly entitled, based upon a calculation of the parties' contributions to the purchase price of that property. In broad terms, she had contributed about 31 per cent of the purchase price, but had received more than 31 per cent of the proceeds of sale. The surplus, about $29,000, should be taken to be reimbursement of amounts that she had paid in excess of her share of expenses on the Sanctuary Point property. 67It seems more likely than not, despite the evidence of the Defendant, that at the time of the settlement of the sale of the Sanctuary Point property, the parties discussed how the proceeds of sale would be divided, taking into account the greater contributions to the outgoings on that property made by the Defendant during the period of ownership. 68In stating the above matters, I am not intending to convey that I thought that either party was being deliberately dishonest. 69In relation to the disputes of fact to be decided, other than as set out above, I have looked, first, to the contemporaneous documents and then turned to the evidence of the parties. It seems to me that the Defendant's evidence, overall, is likely to be more accurate than that of the Plaintiff, particularly in respect of financial matters.

Brief Digression before Narrative 70It is necessary for me to digress to comment upon an evidentiary matter that was raised. The Defendant sought to file in Court, and rely upon, an affidavit of Andrew Michael Daniels, sworn on 30 November 2010. The Plaintiff objected to the affidavit on the ground of its late service and the lack of opportunity to deal with the matters in the affidavit. 71Mr Daniels, the deponent, was said to be a building consultant, who had been requested to inspect the work allegedly performed by the Plaintiff. Although he stated in his affidavit that he was referred to the Plaintiff's affidavit of 3 June 2009 (not read in the proceedings), the work alleged was also contained in the Plaintiff's affidavit of 23 October 2008 (which was read). 72No explanation for the late service of this affidavit was provided. In the circumstances, I indicated that I would not allow it to be read unless an opportunity was given to the Plaintiff to adduce some evidence in reply if he wished to do so. Mr T Hodgson, counsel for the Defendant, requested that I not finally determine the admissibility of the affidavit until after the cross-examination of the Plaintiff. 73Ultimately, following cross-examination of the Plaintiff, the Defendant's counsel informed me that the Defendant did not wish to read the affidavit.

Facts not in Issue 74There were some general procedural matters that were not the subject of any dispute. These were that: (a)the geographical pre-requisites set out in s 15 of the Act are met in the present case, as the parties lived together, in New South Wales, between at least 1997 and 2008. The Defendant still resides in this State, whilst the Plaintiff presently resides in Western Australia. (b)the duration of the relationship was longer than 2 years, so that the pre-requisite in s 17 is also met. (c)the proceedings were commenced within the time period prescribed by the Act. 75It follows, from the above, that it is within the jurisdiction of the Court to make an order adjusting interests in the property of the parties if that course is appropriate. 76I set out, next some additional facts that are not in dispute, or that I am satisfied have been established, clearly, by the evidence: (a)The Plaintiff was born in June 1969. (b)The Defendant was born in December 1963. (c)At the commencement of the relationship, the Plaintiff was employed, on a full-time basis, by Australia Post, as a postal officer. His employment, there, ended in about 1999, when he went to work for D'Albora Marine. In 2003, he commenced his own business, under the name and style of "Drain Brain Plumbing", whilst, at the same time, working for an organisation called "Waterfirst". Later, he commenced work with Jim Freeman Plumbing. In 2005, he commenced to work as a contractor with AGL. He is presently employed, on a full time basis, as a pool technician. He lives in Perth with his brother. (d)He had served a plumbing apprenticeship, including competing a plumbing course at TAFE for a total of 5.5 years. His experience, otherwise, was limited to assisting his father who was a home handyman. What he did in respect of the Cremorne property was his "first foray" into such work. He stated that whilst working to get his plumbing certificate, he obtained other skills, including in carpentry and painting. (e)At the commencement of the relationship, the Defendant was employed, as a sales representative, on a full-time basis, by Websdale Printing. Her employment was terminated in February 2002. (There were some proceedings involving the Defendant and her employer, but those proceedings were dismissed by orders made by consent on 5 April 2005.) (f)Upon the termination of her employment, she received $62,249.41 from her employer. She did not work outside the home from then until about June 2007, when she started work as a "work home co-ordinator". She continues in this profession. This involves her working from home for approximately two days per week and the remainder of the time she sets up a computer system for registered nurses. (g)In December 1993, the Defendant purchased a property, at Caringbah, for $243,000. It was in that property that she lived until she purchased, and moved into, the Cremorne property. (h)In August 1996, the Defendant sold the Caringbah property for $262,500. The net proceeds of sale, excluding the balance of deposit, of $236,628.29, were transmitted to her bank account on 10 September 1996. (i)The Defendant purchased the Cremorne property in about August 1996, for $790,000. The Defendant paid stamp duty of $31,044, to the Office of State Revenue, in November 1996. She paid legal costs of $780 in January 1997. The Plaintiff made no direct financial contribution to its acquisition and was not a party to the decision to purchase the Cremorne property. (j)The purchase price of the Cremorne property was financed by a loan of $550,000, secured by registered mortgage. The Defendant provided the balance from her own funds ($240,403.45). It can be assumed that, for the most part, this amount came from the proceeds of sale of the Caringbah property (k)The debt secured by registered mortgage on the Cremorne property was repaid by the Defendant paying instalments of principal and interest and by the payment of other amounts between January 1997 and July 2002. Payments of amounts, other than regular fortnightly payments, were, quite often, paid to the Defendant's loan to reduce the debt secured by mortgage. (l)The Cremorne property was in a reasonable state of repair at the time of its purchase by the Defendant. She had lived there, she says, comfortably, before the relationship with the Plaintiff commenced. (m)The Plaintiff and the Defendant lived in the Cremorne property together between about August 1997 and December 2002. They moved back into the Cremorne property in December 2006. They lived there until August 2008, when the Plaintiff left. (n)During the relationship, the Defendant paid the insurance premiums (about $14,000), council rates (about $11,700), and water rates ($4,800). (o)The Plaintiff did not pay rent, or board, to the Defendant whilst he lived with her in the Cremorne property during this period. Nor did he contribute towards the repayment of the mortgage secured on the Cremorne property. (p)In about November 2002, the Plaintiff purchased, in his name, a property at Sanctuary Point, New South Wales for $440,000. The Defendant paid the deposit of $44,000 in November 2002. She also paid the stamp duty of $15,294 to the Office of State Revenue at about the same time. As I have previously stated, I do not accept that any part of this amount was refunded by the Plaintiff to her from the First Home Owner Grant that he received. (q)The Plaintiff borrowed $305,000, which he contributed to the purchase price. The Defendant paid the balance of the purchase price. She contributed $138,000 in total. In other words, the Plaintiff borrowed his share to pay about 69 per cent, whilst the Defendant borrowed to her share to pay about 31 per cent, of the purchase price of the Sanctuary property. (It can be assumed that the borrowing costs of the each of the parties were similar, as the funds were borrowed at the same time.) (r)Prima facie, therefore, the Defendant had a beneficial interest in the Sanctuary Point property commensurate with the proportion of her contribution to the purchase price thereof. (s)In a written agreement dated 26 February 2003, between the Plaintiff and the Defendant, the Plaintiff acknowledged that he "holds half the property in trust" for the Defendant. It was acknowledged that, with the exception of funds provided under the loan agreement and mortgage, each of the parties had provided half of the funds for the purchase of the property, and that each would provide half of the funds for repayment of the loan, rates and all other outgoings. On sale, it was noted that the proceeds would be divided equally between them. (t)It is unlikely that the Plaintiff would have been able to purchase, or retain, the Sanctuary Point property without the financial contribution of the Defendant to the purchase price and without the payments made to assist with his mortgage payments. (u)On the same day as the written agreement was entered into, the parties made mirror wills, leaving the whole of his, or her, estate, respectively, to the other if she, or he, survived by 30 days. (v)The parties lived in the Sanctuary Property from the time of the completion of its purchase until about October 2003. Thereafter, until it was sold, the parties used it as a holiday home. (w)The Plaintiff carried out some work on the Sanctuary Point property after 2003, and until it was sold, although he does not identify, or particularise, the work that he did. There is no evidence about the value of that work, or that the work that was done increased the value of the Sanctuary Point property. (x)The Defendant paid the following additional expenses in relation to the Sanctuary Point property: (i) Pest inspection $ 220.00 (ii) Building inspection $ 242.00 (iii) Survey report $ 484.00 (iv) Legal costs $ 1,219.02 (v) 2003-2007 Council/Water rates $ 4,994.46 (vi) 2003-2007 Insurance $ 7,445.21 (vii) Storage $ 90.00 (viii) Removalist $ 1,540.00 $16,244.69

(y)The Defendant also advanced to the Plaintiff, about $29,000, which he needed in order to meet his mortgage repayments and which he could not afford to pay from his own income. (z)In October 2003, the Plaintiff and the Defendant moved into accommodation, in Pagewood, which was owned by the Defendant's sister. The Defendant paid board of $160 per week to her sister during the period that the parties lived there (about 20 months). (aa)In June 2005, the parties moved to rented accommodation at Matraville, the lease of which property was in the name of the Plaintiff. They lived there for about 18 months. The rent was $410 per week. The Plaintiff asserts that he paid $10,250 towards the rent. He accepted that, otherwise, the Defendant paid the rent. (This equates to one half of the rent for about 12 months.) (bb)The Defendant received a Land Tax Notice of Assessment for payment of land tax on the Cremorne property for the years 2002, 2003, 2004, 2005 and 2006 in an amount of $59,074.25. The Defendant made the following payments in relation to reducing the land tax liability: (i) 26 June 2006 $22,043.40 (ii) 26 July 2006 $18,941.65 (iii) 14 November 2006 $9,028.65

(cc)The Cremorne property was rented from the time the parties commenced to live at Sanctuary Point until about December 2006. The rent was paid to the Defendant. The rent was, initially, $4,300 per month. It subsequently was reduced to $4,000 per month. (dd)The Plaintiff did carry out some repair work during the time that the Cremorne property was rented. (ee)The Sanctuary Point property was sold for $520,000 in April 2007. Agent's commission paid was $15,000. The settlement adjustment sheet, prepared by the parties' solicitor, shows that after the repayment of the debt secured on the Sanctuary Point property ($294,005.48), a cheque for $10,000 was made in favour of the ATO (for the Plaintiff) and a cheque for $162,554.21 was made in favour of the Defendant. This document has added to it, in handwriting, and it is accepted that the Plaintiff received, from the balance of the deposit, another amount of $19,920, whilst the Plaintiff received another $17,000. (ff)It follows that the Plaintiff notionally received from the proceeds of sale of the Sanctuary Point property the amount of $323,925.48, whilst the Defendant received $179,554.21. (gg)Part of the amount received by the Defendant should be treated as repayment of the advances made by the Defendant towards the Plaintiff's mortgage (about $30,000). Accordingly, she in fact, received $149,550 of the proceeds. (This, of course, is slightly less than 31 per cent of the net proceeds of sale. It equates to 29.61 per cent.) The Plaintiff received slightly more than his share based upon his actual contribution to the purchase price. (hh)The Plaintiff has, since the termination of the de facto relationship, continued to reside in the Cremorne property. She has continued to pay the outgoings. (ii)The gross value of the Cremorne property is, at the date of hearing, agreed to be $2 million. There is a mortgage debt secured thereon of $70,000. The parties are prepared to treat the net value of the property at $1,930,000. (jj)The Plaintiff has superannuation, at the date of hearing, of about $22,000. The Defendant's superannuation, at the same date, is about $111,000. Neither contributed, directly, to the other's superannuation, and the bulk of the superannuation of each, in any event, was received either before the commencement, or after the termination, of their de facto relationship. Both have stated that he or she should retain his, and her, superannuation respectively, without it being taken into account in any adjustment. (kk)During the relationship, each of the parties paid for his, and her, own personal expenses, such as for clothing. (ll)During the relationship, the parties kept dogs. Neither party paid exclusively for their care and upkeep and both contributed to such costs. (mm)For a significant period of the relationship, the Defendant made monthly premium payments towards the Plaintiff's NIB Health Fund Insurance Policy using her credit card. 77I am satisfied that at the commencement of the relationship, the property of the Plaintiff consisted of: (a) a motor bike; (b) some furniture and personal effects; and (c) some superannuation. 78The Plaintiff had a bank loan of $5,000. He had borrowed this amount to purchase the motorbike. I accept that the value of his property was negligible. 79I am also satisfied that, at the commencement of the relationship, the property of the Plaintiff consisted of: (a)the Cremorne property (subject to the mortgage); (b)savings with Westpac Banking Corporation; (c)furniture; (d)superannuation with Print Super fund. 80The Tax Assessment Notice for the years ending 30 June 1996 to 30 June 2008, reveal that the Plaintiff's taxable income was: 1997 $35,267 1998 $43,203 1999 $42,680 2000 $ 8,743 2001 $39,553 2002 $44,743 2003 $26,882 2004 $20,415 2005 $19,417 2006 $42,003 2007 $38,101 2008 $16,374

81The Tax Assessment Notice for the years ending 30 June 1996 to 30 June 2008, reveal that the Defendant's taxable income was as follows: 1997 $263,935 1998 $191,477 1999 $306,842 2000 $389,553 2001 $222,194 2002 $148,446 2003 $ 10,161 2004 $ 36,184 2005 $ 39,732 2006 $ 54,843 2007 $ 99,441 2008 $ 32,911

82These figures, in each case, are somewhat misleading, since income tax and the Medicare levy must be deducted in each year. Even so, it is clear that for the first few years of their relationship, the net income of the Defendant was significantly greater than that of the Plaintiff. 83It is also misleading in one other respect. Between 1997 and 2002, the Defendant had paid off all of the mortgage debt on the Cremorne property. It appears from her bank records that more than $300,000 was paid off the principal of the mortgage debt in this period. This means that the balance available for use by the Defendant towards the daily, and other, expenses of the Defendant was less than might appear to have been the case. 84I am satisfied that the value of the property of the Plaintiff, at the date of the termination of the de facto relationship, in April 2008, was also negligible, as it had been at the commencement of the relationship. The property of the Defendant was much as it had been, although she had a car as well. She had a mortgage debt secured on the Cremorne property of $70,000 (which was less than it was at the commencement of the relationship). Of course, the net value of her property, in total, had increased because of the increase in value of the Cremorne property and because of the reduction of the size of the mortgage debt. 85The parties have requested me to ignore the car and the personal effects in the possession of each and they agree that these should be retained respectively. 86In view of the agreement about the commencement date of the relationship, there is no dispute that the relationship was of 10.75 years duration. 87The Defendant agreed that a recent valuation report (not tendered but which formed part of the Court Book), described the present condition of the Cremorne property as "reasonable ... both internally and externally in line with its age, partial renovation, additions and general upkeep".

Contributions 88In the Plaintiff's submissions, the issues identified are: (a)the extent of the financial contributions made by the Plaintiff; and (b)the extent of the non-financial contributions by the Plaintiff, particularly with respect to the renovations and maintenance of the Cremorne property. 89It seems to me that I am required to decide more than these two issues. As I have stated, the Act requires me to consider the contributions of both parties. 90The Plaintiff claims to have made direct financial contributions to the improvement of the Cremorne property by way of the purchase of materials for renovations. He also claims to have made indirect financial contributions to the conservation of the property by the use of some of his wage to pay for household items and expenses, allowing the Defendant to apply her wage to mortgage repayments. In addition, he claims to have made non-financial contributions to the improvement of the Cremorne property and to the Sanctuary property in applying his labour. Finally, he seeks consideration of the contributions he made in the capacity as a homemaker through the performance of household tasks such as shopping, washing and cleaning. 91The Defendant disputes the extent of the contributions made by the Plaintiff. 92In this case, there is no question of contributions with which s 20(1) is concerned, regard being had to contributions that were made either before, or after, the de facto relationship by the Plaintiff. There were none before the commencement of the relationship and none after the termination of the relationship, except by the Defendant. 93There was also no suggestion of any promises, or expectations, of marriage, or any opportunities lost by reason of the Plaintiff's contribution. 94I am satisfied that in respect of the acquisition of the Cremorne property, the Defendant paid the amounts to which I have earlier referred and made all of the periodic mortgage payments. Conversely, I am satisfied that the Plaintiff made no repayments in respect of the periodic mortgage payments or to the principal of the mortgage debt secured on that property. 95There is no dispute that the Plaintiff resided in the Cremorne property without being charged any rent or accommodation fee. In Bilous v Mudaliar , Ipp JA recognised (at [122]) that the provision of the family home was a contribution of the defendant to be accorded appropriate weight. 96In White v O'Neill [2010] NSWSC 1193, Bryson AJ regarded the defendant's contributions to the plaintiff's asset position as entirely outweighed by the advantages he derived from occupation of the plaintiff's property. 97As the Defendant was the legal, and beneficial, owner of the Cremorne property throughout the period of the relationship, I am of the view that I should treat the provision of accommodation therein as a contribution by her, to be weighed when considering an adjusting order under s 20. To put it another way (but not to engage in double counting), the Plaintiff received the benefit, or advantage, of rent-free accommodation, which must be weighed against his contributions. 98In respect of the acquisition of the Sanctuary Point property, I am satisfied that the Defendant and the Plaintiff both contributed as set out above. However, it seems that when the Sanctuary Point property was sold, the parties determined how the proceeds of sale were to be divided between them. Although the Defendant regarded the amounts distributed as "unfair", I am satisfied that the amounts took into account the initial contribution by each, as well as making an adjustment in favour of the Defendant to recompense her in respect of some of the outgoings to which the Plaintiff had not contributed. 99The parties accepted that, in the circumstances, no further adjustment should be made in respect of the Sanctuary Point property. I agree. 100In this regard, I have borne in mind the Defendant's occupation of the Sanctuary Point property. However, that cannot be viewed in precisely the same way as the Plaintiff's occupation of the Cremorne property. Clearly, the Defendant had made a financial contribution to the purchase price of the Sanctuary Point property, and whilst the Plaintiff was the legal registered proprietor of it, he was not the sole beneficial owner. As a co-owner, she was entitled, with the Plaintiff, to occupy the Sanctuary Point property. That is not to say that she did not receive an advantage, or benefit, from her occupancy. In addition, by living there, she was able to rent the Cremorne property, enabling her to receive an income. However, they only lived in the Sanctuary Point property for about 20 months. 101Yet, this too, must be weighed in the context of advances made to the Plaintiff for his mortgage repayments, which were not reimbursed to her until sale of the property in 2007. He thereby derived an interest free loan of the amounts advanced by the Defendant. In addition, she made a significant financial contribution, otherwise, during the period of ownership. She does not appear to have been fully recompensed by the Plaintiff for his share of the expenses that she paid. 102The real issue, in relation to contributions by the Plaintiff, relates to his assertion that he "carried out significant renovation works to the [Cremorne] property during the relationship". He asserts that he did so, not only whilst the parties lived there together, but also on a few occasions, after it was rented. The Defendant admits that the Plaintiff did some work "in the nature of repairs and maintenance", but she asserts that it was done badly, and is not, in that sense, a contribution. She also asserts that, in respect of the work done, she paid for all the materials that were needed, and that she assisted the Plaintiff, although there may have been a few occasions when he did work on his own. 103The specific admission by the Defendant regarding contribution by the Plaintiff, on the pleadings, is that the Plaintiff "re-laid all the brick edges around the front garden of the [Cremorne] property". 104As often happens in claims under the Act, one party makes a contribution to the other's asset position, with labour, the value of which cannot be assessed accurately. Yet, any difficulty with quantification of value of that labour should not lead to withholding recognition of such a contribution and in this case I recognise that labour as a contribution by the Plaintiff. 105However, I am of the view that the Plaintiff did exaggerate the amount of time he had spent working on the Cremorne property. Despite this, even on the Defendant's evidence, the Plaintiff did do some work on the Cremorne property. The DVD suggests that the work was that of a home handyman, rather than the work of a professional. It also appears, from the DVD, and from photographs that were tendered, that it was not of a very high standard. I am of the view that the Plaintiff made only a modest contribution to the conservation of the Cremorne property. 106There is no present way to calculate how much time he spent doing that work, or the value, if any, of his modest contribution to the Cremorne property, even if estimation and approximation are used. The parties agree, in any event, that the value of the Cremorne property is really the land value only. Accordingly, I can assume that the work that he completed did not increase the value of the Cremorne property. 107However, as submitted on behalf of the Plaintiff, he did do work on the Cremorne property. I find that he did so, mostly with the Defendant's assistance, but on occasions, by himself. Additionally, by living in the Sanctuary Point property, and elsewhere, the Defendant was able to rent the Cremorne property. (I bear in mind, in regard to this matter, the land tax that the Defendant was required to pay as a result of the Cremorne property not being her principal place of residence for the period that she and the Plaintiff did not live there.) 108Finally, whether requested to or not, the Plaintiff did attend, on several occasions during the period when the Cremorne property was rented, to assist the tenant. 109Accepting that he did work on the Cremorne property, there is no evidence that the work that he did contributed to the capital appreciation of the property. It is likely that the work was more in the nature of repairs than actual renovation. 110It was solely due to the financial efforts of the Defendant that the Cremorne property has been able to be retained. She used her income and capital to make all of the mortgage repayments and, for the most part, to pay for materials that were required for its repair or maintenance. 111Furthermore, I am satisfied that the Defendant brought the Cremorne property into the relationship and that, due to her significant earnings during the initial period of the relationship, was able to pay off the mortgage debt secured on it without any financial assistance of the Plaintiff. 112Whilst the relationship of the parties lasted over ten years, that is relevant, also, to the significant financial contributions made by the Defendant to, or on behalf of, the Plaintiff, during the whole of that period. In this case, I am more than satisfied that the contributions by the Defendant both directly, and indirectly, far outweighed those of the Plaintiff. 113This is not a case like, for example, Burgess v King , in which the party who seeks the property adjustment, had put into the property money amounting to nearly one-quarter of its value, and thereby saved it from being sold. 114Finally, I note, that there does not appear to have been any giving up, by the Plaintiff, of opportunities that he otherwise might have had in order to devote himself to the relationship. The parties kept their own assets separate and there were no children of the relationship. 115I do not consider, otherwise, that any adjustment is warranted in respect of the work carried out by the Plaintiff in respect of the Cremorne property, which would give rise to him receiving an adjustment. As was said by White J in Walsh v Mulherin [2008] NSWSC 61 at [93]: "in determining what adjustments should be made under s 20, it is not sufficient simply to identify what contributions falling within the terms of the section were made. It is necessary to identify why it is just and equitable, having regard to such contributions, for there to be an adjustment to the parties' interests in property. No doubt it seemed appropriate to Mr Walsh at the time to do the work he did about the house. It is impossible to know what was happening day to day throughout the course of the relationship. It is likely there were reciprocal benefits, such that the doing of work about the house and the carrying out of repairs, even lasting repairs, did not give rise to any disproportionate burden which makes it just and equitable to effect any further adjustment of the parties' property interests ( Evans v Marmont at 76)." 116For these reasons, the Plaintiff should not participate, by way of an adjustment in his favour, in the increase in the capital appreciation of the Cremorne property. 117The Plaintiff says that due to the Defendant's unemployment, and her expenditure on legal costs (she had sued her former employer for wrongful dismissal), he bore the burden of their living expenses, whilst the parties lived in the Sanctuary Point property. I do not accept that he did, as it is clear that she had an income, during this period, from other sources, which income was equal to, or which exceeded, his income during this period. 118On the issue of non-financial contributions of the type referred to in s 20(1)(b), I am not satisfied that the Plaintiff did as much as he suggested. I find that the Defendant attended to cooking, for the most part, and that she carried a significant part of the burden of other household duties, including the cleaning and the shopping. He may have cooked on the barbecue on weekends, but I am satisfied that when he did so, the Defendant had prepared the food that was to be cooked. Whilst the Plaintiff may have assisted with the washing, or vacuuming, the Defendant also did some of this work. They seem to have borne the outside gardening work equally. 119As well as working full time in the early years of the relationship and then again in the last year or so prior to its end, the Defendant attended to domestic duties such as washing and ironing the parties' clothes and food shopping. 120Overall, if the burden of household duties was unfairly shared, the burden was that, principally, of the Defendant. In this case, that burden cannot be seen as a contribution to the asset position of either party; it is part of the contemporaneous benefits and burdens of their shared life, and does not have any substantial consequences for an adjustment under s 20. In the circumstances, whilst I have taken into account what I am satisfied the Plaintiff did do, I do not accept that his contribution was so disproportionate to that of the Defendant that it warrants an adjustment under s 20. To the contrary, I am of the view that it does not. 121In addition, the financial records produced demonstrate that the Defendant made regular, and consistent, payments for the living expenses of the parties. 122Having carried out an identification and (so far as possible) valuation of the contributions that are being taken into account, as well as an identification and the valuation of the property concerned it is open to the Court to make an adjustment, a task that s 20 requires. The "holistic value judgment" is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b) carried out. 123In some cases, it may be a useful aid when deciding what is a just and equitable adjustment of the interests of the parties, to consider how the interests in property have changed during the course of the de facto relationship, and what are the causes of that change. Necessarily, such an exercise involves a comparison between the respective items of property that the parties had at the commencement of the relationship, and the respective items of property that the parties had at the end of the relationship: Manns v Kennedy [2007] NSWCA 217 at [84]. 124In this case, the parties' financial positions were not very different at the end as they were in the beginning. It is true that the Cremorne property has increased in value and the amount of the mortgage secured thereon had been substantially reduced. However, it was not suggested that this had anything to do with the work done by the Plaintiff. In fact, there is no evidence as to the cause of the increase in the value of the Cremorne property. 125As I have stated previously, the Court's task is not to undertake a reductionist process, examining every alleged contribution as one might if one were taking partnership accounts, with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be set off, one against the other, until financial adjustment is made by an order under s 20. 126In summary then, I am satisfied that: (a)The Defendant made almost all the financial contributions. (b)The Defendant made most of the homemaker contributions. Their welfare contributions, one to the other, were equal. (c)Whilst t he Plaintiff did do some repair work on the Cremorne property, weighed against the Defendant's contributions, which were so significant, the Plaintiff's contribution cannot be said to warrant an adjustment in respect of that property. To the extent that he made financial contribution as well, these are offset by the benefits he received, including, but not limited to him living in the Cremorne property (and also in the Pagewood property owned by the Defendant's sister). (d)In regard to the Sanctuary Point property, other than to the purchase price (which in the case of the Plaintiff was borrowed), the Defendant's financial contributions far outweighed those of the Plaintiff. In any event, the proceeds of sale of that property were divided in a manner settled upon by the parties and it is not necessary to disturb what they did in that regard. 127Thus, whilst I am satisfied that there was a de facto relationship between the Plaintiff and the Defendant between August 1997 and April 2008, that there is jurisdiction for the Court to make orders adjusting the parties' interests in property under s 20, I am also satisfied that, overall, the Defendant's contributions under each limb of s 20(1) substantially exceeded those of the Plaintiff. In my view, the Plaintiff has not established that during the de facto relationship with the Defendant that he made sufficient financial, or non-financial contributions to the acquisition, conservation or improvement of property or to the parties' financial resources, or made contributions to the Defendant's welfare, including in the role as homemaker, such that it is just and equitable for the Court to make an adjusting order in his favour. 128I have tested my conclusion in this way. The Plaintiff asserted that he spent 860 hours working on the Cremorne property. Assuming as a guide that he were to be paid, say, $60 per hour net, as a home handyman, and assuming his estimate of time is correct, that would equate to about $52,000. Even after adding the other amounts said to have been paid by him, I am satisfied that the financial contributions made by the Defendant for the benefit of the Plaintiff, either directly, or indirectly, during their relationship far exceeded the total of those amounts. 129Furthermore, when one considers the Defendant's non-financial contributions which I have found exceeded those of the Plaintiff, the result is even more obvious. 130Accordingly, I am of the view that no further order is required sufficiently to recognise and compensate the Plaintiff's contributions. There should be no order adjusting the interests of the parties in their property, or in the property of either of them. Each should retain the property in his, or her possession. In addition, no further claim in respect of any moneys said to be owed by the Plaintiff to the Defendant and remaining unpaid should be the subject of any further claim by her against him. 131I have been requested to consider costs separately and I shall stand the proceedings over to a date suitable to the legal representatives of the parties to argue the question of costs in the event that the parties are unable to reach agreement. 132I make the following orders that: (a)the Plaintiff's claim is dismissed. (b)each party is declared the sole and beneficial owner of the property, existing superannuation entitlements, and personal effects, in his, or her, possession and each may retain that property and personal effects in his and her possession. (c)neither party has any further claim against the other for moneys alleged to be owed by one to the other, or otherwise in relation to matters arising out of the de facto relationship. (d) the Exhibits to be returned. 133I shall stand the proceedings over to a date to be arranged for any argument as to costs.

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: 30 March 2011

(1991) 15 Fam LR 109

(2001) 28 Fam LR 142

(2006) 34 Fam LR 550

(2005) 33 Fam LR 402

(1990) 13 Fam LR 688

(2003) 30 Fam LR 463

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (38)