Davis v Davis

The Property (Relationships) Act 1984 (NSW)

Section 8(1) of the Act states: Without limiting the generality of section 7, in proceedings between parties to a domestic relationship with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that either party to the relationship has in respect of the property.
It can immediately be seen that there is a qualifying element to s 8. The parties must have been in a domestic relationship. A domestic relationship is defined in s 5: (1) For the purposes of this Act, a domestic relationship is - (a) a de facto relationship, or (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 - (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
The defendant initially (including the first day of the hearing) submitted that he and the plaintiff had not been in a domestic relationship. In particular she had not provided him with domestic support and personal care. While the parties may have provided each other with care or support from time to time, this was not enough, submitted the defendant, it was simply "the natural consequence of a father and daughter sharing a house together over time".
By the second day of the hearing, supposedly based on the oral evidence that had been adduced, the defendant conceded the existence of a domestic relationship. While I am obviously grateful of being relieved of the need to reach a finding on this point, I should say that such a finding would have been easily made. The defendant's reluctance is I think consistent with his overall attitude to the plaintiff, expressed by him in this way: "But she shit on me good and proper, hasn't she."
The deed itself acknowledges, inter alia, that "Paula has looked after Victor for the last 20 years. …" How can such an acknowledgement preclude domestic support and personal care?
Another difficulty that faced the defendant, the first being the terms of the deed, is his credit. Wherever there is any conflict with the evidence of the plaintiff, or in fact any other witness, I do not believe the defendant. To describe him as an irascible and difficult man would be an understatement. I had the overwhelming impression that he vehemently resented his grandson, Blake, because Blake, in particular as an adult, had interfered, by his simple presence, in the very deep relationship the defendant had with the plaintiff. He said in oral evidence: "I wasn't planning on that boy coming to live there, and as he just said a while ago, he doesn't want to be there. Who's keeping him there."
At one stage he seemed to suggest a nefarious intent on the plaintiff's part to benefit Blake: "I mean, in my opinion she's ripping the other two kids off. She is trying to take everything now. She's got 42. I think you're reading the paper where somewhere where she's put a percentage on at 38. I own it. The deed's in my name, and she's put a claim on it as well. Now, where is this going? Is she doing it for the boy, or what?"
There are indications in the evidence of the relationship between the plaintiff and the defendant being most inappropriate. For example, the suggestion that upon Mrs Rowsell leaving the home the defendant moved into the plaintiff's bedroom. Also, that he would watch her in the shower without her knowledge. The evidence does not allow me to reach a conclusion that any criminal conduct took place and I certainly do not reach such a conclusion.
However, I do reach a conclusion that the defendant was very close to the plaintiff. He described her as his "best friend" and "really good mate". When she requested that her boyfriend (Blake's father) be permitted to return to the house with her, he refused. I suspect this was because he did not wish there to be any interference in his relationship with his daughter.
An area of dispute between the parties was the reason that the plaintiff left school. She said it was at the insistence of her father who wished her to take over the home duties that had previously been done by her mother. The plaintiff said that she had hoped to be a nurse. An indication of the defendant's attitude is contained in this answer he gave under cross-examination: "Well, I've heard from people, they're probably dead now, that she never had the brains to go to be a nurse. At 14 years old when she left school. I don't know. That's only what I've been told. Well, lot of them people are dead and gone now. She might've been. She might've been a good nurse."
In relation to school, the defendant made no effort to stop her leaving. When asked why this was the case he said: "I think Paula's been a strong-headed girl, she's done what she wanted to do. So that's what she done. I gave her everything she wanted, but still wasn't enough, still lost out in the finish."
The defendant denied that he had demanded the plaintiff leave school to take over house duties. But he did give this evidence about her activities after her mother left the home: "Q. So, she undertook cooking, cleaning, washing, ironing, those sorts of tasks? A. She - she done them, yeah. I'm not knocking her, she's a good worker."
This somewhat condescending answer ignores the fact that not only were these household tasks performed by the plaintiff, but she also, at age 15, took on a full-time job as a kitchen hand and then, when she was older, working at the bar in an RSL club. In later times the plaintiff was working 80 hours a week and still doing the bulk of the household tasks.
Support for the plaintiff's assertion about the situation after her mother left home is to be found in the affidavit of Ms Rowsell at paras [27] and [30]: "After I moved out, Vic went to the school and said 'Paula has to leave and be the wife'. Paula did all the housework, cooking, cleaning, gardening etc. Later I observed Paula tile the laundry, bathroom and toilet and in the dining room around the fireplace."
The defendant sought to make much of his babysitting of Blake when the plaintiff was working. The plaintiff gave this evidence about this period: "Q. So I want to suggest to you in terms of domestic support, as it were, your father was actually providing it to you, correct? A. Before I'd go to my evening shift, I prepared meals for both of them, I had my son bathed. All he had to do was put him to bed."
My overall conclusion is that the plaintiff continued to do the bulk of household chores throughout the time she lived at No 42 with the defendant. This was regardless of who else lived in the house, what work the plaintiff was doing and what other demands there were on her time.
Once the threshold question of the existence of a domestic relationship has been answered, it is necessary if the plaintiff is to succeed in her application for an adjustment to property rights, to do so through s 20. The section states: (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.
The defendant gave eight reasons to reject the plaintiff's claim. I will comment on each of them as I list them. 1. Removing the life interest would deprive the defendant of its value, assessed at $185,000. The difficulty with this submission is that it relies on a finding that the defendant had a right of exclusive possession to the property. I have found that he did not. 2. When looking at what is just and equitable, the plaintiff, by the deed, had been elevated from a position of no interest to a full interest in the property which she would have upon the death of the defendant. The defendant's provision of this interest was said to be gratuitous. I completely reject the submission. Not only had the plaintiff contributed $9,000 (about 20% of the value of the property) when Ms Rowsell was "bought out" but she had, since leaving school made significant contributions both to the welfare of the defendant and to the property. 3. The plaintiff had received a significant benefit in that she had been able to live in the property from 1992 to 2023 without paying any rent, a benefit assessed at in excess of $390,000. Again, this submission is defeated by the defendant not having exclusive possession of the property and also by the plaintiff's contributions, when seen on both a monetary and labour involvement, probably exceeding the unpaid rent. 4. The defendant had at least equally contributed to the running of the house and the welfare of the plaintiff. The plaintiff conceded that general "household duties and day-to-day jobs" were shared between her and the defendant. I do not however accept that the sharing was equal and I am satisfied that the plaintiff's contribution far exceeded that of the defendant. 5. The defendant had received no support from the plaintiff since 2019 when he left No 42. Although the plaintiff submitted that the defendant was not obliged by the provisional AVO to leave the premises, I think the environment created by living with Blake, would have been a reasonable basis for him to leave. I accept this factor favours the defendant. 6. If the life interest was extinguished one of the effects would be to improve Blake's position as an adult because he would continue having the benefit of living at No 42 although he has never had an entitlement to do so. Factually, I think this is correct and is another factor in the defendant's favour. 7. If the defendant is compelled to remain at No 38 he will not have the option to rent out No 38 and thereby be deprived of an income which will no doubt be of significant benefit as he ages. The defendant's assertion is correct. But it must be balanced against the fact that he benefited significantly (to the extent of some $800,000) from the estates of his brother and sister, a benefit which he had promised, at least in part, to the plaintiff but never honoured his obligation. The same may be said of his promises in relation to No 121. I stress that in reaching this conclusion I rely on my acceptance of the plaintiff's assertions concerning the sale of the property in Lurnea and surrounding the purchase of No 121. 8. The extinguishing of the life interest was not envisaged by the deed which had already conveyed significant benefits upon the plaintiff. I have to some extent dealt with this point under (3) above but add that the deed recognised the plaintiff's contributions up to 2005 and gave them a formality through its terms. However, the deed did not exclude the possibility of continuing contributions by the plaintiff, in particular of the type envisaged by s 20. I am satisfied that after 2005 the plaintiff continued to make significant contributions to the property as well as the welfare of the defendant.
My rejection of most of the factors raised by the defendant obviously goes a long way in the plaintiff's favour. However, the plaintiff retains the onus and must, herself, establish the right to relief under s 20.
I am satisfied that she has done so. Even if one were to quarantine her contributions prior to 2005 as having been 'rewarded' by the deed, her contributions continued until the defendant's departure in 2019. She carried on doing the bulk of the housework (cooking, washing, and cleaning) notwithstanding the pressures on her time caused by her work commitments and she contributed significantly on a monetary basis.
The parties drew up schedules comparing the monetary contributions of each party. They are not complete, and some matters are unknown. For example, the defendant said that he was a regular user of cash and would purchase groceries with cash. His bank accounts certainly reveal frequent and regular withdrawals of cash. I cannot say how much of the cash was used on groceries as opposed to, as suggested by the plaintiff and Ms Rowsell, perhaps on alcohol and motorcars.
Ms Rowsell, reflecting on her time living with the defendant, stated in her affidavit at paras [20]-[21]: "Vic would not give me enough money to pay for food, household expenses and the children's schooling needs. His money was spent on alcohol and cars. Not only did I pay for most of these expenses, but I was expected to pay for his personal expenses as well."
Ms Rowsell then describes the need she had to find employment as well as to look after the children. The defendant's assumption of the plaintiff as a housewife following the departure of Ms Rowsell has the same ingredients.
In relation to the financial contributions, it is impossible to reach a mathematical conclusion about which party paid precisely how much money. I am however satisfied that the defendant's contributions did not exceed those of the plaintiff and that her contributions of a non-monetary nature far exceeded those of the defendant.
Even if these contributions, essentially as a homemaker, are isolated from the financial contributions, I think it just and equitable to make an order under s 20 for adjustment of the property interests in respect of No 42.
A significant point that arises from this conclusion is the date from which the adjustment should take place. The order that I make will necessarily call for an adjustment in the near future. This raises the question, particularly relevant to the cross-claim, of whether the defendant should receive some compensation arising from the last four years, that is, from his leaving No 42 to the present.
I could not say that the departure was the fault of the defendant. The domestic dispute between him and Blake is no doubt multifaceted and does not give rise to a conclusion that the defendant was, or was not, to blame for leaving No 42.
If his departure was not his fault, then theoretically he may have a claim arising from his inability to live at No 42. The claim could arise from him being deprived of the benefits of living at No 42 or his inability to receive rental payments from No 38.
In my view the defendant is not entitled to any such compensation. This is because: 1. I have concluded that he did not have a right of exclusive possession to No 42 and therefore did not have any rights, for example, to receive a rental from No 42; 2. if I am wrong about the absence of a right of exclusive possession then, as I have said above, I think there should be an effective backdating of the extinguishment of his life interest, notwithstanding that orders to that effect will only be made at the conclusion of the case; and 3. the inability to receive rent from No 38 falls under the umbrella of reaching a conclusion as to what is just and equitable between the parties. If just and equitable includes, as I think it does, the effective backdating of the extinguishing of the defendant's rights in respect of No 42 then I think No 38 assumes the result of simply being an asset of the defendant which he could choose to utilise as he saw fit, to live in or to rent, but not to the detriment of the plaintiff.
There is one caveat in my conclusions in respect of No 42. The defendant has continued to pay the council rates for the property. He has paid $6,815.27 since he left No 42 in mid-2019. I think he should get credit for this amount as he has derived no benefit from No 42 since he departed.
The question then arises as to how this credit should be applied. It cannot be a product of the cross-claim which, as will be seen below, should be dismissed. I think the best way to deal with it is to make an order in the plaintiff's case requiring payment by her of the above sum to the defendant.
Before turning to the cross-claim I wish to make the following comments about the evidence. Besides the parties, the only witness to give oral evidence was Mr Blake Davis-Lynch (Blake). I did not see great relevance in his evidence. He did concede that his previous partner, Moriah, had caused some damage at No 121. He said that when he left No 121 he had been told by the defendant to move to No 42. The defendant denied any such instruction. As I have already said I have the clear impression that the defendant regards Blake as an impediment to his relationship with the plaintiff.
Blake accepted that he had not paid any rent at No 42. This was because he regarded No 42 as his mother's property. He denied that the AVO was part of a deliberate strategy to evict the defendant. He said that he did not actually wish to live there himself. He was providing emotional support to his mother.
The defendant relied on affidavits from a number of persons who were not cross examined. Mr Brian Crompton is a plumber. He said that in 2018 he did plumbing work in the bathroom at No 42 on behalf of the defendant for which he was paid, by the defendant, $875 in cash. He understood that the defendant had purchased the items necessary for the plumbing work.
Mr Denis Sutton lives close to No 42. He observed the alterations to the bathroom that had been carried out by Mr Crompton. He saw the defendant doing physical work on the premises. In July 2019 he noticed the defendant apparently spending a good deal of time in his utility vehicle at the rear of No 38. He ascertained that the defendant was living in the utility vehicle. He offered the defendant accommodation which was accepted. The defendant stayed until late August 2019.
Ms Wendy Hillery also lives close to No 42. She has an advantage point from her premises from which she has seen the defendant doing gardening work at No 42. She had made these observations for over 30 years.
In June 2019 the plaintiff told Ms Hillery about the AVO. A few weeks later she noticed the defendant sitting on a chair next to his utility accompanied by his dog and appearing to be cooking on a gas burner. She spoke to him and discovered that he was effectively living in the utility. She invited him to bathe at her home, a convenience he accepted "every couple of days".
Ms Hillery made meals for the defendant from time to time. She thought he lived in the utility for a few months.
The evidence of Mr Crompton, Mr Sutton and Ms Hillery corroborated some of the assertions made by the defendant but none of these assertions played any substantial part in resolving the issues between the parties.

At a glance

Court

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Cited By (1)