Haley v Perkins

CATCHWORDS : FAMILY LAW - De facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - 11 year de facto relationship - two children of parties - trust claim by Defendant - matter proceeds on undefended basis - no appearance by Defendant - evidence of the financial contributions to the acquisition, conservation or improvement of property or to the financial resources of the parties - value of property poorly substantiated - financial contributions unequal - non-financial contributions and contributions as homemaker considered - HELD: just and equitable to make an order adjusting the interests of the parties in property - Plaintiff ordered to transfer her interest and title in the real estate owned jointly with the Defendant to the Defendant on condition that he pays to her $50,000

Property (Relationships) Act 1984 LEGISLATION CITED : Uniform Civil Procedure Rules, 2005 Conveyancing Act 1919 Family Law Act 1975 (Cth)

Bilous v Mudaliar [2006] NSWCA 38 Black v Black (1991) 15 Fam LR 109 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 Bourdon v Outridge [2006] NSWSC 491 Bryson v Bryant (1992) 29 NSWLR 188 Calverley v Green [1984] HCA 81 Chanter v Catts [2005] NSWCA 411 Currie v Hamilton (1984) 1 NSWLR 687 Davey v Lee (1990) 13 Fam LR 688 Evans v Marmont (1997) 42 NSWLR 70 Fletcher v Furnance [2008] NSWSC 132 Howlett v Neilson [2005] NSWCA 149 CASES CITED : Hughes v Egger [2005] NSWSC 18 Jones v Grech [2001] NSWCA 208 Kardos v Sarbutt [2006] NSWCA 11 Magera v Macintosh [2005] NSWSC 314 Martin v Martin [1959] HCA 62 Napier v Public Trustee (WA) (1980) 32 ALR 153 Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 Paino v Paino [2008] NSWCA 276 Rose v Richards [2004] NSWSC 315 Ryan v Kalocsay [2010] NSWSC 620 Saric v Steward [2006] NSWCA 260 Shephard v Cartwright [1954] UKHL 2 Shepherd v Doolan [2005] NSWSC 42 Sullman v Sullman [2002] NSWSC 16

TEXTS CITED : J D Heydon, M J Leeming, Jacobs' Law of Trusts in Australia, 7th edition, (2006) LexisNexis Butterworths

PARTIES : Tamie Lee Haley Glenn James Perkins

COUNSEL : E Gilchrist (solicitor)(Plaintiff) No appearance for the Defendant

SOLICITORS : Antwan Lawyers (Plaintiff) No appearance for the Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2008/281214 HALEY v PERKINS JUDGMENT 1 HIS HONOUR: This is an application brought by Tamie Lee Haley against her former de facto partner, Glenn James Perkins, seeking an adjustment of property interests. He, too, seeks similar relief. 2 Since, on the pleadings, the parties are agreed that their relationship ended well before 1 March 2009, the Property (Relationships) Act 1984 ("the Act") applies. The question is what, if any, orders should be made for adjustment of the parties' interests with respect to their property pursuant to s 20 of the Act. 3 There 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). 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). Procedural History 4 The Plaintiff commenced the proceedings by statement of claim filed on 23 October 2008. The relief that is claimed, in summary, is an order for the sale of a jointly held property, known as "Bimbimbie" and the equal division of the net proceeds of the sale between the parties. 5 A defence was filed on 17 April 2009, as was a statement of cross-claim. In the cross-claim, the Defendant seeks an order that the Plaintiff transfer her interest in "Bimbimbie" to him. The basis of the relief claimed is that he paid the whole of the purchase price of "Bimbimbie". 6 A defence to that statement of cross-claim was filed on 27 August 2009. In that document, the Plaintiff admits that the Defendant used funds received by him, being a compensation payment, to purchase "Bimbimbie". 7 The Plaintiff filed her first affidavit, sworn on 21 August 2009, which contained her evidence in chief. The Defendant filed his only affidavit on 1 December 2009. That affidavit contained the Defendant's evidence in response to the Plaintiff's affidavit and annexed a copy of several documents. The Plaintiff's second affidavit, which contained her evidence in reply, was sworn on 5 March 2010. Neither party has filed any other affidavit evidence in respect of the substantive application. 8 The Defendant's affidavit appears to have been lodged by a firm of solicitors, Blaxland Mawson & Rose, solicitors then retained by the Defendant. 9 The matter was listed for mediation on 3 May 2010. However, by letter dated 30 April 2010, from Blaxland Mawson & Rose to the Registrar, the Court was informed that the solicitors "had been unable to contact [the Defendant] in order to obtain his instructions". 10 A letter dated 5 May 2010, under the letterhead of the Defendant's solicitors sent to the Registrar, enclosed a Notice of Intention to File Notice of Ceasing to Act dated 28 April 2010. A Notice of Ceasing to Act was filed on 6 May 2010 by the Defendant's solicitors. 11 On 14 May 2010, when the matter was mentioned, there was no appearance, before the Registrar, by or on behalf of, the Defendant. 12 On 2 June 2010, the Plaintiff filed a notice of motion seeking an order that the defence and cross-claim be dismissed for want of prosecution and that summary judgment be entered against the Defendant. The notice of motion was supported by affidavit of Maryanne Atalla, a solicitor, in the employ of the solicitors retained to act on behalf of the Plaintiff. 13 The notice of motion came before the Registrar on 12 July 2010. Again, there was no appearance by, or on behalf of, the Defendant. The Registrar stood the notice of motion to my list on 23 July 2010 and requested the Registry to notify the Defendant. 14 The Court file contains a copy of a "Notice of Listing", dated 21 July 2010, addressed to the Defendant, at the address identified in his affidavit, and stated, amongst other things: "The matter is listed for Referrals (Equity) on 23/07/2010 at 10:00 AM, Supreme Court - Civil, Supreme Court Sydney. If you do not appear at Court, this matter may be dealt with in your absence." 15 However, I am unable to glean from the court file whether, when, or if, an original of that document was posted to the Defendant. 16 On 23 July 2010, the matter was in my list. The case was called. There was no appearance by, or on behalf of, the Defendant. I made certain directions, including one that the Plaintiff have leave to approach the Registrar to obtain a hearing date, upon the basis that the proceedings appeared to be continuing on an undefended basis. A direction was also made regarding the Defendant being notified, by the Plaintiff's solicitors, of the hearing date.

17 The Plaintiff, subsequently, approached the Registrar and obtained a hearing date. The matter was listed before me on 17 September 2010 for final hearing.

18 The Registrar directed that the court was to notify the Defendant. The Court file contains a copy of Notice of Listing, dated 18 August 2010, addressed to the Defendant, at the address identified in his affidavit, which states, amongst other things: "The matter is listed for Referrals (Equity) on 17/09/2010 at 10:00 AM, Supreme Court - Civil, Supreme Court Sydney. If you do not appear at Court, this matter may be dealt with in your absence." 19 However, I am unable to glean from the court file whether, when, or if, the original of that document was posted to the Defendant. 20 When the matter was first mentioned on 17 September 2010, it was called outside the court. There was no appearance by, or on behalf of, the Defendant. I enquired of the Plaintiff's solicitor whether service could be proved and he acknowledged that there had not been compliance with my direction for service upon the Defendant given on 23 July 2010. He submitted that those representing the Plaintiff had thought that the Registrar's direction made it unnecessary to comply with my previous direction regarding service. He stated, however, that he might be able to satisfy me that the Defendant knew that the matter had been listed, for final hearing, on that day. 21 Subsequently, the evidence relied upon by the Plaintiff's solicitor was a text message, said to have been received by the Plaintiff, from the Defendant. Later, when the matter was reached, and called again, without an appearance by, or on behalf of, the Defendant, I permitted the Plaintiff to give oral evidence of the circumstances relating to receipt of the text message. 22 The Plaintiff gave evidence that she had received a text message, on 24 August 2010, from the Defendant's telephone number, which message included the statement: "See you on the seventeenth" 23 The Plaintiff also said that she had made no arrangement with the Defendant to meet him on that date and that she was unaware of any circumstance, other than the Court hearing, that would result in him seeing her on that day. She said that she and the Defendant did not communicate with each other, except by text messages, and that there was no other reason why he would expect to see her then, as she had not made any other arrangement with the Defendant, which would have required her to meet with, or otherwise to see, him on that day. 24 On the balance of probabilities, I am satisfied that the Defendant was aware that the matter would be proceeding on 17 September 2010. I accept the Plaintiff's evidence that the only place the Defendant would see her on the 17th, was at court. 25 The Defendant, apparently, has chosen not to appear in these proceedings. A preliminary issue for determination then was whether I would proceed to hear the matter. 26 Rule 29.7 of the Uniform Civil Procedure Rules, 2005, relevantly, provides: 29.7 Procedure to be followed if party is absent

(2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

… 27 No application for an adjournment was made by, or on behalf of, the Defendant. Being satisfied that the Defendant was aware of the Court date and that the matter would be proceeding, there appeared to be no ground on which it would be appropriate for the court to adjourn the hearing. Accordingly, I came to the view that there would be no point in the Court, of its own motion, adjourning the matter, yet again, and I proceeded with the hearing. 28 However, I indicated that I would not deliver judgment until one last opportunity was given to the Defendant to appear. Following the conclusion of the evidence, I made the following orders and directions:

1. I stand the proceedings over to my list on 1 October 2010.

2. I direct that the Plaintiff's solicitors serve the Defendant, by post, with: (a) a copy of each of the exhibits (other than Ex B) tendered in the proceedings as well as a copy of the Plaintiff's Outline of Submissions; (b) a statement identifying the affidavit evidence that was read and relied upon; (c) a statement that judgment will be delivered on 1 October 2010, unless the Defendant makes application to the court, prior to 28 September 2010, to have the matter proceed as a defended matter.

3. I direct the Plaintiff's solicitors to file with my associate an affidavit, in admissible form, evidencing service of the documents referred to, on, or before, 24 September 2010; service of the documents referred to, should be sent to the Defendant no later than by 12:00 noon on Monday, 20 September 2010. 29 I made it clear to the Plaintiff, by her solicitor, that if the Defendant did make an application to the court that the matter proceed on a defended basis, because he had been unaware of the proceedings on 17 September 2010, or otherwise explained his non-attendance on that date, it might be necessary for another Associate Judge, or Judge, to hear the matter. The Plaintiff accepted that such a course might be necessary. 30 The following documents were referred to, and relied upon, by the Plaintiff: (a) Handwritten transcript of a text message from the Defendant to the Plaintiff (Ex A); (b) Statement of Claim; (c) Paragraph 1 of the Defence of the Defendant (Ex B); (d) Affidavit of Tamie Lee Haley sworn 27 August 2010; (e) Paragraph 67 of the Affidavit of Tamie Lee Haley sworn 18 March 2010; (f) Copy of letter dated 21 May 2010 from Boller & Co to the Plaintiff (Ex C); (g) LPI Title search for "Bimbimbie" (Ex D). 31 I have received an affidavit of Edward Gilchrist, sworn on 20 September 2010 and an affidavit of Steven Kokkinakos, sworn 22 September 2010, which together, satisfy me that the documents referred to in the last paragraph, were sent by express post, to the Defendant on 17 September 2010, and that the directions made on that date were otherwise complied with. 32 The Defendant made no application that the matter should proceed on a defended basis. 33 The matter was called, again, today, and there has been no appearance by, or on behalf of, the Defendant. 34 In the circumstances, I am able to determine the matter on a final basis. Facts not in Dispute 35 I am satisfied that the following facts are not in dispute between the parties:

(a) The parties lived under the same roof from in, or about, September 1995 to late October 2006. (b) The parties lived in a de facto relationship for a period of approximately 11 years. (c) From September 1995 to October 2006, the parties lived in New South Wales. (d) The Plaintiff was born in October 1977 and is aged almost 33 years. (e) The Defendant was born in August 1957 and is aged 53 years. (f) There are two children of the relationship, namely Adam James Brian Haley-Perkins, born in August 1996 and Leeanna Christine Rose Haley-Perkins born in March 1999. (g) The substantial contributions to the property of the parties were made in New South Wales, as the parties lived in New South Wales, throughout the period of their cohabitation. (h) At the commencement of the relationship, the Plaintiff had the following assets: (i) Holden Barina motor vehicle E$6,000 (ii) Bank account E$3,500 (i) At the commencement of the relationship, the Defendant owned a one-sixth share of real estate in Bombala, New South Wales, the value of which is unknown (j) The Defendant received a workers compensation payment of about $301,000 in 2001. The Defendant used a part of those funds to purchase "Bimbimbie" for $77,000. (k) The Plaintiff is now in another relationship. Facts asserted by the Plaintiff 36 The Plaintiff asserts in her affidavit, and I accept that: (a) She moved in with the Defendant in September 1995 at his grandmother's house at Bombala. (b) She and the Defendant opened a joint savings account in about November 1995, into which account her income of about $500 per fortnight was paid. Out of that joint account all utilities on the Bombala home were paid. (c) In about November 1995, the Plaintiff resigned from her job with the Commonwealth Bank. It was about this time that she discovered she was pregnant with her first child. That pregnancy was a complicated one. The Defendant was working at CSR Timbers in Bombala, earning about $350 per week. (d) The Defendant obtained a personal loan in late 1995 or early 1996. The loan was to cover certain household bills that were unpaid, as well as other expenses. Each of the parties paid $50 into a holding account, from which loan repayments on the personal loan were made. (e) In about April 1996, the parties went to Tasmania for a three week holiday. The holiday expenses were paid for using the Defendant's credit card. (f) In May 1996, the Defendant's employment was terminated. He began receiving unemployment benefits of approximately $250 per fortnight. The Plaintiff, also, was receiving unemployment benefits. Her income was approximately $300 per fortnight. (g) In about June 1996, the parties left the Bombala home and rented other accommodation in Braidwood. Rent of $120 per week was paid out of the joint bank account. (h) In October 1996, the Defendant and the Plaintiff commenced working, together, as fruit workers. The Plaintiff earned approximately $800 per week as a fruit packer, whilst the Defendant earned approximately $600 per week as a fruit picker. (i) The Plaintiff's friend moved in with the parties and looked after their child whilst the parties were at work. The friend was paid $50 per day by the Plaintiff out of her income. (j) In January 1997, the Defendant was injured at work. From early 1997 until April 2001, he received workers compensation, which, initially, was approximately $516 per fortnight, and by the end was $711 per fortnight. (k) In December 1996, the Plaintiff resigned her work. (l) In about 1997, the parties purchased a car for $28,000. The Plaintiff traded in her Holden Barina for $5,000 and the balance of the purchase price was borrowed. (m) In February 1997, the Defendant told the Plaintiff that "the car had been taken". (n) In about 1997, the Defendant received approximately $21,000 by way of lump sum compensation, which was applied towards credit card debts in the Defendant's name, as well as for the purchase of another car for $2,500. (o) In about May 1998, the Plaintiff commenced working as a cook in a nursing home. She earned approximately $600 per week. She worked there for 6 weeks until she discovered that she was pregnant with the parties' second child. (p) In June 1998, the Defendant and Plaintiff moved to a rented property in Goulburn. The rent was $150 per week, which was paid out of the parties' joint account. (q) In 1998, the parties moved to another property in Goulburn, for which the rent was $185 per week. The rent was paid out of the joint account. (r) In May 1999, the Plaintiff was hospitalised for eight weeks for an operation to remove gall stones. During this time, the Defendant looked after the children, although friends regularly assisted him. (s) In about 1999, the parties moved to other rented accommodation. The rent was, initially, $120 per week, which was paid out of the joint account of the parties. The Plaintiff, at this time, was receiving government benefits of $370 per fortnight. (t) In about May 2001, the parties moved to "Bimbimbie". Initially, they paid $80 per week rent, but, in July 2001, it was purchased from the landlords for $77,000. The property was purchased in the joint names of the parties (Ex D). (u) In about 2001, the Plaintiff commenced working in Bombala. She worked four days a week, initially earning approximately $600 per fortnight. (v) In about June 2001, the parties purchased a Toyota Prada motor vehicle for $77,000. Part of the amount received by the Defendant by way of compensation was used to pay for this car. (w) At the time the Defendant received the compensation payment, he purchased some clothing for himself and the children, some furniture and some food. The Plaintiff believes this cost was approximately $20,000. He also used an unspecified amount to pay for building materials for use in renovating "Bimbimbie". (x) Between 2004 and 2006, the Defendant worked at various jobs, but irregularly. In about September 2006, he began working in a gardening job, for 1-2 days per week. At the date of separation, in about October 2006, the Defendant was employed as a farm hand although the Plaintiff does not know how much he earned from that employment. (y) The Plaintiff asserts that at the date of separation, the parties did not have any liabilities. (z) After the Plaintiff separated, she took with her a double bed; a bookshelf; a queen size bed; a small amount of linen; a lounge; a coffee table; an old television that needed to be repaired; a DVD player; a few DVDs; two wardrobes that belonged to her grandfather; cutlery, plates and Tupperware containers; an electric wok; a rice cooker; her clothing and some of her children's items. The Plaintiff assesses the value of those items at no more than $1,000. In addition, in early 2007, the Defendant transferred to the Plaintiff her his interest in the motor vehicle, which she later sold at a price not disclosed in the evidence. (aa) The Defendant has occupied "Bimbimbie" since separation. (bb) Following separation both children remained with the Plaintiff until May 2008, when the child, Adam, returned to live with the Defendant. The child, Leeanna, remained with the Plaintiff until July 2009, and now both children live with the Defendant at "Bimbimbie". 37 The Plaintiff asserts that at the date of separation, the parties owned the following property: (i) Real property at Bimbimbie, via Delegate NSW - E$350,000; (ii) Toyota motor vehicle - E$20,000; (iii) Building materials - E$50,000; (iv) Farm machinery - E$10,000; (v) Livestock - E$10,000; (vi) Furniture and contents - E$50,000; (vii) Tools of trade - E$30,000; (viii) Wool - E$2,500. 38 The only evidence that I have read, other than the Plaintiff's assertions on value of property, is in respect of the value of "Bimbimbie" is Ex C, which is a market opinion dated 21 May 2010, that suggests it has a value of between $130,000 and $150,000. However, I do not know how much weight I can place on this document because it states "Please note that we are not licensed valuers…". 39 The Plaintiff asserts that her contributions were:

(i) As a result of Glenn's injury I would regularly take Glenn to various medical appointments for treatments, physiotherapy, x-rays and check ups. I went with Glenn to each and every appointment and treatment.

(ii) In 2000 at least once each month we would travel to Sydney to see various medical practitioners, his solicitor and his barrister. The expenses to Sydney were shared between us. Each trip would cost approximately $400.00. At times we would stay with Glenn's brother in Glenfield.

(iii) While we were in Bombala once a month we would go to the local GP for medical certificates. While every week in 6 month periods I would go with Glenn to either Aqua therapy or physiotherapy. (iv) While we owned the Bimbimbie property, there had been no money remaining from Glenn's compensation pay out and I would have to pay for nearly all household expenses. The expenses were as follows (all figures are approximate): (i) Groceries - $800 per month; (ii) Electricity - $75 per fortnight; (iii) Gas - $91 per fortnight; (iv) Phone bills - $150 per week; (v) Council - $30 per fortnight; (vi) Stock feed - varied from $100 to $1,000 per week; (vii) Agistment for cow - $100 per month. (v) I also spent my income on improving the property and our farming business at the Bimbimbie property. During our relationship this included the following expenses (amounts are all approximate): (a) Concrete - $500; (b) Building and plumbing supplies including black tank for $500, black poly pipe used for troths (sic) at $200 per roll (total figure of about $1,000) and plumping fittings for $600; (c) Between 2004 and 2005 there was a bill for fencing materials, stock feed and chook feed for $2,500; (d) Milk and grain for the livestock - $200 per month for milk and $280 per month for one tonne of grains/calf pellets. I would travel to Bega to purchase this; (e) Drench and inoculations for livestock - $400 per year. Total of about $2,000 while I lived at the property; (f) Purchase of calves - I purchased two for $50 each. I raised them up. There was $600 in vet bills by the time she was 6 months old. Our very first calf in 2005 was a gift. We then had a bull calf, I milked the mother and I substituted her milk to 3 other calves. I believe that since I've left all the cattle have died.

(vi) While we were living at the Bimbimbie property I primarily maintained the farm. I would cultivate the vegetable patch, on occasions build the cow bail, milk the cow, raise the calves, feed livestock, grow vegetables for use at home, make cheese, yoghurt and butter, gather and burn dead wood from the paddock, tail the lambs, drench the sheep, build flower gardens on the property and assist Glenn in putting up a shed (20m x 12m).

(vii) At a time on average we had 28 chickens, 60 sheep, 6 cats, 3 dogs, bull calf, 30 poddies (unmothered baby lambs that we received from farmers in the area). The poddies required to be fed 5 times a day. While I was not at work I would attend to them on full time basis.

(viii) While taking care of the farm, I would sell wool from the sheep. We earned approximately $2,000 per year from the sale of the wool. The proceeds from the wool were used for every day expenses.

(ix) While Glenn and I were in a relationship I was the primary carer of the children. I provided for all the children's needs including bathing, feeding, washing and emotional support. Glenn was not involved in the day to day care of the children and would rarely assist me. I would make the children their lunches, take them to sporting and extra-circular (sic) activities, to outings and assisted them with their homework.

(x) In addition to being the primary carer I did all the household duties such as cleaning and tidying the home, washing, ironing, shopping, managing the household finances and preparing meals and lunches for the family along with maintaining the farm and all the tasks that it involved. While I would take care of the children Glenn would on nearly every night be out at the local pub. He was rarely home at night. 40 The Plaintiff's solicitor has repeated in oral submissions that the Plaintiff seeks an order that "Bimbimbie" be sold and that she is entitled to 50 per cent of the net proceeds of sale. However, the application has not been made upon the basis of s 66G Conveyancing Act 1919 but under the Act. 41 No evidence has been read regarding the Defendant's contributions other than as set out above. I am satisfied, however, that he made a substantial financial contribution to the acquisition of the property of the parties or either of them. Statutory Framework and applicable principles of law 42 It is necessary to identify the statutory framework and the legal principles that apply in order to enable the matter to be determined. 43 "Property" is defined in s 3(1), unless the context or subject matter otherwise indicates or requires, as follows: Property, 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. 44 Section 8(1) of the Act confers jurisdiction upon the Court to make declarations as to existing title, or rights, in respect of property as between domestic partners and to make orders as to consequential relief. The general law confers any title, or right to property, both real and personal and that is not altered by the Act. Indeed, the Act, in s 7, specifically preserves the rights of domestic partners to such legal or equitable remedies as they might have outside its provisions. 45 Section 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. 46 Section 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 substantial contributions of the kind referred to in s 20(1)(a) or (b) having been made in New South Wales by the applicant. There is no dispute that these pre-requisites are met. 47 Section 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. Again, there is no dispute that this pre-requisite is met. Furthermore, there are two children of the relationship. 48 In this case, there is no dispute that the proceedings have been commenced within the time period prescribed by s 18 of the Act. 49 It 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. 50 Section 19 of the Act requires the Court, in proceedings for an order, so far as is practicable, to make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them. 51 Section 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. 52 There 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": Sullman v Sullman [2002] NSWSC 169 at [246]. 53 Section 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. Also, 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. 54 On an 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). The Court must make a holistic judgment and must 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: Davey v Lee (1990) 13 Fam LR 688. 55 It 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 any 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. 56 Their Honours also observed in Evans v Marmont (at 79) 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). 57 Section 38(1) empowers the court exercising jurisdiction under the Act to make a wide range of orders, including an order for the transfer of property, an order for sale of property and the distribution of the proceeds of sale in such proportions as the Court thinks fit, an order that any necessary instrument be executed as is necessary to enable an order to be carried out effectively and any other order, whether or not of the same nature as those mentioned in the other paragraphs of s 38(1), which the Court thinks is necessary in order to do justice (s 38(1)(a), (b), (c) and (k)). 58 In an application for adjustment under the Act, 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 order is just and equitable - that is, what order is required to sufficiently recognise and compensate the applicant's contributions? This 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 [2006] NSWCA 11; (2006) 34 Fam LR 550; Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96. 59 While 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. 60 Contributions by either party, after the termination of the relationship, are also relevant for the purposes of s 20.

61 In this case, there are several assets, at least some, if not all, of which, seem to have been acquired using the compensation payment received by the Defendant. 62 As to the date of the valuation of the property, in Kardos v Sarbutt at [30], the Court of Appeal said: As to the first step, the exercise of the identification and valuation of the property of the parties is undertaken typically, though not invariably, as at the date of trial [see Parker v Parker (1993) 16 Fam LR 863 at 1993) DFC 95-139; Wells v Wells (1977) 29 FLR 383 ; (1977) 4 Fam LR 57 at 1977) FLC 90-285], though sometimes as at the date of separation [ Cozanitis v Cozanitis (1979) 34 FLR 523n; (1978) 4 Fam LR 709 at 1979) FLC 90-643]. The starting point is that ordinarily property is valued as at the date of trial [ Williams & Williams (1984) 9 Fam LR 798 at 1984) FLC 91-541; Hauff & Hauff (1986) 10 Fam LR 1076 at 1986) FLC 91-747]. The primary reason for this is that the jurisdiction under s 20 is to adjust interests with respect to "the property of the parties to the relationship or either of them" and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available. Thus in Woodland & Todd (2005) 33 Fam LR 177 at 2005) FLC 93-217; [2005] FamCA 161, in which the property of the parties - which had been worth $873,000 when the husband and wife divided it between them in 1997 under an informal agreement which did not deprive the court of jurisdiction - had increased in value to $2.5 million when the matter came to trial years later, the Full Court of the Family Court held that the primary judge had erred in treating the case as concerning an asset pool as at the date of the informal agreement in 1997, and was required to address an asset pool that existed at the time of the hearing, not at the time of the prior agreement. 63 The Court of Appeal, however, also recognised, as legitimate, an approach that has regard to the value of the property at the date of separation at [31]: Although usually the preferable approach is to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation. Thus the Full Court of the Family Court has said (in respect of proceedings under the Family Law Act , s 79, which for present purposes are akin to proceedings under the Property (Relationships) Act , s 20) that although ordinarily the parties' property is to be valued at the date of trial, in a particular case there may be reasons to justify another date, which might be the date of separation [ Omacini & Omacini (2005) 33 Fam LR 134 at 2005) FLC 93-218; [2005] FamCA 195]. 64 In this case, I am of the view that the global approach should be adopted and the property should be valued at the date of hearing. The evidence of the value of the assets is extremely weak, but, the principal property appears to be "Bimbimbie", which is owned by the parties jointly. 65 What 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: 37 In 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). 66 His 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). 67 Furthermore, 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. 68 Finally, it should be mentioned that in the determination of what is just and equitable, the Court is not restricted to considering only property to which an identifiable contribution can be identified. The position was stated as follows in Chanter v Catts (2005) 64 NSWLR 360; [2005] NSWCA 411, per Bryson JA dissenting, but in the majority on this issue: 88. It is quite usual for the Court of Appeal to take a global view in which contributions made directly or indirectly to acquisition, conservation or improvement of some identifiable property or financial resource is regarded when deciding to make an adjusting order which is to be satisfied out of some different property or financial resource; this global view rather than detailed adjustment item by item is often favoured by practicality, and by the court's duty under s 19 to determine finally financial relationships and to avoid further proceedings. The global view taken by the majority in Gazzard v Winders is the usual course. In my opinion the global view is justified by s 20, the terms of which contain nothing, in my opinion, to indicate that the burden of adjustment may fall only on property or on a resource to which contribution was made.

89 Nothing in the terms of s 20 or of the Act generally means that it is necessary, if an item of property or a financial resource is to be the subject of an order adjusting interests, that a contribution either of the kind described in s 20(1)(a) or of the kind described in s 20(1)(b) should be traced to that particular item of property or resource. Section 20(1) speaks in terms of contribution to acquisition, conservation or improvement of property in par (a), but the contributions referred to in par (b) are not by the terms of s 20(1) related to identifiable items of property and in their nature they could not usually be traced into or otherwise related to identifiable items of property. The words of s 20(1) which precede par (a) and par (b) contain no expression which requires an order adjusting interests in property to reflect or give effect to contributions to the particular piece of property interests in which are adjusted; what is required is that the court have regard to the contributions; there may be a connection, but there is no necessary connection, and there may not necessarily be a discernible connection among a contribution, a piece of property and an adjusting order.

Conclusions 69 It seems clear, from the evidence relied upon by the Plaintiff, that some or all, of the property of the parties was acquired using the proceeds of the Defendant's compensation payment. In particular, there is no suggestion that the Plaintiff contributed to the acquisition of "Bimbimbie" or to the car that was purchased. 70 However, the Plaintiff's financial contribution was to the day to day expenses of the parties, to the conservation, or improvement, of the property of the parties and to the welfare of the children, at least until 2008, in the case of one and 2009, in the case of the other. She still has contact with the children, but it is not disputed that they are living with the Defendant who has the greater responsibility for them. 71 There is some evidence of the Plaintiff that the Defendant spent at least some of the compensation payment, and other income he received, on alcohol and gambling. I do not consider that any gambling losses affects the assessment of the worth of his contributions, which are to be taken into account under s 20(1)(a) and (b). The effect of any such gambling was that he spent his own compensation money, or income, so that it was not available to be applied to the family's needs. But that does not detract from the acknowledged financial contributions that he did make. The same may be said of expenditure on alcohol. As Gleeson CJ and McLelland CJ in Eq said in Evans v Marmont at 79: Considerations of fault are not mentioned, even obliquely, anywhere in the Act. This is hardly surprising. Against the background of a no-fault system of dissolution of marriage, it is hardly likely that a parliament in Australia in 1984 would have intended questions of fault to govern property issues arising between de facto partners. 72 In any event, on the available evidence, I am unable to come to any conclusion on what amount, if any, was spent by him on gambling and/or alcohol. 73 I have considered whether I should make any adjustment order at all in the proceedings in the light of the joint ownership of "Bimbimbie" or whether I should simply accede to the Plaintiff's claims for relief and order that "Bimbimbie" be sold and that the net proceeds of sale be divided equally between the Plaintiff and the Defendant. 74 However, I have come to the view that it is necessary to determine the parties' beneficial interests in "Bimbimbie" before deciding what adjustment order, if any, should be made: Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 at 722-723; Evans v Marmont at 84; Hughes v Egger [2005] NSWSC 18 at [100]- [101]; Bourdon v Outridge [2006] NSWSC 491 at [19]. 75 In this regard, I have taken into account various presumptions. The first is "... that, prima facie, the beneficial ownership of real property is commensurate with the legal title": Currie v Hamilton (1984) 1 NSWLR 687 at 690. In some cases, this presumption is displaced by a presumption of a resulting trust, while in other factual situations a "presumption of advancement" operates. The presumption of a resulting trust arises where, as here, one party (the Defendant) provided the whole of the purchase price with the property being registered in both names as joint tenants. Of course, the presumption of a resulting trust does not apply where the relationship between the co-owners gives rise to a presumption of advancement. However, that presumption does not arise in the case of de facto partners: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, at 260 (Mason and Brennan JJ), 250 (Gibbs CJ assuming but not deciding this point), 268-9 (Deane J); see also Napier v Public Trustee (WA) (1980) 32 ALR 153; Shepherd v Doolan [2005] NSWSC 42 at [21]. 76 As stated by Deane and Gummow JJ in Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 at 547, the presumption of resulting trust and presumption of advancement, are the starting point of a factual enquiry about the intention the Defendant had when he provided the whole of the purchase price of "Bimbimbie" and permitted title to it to be registered in the names of the parties. Their Honours state: The presumptions operate to place the burden of proof, if there be a paucity of evidence upon such a relevant matter as the intention of the party who provided the funds for the purchase. 77 In Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421, Campbell J (as his Honour then was) stated: 138 In deciding whether a presumption of resulting trust had been rebutted, it would be necessary for the court to take into account not only evidence going to the intention of the provider of the money which tended to cut down the presumption of resulting trust, but also any evidence which tended to strengthen the finding about intention which that presumption dictates. Only by taking into account both evidence which tends to cut down the presumption, and evidence which tends to strengthen the finding about intention which the presumption dictates can the Court reach a conclusion about whether, on the whole of the evidence, the presumption has been rebutted. The sort of conduct which could possibly be taken into account in this way could include who took occupation and control of the property, who made improvements to it and in what circumstances, who paid periodical outgoings on the property, who received any rent from the property, and who paid income tax on any rent received from the property. To the extent that any of these types of transaction occurred at a time which was not "so immediately thereafter as to constitute a part of the transaction", they could be taken into account only to the extent that they were admissions. 78 I know nothing about the circumstances of the purchase of "Bimbimbie", or the intention of the Defendant at the time it was purchased. The Plaintiff's evidence is that after its purchase she made financial and non-financial contributions to the improvement of that property and she paid the water rates. Evidence of subsequent actions of the Plaintiff is inadmissible in favour of the Plaintiff's case, but would be admissible against her case: Shephard v Cartwright [1954] UKHL 2; [1955] AC 431, Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 251, 262, 269; Bryson v Bryant (1992) 29 NSWLR 188 at 215.) 79 The actions in paying money in connection with the property are not actions which occurred so immediately after the purchase as to constitute a part of the transaction and permitting those payments to be made, do not constitute an admission on the part of the Defendant of the Plaintiff's beneficial interest. Thus, those payments cannot be used to rebut the presumption of a resulting trust. 80 In Jacobs' Law of Trusts in Australia, 7th edition, at [1263], the learned authors state "the law endeavours always to give effect to the intentions of the parties, but in the absence of any evidence of such intention except for the bare fact of the transfer to someone other than the purchaser, it presumes, until the contrary is proved, in the first case, in favour of the person providing the purchase money ...": (Martin v Martin [1959] HCA 62; (1959) 110 CLR 297). 81 I am unable to conclude that the presumption of resulting trust is rebutted. 82 In the circumstances, I am of the view that the Plaintiff holds her interest in "Bimbimbie" on trust for the Defendant. 83 I have some difficulty accepting the assertions of value of the property of the parties given by the Plaintiff. For example, there is no evidence that the value of "Bimbimbie" is $350,000. To the contrary, the only evidence, such as it is, is that it is worth "somewhere between $130,000 and $150,000". There is no evidence, other than the assertion of the Plaintiff, as to the value of the other property of the parties. 84 The Court must decide this matter upon the evidence and where, as here, the evidence is skimpy, or incomplete, the Court must do the best it can with that evidence. I shall estimate the value of the other property at no more than $20,000. In the circumstances, I conclude the present value of the property of the parties is about $160,000. 85 No submission was made on behalf of the Plaintiff that as the Defendant has remained in exclusive occupation of "Bimbimbie", this should be taken into consideration. A submission like that could have been made following upon certain dicta of Campbell, J (as his Honour then was) in Sullman v Sullman at [348] and [349] and from Magera v Macintosh [2005] NSWSC 314 at [48]. 86 However, in this case, the Defendant does not have exclusive personal occupation, but rather has continued to use "Bimbimbie" as a home for himself as well as for the parties' children. In addition, in view of the conclusion to which I have come regarding the Plaintiff holding her interest on trust for the Defendant, he was entitled to have occupation of it. 87 Then, having regard to the parties' s 20(1)(a) and (b) contributions, I am of the view that there should be an adjustment of the interests in the property of the parties. The adjustment should be undertaken upon the basis that I assess the s 20(1)(a) and (b) contributions overall to the acquisition, conservation and improvement of the property of the parties and to their financial resources and to the welfare of the respective parties and to their family, as having been made as to 31.25% by the Plaintiff and as to 68.75% by the Defendant. I take into account, in this regard, that the Plaintiff has received the car from the Defendant and has taken some of the furniture. 88 The discretion conferred upon a court under s 20 is to adjust the property interests of the parties in a way that is just and equitable. Doing the best I can, and considering what is just and equitable, I am of the view that the Plaintiff should receive an amount of $50,000. Otherwise, the parties should be declared beneficially entitled to all property held by each of them respectively. 89 As Bryson JA said in Chanter v Catts at [94]: … The Master left the basis of the assessment of $95,000 unexplained; I am at a loss to see any other or better process for reaching a conclusion on that matter, and an attempt to reduce to arithmetic the assessment of the contribution made by the appellant staying at home and contributing to the family welfare to the respondent's superannuation resources by some detailed process or calculation could not improve on the simple one-step process of evaluation which the Master used. There are many stages in the course of disposing of civil proceedings where resort to judicial wisdom and experience for evaluating in money terms something which has no essential relation with money and commercial dealings is the only means available; such assessments must often be required in coming to decision under s 20. 90 I am unable to give any additional or further explanation of the reasons why the amount that I consider ought to be paid as a lump sum payment to reflect the Plaintiff's contribution under s 20 should be preferred to some other figure. 91 The lack of participation in the proceedings by the Defendant makes it advisable, in my view, that there should be reserved to the parties liberty to apply in respect to the implementation of my orders herein. Orders 92 In the circumstances, I order that: (a) Within 14 days of this date, the Plaintiff, by her solicitor: (i) shall serve a copy of this Judgment, together with a letter drawing attention to these orders upon the Defendant; (ii) shall advise the Defendant, in writing, that she will provide a transfer, in registrable form, transferring all of her right, title and interest, in the property known as "Bimbimbie" to the Defendant, upon condition that the Defendant, simultaneously, pays to her $50,000; (b) Within 14 days of the date of the letter advising that the Plaintiff is ready, willing and able, to provide the transfer, the Defendant shall advise the Plaintiff, by her solicitors, in writing, whether he is ready, willing and able, to pay to her, the amount of $50,000; (c) Within 14 days of the date of the Defendant's letter, or within such other time as the parties agree in writing, the parties shall cause the transfer in registrable form to be delivered by the Plaintiff to the Defendant simultaneously with the payment by him to her of the amount of $50,000; (d) As between the Plaintiff and the Defendant, and subject to the above orders, each shall retain all right, title, and interest in and entitlement to, personal and other property in her and his, respective possession or control; (e) In the event that the Defendant, fails, or neglects, to comply with orders (b) or (c) hereof, the matter may be re-listed for the making of orders for the appointment of trustees for sale of the property, and consequential orders; (f) Either party is to have liberty to apply in respect to the implementation of these orders; (g) The Defendant's cross-claim otherwise be dismissed; (h) These orders shall be entered forthwith. 93 There is no reason why the Defendant should not pay the Plaintiff's costs, such costs to be calculated on the ordinary basis, of the proceedings. I order accordingly. **********

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