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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