HAYES v JONES

The appellant submits that this adjustment of property interests is, in effect, a division of assets of around 65% to the respondent and 35% to the appellant. She argues that, despite the Master's finding, no or insufficient allowance was made for her non-financial contributions.

The Master's finding concerning the appellant's contributions did not translate into a just and equitable adjustment of the parties respective interests. An appropriate adjustment, applying the principles in Evans v Marmont, is for the appellant to receive, in round terms, 54% and the respondent 46% of the two properties. Accordingly, a just and equitable adjustment would be to vary the Master's orders relating to the properties by substituting for an equal division of the proceeds of sale of the Port Macquarie property, the proportion of 75% to the appellant and 25% to the respondent.

Powell JA The difficulties which attend the determination of this appeal from a Judgment delivered by Master McLaughlin on 4 August 1997 in proceedings which had been brought by the Respondent seeking relief pursuant to the provisions of s20 of the De Facto Relationship Act 1984 ('the Act") are the product of a number of disparate factors:

that fact that, partly, but not entirely, by reason of the health of the Respondent, the evidence on matters of importance - particularly as to the assets of the parties and their values at important times - was sparse, and was left in an unsatisfactory state;

the fact that the Master did not - or, at the least, did not in terms - distinguish between that part of the overall relationship between the parties which was, and that part of the overall relationship which was not, to be regarded for the purposes of the Act as a period during which the parties lived together in a de facto relationship;

the fact that, so the Master found, "throughout the relationship" and until October 1993 - the relevance of which date will later appear - "the parties kept their finances separate" and that "the arrangement which obtained between the parties was that the (Respondent) paid for the accommodation in which the parties were residing together with all relevant outgoings with respect to that accommodation including electricity and telephone... (and) all his own personal

and private expenses, including all payments relating to the conduct of his business (while) the (Appellant)... paid for the food and household items required for the household... as well as paying for her own personal items and necessity.";

the fact that, in consequence, it is difficult to determine, with any real degree of confidence, what were the respective assets of the parties and respective values of those assets at the time of the commencement of the relevant relationship between the parties and what (if any) financial or non-financial contributions had been made directly or indirectly by either of the parties to the acquisition, conservation or improvement of any of those assets or to the financial resources of either of the parties, a task which is an important part of the process required of the Court in determining whether it is just and equitable to make any, and if so what, order pursuant to the provisions of s20 of the Act (see Evans v Marmont!; Wallace v Stanford);

the fact that, in the circumstances, and relying upon the Master's statement as to the manner in which the parties, until October 1993, conducted their financial affairs, the best one can do is to proceed upon the basis that neither party had made any contribution to the acquisition, maintenance or improvement of any of the assets of the other prior to October 1993. With that preface it is necessary to record, as best one might, the facts which gave rise to the proceeding with which the Master was, and this Court is, called upon to determine.

Although they had previously lived together at various places and for varying periods, the Respondent, who is now aged 65 years, and the Appellant, who is now almost 68 years of age, commenced once more to live together during 1982

• the Respondent says in about October 1982, while the Appellant says in about June 1982 - that relationship continuing until May 1994 when the Respondent left the parties' then home at 53 Ballina Crescent, Port Macquarie.

Although the position is far from clear it would seem that by 1982, at which time he was aged 49 years, the Respondent - but whether in his own name or in the name of F A S Engineering Pty Ltd, a company which he had earlier had incorporated for the purpose of taking over an engineering business which he had previously conducted under the style of "F A S Engineering", is anything but clear - acquired a property at 690 Princes Highway, Kogarah upon which was erected a factory building and an associated residence. The residence on the site became the parties' home until 1993 when they moved to the property at Port Macquarie which they purchased in about October 1993.

It may be - but, again, the position is anything but clear - that at about the same time as he acquired the Kogarah property the Respondent also acquired a house property at Begara, which seems to be near Bundaberg in Queensland.

The evidence does not disclose what, if any, were the Appellant's assets in 1982. However, as it would appear. that she had earlier owned a property at Concord which property she sold at some time during the 1970's and the nett proceeds of sale of which she claimed to have invested, the probability is that, in 1982, the Appellant had some investments the value of which is quite impossible to determine.

Between 1982 and 1990, when, so it seems,, the Respondent suffered a cerebral vascular accident ("stroke") the effects of which left him unable to continue doing so, the Respondent worked full-time in his engineering business. For her part, the Appellant says that, until June 1993, she worked with an

organisation described by her as "Network Finance", which organisation seems in some way to have been associated with Metway Bank Ltd. As a result of the sequelae of the stroke which the Respondent had suffered, it became necessary for the Appellant to take a significant role in physically caring for and looking after the Respondent, to enable her to do which it became necessary for the Appellant to take time off work and, later, to work shortened hours.

When the Respondent ceased work, he received - seemingly under some superannuation plan which he, or his company, had set up - the sum of some $66,000.00. Thereafter. so it would seem, he, or his company, sold the plant and equipment and good will of the engineering business for a total price of about $80,000.00. The property at Begara seems to have been sold in early 1993 for about $73,000.00. Finally, the property at Kogarah, which had been let following the Respondent's stroke, appears to have been sold in mid, to late, 1992 for about $300,000.00. It is thus apparent that, even if some part of the funds which had been received by, or were under the control of, the Respondent had been dispersed meantime, the Respondent would by mid, to late, 1993 have had considerable funds - more probably than not over $450,000.00- available to him or under his control.

At the same time, the Appellant had. available to her funds totalling almost $200,000.00, some $130,000.00, or a little more, representing superannuation, long service leave and redundancy payments made to her at the time her employment by Metway Bank Ltd was terminated, and some $64,000.00, or thereabouts, representing savings.

On the assumption that the funds available to the Respondent were of the order of $450,000.00, those funds would have represented approximately 70% of the parties' total funds of about $650.000.00, while the Appellant's funds of $200,000.00 would have represented about 30% of the parties' funds.

In the latter part of 1993, the parties' purchased as joint tenants the property at 53 Ballina Crescent, Port Macquarie to which I have earlier referred. The purchase price of that property was $330,000.00, the stamp duty, legal costs and other associated costs bringing the cost of the property to something in excess of $350,000.00. Of that cost, the Appellant claimed to have contributed a little in excess of $160,000.00 so that the amount contributed by the Respondent was of the order of $185,000.00 to $190,000.00. Pending the completion of the purchase, the parties had opened a joint bank account into which moneys from their varying sources were paid to make up the amount required on settlement. At about the time when the. parties moved into the property at Port Macquarie they bought furniture, fittings and equipment, the cost of which seems to have been agreed at about $7,000.00, the Respondent bought a boat at a cost of about $10,000.00 to $12,000.00, while the Appellant claims to have paid some $10,000.00 or thereabouts towards the purchase of a winch for the Respondent's boat.

For reasons which are not revealed by the evidence, the parties' relationship did not survive for long after they had moved the Port Macquarie and, as I have earlier recorded, the Respondent left the home in about May 1994 moving to Bundaberg where for a time he lived in rented premises.

At the time of the parties' separation, the Appellant's assets were:

2. her interest in the furniture, fittings and equipment in the house;

At the time of separation, the Respondent's assets were:

2. his interest in the furniture, fittings and equipment in the house;

4. the boat which he had bought which boat he valued at about $15,000.00;

5. the balance of the funds which he had received, or which had come under his control, prior to the move to Port Macquarie, which balance about $200,000.00 - was invested in a superannuation fund, conducted by Connelly, Temple Ltd;

6. a loan - thought to be irrecoverable - of $10,000.00 which he had made to the Appellant's son.

After the Respondent left the Port Macquarie property, the Appellant continued to live in the house and was still there at the time of the hearing before the Master. Although making no payment to the Respondent by way of occupation fee or the like, the Appellant, so the Master noted, continued to pay all the out goings incurred in respect of the house. Save that it appeared that, at the time, the Appellant was in receipt of an age pension, the evidence did not disclose what was the Appellant's financial position as at the time of the hearing before the Master.

As I have earlier recorded, when the Respondent left the Port Macquarie property he moved to Bundaberg where he lived for a time in rented accommodation, the rent apparently being $150.00 a week. However, in June 1996, the Respondent entered into a contract to purchase for the sum of $48,000.00 vacant land being Lot 87 Mariners Way, Mariners Cove - which appears to be in, or near, Bundaberg - that purchase apparently being completed during July 1996. At about the time when the purchase would have been completed, the Respondent entered into a contract with a company known as Bundaberg Homes Pty Ltd to have that company build a home for him on the land. Although the Respondent - who claimed that he had been "robbed" by the builder - said that he had paid roughly $150,000.00 to have the house built - it seemed to have been accepted at the time of the hearing before the Master, that the value of the house and the land was only $130,000.00. The cost of the house and the land exhausted the moneys which the Respondent had previously invested with Connolly Temple Ltd so that, at the time of the hearing before the Master, the Respondent's income was derived solely from an age pension.

Although, at the time of the hearing before the Master, the Appellant's general health appears to have been good, the Respondent's health appears to have deteriorated. Whether or not he had suffered a further stroke is less than clear, but it would seem that he had had surgery to permit the insertion of a pacemaker. Because the Respondent's mobility was apparently severely restricted he appears to have acquired - at a cost of $3,500.00, to be paid by instalments - what was described as a "scooter" to enable him to get about outside the house, and he seems to have needed part-time domestic assistance in keeping his home in order.

The position which had been reached by the time the matter came on for hearing before the Master was that the total value of the parties' assets - the Port Macquarie property, the Bundaberg property, the moneys in the joint account at Port Macquarie, the furniture in the Port Macquarie house, the boat which was still at the Port Macquarie property, the Appellant's car and the Respondent's "scooter" - was only about $480,000.00. It seems to have been agreed that the value of the furniture in the Port Macquarie property - which furniture the

Appellant wished to retain - and the value of the boat and a computer - which the Respondent wished to obtain - was more or less the same and that, accordingly, whatever else might be decided, the Appellant was to be entitled to retain the furniture, while the Respondent was to be entitled to receive the boat and the computer.

When he came to determine what order it was appropriate for him to make in the proceedings, the Master said:

"Tn the circumstances of the instant case, it seems to me appropriate that the Court should recognise that the substantial contributions toward accommodation and household expenses and outgoing (sic) throughout the relationship up to the time of the acquisition of the Port Macquarie residence were provided by the plaintiff. However, the defendant contributed both financially to those outgoings, and, more importantly, as a homemaker and to the welfare of the plaintiff. In addition, from time to time the defendant provided services at the business of the plaintiff, for which either she was not remunerated or she was remunerated only by way of token payments."

(I note, here, that although the Respondent appears to have accepted that while the Appellant did, at an earlier time, from time to time, do work in the factory which he then occupied for the purposes of his business, he claimed that at no time after the parties resumed living together in 1982 did the Appellant do so.)

"When the plaintiff suffered the decline in his health to which I have already referred, the contributions of the defendant as homemaker dramatically increased. She had to do almost everything for the plaintiff, help him to dress, to bath, to wash his hair, and to attend to all his personal needs. In addition, the defendant looked after the entirety of the domestic arrangements of the household and performed all the cooking, cleaning, washing and other household activities, as well as tending the garden. Further, she arranged all the medical appointments for the plaintiff, and accompanied him on all those appointments (of which there were a large number) and also ensured that the plaintiff took all his prescribed medication. These contributions made by the defendant throughout the period of almost 4 years preceding the termination of the relationship must be regarded as significant when the Court is exercising its discretion to make orders adjusting the interests of the parties in property.

The financial contributions made by the plaintiff toward the acquisition of the Port Macquarie house were somewhat greater than those made by the defendant (the plaintiff paying about $20,000.00 more than the defendant). Since the termination of the relationship the defendant has had the benefit of residing in the house property without any payment therefor to the plaintiff, although she has been meeting all outgoings in regard to that property.

Applying to the construction of s20 of the De Facto Relationships Act, the decision of the Court of Appeal of New South Wales in Evans v Marmont (1 July 1997 unreported), especially the joint Judgment of Gleeson CJ and McLelland CJ in Eq, I have reached the conclusion that in the exercise of my discretion, it is appropriate that the contributions made by the plaintiff and by the defendant of the nature described in the section should be recognised by each of the plaintiff and the defendant receiving one-half the value of the Port Macquarie house, by the plaintiff receiving the boat and the computer, and by the defendant receiving the furniture which is presently in the house, by the defendant receiving the

totality of the funds standing in the joint account and by all other assets of each party being retained in the undisturbed ownership of the party by whom they are presently held.

Unless the parties wish to address me concerning costs, I consider that it is appropriate that I should make no order as to costs, to the intent that each party should bear his or her own costs of the proceedings."

(The effect of the Master's order is, in effect, that, subject to the costs incurred by either party, the Appellant will retain the benefit of, or receive, assets and moneys representing about 38% of the total value of the parties' assets as at the date of hearing, while the Respondent will have, or receive, assets or moneys representing about 62% of the then total value of the parties' assets.)

In the Notice of Appeal which was filed on behalf of the Appellant, a number of grounds of appeal were taken. However, in the end, the principal ground of appeal which was argued by Mr R S Bell, who appeared for the Appellant both on the hearing before the Master and on the appeal, was that it was clear that no, or no sufficient, allowance had been made by the Master for the Appellant's non-economic contributions to the relationship between the parties, particularly those contributions during the period after the Respondent had suffered his stroke and before the relationship came to an end.

As I understand the authorities, the principles which are to be applied on an application for a property adjustment order made pursuant to the provisions of s20 of the Act are:

1. in determining whether any, and, if so, what, property adjustment order should be made, the Court is exercising a judicial discretion, which must be exercised solely on the basis of the respective contributions of the parties and in the light of such other circumstances as might properly be regarded as relevant, and which seeks to produce a result which, in all the circumstances of the case, is just and equitable;

2. for that purpose, the Court is required to identify, and value, the property of the parties to determine whether any, and, if so, what, contributions of the type contemplated by s20(1)(a), s20(1)(b) of the Act have been made by each partner and to determine whether, in all the circumstances of the case, the contributions of the applicant have already been sufficiently recognised and compensated for; and, finally, to determine what, if any, order is called for in order that the applicant's contributions be sufficiently recognised and compensated for (Evans v Marmont3; Wallace v Stanford4);

3. the contributions of a partner, whether made in the capacity of homemaker or otherwise, to the welfare of the other partner are to be recognised, not in a token, but in a substantial, way (see, for example, Mallet v Mallets; Black v Black®).

The principles to be applied by this Court when dealing with an appeal such as this is are:

1. since what is involved is the exercise by the Master of a discretionary judgment, the circumstances in which this Court may set aside the Judgment of the Master are limited. In this regard, it is as well to repeat the well known passage from the Judgment of Dixon, Evatt and McTiernan JJ in House v The King' which is to the following effect:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he has not taken into account some material consideration, then his determination should be reviewed and the appellate court must exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed upon the ground that a substantial has in fact occurred.";

2. to that statement of principle might be added the caveats which may be found in the authorities as to the approach to be taken to submissions made upon the basis that, although the court at first instance took into account all relevant factors, it failed to give adequate weight to one of those factors. Thus, in Gronow v Gronow8 Stephen J said:

"The constant emphasis of the cases is that, before reversal, an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error or law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretional decision on grounds which only involve conflicting assessments of matters of weight."

Although, as the passage from his Judgment which I have set out above makes clear, the Master had regard to the Appellant's contributions as a homemaker and to the welfare of the Respondent, which contributions - particularly after the Respondent has had suffered his stroke - the Master said were to be regarded as significant when the Court came to make a property adjustment order, that sentiment does not appear to have been translated into action for, as will be apparent from what I have recorded above, the effect of the order which the Master made was that the Appellant would have or would receive assets and

7. (1936) 55 CLR 499, 504-505
8. (1979) 144 CLR 513, 519-520

money representing only about 38% of the total value of the parties' assets at the time and would represent only about 10% to 15% more than the moneys which the Appellant had contributed to the acquisition of the Port Macquarie property. Such a result, so it seems to me, does not involve the recognition in a substantial way of the Appellant's contributions as a homemaker and to the welfare of the Respondent. In order that that result be achieved, it seems to me that the order made by the Master should be varied so as to provide that the Appellant should receive two-thirds, and the Respondent one-third, of the nett proceeds of sale of the Port Macquarie property, the effect of which variation would be that each of the Appellant and the Respondent would receive approximately one-half of the total value of the parties' assets as at the date of the hearing before the Master.

I would accordingly propose that the appeal be upheld, the Orders made by the Master varied to the extent to which I have just referred, and that the Respondent pay the Appellant's costs of the appeal, but if qualified to have a Certificate under the Suitor's Fund Act 1951.

Stein JA This is an appeal from a decision of Master McLaughlin on an application under s20 of the De Facto Relationships Act 1984 (the Act). Two real estate properties were involved in the exercise, one at Port Macquarie and the other at Mariners Cove. In essence, the orders made by the Master required that the Port Macquarie property, wherein the appellant (Evelyn Mary Hayes) resides, be sold and the net proceeds divided equally between the parties. In addition, the Master declared that the respondent (Kenneth Jones) was the sole beneficial owner of the Mariners Cove property.

The appellant contends that this adjustment of property interests is, in effect, a division of assets of around 65% to the respondent and 35% to the appellant. On the appellant's behalf, Mr Bell of counsel submits that the division means that no (or insufficient) allowance was made for his client's non-financial contributions under s20(1)(b) of the Act notwithstanding the Master's finding of its significance.

The respondent, on the other hand, submits that the decision was within the bounds of the Master's discretion. On his behalf, Mr Philpot of counsel argues that the orders, when correctly analysed, reveal a rough percentage weighting of 56% to the appellant and 44% to the respondent, thus demonstrating that the Master did take account of the significant non-financial contribution of the appellant. The respondent also submits that the Mariners Cove property should be quarantined from the adjustment of interests because the appellant made no financial contribution to its acquisition. This conclusion is said to arise from the source of the funds for the purchase which are claimed to be the respondent's superannuation.

It appears that the parties commenced a de facto relationship in 1971. There were several substantial interruptions in the relationship up until 1982. Since that time, and until the termination of the relationship in May 1994, the parties lived together as husband and wife. The De Facto Relationships Act commenced on | July 1985. Thus it appears that the relevant relationship was for a continuous period of 12 years.

The Master set out the respective assets of the parties at the commencement of the relationship. Unfortunately, he did not make it clear at which point of time his finding relates. It may have been 1971 rather than 1982. This probably matters

little because it seems to be more or less common ground that the parties both brought assets into the relationship but kept their finances separate until they jointly purchased the Port Macquarie property in October 1993. Prior to the. acquisition of Port Macquarie the Master found that the financial arrangement between the parties was that the respondent paid for their accommodation and its outgoings and the appellant paid for food and household items. From 1982 to 1993 they lived in a house located on the respondent's factory premises at Kogarah.

The respondent worked in his factory business until 1990 when he suffered a cerebral haemorrhage. The appellant worked as a shop assistant and bank officer. The Master noted that after the respondent's stroke it was necessary for Mrs Hayes to take a 'very substantial role in physically caring for and looking after' him. The respondent did not dispute that she looked after him very well and was a good housekeeper.

To enable her to look after and care for the plaintiff, it was necessary for the defendant [appellant] to take considerable time off work, and to work reduced hours. She ceased working full-time at the end of January, 1992. (AB 16)

After the sale of the respondent's factory, he had funds (including some superannuation) in excess of $400,000. The appellant also had substantial funds having received redundancy payments from her employment with the Metway Bank. According to the Master she had $205,000 (AB 17). In 1993 they decided to buy a substantial home together at Port Macquarie. With stamp duty and other expenses, it cost around $350,000. The Master found that the respondent's financial contribution to the purchase of Port Macquarie exceeded the appellant's by about $20,000 (AB 24). In general terms, this meant that the respondent put in around $185,000- $190,000 and the appellant between $160,000-$170,000. In order to facilitate the purchase of the property a joint bank account was opened which, at the time of the hearing, stood in credit of $10,700. The Master ordered that the respondent transfer his interest in the joint account to the appellant. The present agreed value of the Port Macquarie property is $325,000.

Following the cessation of the relationship, the respondent purchased land at Mariners Cove for $48,000 and erected a house thereon at a cost of $150,000. Notwithstanding, it seems that the agreed value of the house was only $130,000 at the time of the hearing. The property was bought by the respondent with the balance of investment funds he held with Connelly Temple, which funds included his superannuation entitlements. According to the Master's finding, the superannuation component was about $66,000 (AB 17). At the time of the Port Macquarie purchase, his funds in Connelly Temple were well in excess of $400,000 (AB 17). By the time of the termination of the relationship they stood at approximately $200,000 (AB 18).

Subsequent to the respondent suffering a cerebral haemorrhage the factory premises (including the home in which the parties had resided) together with goodwill, plant and equipment, was sold for $380,000. This, together with the respondent's superannuation, was the source of more than $400,000 in Connelly Temple at the time of the purchase of Port Macquarie in 1993.

The Master made no findings about the appellant's contribution to the respondent's business, which was run through a company. It appears, however, that the appellant was a director and shareholder in the company and performed cleaning work at the factory on Saturdays (AB 62).

It is the case for the appellant that the Master's orders leave the appellant with $165,000 plus what she has otherwise received under his orders or by agreement between the parties. With these moneys she will have to acquire a new home, and in that exercise will incur significant expense. Mr Bell submits that the Master made no real allowance for the appellant's substantial non-economic contribution over, at least, the 12 years since 1982. It is also claimed that no allowance was made for the appellant's contribution to the respondent's business. More importantly, it is submitted that little or no allowance was made for the appellant's significant contribution over the last (almost) 4 years of the relationship when she physically cared for the respondent. During this time the appellant took considerable time off work and worked reduced hours. This meant that she earned less and used up her sick leave in looking after the respondent.

The Master, having described this as 'a very substantial role' and 'as significant', did not, it is submitted, translate this into an award in her favour.

I think that there is substance in the submission. The undisputed evidence makes it apparent that the appellant made the overwhelming domestic contribution, especially over the last 4 years of the relationship. Not only did she look after the respondent when he needed care, but she sacrificed employment income and sick leave entitlements to be able to do so.

It is submitted on behalf of the respondent that her non-financial contribution was recognised by the Master because she put in $20,000 less than he in order to purchase the Port Macquarie property and that she received the whole of the balance in the joint account of $10,700 plus a car valued at $2,000. The. equal division of the property meant that (in the respondent's submission) the appellant received around $30,000 for her non-financial contribution.

Even if this be accepted, it appears to confirm the appellant's complaint. Being the predominant homemaker for 12 years and making, an overwhelming and significant domestic contribution over the last 4 years, must translate into more than $30,000 as a reasonable adjustment of the parties respective interests. In my opinion, the Master significantly undervalued the appellant's contributions under s20(1)(b) of the Act. He simply did not translate his findings about the appellant's contribution into a sufficient adjustment of the respective interests.

It also appears that the Master made no allowance for the appellant's contribution to the respondent's business. Further, I do not accept the submission made on behalf of the respondent that the Mariners Cove property should be quarantined. First, because the moneys for the acquisition of the property and erection of the house did not all derive from the respondent's superannuation. Indeed, it seems that his superannuation ($66,000) was part of the $400,000, which the respondent had accumulated after the sale of his business in 1993. Second, because the appellant did make a contribution to the respondent's business with her labour, albeit a relatively small one.

I agree with Powell JA that the Master's order does not recognise, in a substantial way, the appellant's contribution. However, in my opinion, an appropriate adjustment of the interests of the parties, giving proper weight to the appellant's contributions under s20(1)(b) of the Act, will be for the appellant to receive 75% of the net proceeds of sale of Port Macquarie. Such an order will mean that it is unnecessary to disturb the Master's order relating to Mariners Cove and therefore, the respondent's occupation of that property. Given the disparity in value of the respective properties, it is appropriate that Port

Macquarie be sold and the proceeds divided in the manner I have indicated. The order I propose represents, in round terms, 54% to the appellant of the two properties and 46% to the respondent.

This would in my view, lead to a just and equitable, adjustment which has regard to the respective contributions of the parties under para(a) and para(b) of s20(1) of the Act and apply Evans v Marmont (1997) 42 NSWLR 70 at 75 - 76.

Accordingly, I would propose that the appeal be allowed and the following orders be made:

"Payment of the balance then remaining be divided by paying 75% to the appellant (defendant) and 25% to the respondent (plaintiff)".

3. The respondent is to pay the appellant's costs of the appeal and, if otherwise entitled, have a certificate under the Suitor's Fund Act.

1. Appeal allowed.
2. The orders of the Master be varied as follows: by deleting para3(b) and substituting therefore: Payment of the balance then remaining be divided by paying 75% to the appellant (defendant) and 25% to the respondent (plaintiff)."
3. The respondent is to pay the appellant's costs of the appeal and, if otherwise entitled, have a certificate under the Suitor's Fund Act.

Counsel for the appellant: R Bell Solicitors for the appellant: Donovan Oates Hannaford Counsel for the respondent: A Philpot

Solicitors for the respondent: Macedone Christie Willis