Howland v Ellis

New South Wales Supreme Court CITATION : Howland v Ellis [1999] NSWSC 1142 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2621/97 HEARING DATE(S) : 17, 18 June, 8 July and 5 October 1999 JUDGMENT DATE : 26 November 1999

PARTIES : John Howland (P & Cr-D) Lalla Carmela Ellis (D & Cr-Cl) JUDGMENT OF : Master McLaughlin

COUNSEL : Mrs R. Winfield (P & Cr-D) Mr L. Ellison (D & Cr-Cl) SOLICITORS : Hovan & Co (P & Cr-D) Willis & Bowring (D & Cr-Cl) CATCHWORDS : De facto relationship; Adjustment of interests in property; Respective contributions of each party; Date of termination of relationship; Plaintiff was a convicted felon held in custody in prison; Whether relationship continued after incarceration of plaintiff; Proceedings purported to be commenced by plaintiff without leave required by Felons (Civil Proceedings) Act 1981; Date of commencement of proceedings; Whether proceedings were instituted out of time; Application for leave to extend limitation period under De Facto Relationships Act 1984; Application by defendant for maintenance. De Facto Relationships Act 1984 ACTS CITED : Property (Relationships) Act 1984 Felons (Civil Proceedings) Act 1981 CASES CITED : Evans v Marmont (1997) 42 NSWLR 70 Muschinski v Dodds (1985) 160 CLR 583 DECISION : See Paragraph 88

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2621/97 JOHN HOWLAND -v- LALLA CARMELLA ELLIS JUDGMENT

1 MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 A statement of claim was filed by the plaintiff John Robert Howland on 19 June 1997, by which he purported to institute the present proceedings against the defendant Lalla Carmella Ellis. A defence was filed by the defendant on 8 August 1997, and in due course the matter came on for hearing before me on Thursday, 17 June 1999 (the parties at the call-over on 26 May 1999 having given the estimated length of hearing as being two days, and the Court having reserved both Thursday, 17 June and Friday 18 June for the hearing). 3 At the outset of the hearing on 17 June, because of concerns which had exercised the legal representatives of the plaintiff (who at the time of hearing was a convicted felon held in custody in prison, and who had been such on 19 June 1997, the date when the statement of claim had been filed), on account of the provisions of the Felons (Civil Proceedings) Act 1981, the hearing was interrupted to allow the parties to resort to the Duty Judge in the Equity Division. In consequence, the Duty Judge, Mr Justice Santow, made the following orders: Pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) I give leave to the plaintiff to institute proceedings under the De Facto Relationships Act 1984, being proceedings in the terms of the plaintiff's statement of claim of 19 June 1997 subject to those proceedings being now reinstituted pursuant to the leave earlier granted. I note that the plaintiff has been convicted and incarcerated and that there is a prima facie ground for the proceedings based upon the matters not presently disputed by the defendant as to there being a subsisting de facto relationship and there being relevant property under that Act and noting also the matters in the plaintiff's affidavit of 11 June 1998. While it will be a matter for the Master, it may well be the case that the Master would disregard any time between the time the statement of claim was originally filed on 19 June 1997 and the time of the reinstitution of proceedings, in determining whether any necessary extension of time should be granted under the De Facto Relationships Act . I further order, by consent, that the Master be seized of jurisdiction to deal with all matters in the amended statement of claim including paragraphs 21(a) and 22(a). 4 There was thereupon filed in Court on 17 June 1999 a document which was originally entitled "Amended Statement of Claim" (and was the document referred to by Mr Justice Santow in the last of his Honour's orders). However, the entitlement thereof was emended to read "Statement of Claim", as a result of the acceptance by the parties that the document filed on 19 June 1997 and entitled statement of claim was not, strictly, such a pleading (because of the status of the plaintiff at that date and the absence of any leave entitling him then to institute the present proceedings), with the consequence that the only valid statement of claim was that filed on 17 June 1999. 5 There was also on 17 June 1999 filed in Court a notice of motion by the plaintiff, by which he sought, substantively, an order in the following terms: To the extent that it is found to be necessary, that leave be granted to the plaintiff to proceed out of time pursuant to section 18 of the De Facto Relationships Act 1984. 6 It was not in dispute that the parties had lived together in a de facto relationship from January 1989 until 29 October 1991 when the defendant went to prison. He has remained in prison since that time. When the plaintiff was arrested on 29 October 1989 in respect to drug related offences, bail was refused. He remained in custody until he was sentenced in the District Court in 1993. It would appear that two separate sentences were imposed upon the plaintiff, firstly, on 25 June 1993, and later, on 3 September 1993, in respect to separate offences. However, there was no precise evidence given in the present proceedings concerning the details of those offences or the sentences imposed in respect to each. I have not been informed as to whether the sentences are being served concurrently or consecutively. However, there was evidence that the term of imprisonment to which the plaintiff is currently subject will not expire until, at the earliest, April 2002 (although the plaintiff said that he expected to be on what he described as "work release and day week-ends" by the end of 1999). 7 Although it is arguable that the present proceedings were not instituted until the filing on 17 June 1999 of the statement of claim pursuant to the leave in that regard granted on that date by Mr Justice Santow, it is apparent that, in any event, even if the proceedings be regarded as having been instituted by statement of claim filed on 19 June 1997, the proceedings were instituted more than two years after the plaintiff went to prison and the parties ceased to live together. Accordingly, the question of when the relationship came to an end will be of significance, since if it terminated at the time when the plaintiff went to prison, the proceedings (on any view of the matter) were not instituted within the period of two years after the parties ceased to live together (as required by section 18(1) of the De Facto Relationships Act), and it will be necessary for the plaintiff to obtain the leave of the Court (pursuant to section 18(2)) in respect to the institution and maintenance of the proceedings. It was for that reason that the plaintiff filed in Court on 17 June 1999 the notice of motion to which I have already made reference. Any such application for leave was opposed by the defendant. 8 There was born to the plaintiff and the defendant one child, a son Kahl (who was born on 6 March 1991 and who is presently aged eight). The defendant is a widow, her husband, Greg Ellis, having died in 1986. Of the marriage to her late husband the defendant has a son Tyson, who was born on 29 February 1984 and is presently aged fifteen. Tyson was accepted as a child of the parties and resided with them throughout the relationship. Both children have remained with the defendant since the plaintiff went to prison. 9 Essentially, the claim of the plaintiff related to a house property situate at and known as 12 Jinatong Street, Miranda, which was acquired during the course of the relationship in about October 1989, and of which the defendant alone is the registered proprietor. That house property was the residence of the parties, their child (after his birth) and the defendant's child throughout the period whilst the parties lived together, and has remained the residence of the defendant and her children since that time. 10 By each of the documents entitled statement of claim, filed respectively on 19 June 1997 and 17 June 1999, the plaintiff claims a declaration pursuant to section 14 of the De Facto Relationships Act that he is a joint tenant or a tenant in common as to a one half share in the property at 12 Jinatong Street, Miranda; and an order for the appointment of a statutory trustee for the sale of that property, pursuant to section 66 of the Conveyancing Act 1919. In addition, the pleading filed on 17 June 1999 seeks as further, or alternative, relief a declaration that the defendant holds on trust for the plaintiff fifty per cent of that property. (It was because of that additional item of relief that the parties sought, and obtained, from Mr Justice Santow, the final order made by his Honour on 17 June 1999.) 11 The defendant had on 26 May 1999 (that is, after the hearing date had been fixed, but before the commencement of the hearing) filed a notice of cross-claim, seeking the following relief: In the event the Court finds the cross-defendant's Application is brought within the time for the bringing of such Applications (which is not conceded), the cross-claimant claims orders: 1. Declaring the cross-claimant to be the beneficial owner of the whole of the realty at 12 Jinatong Street, Miranda, being the whole of the property contained in Folio Identifier 76/30172. 2. Ordering the cross-defendant to pay maintenance pursuant to section 27(1) in respect of the cross-claimant and the child of the relationship, Kahl, born 6 March 1991. 3. Ordering the cross-defendant to remove, within seven (7) days, Caveat 789721F lodged against the subject realty. 12 I have already recorded that the parties commenced living together in January 1989. At the outset they resided in rented premises at Sylvania. 13 However, the period of their relationship was interrupted in March 1989, when the plaintiff went to prison for a period of five months and three weeks. During that period the defendant continued to reside in the rented premises at Sylvania and visited the plaintiff in prison on every visiting day. In addition, they regularly corresponded by mail and spoke by telephone each week. 14 During the period whilst the plaintiff was in prison in 1989 there were discussions between the parties concerning the acquisition of a house property, and the defendant inspected a number of residences. 15 When the plaintiff was released from prison in about September 1989, he moved back into residence with the defendant and her son Tyson, who at that time were living in another rented residence at Sylvania. 16 The house property at 12 Jinatong Street, Miranda (to which I shall refer variously as "the Miranda residence" or "the house property") was purchased by the plaintiff in her name alone on 25 October 1989, for a purchase price of $190,000. That purchase was funded as follows: the defendant provided about $133,000, being the net proceeds of sale from a house property which she had previously owned at 28 Mirral Road, Lilli Pilli (which had been sold be her on 20 October 1989); $37,000 by way of a housing loan from the St George Building Society, secured by a first mortgage; an amount variously stated by her to have been either $10,000 or $15,000, said by the defendant to have been advanced to her by her parents. In addition, the defendant received the sum of $10,000 said by her to have been the repayment of a loan in that amount which she had made to the plaintiff in 1988. The actual cheque was drawn in favour of the defendant by the plaintiff's father, Roy Howland. (According to the defendant, when she lent that sum of $10,000 to the plaintiff in 1988 the arrangement was that that money was to be invested, and that upon repayment the defendant would receive an additional amount of $5,000 by way of profit. That assertion by the defendant was denied by the plaintiff. The defendant was able to produce no documentary material in support of her allegation concerning the alleged arrangement relating to that amount of $10,000.) 17 It was the case for the plaintiff that he had made very substantial contributions, both direct and indirect, both financial and non-financial towards the acquisition, conservation and improvement of the Jinatong Street property. The plaintiff was able to produce no documentary material in support of his alleged direct financial contributions. Neither was he able to produce documentary material concerning the payments which he had allegedly made to various tradesman, labourers and other artisans who had worked upon the house property under his general direction. The explanation offered by the plaintiff for the absence of any such documentary material was that such material had been in the house at the time of his arrest, and that, at least by implication, it had been either abstracted or suppressed by the defendant. 18 Nevertheless, it appeared to be conceded by the defendant in cross-examination that the plaintiff had made direct financial contributions totalling at least $5,000 towards the improvements to the house property. Further, it appeared to be conceded by the defendant that the plaintiff had made very substantial contributions by way of his own physical efforts and activities towards the conservation and improvement of the house property. 19 At the time of the plaintiff's arrest, however, the property was in a state where a very considerable quantity of restoration and renovation work still remained to be completed. The plaintiff agreed that after his arrest in 1991 it still took some years for the work on the house to be completed. 20 In early 1995 the defendant had in contemplation selling the house property, and put it on the market. That action resulted in the plaintiff and his father placing on the title to the property three separate caveats, one of which still remains in force and is the subject of the relief sought in prayer 3 of the cross-claim. The proposed sale by the defendant also appears to have precipitated the initiation of the present proceedings by the plaintiff. However, the proposed sale did not proceed, because the defendant was not able to obtain the price of about $450,000 which she was seeking for the house property. 21 There was no agreement between the parties concerning the value of the house property at the time when the plaintiff went to prison, or at any subsequent time. Evidence was given by a registered valuer on behalf of each party. On behalf of the plaintiff there was tendered in evidence (as Exhibit A) a valuation by Christopher John McMurray (of Chris McMurray Property Valuations, of Cherrybrook). On behalf of the defendant there was tendered in evidence (as Exhibit 1) a valuation by Peter Allan Cross (of George T. Cross & Co Pty Limited, of Sutherland). Mr McMurray valued the property at the present time at $480,000, in 1995 at $375,000, and in 1991 at $325,000; whilst Mr Cross expressed his opinion that the fair market value at the present time was $430,000, at March 1995 was $325,000, and at March 1991 was $225,000. Each of Mr McMurray and Mr Cross amplified his written valuation report by oral evidence and was then cross examined. I shall, in due course, make further reference to those valuations. 22 It is appropriate that I should, at the outset, consider the question of when the de facto relationship came to an end, and then, if necessary, deal with the application of the plaintiff for leave to bring the proceedings after the expiration of the limitation period prescribed by section 18(1) of the De Facto Relationships Act. 23 In considering this question of the date of termination of the relationship (and also in considering other areas of the evidence where the parties were in dispute, such as the nature and extent of the contributions made by the plaintiff towards the improvement and conservation of the house property, and any direct financial contributions made by the plaintiff to the relationship), it is appropriate that I should express my views concerning the credit of the parties, and the reliance to be placed upon the oral evidence given by each party where matters in dispute were the subject only of assertions by one party and denials by the other, and where there was no independent corroborative evidence or documentary material supporting the evidence of one party or the other. 24 The plaintiff was cross-examined as to his credit. That cross-examination included the plaintiff being asked questions concerning his criminal record. It emerged that, apart from the offences in respect of which he is serving his present sentence, he had been convicted of the following offences: 1974 Four counts of break, enter and steal (when the plaintiff was aged sixteen) 22 February 1978, Sutherland Court of Petty Sessions Three counts of receiving October 1983 Use licence plates on a motor vehicle which were calculated to deceive November 1986, Campbelltown District Court Supply prohibited drugs (for which the plaintiff was sentenced to three years gaol, with one year non-probation) May 1989, Sydney District Court Supply prohibited drugs (for which the plaintiff was sentenced to two years and six months) 25 The plaintiff pleaded guilty to a number of the foregoing charges, and on one at least, being the 1989 conviction for which he was sentenced to two years and six months, the plaintiff was convicted by a jury. The plaintiff was cross-examined as to whether he put himself forward as an honest person, which he did. He was asked his views concerning honesty in the context of his evidence in the present proceedings. The plaintiff said (transcript, page 44) that honesty had nothing to do with his criminal record, and that receiving stolen goods did not have anything to do with whether he was an honest person. 26 It is a fair summary of the plaintiff's evidence under cross-examination in relation to his criminal record and his various convictions (which resulted in him serving three separate prison sentences, the current sentence not expiring for another two years), that the plaintiff did not regard those criminal convictions as constituting a reason why the Court should not accept his sworn evidence in the present proceedings. 27 When asked to substantiate assertions or allegations concerning financial contributions, the plaintiff constantly took refuge in the response that he did not have any of his documents, that they had all remained at the house when he was arrested and charged, and that the defendant had continued to refuse thereafter to make such documents and records available to him. 28 However, in this regard, it was asserted by the defendant that she had, shortly after the plaintiff was charged, given to the plaintiff's father, Roy Howland, at the request of the plaintiff, all of the plaintiff's documents. Evidence was given by the plaintiff's father, Roy Howland. He denied the foregoing assertion of the defendant that he had gone to the house and removed the plaintiff's documents after the plaintiff had gone to prison, although he conceded that he had in fact taken tools from the house, saying that those were tools he had loaned to the plaintiff for his repair work, and that at a later stage the plaintiff's clothing had been given to him (although he did not state by whom). Mr Roy Howland asserted that so far as he knew the plaintiff's papers had been removed by the Police pursuant to a search warrant. 29 Mr Roy Howland gave evidence of moneys asserted by him to have been advanced to the plaintiff in amounts totalling $44,000 (being a cheque for $15,000, a cheque for $9,000 and $20,000 in cash). According to Mr Roy Howland, the plaintiff had not repaid any of those advances. Mr Roy Howland agreed, however, that he had no receipt for the alleged payment of $20,000 made in cash. I consider that I should approach the evidence of Mr Roy Howland with a considerable degree of caution. That is especially so in the light of the fact that Mr Roy Howland, who is seventy-one years of age, stated that he had suffered a cerebral infarct (which he described as a "stroke") about eighteen years ago, and that in consequence he had what he described as "very, very erratic memory recall". 30 There was, however, annexed to Mr Roy Howland's affidavit a statutory declaration made by the defendant on 8 March 1995. That statutory declaration contains the following: The above address [12 Jinatong Street, Miranda] is the family home of I, Lalla Ellis, and my sons, Tyson and Kahl. It will remain so until I, Lalla, decide to sell the property. If that decision is made and when that event takes place, I, Lalla Ellis, will pay you, Roy Howland, the total sum of $24,000 only. This will be exact repayment of money borrowed by your son, John, for renovations on the home at the above address. No other encumbrance can be claimed on the property. 31 According to Mr Roy Howland, that statutory declaration was received by him from the defendant within seven days of a telephone conversation initiated by him. In that conversation he said to the defendant words to the effect, "I want the money back which I loaned you and John"; the defendant replied, "If you think I am going to pay John's half you can forget it. I am not selling the house. You might get it when I do"; and Mr Roy Howland responded, "If you don't acknowledge the debt in writing within 14 days I am going to take legal action to recover it". The defendant was cross-examined concerning that statutory declaration. Her explanation was that it was written under pressure from the plaintiff who had (so she said) told her that if she wrote out the statutory declaration for his father, he and his father would not harass her. 32 Not only have I had the opportunity of listening to the content of the responses given by the plaintiff during the course of his oral evidence, but I have also had the benefit of being able to observe the plaintiff's demeanour during the evidence. I have reached the conclusion that the truth means nothing to the plaintiff; that he was prepared to say in his evidence whatever he thought would best suit his case; and that at times he was deliberately lying. 33 By the same token, however, I consider that there were a number of unsatisfactory aspects in relation to the evidence of the defendant. That she was clearly bitter and vindictive in her attitude towards the plaintiff was manifest in, for example, an outburst by her under cross-examination (when she spoke of "a con job to get my house", "a rip off", "that man used me", "he duped me"). The defendant also referred to the plaintiff and his father as "vultures", and said that Mr Roy Howland had been telephoning her and harassing her. 34 I regarded the explanation of the defendant concerning the statutory declaration to be somewhat confusing and unsatisfactory. 35 The defendant also said that the plaintiff threatened to kill her or to have her killed, a remark allegedly made in January 1999. But she did not report that alleged threat to the Police until April 1999, and it was not referred to in the present proceedings until the defendant mentioned it during the course of her oral evidence. The defendant herself has a conviction for possession of marijuana, for which she was fined $150 in 1994. 36 Nevertheless, where on any matter in issue the only evidence consists of an unsupported oral assertion by one party, which is denied by the other party, I prefer the evidence of the defendant to that of the plaintiff. 37 In considering the question of when the de facto relationship came to an end, it is in my view of significance that the various definitions of "de facto partner" and "de facto relationship" in section 3(1) of the Act speak of the parties "living or [having] lived with" and "living or having lived together". Further, the provisions of section 18 concerning the time limit for making applications under Part III of the Act refer to the de facto partners having "ceased to live together" (section 18(1)). 38 There is abundant authority that a brief or temporary interruption to the conjoint living arrangements of the parties (for example, a holiday, overseas travel, a period in hospital, and the like) does not of itself terminate the de facto relationship. However, in the instant case there has occurred an event which, by its very nature, must preclude the parties from living together for a very lengthy period. I have considerable doubt as to whether, in such circumstances, the continuation of the de facto relationship can be regarded as dependent solely upon the subjective intention of one, or even both, of the parties. 39 It will be appreciated that the plaintiff was upon his arrest on 29 October 1991 refused bail, and that it was only in June of 1993 and in September of 1993 (almost two years after his arrest) that the plaintiff was sentenced upon the criminal charges in respect of which he is presently serving a lengthy term of imprisonment. It may have been the intention of each of the parties during the period while the plaintiff was on remand in custody that, in the event that he were to be released from custody pending his trial, the de facto relationship would continue. 40 The plaintiff, in asserting that the relationship continued for a period after he went into prison in October 1991 sought to rely upon the continued visits to him in prison by the defendant and by the various communications (by letter and telephone calls) between himself and the defendant for a period of some time after he went to prison. Those communications as late as February 1994 expressed sentiments of love and affection on the part of the defendant and the hope that the plaintiff would come home soon. The plaintiff asserted that the relationship remained in existence until the defendant clearly manifested an intention that, so far as she was concerned, the relationship was at an end. The plaintiff also agreed that he himself regarded the relationship as being at an end when he entered into a relationship with another lady who, from October 1997 for about twelve months, regularly visited him and communicated with him whilst he was in prison. 41 In regard to the asserted continuation of the de facto relationship after the commencement of his current incarceration the plaintiff sought to derive a degree of comfort from the fact that whilst he was serving a period of almost six months in prison in 1989, the defendant maintained regular visits to him whenever she was permitted to do so, on a weekly basis, and corresponded with him and spoke with him by telephone regularly and frequently. It was not disputed by the defendant that the de facto relationship between the parties remained in existence throughout that period of almost six months in 1989. 42 In respect to this contention on the part of the plaintiff that the relationship did not terminate for a considerable period after the commencement of the plaintiff's current prison sentence, it is also of relevance to refer to a number of items of documentary material which were admitted into evidence at the instance of the defendant and concerning which the plaintiff was cross-examined. These included a record of interview between the plaintiff and Detective Sergeant G. R. Orchard at the Sutherland Police Station on Friday, 19 April 1991 (Exhibit 7), in which the following questions were asked and answers were given: ORCHARD: Are you married or single? HOWLAND: I'm in a de facto relationship. ORCHARD: Who with? HOWLAND: Lalla Ellis. ORCHARD: How long has she been your de facto? HOWLAND: On and off for two years, continually for four months. 43 On 19 April 1995 Mr Brett Galloway, the solicitor at that time acting on behalf of the plaintiff, wrote to the defendant a letter concerning, inter alia, the caveat which had been lodged on behalf of the plaintiff against the Jinatong Street property (that caveat having been lodged on 7 March 1995). In that letter the solicitor said, "I am instructed that your de facto relationship with my client has recently come to an end". The covering letter sent by Mr Galloway to the plaintiff (enclosing a copy of his letter to the defendant, from which I have just quoted) stated, "I enclose copy of my recent correspondence with your former de facto". Those two letters of 19 April 1995 were admitted into evidence as Exhibit 3. 44 On 25 May 1995 Mr Galloway again wrote to the defendant, and again a copy of that letter was sent to the plaintiff under cover of a letter of the same date from Mr Galloway, which contained the statement, "I enclose copy of my recent correspondence with your former de facto". Those two letters of 25 May 1995 were admitted into evidence as Exhibit 4. 45 Two letters from Mr Galloway to the defendant, dated respectively 23 January 1996 and 5 March 1996, enclosing copies of memoranda of costs and disbursements dated 23 January 1996 were together admitted into evidence as Exhibit 5. One of those memoranda of costs and disbursements was headed "De Facto Relationship Matter", and included a number of items referring to correspondence with and from "your former de facto's solicitors" (commencing with an item on 14 April 1995). 46 Despite the assertions by the plaintiff under cross-examination concerning his alleged dissatisfaction with conduct of Mr Galloway in respect to the de facto relationship and the caveat which he had lodged against the title to the Jinatong Street property, I am satisfied that the foregoing items of correspondence support the conclusion that the plaintiff himself no later than 7 March 1995 (the date of lodgment of the caveat) regarded the relationship as having come to an end. Notwithstanding the evidence of the defendant, especially her evidence under cross-examination, that she regarded the relationship as having come to an end upon the plaintiff's arrest on 29 October 1991, it is apparent from her continued visits and the various communications to which I have referred that at least until February 1994 the defendant was missing the plaintiff, and was hoping for his return to her. Nevertheless, I am not satisfied that the de facto relationship between the parties can be regarded as subsisting once the plaintiff was sentenced to a term of imprisonment. I have reached the conclusion that at the very latest the de facto relationship had come to an end when the plaintiff was sentenced by the District Court on 25 June 1993 (that being the earlier of the two sentences imposed upon the plaintiff by the District Court in that year). 47 It will be appreciated that more than two years after that date had elapsed when the plaintiff filed the original pleading on 19 June 1997. That being so, the present proceedings (whether they be regarded as having been instituted by the pleading filed on 19 June 1997, or by the pleading filed on 17 June 1999) were clearly out of time. For the purposes of the application by the plaintiff for an extension of the time in which to institute the proceedings, it seems to me appropriate (as well as being consonant with the view in that regard expressed by Mr Justice Santow on 17 June 1999) that I should treat the proceedings as having been, in effect, instituted in 1997, and that I should disregard the further period between 19 June 1997 and 17 June 1999. 48 Accordingly, it becomes necessary to consider whether, in accordance with the provisions of subsection (2) of section 18, the Court should, on account of the delay between the period of two years after 25 June 1993 (that is, the delay from 26 June 1995 until 19 June 1997 --- a period of almost two years) grant leave to the plaintiff to bring the present proceedings. 49 Whether or not such an order for extension of time should be made depends upon whether the Court is satisfied, "having regard to such matters as it considers relevant, that greater hardship would be caused to the [plaintiff] if that leave were not granted than would be caused to the [defendant] if that leave were granted". In approaching that question the Court should look to the substance of the claim of the plaintiff. There would, of course, be no purpose in granting the leave sought unless, in the event that such leave were to be granted, the plaintiff were regarded as having otherwise established an entitlement to the substantive relief which he claims. 50 The defendant is a school teacher by profession. She has, since graduation from the North Sydney Catholic Teachers College in 1979, been continuously employed in that profession from 1980 until the present time, except for the periods when she was on maternity leave for the birth of each of her two children. From 1981 to the present time the defendant has been employed by the Catholic Education Office at Marrickville, teaching at St Brigid's Primary School at Marrickville. It will be appreciated that (apart from the period of maternity leave from October 1990 until January 1992) the defendant was continuously in employment throughout the de facto relationship. 51 The plaintiff stated that he had qualifications in various areas of the building industry. According to his oral evidence he has a trade certificate in carpentry and joinery, for which he said he passed with distinction. He said that he had been working in the carpentry field since he was aged twenty-three (he is aged forty-two at the present time), and that the area in which he worked was both estimating and carpentry. Before going into prison the plaintiff conducted his own business intermittently from the age of twenty-three. It would appear that he owned, at least to the point when he went into prison, a considerable quantity of tools appropriate for carpentry and estimating. 52 At the time when the de facto relationship commenced the plaintiff was conducting his own business excavating swimming pools. He said that his assets at that time consisted of the following items, to which he ascribed the following values: Toyota LandCruiser $6,000 Business tools and equipment $3,000 Savings $5,000 Cash in ANZ Bank $3,500 Building materials relating to business $5,900 Swim pool package deals $2,400 Furniture and antique glass $5,000 Stamp and coin collection $10,000 Kawasaki ZIR 1000 $1,200 Proceeds of sale of Bobcat skid loader (sold November 1988) $12,500 Total $81,500 53 The defendant disputed a number of the foregoing asserted assets of the plaintiff (for example, what was described by the plaintiff as furniture and antique glass and the stamp and coin collection), and disputed the values ascribed by the plaintiff to almost all the foregoing assets. 54 During the course of the relationship the plaintiff sold the following items (to which he ascribed the following sale prices): Toyota LandCruiser $5,000 Kawasaki Jet Ski $3,000 (January 1991) Norman Lindsay self portrait sketch $4,000 (sold in 1991) Truck (sold to Peter Waters) $2,500 Swimming pool liners, above ground pool $2,400 55 The assets of the defendant at the commencement of the relationship appear to have consisted of, essentially, her former residence at (which, as I have already recorded, was sold in October 1991 for a net amount of $133,000). 56 There was no specific evidence as to the respective assets and liabilities of either the plaintiff or of the defendant at the termination of the relationship (be that termination in September 1995, as asserted by the plaintiff, or in October 1991, as asserted by the defendant, or at some intermediate date). However, it seemed to be implicit in the case mounted by the plaintiff that most of his assets, apart from his asserted claim to an interest in the house property, had been liquidated by the time of or shortly after the commencement of his prison term, and had been used for the purpose of paying the legal costs associated with the criminal charges against him. It also appeared to be implicit in the case for the defendant that there had been little if any change in her assets after the acquisition of the house property, and that her liabilities had diminished in consequence of the reduction in the amount outstanding under the mortgage. 57 There was, however, considerable evidence given on behalf of the defendant (both by affidavit and by way of oral evidence) concerning the financial and material circumstances of the defendant at the present time, including evidence of the present expenses of the defendant relating to the maintenance and education of her two sons. 58 It will be appreciated that, consonant with the decision of the Court of Appeal of New South Wales in Evans v Marmont (1997) 42 NSWLR 70 (especially the joint judgment of Gleeson CJ and McLelland CJ in Eq.), such evidence as to the present financial and material circumstances of the defendant is not relevant to her resistance to the claim of the plaintiff, and can, in the instant case, be relevant only to the application for maintenance made by her by way of her cross-claim. 59 There were some unsatisfactory aspects in relation to the evidence of the defendant concerning the funding of the purchase of the Jinatong Street property, in particular concerning the advance of about $10,000 alleged by the defendant to have been made to her by her parents. In this regard it should be recorded that neither of the defendant's parents gave evidence. In her affidavit of 15 June 1999 the defendant said that she was unable to obtain affidavits from her parents, that her father was in a nursing home, and that she did not wish to involve her mother in the present litigation. Nevertheless, there is no doubt that the substantial part of the proceeds of the purchase price was contributed directly or indirectly by the defendant (the largest contribution towards the funding of the purchase price being the net proceeds of sale of the former home of the defendant, in an amount of about $133,000). In those circumstances it was quite reasonable, and to be expected, that the house property should be registered in the name of the defendant. 60 Throughout the relationship the defendant was, as I have already recorded, continuously in employment. It was not disputed that she contributed her entire income towards the mortgage payments, towards the maintenance of herself and her two children, and towards the outgoings in respect to the household. 61 Essentially, the contributions of the plaintiff were of a physical nature, being the improvements to the house property which were effected by him personally or by workman under his supervision and control. In addition, he contributed directly towards the cost of those improvements, by purchasing materials. The defendant agreed that she and the plaintiff shared the mortgage payments, that whilst she was on maternity leave the plaintiff met the entirety of the mortgage payments, and that throughout the period of that maternity leave it was the plaintiff who was supporting the whole family. By the same token, however, the defendant alone supported herself and her son Tyson while the plaintiff was incarcerated for almost six months in 1989. For a period after the plaintiff's release in about September 1989 he had little in the way of income, and it was the defendant who from her own earnings alone supported the household which then consisted of herself, Tyson and the plaintiff. 62 I have already referred to the discrepancy between the valuations of Mr McMurray and Mr Cross concerning the Jinatong Street property at the present time. Similarly, there was a divergence between the valuations of those two gentleman in respect to the value of the property before the commencement of the renovations and extensions. However, both valuers were in general agreement that before that work was performed the property was worth not more than its land value, to which Mr McMurray ascribed a figure of $170,000, whilst Mr Cross ascribed a figure of $194,245. Similarly, those valuers were in agreement that the cost of the building work was not necessarily reflected in an equivalent increase in the value of the property. 63 There was considerable cross-examination of each of the valuers, not only concerning the bases of their respective valuations, but also concerning the qualifications of each valuer. Mr Cross was an experienced licensed real estate agent, and licensed builder, as well as a registered valuer. He also had the advantage of being a local resident, with considerable experience of valuations in the area of the Jinatong Street property. Mr McMurray, on the other hand, had little experience in that area. 64 It does not seem to me that for the purposes of the present proceedings it is essential that I should decide between the respective valuations of Mr McMurray and Mr Cross. If it were necessary for me to do so, however, I would adopt those of Mr Cross, whom I considered to have had greater expertise (especially in valuing properties in the area of the subject property), and greater experience and qualifications than Mr McMurray. However, on what appears to be the essential matter in relation to the house property --- the effect upon the valuation of that property of the contributions of the parties, both by way of the performance of physical activities, and by financial contributions --- the two expert valuers were substantially in agreement, each expressing the opinion that the increase in the value of the property was not in an amount equivalent to the expenditure (be it in time, effort or money) effected upon the property by way of renovations, improvements and the like. That conclusion was summarised in the words of Mr McMurray that "Cost does not equal value". 65 Without any documentary material to support them, I am not persuaded that the various items of expenditure asserted by the plaintiff were in fact made by him to subcontractors and labourers, or that the asserted value of the improvements actually performed by the plaintiff himself or by subcontractors or labourers at his expense and under his direction were worth the various amounts asserted by him. 66 In this latter regard, I do not overlook the evidence given in support of the plaintiff's claim by Peter John Waters, a builder by occupation. Mr Waters, a friend and colleague of the plaintiff, attempted to substantiate the valuations attributed by the plaintiff to the cost of the various items of improvement to the house property. But even Mr Waters, who estimated that $200,000 worth of work had been done on the house, agreed that this was not a job that was costed on paper and that it was "higgledy-piggledy". 67 The renovations and improvements to the house were far from complete when the plaintiff went to gaol, and it was necessary for the defendant then to arrange for and pay for the completion of those works. 68 It seems to me also to be relevant to this question of the respective contributions of the parties that there is no suggestion that from the time the plaintiff went into prison in October 1991 he made any contributions towards the mortgage repayments on the house, towards the maintenance, repairs or improvements to the house, towards the maintenance of the plaintiff and her two children, or towards the household outgoings and other expenses of the plaintiff and her children. 69 It clearly emerged from the evidence that the plaintiff made little direct financial contribution to the acquisition of the house property, and that his direct financial contribution (admitted by the defendant to be in the amount of $15,000 asserted in his original pleading, but not in the amount of $25,000 asserted in his affidavit evidence) was more than offset by the substantial financial contribution of $133,000 made by the defendant to the purchase price. 70 Further, although it was not disputed that the plaintiff had performed a considerable quantity of physical work himself on the improvements and extensions to the house property, that work was not, in my conclusion, greater than the indirect contributions made by the defendant to the household outgoings, and to the upkeep of the family unit (since she was in continuous employment and was in continuous and regular receipt of income throughout the relationship, whilst the employment and receipt of income by the plaintiff was of an intermittent nature); further, the contributions of an indirect nature by the defendant in her capacity as homemaker and mother exceeded those of the plaintiff. Although the defendant said that the mortgage payments from October 1989 until October 1991 were shared more or less equally between the parties, for part of that period the plaintiff had no income. Further, it was the defendant alone who for the period of almost six months whilst the plaintiff was in prison in 1989 supported from her own earnings herself and her son and paid the rent for their accommodation; she continued to be the sole support for the household and continued to pay the rent for some time after the plaintiff was released in about September 1989. Further, throughout whatever period after the present imprisonment of the plaintiff commenced in October 1991 the de facto relationship continued in existence, it was the defendant alone who paid the entirety of household outgoings, and who made all the mortgage payments. In addition, the cost of completion of renovations which had not been completed by October 1991 was borne solely by the defendant. 71 I am not satisfied that the contributions of a physical nature and any direct financial contributions made by the plaintiff, when compared to the foregoing contributions made by the defendant, are such as to entitle the plaintiff to any order for an interest in the house property. 72 For the foregoing reasons I have come to the conclusion that, even if the proceedings had been brought within the period of two years after the termination of the de facto relationship, the plaintiff would not have established an entitlement to an order of the nature which he presently claims, for the adjustment of the interests of the parties in property pursuant to the provisions of Division 2 of Part III of the Act. That being so, there is no purpose in an order for the extension of time being made. 73 In any event, I consider that there has not been any adequate explanation by the plaintiff for the period of delay from April 1995, when the solicitors for the plaintiff first entered into correspondence with the defendant's solicitors concerning the assertions of the plaintiff to an entitlement to an interest in the house property, until the filing of the first pleading in June 1997. 74 Further, the totality of all the payments, expenses and other outgoings in respect to the house property have been made by the defendant from the time when the plaintiff went to prison in October 1991. Since his incarceration the plaintiff has not only not made any such contributions, but even during the period after October 1991 throughout which he asserts the relationship remained in existence he made no contributions whatsoever to the maintenance of the plaintiff or of his own child Kahl. These facts have the consequence that (in the words of subsection (2) of section 18) I am not satisfied that greater hardship would be caused to the applicant if leave to make the present application were not granted to the plaintiff than would be caused to the defendant if that leave were granted. It follows, therefore, that, in any event, I would not grant the leave which is presently sought by the plaintiff to bring the present proceedings out of time. However, I have already recorded that, in considering this question, I have disregarded the period from the filing of the original pleading in June 1997 until the filing of the later pleading on 17 June 1999. 75 I have already referred to the additional prayer for relief (being paragraph 22(d)) made in the statement of claim filed on 17 June 1999, by which the plaintiff seeks a declaration that the defendant holds the house property on trust for the plaintiff as to 50 per cent thereof. 76 That relief is claimed consequent upon the asserted existence of a constructive trust of the nature of that recognised by the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583 and is grounded upon the alleged contributions by the plaintiff to the acquisition, maintenance and improvement of the house property. For the reasons which I have already expressed concerning those alleged contributions in the context of the claim of the plaintiff under the De Facto Relationships Act, I am not satisfied that the plaintiff has established the existence of such a trust. 77 It follows, therefore, that the claim of the plaintiff, both for relief under the De Facto Relationships Act, and for relief grounded upon the alleged existence of a trust cannot be sustained. Accordingly, the suit of the plaintiff will be dismissed. 78 I have already referred to the cross-claim filed by the defendant on 26 March 1999, by which the defendant seeks a declaration that she is the beneficial owner of the entirety of the house property, seeks an order for the removal of the caveat lodged by the plaintiff against that property, and seeks an order, pursuant to section 27 (and the following sections) of the De Facto Relationships Act that the plaintiff pay maintenance for her and for their child Kahl. 79 In the light of the conclusions which I have already expressed concerning the claim of the plaintiff, I propose to make a declaration of the nature of that sought by the defendant in prayer 1 of her cross-claim, and an order, as sought in prayer 3 thereof, for the removal of the caveat lodged by the plaintiff. 80 The ground upon which the defendant sought the order for maintenance was principally on account of the fact that she was the partner supporting the child of the relationship. 81 The policy of the De Facto Relationships Act is, in general, directed against the ordering of maintenance. Section 26, in reflecting that policy, provides, Except as otherwise provided by this Division, a de facto partner is not liable to maintain the other de facto partner and a de facto partner is not entitled to claim maintenance from the other de facto partner. 82 However, section 27 empowers the Court, by subsection (1) thereof, to make an order for maintenance (whether for periodic maintenance or otherwise) where the Court is satisfied as to either or both of the following matters: (a) that the applicant is unable to support himself or herself adequately be reason of having the care and control of a child of the de facto partners or a child of the respondent, being, in either case, a child who is, on the day on which the application is made --- (i) except in the case of a child referred to in subparagraph (ii) --- under the age of 12 years; or …. (b) that the applicant is unable to support himself or herself adequately because the applicant's earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court --- (i) an order for maintenance would increase the applicant's earning capacity by enabling the applicant to undertake a course or programme of training or education; and (ii) it is, having regard to all the circumstances of the case, reasonable to make the order. 83 I have considerable doubt as to whether the evidence substantiates either, let alone both, of the factual circumstances contemplated by the foregoing paragraphs (a) or (b) which I have just quoted. But, in any event, Counsel for the defendant in the course of his final address, submitted that if the statement of claim were to be dismissed, it might be appropriate also to dismiss the cross-claim for maintenance, since the Court would not make an order incapable of enforcement, it being recognised that since the plaintiff is in prison, has no assets, and has only a minimal income whilst in prison, he has no present assets which would enable him to meet any order for maintenance, and that it will be another two years before he is capable of earning an income. I am in agreement with that submission. It does not seem to me appropriate that the Court, even if otherwise disposed to do so, should make against the plaintiff an order for maintenance (whether for periodic maintenance or otherwise) that could not, in any fashion, be complied with by the plaintiff at the present time, or for a period of some years in the future. 84 I am also mindful of the policy of the Act expressed in section 19, In proceedings for an order under this Part [being Part III], a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the de facto partners and avoid further proceedings between them. 85 The present application for maintenance is brought pursuant to the provisions of Division 3 of Part III, to which section 19 has application. 86 Accordingly, I do not propose to grant the application by the defendant for maintenance, as sought in prayer 2 in her cross-claim. 87 Since the plaintiff has been totally unsuccessful and since the defendant has, in effect, not pressed for the substantive relief sought by her in the cross-claim, it seems to me that it is appropriate that I should make an order that the plaintiff pay the costs of the defendant of the proceedings. However, since the parties have not had an opportunity of making any submissions concerning costs, I will give to them that opportunity, if either party so desires. 88 Accordingly, unless within seven days of the date hereof either party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 1. I order that the proceedings be dismissed. 2. I make a declaration as in prayer 1 in the cross claim filed on 26 May 1999. 3. I make an order as in prayer 3 in the cross-claim. 4. I order that the cross-claim be otherwise dismissed. 5. I order that the plaintiff pay the costs of the defendant.

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