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[2005] NSWSC 328
Supreme Court of NSW
2005-08-04
Macready J
Original judgment source is linked above.
HEARING DATE(S) : 4,5,6, April 2005 11,12,13, July 2005
CATCHWORDS : FAMILY LAW - De facto Relationships - orders sought pursuant to s 20 of the Property (Relationships) Act 1984 - treatment of loans by parents of one of the parties - orders made.
PARTIES : Meredith Anne Koch v Peter Wayne Hackney
Mr R Schonell for plaintiff COUNSEL : Mr T Sullivan for defendant
Christopher Hughes & Associates for plaintiff SOLICITORS : Budd & Piper for defendant
4188/2003 Meredith Anne Koch v Peter Wayne Hackney JUDGMENT 1 His Honour: This is an application under the Property (Relationships) Act 1984 (NSW) (the Act) for the adjustment of the parties' property interests under s 20 of the Act. The parties lived in an admitted de facto relationship from April 1987 until August 2001. There are two children of the relationship, namely, Callum Meredith Koch Hackney born on 24 May 1991 and Lachlan Meredith Koch Hackney born 20 May 1997. A short chronology of the relationship 2 The plaintiff was born on 15 November 1964 and the defendant on 12 March 1963. As I have mentioned the relationship commenced in April 1987 at which time the plaintiff was working as a teacher and the defendant was working in various casual jobs. 3 With the approach of their first child the parties traded in their then respective cars and purchased a land cruiser. At this time the plaintiff's father discharged the mortgage over the plaintiff's home, as according to him, he did not want her to be worried about repayments with the approaching birth of her child. The amount paid was $31,965.54. Callum was born on 24 May 1991 4 In 1992, the plaintiff realised an investment she owned at the commencement of cohabitation for $3,000. The balance of the shares was sold on 5 July 1993 and realised the sum of $16,143. The funds were used for the parties' joint purposes. 5 On 24 July 1992, the parties purchased vacant land at Tumbulgum in New South Wales for the sum of $192,140. The sum was funded entirely by the plaintiff's parents. The characterisation of the basis on which these funds were provided is, like other amounts, the subject of some dispute in the case. 6 In March 1994, the plaintiff sold her house at Driver for $182,780 and the sale proceeds were paid to plaintiff's parents in partial discharge of the alleged loan. The parties moved to their new property and lived in a caravan and a shed on the property pending building a house. They commenced construction of the house soon thereafter using funds provided by the parents of the plaintiff. The funds were in the order of $370,000 and their characterisation is a matter of dispute. 7 In October of 1995, the plaintiff cashed in her superannuation entitlements and received the sum of $5,569.25 which she applied to the construction of the home. In December 1995, the plaintiff received an inheritance in the sum of $17,000 which was applied to the construction costs of the home. 8 In 1996 the parties commenced a livestock partnership which raised stock on their property. The parties moved into the house in November 1996. 9 The parties' son Lachlan was born on 20 May 1997. 10 In September 1998, the Koch Hackney Family Trust was established. The trustee of the trust became Callach Pty Ltd. In May 1999, the plaintiff and defendant purchased in their joint names, a property at 24 Buena Vista Drive, Bilambil Heights for the purposes of undertaking a Child Care Centre. The purchase price was $450,000. Callach Pty Ltd as Trustee for the Trust purchased the childcare centre business located on the said land. The cost of purchase was funded by a mortgage advance in the sum of $500,000 from the ANZ bank and a loan from plaintiff's parents in the sum of $37,500. 11 The plaintiff returned to fulltime employment in May 1999 and in June 1999 the defendant commenced working fulltime for the Tweed Shire Council. The parties separated in August 2001. The parties' property at the commencement of the relationship 12 The plaintiff had the following assets at the commencement of the relationship:
Savings in cash the amount of which was the subject of some dispute.
Livestock on his parents' property at Trangie. The value of the livestock does not appear in the evidence and it does not appear from the evidence that the property was contributed to the relationship.
1972 Holden, which the defendant says, was valued at $8,000. The plaintiff suggested that the car was sold for some $300 during the course of the relationship.
Motor bike, which the defendant estimated had a value of $5,000.
Farm equipment, the value of which does not appear in the evidence. It appears that it was on his parents' farm at Trangie and the property does not appear to have been contributed to the relationship.
Boat and outboard. The outboard appears to have been purchased for $4000 and there is no value attributed to the boat.
Coin and stamp collection, the value of which does not appear in the evidence, which was said to have been given to the plaintiff's father.
Other personal property. There are number of these but the only ones which were brought into the relationship were various items of sporting memorabilia. 15 The defendant produced no records to establish the amount of any savings that he had at the commencement of the relationship. He claimed that he had $40,000 hidden on his parents' property in cash, which resulted from the sale of his interest in two properties in Queensland. These sales were said to have taken place 18 months prior to meeting the plaintiff. The defendant also suggested that he had received some superannuation from the Defence Force before meeting the plaintiff. Although he was given the opportunity to obtain that information from the appropriate department he produced no evidence of any sum having come to him which would be a basis for savings that he alleged he had at the commencement of the relationship. 16 Having regard to the conclusions that I have come to later as to the credit of the plaintiff, I do not accept that he had any substantial savings at the commencement of the relationship. 17 The defendant did not have any liabilities at the commencement of cohabitation. The parties' property at the conclusion of the relationship 18 At the conclusion the relevant property consisted of the following:
a TOTAL $1,538,891.4
TOTAL $1,137,278.97
NET ASSET POOL E$401,612.43
21 This tabulation excludes the cars which the parties retained after separation and also excludes their personal property. Orders were not sought in respect of such personal property. There are a number of items to address in the above to be tabulation. 22 During the first hearing, orders were made for the sale of both properties but these proposals were frustrated by the defendant. At the resumption of the hearing the court made orders for a Registrar of the Court to sign the necessary agency agreements to enable the sales to proceed. 23 The Tumbulgum property was the subject of valuation evidence and it was valued at $880,000. There has been agreement that the Child Care Centre and business is to be sold for $690,000. Contracts have not been exchanged at the time of the hearing and negotiations are continuing. There is no dispute about the net figure for the sale of the land and business in the tabulation above. 24 The only valuation evidence supports the value of the Tumbulgum property and there would be selling expenses of some $50,000. The defendant retained the livestock proceeds received by him after the cessation of the relationship. In these circumstances it is appropriate that they be included in the pool. 25 The liabilities seem to be correct except that there is a substantial dispute as to the amount said to be owed to the plaintiffs' parents. I will deal with this aspect when considering the parties' contributions. The inclusion of the plaintiff's income tax liability is suggested on the plaintiffs' part as appropriate because her failure to pay her tax effectively enabled substantial reductions in the parties' mortgage liabilities in respect of the childcare centre. For instance, the original mortgage for the childcare centre was in the sum of $500,000. In addition the overdraft had risen to $60,000 but also has been reduced to the figure set out above. 26 It is plain in this case that both properties will have to be sold and there will be capital gains tax payable. This is because the Tumbulgum property comprises more than 2 acres around the building, thus there will only be a partial exemption in respect to residential property. It was submitted by the plaintiff that it would be appropriate for the parties to share the capital gains tax liability equally because the properties arose as a result of their joint endeavours during the relationship. According to the submission that liability should not depend upon what the parties' taxable income might be some years after the relationship had concluded. In my view this approach is appropriate. Financial contributions by the parties 27 The first area to be considered is contributions to the Driver property and the parties' general expenses when they lived in Darwin. The parties have paid their living expenses and made the repayments on the loan over the plaintiff's home that she owned at the time. Details of the parties' taxable income are available from 1989 through until 2000. This includes through 1994 and when the parties left Darwin. These records indicate that the defendant's taxable income over the relevant years until they left Darwin totalled $138,000 and the plaintiff's $122,000. 28 The mortgage repayments were $253 per week which was approximately $13,000 per annum. The plaintiff paid these amounts from her salary and she also met the rates on the property. It would seem that the balance of her salary and the whole of the defendant's salary were used on their joint living expenses. 29 I have already mentioned in the chronology that during this period the plaintiff's father discharged the mortgage over the plaintiff's home as he said he did not want her to be worried about repayments with the approaching birth of her child. The amount paid was $31,965.54. This raises the major dispute in this case that relates to the characterisation of monies which were provided by the plaintiff's parents to the parties during the course of the relationship. 30 It was the defendant's case that over the years in Darwin he carried out work for the plaintiff's father on the basis that he would be paid in cash in due course and when funds were provided by the plaintiff's parents they were provided either partially or wholly as payment of wages due to him. He thus claimed to have made a substantial contribution to the purchase of the Tumbulgum property and the construction of the house on the property. 31 The first of these claims appears in paragraph 23 of the defendant's affidavit in these terms: "At the commencement of my employment, the Plaintiff's Father said to me using words to the effect: "All your wages and income will be cash in hand and they will be recorded and credited to you as you need to use them. " He also said "You won't have to disclose any of this income to the Taxation Department. I don't pay tax, it's all black money". I said to Mr Koch using words to the effect "I don't want to get into any trouble for doing this". Mr. Koch then replied using words to the effect : "If you don't tell the Tax Man he won't find out." "Anyway if you ever need to justify it we can just say it was a gift". I replied "I don't want to get into trouble for it." Mr. Koch replied using words to the effect: "You can't rich by playing by the rules". "The Government makes rules for fools"." 32 In paragraph 36 of his affidavit the defendant dealt with how the plaintiff would get money from her father in these terms "If the Plaintiff wanted additional money she would on occasion say to me, using words to the effect: "I'll go and get some of the money that Dad owes us". 33 The defendant continued this theme in paragraph 43 in relation to the purchase of the Tumbulgum property using these words: "In 1992, the Plaintiff and I purchased a property at Lot 11, Rob Cole Road, Tumbulgum for the sum of $194,000.00. We had visited the area on holidays and when we returned to Darwin and had decided to purchase the property, I discussed funding the purchase with the Plaintiff. The Plaintiff said to me using words to the effect: "I will go and speak to Dad and get some of the money that he owes us". 34 The plaintiff and her parents deny these conversations. The plaintiff's father agreed that he had paid the defendant for some minor work which he did around the home of the parents in Darwin but denied the alleged conversations and that there was any work done by the defendant on the numerous business properties which the plaintiff's parents owned in Darwin. 35 It is to be appreciated that the defendant's case on this aspect only became clear two days before the commencement of the hearing before me when, after numerous delays, he filed his affidavit in the proceedings. In paragraph 25 of his affidavit he listed 20 properties which he said he had worked on for the plaintiff's family in Darwin and elsewhere. Because his evidence was not complete, there was tendered Exhibit 10 which was a listing of what he says was the work he did on some of the properties. On the face of that document it was an extensive amount of work. However cross-examination disclosed that he could not accurately describe buildings on the list. For instance, he called 69 Smith Street an eleven-storey building when in fact it was only a five-storey building, and one property at Gosford the defendant claimed to have worked on that had not been occupied by the family since the 1960's. 36 The whole of this claim by the defendant has to be seen in the context of the way the defendant gave his evidence and in the way he conducted his case before the Court. On numerous occasions the defendant conceded that what he had said in his affidavit evidence was an exaggeration and that in many respects it was plainly wrong. His demeanour in the witness box and the way he answered questions suggested, quite plainly, that he was making up responses on the run in order to take advantage of some opportunity to deal with a difficulty in his case. An example of this was when he was being cross-examined about $40,000 that he said that he had in cash at the commencement of the relationship. He said that he kept the cash in a secret place on his parents' property in Trangie, New South Wales. When asked the whereabouts of the secret place he exhibited confusion and tried to avoid answering the question. When challenged about his confusion and unwillingness to disclose the location of the hiding place he tried to suggest to the Court that he did not want people to know of its whereabouts. In light of the fact that the funds were no longer there and there was nothing hidden there, this was irrelevant and plainly he was fabricating evidence on the run. 37 In respect of the defendant's claim to have done the work for the plaintiff's parents, he did not include any of such alleged income in his income tax returns. His explanation that it might not be income was specious. No documents were produced to support the actual work that he did on the properties although he had some small diaries over the relevant years. He claimed that the plaintiff or her partner took his field book, in which he had recorded the hours worked, after separation. If that had been the case it is surprising that he did nothing to obtain those records. There was, for example, no correspondence from his solicitors, who he claimed he told about this aspect of his case in 2001 or 2002, seeking to obtain the records or documents. There was no request for discovery or the issue of a subpoena for production of those alleged records. There was absolute silence from him and his solicitor until two days before the commencement of the hearing. 38 In contrast there was precise and clear evidence given by Mr and Mrs Koch and the plaintiff as to arrangements for the provision of loan funds to the plaintiff. Their evidence was detailed and supported by some records particularly a House Account ledger and a Farm ledger. There were three occasions when there were gifts made by the plaintiff's parents. One of these was the discharge the mortgage over the Driver property and the others related to $5,000 for school fees and $1,600 for the purchase of a bookcase. Apart from the gifts, the evidence is that this amount of loaned funds advanced was $756,590. That had been reduced by a payment to the parents of the proceeds of sale of the Driver property and the sale of the caravan in which the parties had lived while they were building the house at Tumbulgum. The amounts of repayments were $189,635.49 leaving an amount owing of $566,954.51. 39 There was no interest payable on these loans. The affidavit evidence of the plaintiff and her parents made it clear that the loans were to the plaintiff. In a letter dated 7 April 1999, which the plaintiff's mother sent the plaintiff, she referred to the need to repay the monies they had lent to the plaintiff and the defendant although later in the letter she referred to monies lent to the plaintiff. The letter is a good contemporaneous record which refers to the repayment and explains that the parents needed the money so that they could reinvest it in their family. There is absolutely no suggestion that some of the payments were for the purpose of repaying amounts due to the defendant for wages. 40 It is appropriate at this point to consider how the Court would regard the provision of the money as a result of the loan from the plaintiff's parents. The question of gifts has been dealt with in a number of cases both in respect of the Act and the Family Law Act 1975 (Cth). In the Marriage of Gosper (1987) 90 FLR 1, Mr Justice Fogarty analysed a number of Family Law cases before making a useful statement as to principle. At page 11 he said: "Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction: … Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor." 41 Having regard to the facts in that case that the gift of property was given jointly to the two parties he went on to decide that there was an intention to give it to the parties jointly. He said at the conclusion of his review of the authorities [at page 12]: "The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to the Court in such a case to look at the actuality and treat that as a 'financial contribution made directly ... on behalf of 'the spouse relative (see for example Rainbird, Matthews, W Underwood, Abdullah, Freeman; cf. Cleary, Hogan J. in Freeman , and Antmann ).
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made because she was a daughter of that family as was said in W's case (1980) 6 Fam LR 538 at 548.
It is clearly a 'financial contribution' and one 'made directly' to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made 'on behalf of' one spouse.
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them." 42 In In the Marriage of Kessey v Kessey (1994) 18 Fam LR 149; (1994) FLC 92-495, the Full Court of the Family Court approved Fogarty J's comprehensive review of the authorities and his conclusions in Gosper mentioned above. After referring to these conclusions the court said (at p 160): "It was submitted by counsel for the appellant husband that Gosper is distinguishable from the present case because Gosper was concerned with the matter of gifts and in the present case there is no evidence of a gift. In our opinion the application of the principles enunciated in Gosper should not be so limited. Rather, those principles should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorised as a loan, or as any other recognised commercial transaction. " 43 In this case it is worth noting that when the plaintiff married for the first time her parents made a gift to her and her husband of the Driver Street property. As her mother explained to the Court they were not going to make the same mistake the next time round and they made it clear that the monies advanced would be by way of loan and that the loan was to their daughter.
44 There are contemporaneous documents which support the advance of funds by the plaintiff's parents and that it was by way of loan. In contrast the defendant had no documents. He has constructed an elaborate story as to how he had an entitlement to wages. In rejecting such a claim by the defendant, any rejection involves a finding that his story is a complete fabrication. When one looks at the elaborate evidence of what was done on the Darwin properties, one finds a listing of some 20 properties. The defendant conceded in cross examination that he had been back to Darwin to make searches against the family properties in order to get the details given in his affidavit. Precisely where all the details came from is not clear as he included some properties in Queensland and one at Gosford. 45 Cross examination of the defendant revealed that the Queensland properties were owned by another relative of the plaintiff and that all the defendant did was some work around the property when he and the plaintiff were staying with that relative. Another property was one at Gosford which was one owned by the plaintiff's mother's parents and had not been occupied by the family since the 1960s. Where he got this address from does not appear in the evidence. When being cross examined about 69 Smith Street, Darwin the defendant said he did not recognise the photographs of it no doubt because he knew that his details would show work was related to an eleven-storey building. I am satisfied from the evidence of the plaintiff's mother that the building of which she is an owner is as described in the photograph. 46 It also became plain during the conduct of the defendant's case that his case changed from time to time. For example when his case opened it was suggested that half of any monies from the parents were in payment of monies that he earned while working for the plaintiff's parents. In cross-examination of the plaintiff, it was suggested that the initial advance for building the house of $90,000 was by way of the gift. One then finds a day or so later a suggestion that any monies advanced were for half reimbursement of wages and half as a gift. When dealing with the construction costs of the house the defendant sought to suggest that the advances were from funds due to him for wages apart from the cash which he says he still had and the parties' earnings. 47 I found the plaintiff to be careful and patient when giving her evidence particularly over the three days she was in the witness box. Her parents were also straightforward although, clearly, they had an interest in the case they were presenting. It was suggested in submissions that the lack of primary documentation meant that the Court would have serious doubts about the extent of the loans which were advanced. The defendant never put a firm position on the loans and it is apparent that the funds required to build the house required a substantial provision of funds by the plaintiff's parents, not forgetting the provision of the money in advance to the purchase the property prior to the sale of the Driver property. 48 Reference was made to admissions in the statement of claim that the loans were made to "the parties'. These were not put to the plaintiff and, indeed, the parents were not cross-examined to suggest that any loans were to both parties. I think my primary concern is the other evidence concerning this question. 49 The defendant sought to suggest that the construction cost of the building was some $240,000. He had no records and suggested there was another record which the plaintiff had in her possession which had been taken by her or her partner after separation. The plaintiff's careful summary of the evidence based on the records which she exhibited was that the cost was $373,000. These records were in fact the books kept by the plaintiff. With regard to Exhibit K, the defendant denied that it contained any of his writing. According to the evidence of the plaintiff there was one entry which was in his handwriting and she recalled the occasion when the defendant made the entry. Having regard to form it would seem that this is correct. It was necessary for the defendant to deny the handwriting if he was to be believed about the existence of another record which he said the plaintiff or her partner had taken. 50 Having regard to the whole of the evidence and the demeanour of the defendant when giving his evidence, I believe that the defendant's story of there being amounts due to him for wages is nothing more than a concoction in order to support his case. It is contrary to the objective evidence and has all the hallmarks of a recent invention for the purposes of his case. Apart from the particular gifts made to the plaintiff to which I referred, the amounts advanced by the plaintiff's parents were amounts advanced by way of loan to the plaintiff. They are thus contributions on the plaintiff's behalf. 51 The plaintiff also contributed an inheritance from her mother's stepmother's estate which totalled $17,000 and some superannuation that she had from her employment in the Northern Territory of $5,569.25. During the period the parties lived at Tumbulgum, the plaintiff's income appears to have amounted to $40,936. The defendant's income in this period amounted to $87,879 and no doubt the income was used by both of them towards construction of the house and in meeting their expenses. The plaintiff's income was no doubt less because of the time she spent on the construction of the house and because of the birth of the parties' second child. 52 The other main area of financial involvement between them at Tumbulgum was the purchase of the day care centre land and business. The land was purchased in the parties' joint names and the funding for both was by way of borrowings of $500,000 and $37,500 provided by way of loan to the plaintiff by her parents. The only contribution made by the defendant was the provision of his personal guarantee which was required along with a personal guarantee from the plaintiff. The defendant did some minor work to the day care centre. The plaintiff appears to have done the majority of the organisation and management of the day care centre and this has continued after separation notwithstanding her experiencing enormous difficulties as result of the moving of advertising signs and hoax calls to the childcare centre. 53 As I have already indicated, there have been contributions to this asset by the parties and by the plaintiff's continued management and operation of the centre. The loan has been reduced by about $132,000 and the overdraft which had to be taken out mounting to $60,000 has been reduced down to approximately $20,000. At one stage post separation, the plaintiff asked the defendant to consent to a refinancing of the loan so it would be on an interest only basis and not involve capital repayments. For no reason, other than just being obstructive, the defendant refused the plaintiff's request. Non financial contributions of the parties 54 The main contributions in this area are the work carried out by the parties on the Driver home and the home at Tumbulgum together with their parenting and homemaker contributions. 55 With regard to the parenting contributions, it is plain that the plaintiff was the primary carer although the defendant assisted her after his work. The plaintiff became almost a full-time carer of the children after separation and it should be noted that the defendant has had no contact with Callum since March 2003 and no contact with Lachlan since November 2003. Thus after November 2003 the plaintiff has made all the contributions. Since separation the defendant has paid child support in an amount of approximately $1,000. 56 In Foster v Evans (1997) DFC 95-193 Bryson J (as he then was) at 77,681 said the following: "In my respectful view para 20(1)(b) does not contain within its own terms a limitation to the period during which there was a de facto relationship as the period during which any contributions to the welfare of a family might have been made. "Family" is a word of very wide meaning and connotes many kinds of connections among persons, and many of these connections are irrespective of whether they form one household. It is inherently unlikely but it is not impossible that contributions of kinds referred to in paras (a) and (b) might be made to the property financial resources or welfare of another de facto partner after the relationship ended: people sometimes care for former partners. The possibility of a contribution to the welfare of a family including a child of the partners after the de facto relationship itself has ended can be clearly seen. I do not see what purpose would be served by limiting the contributions to family welfare which may be considered so as to exclude contributions made after a separation. There is to my reading no expression in subs 20(1) of an intention to limit the time at which contributions are to be made. Subsection 20(1) is unlike ss 15 and 17 in that subs 20(1) does not expressly direct attention to the period the parties have lived together. In my opinion a family there referred to could be a group of persons who do not live in the same household. Roy v. Sturgeon was not a case where the partners and their children formed a family; their children (of other relationships) seem to have been no more than visitors to their household; see DFC p 75,365-75,366; NSWLR p 460. Counsel also referred to Lipman v. Lipman (1989) DFC ¶95-068; (1989) 13 Fam.LR 1 at 24, in which I find no assistance. I respectfully differ from Powell J's obiter dictum about the meaning of para 20(1)(b). In my opinion it is not required that a contribution under para 20(1)(b) be made during the relationship. In my opinion the plaintiff, the defendant and T constitute a family within the meaning of para (b) even though there has not been any time during which those three persons have lived together in one household." 57 In Nguyen v Scheiff (2002) 29 Fam LR 177 at 182, paras 104 to 109 inclusive, Campbell J expressly approved this statement. See also Jones v Grech (2001) 27 Fam LR 711. Having regard to the reasons expressed by Bryson J, I think it is appropriate to take these contributions after separation into account. The contribution that the plaintiff has made in both periods by her efforts in looking after the children must be recognised in a substantial and not a token way. See Black v Black (1991) 15 Fam LR 109 at 117. 58 During the time the parties lived at the Driver property, there were a number of improvements made to the property particularly to the garden and external areas. There was paving laid and the gardens improved. In addition there was the laying of some 200 square metres of concrete driveway and the installation of external fences and latticework. There was some paving work carried out and work involved in securing the house after the birth of their first son. 59 The defendant did a substantial part of this work although the plaintiff assisted him. Unfortunately the way in which the defendant presented his evidence indicated, as I have already said, a willingness to exaggerate. This willingness became evident in his claim to have done formwork, reinforcing and the laying of the 200 square metres of concrete driveway. It turns out, and he conceded this in cross-examination, that he assisted two other contractors with this work rather than being the sole person involved. 60 The main area of non-financial contributions was that work which the parties put into the construction of the home at Tumbulgum. This went on for more than two years as it was a large and imposing house. There were builders and other tradesmen working on the house and both the parties also worked on the house. At paragraph 73 of his affidavit, the defendant set out some 97 different items to which he attended during the construction of the house. The plaintiff in paragraph 72 of her affidavit, set out the work which she did throughout the period of the construction. The plaintiff conceded that some of the items which the defendant claimed he had done had in fact been done by him. However, she disagreed on a number of items. 61 The plaintiff also called four of the tradesmen who worked on the building and it is plain that these people were not biased witnesses. They addressed a number of the claims made by the defendant and where they disagreed with him they set out what they had observed. It is obvious from this evidence that the extent of the work done by the defendant was not as much as he claimed. I do not however wish to suggest that his involvement was minimal. 62 As with many disputes in this area, people's perceptions vary and they sometimes no do not match reality. It seems to me that both parties contributed a substantial amount of labour to the construction of the house. However, it is also clear that it was the plaintiff who spent most of the time involved in this activity and was responsible for the overall project coordination and direction of tradespeople. This is not to say that the defendant did not have some involvement in this aspect but overall it was at the plaintiff's direction. Discussion 63 The majority of the financial contributions were on behalf of the plaintiff. They included the proceeds of the sale of her Driver property and funds advanced by her parents. These funds were advanced on an interest-free basis and it is interesting to note that this allowed the parties to benefit in the increase in the value of the land from its purchase price of $192,000 to its present value in respect of the land of $550,000. 64 At the present time the value of the improvements is $330,000 and it is apparent that the parties may have overcapitalised on the improvements. This overcapitalisation also includes all their hard work in the construction process. 65 The defendant has had the benefit of the occupation of the property since separation in August 2001 when the rental value of the property was $300 per week. Its present rental value is $400 per week. In this time the plaintiff has had to pay rental of some $7,500 until she purchased a new property with her fiancée. In the period since separation the defendant has sold the cattle and received the proceeds. 66 Notwithstanding the fact that the parties have overcapitalised on the Tumbulgum property, it seems to me that I should take into account the work which the defendant put into this property and also the work, to a lesser extent, which he put into the Driver property. The parenting contributions of the plaintiff are substantial and have to be recognised as such, as I have already pointed out. In submissions, the plaintiff suggested that the defendant should have 15% of the total assets. At the conclusion of the case the defendant did not put a particular figure but plainly he sought an order for a substantial part of the parties' assets based on his case. 67 It seems to me that the submission put forward by the plaintiff as to the proper assessment of the value of the contributions is correct and accordingly orders to this effect should be made. 68 At the conclusion of the hearing a Minute of Orders sought by the plaintiff was handed up. It contained detailed orders for the sale of the land and the business which should be made and reflected an opportunity for the parties to obtain the best price for the properties. They also provided for the repayment of the parents' loans from the sales proceeds. The defendant submitted that as such loans were not secured on the property any liability to repay such loans was the personal liability of the parties separately. The further submission was that the Court should not make an order in favour of non-parties, namely, the plaintiff's parents and Cenfurn Investments Pty Ltd. 69 Given my findings that the loans were to the plaintiff, the repayment of them is not a matter of concern to the defendant. The plaintiff and her parents (who made their positions clear in the witness box) want the monies repaid now out of the proceeds of sale. In these circumstances it is appropriate to make an order for repayment of the plaintiff's liabilities to her parents. 70 I will hear further submissions on those orders and arguments as to costs at a time convenient to the parties. **********
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Koch
Hackney
(1987) 90 FLR 1
(1980) 6 Fam LR 538
(1994) 18 Fam LR 149
(2002) 29 Fam LR 177
(2001) 27 Fam LR 711
(1991) 15 Fam LR 109