Laura Mack v Donald Mack

Judgment ( ex tempore ) 1HIS HONOUR: These proceedings are a sequel to the judgment delivered on 20 November 2010 [ Holmes v Mack [2010] NSWSC 1365], in which it was held that the beneficial interest in the Kogarah property, the antiques business and the Carlton property was vested in Sharon Holmes to the exclusion of Donald Mack, and that Donald held upon trust for Sharon any legal interest he had in those properties. In respect of the Kogarah property, it was held that Sharon's beneficial interest was subject to Donald's equitable right of lifetime residence. Declarations were made to give effect to those conclusions together with an order that Laura Mack pay Sharon Holmes' costs. In the present proceeding, which originated in the District Court, Laura Mack as plaintiff claims an adjustment of property interests against Donald Mack, as defendant, pursuant to (NSW) Property (Relationships) Act 1984 ( ' the Act'), s 20. Laura, who is 48 years of age, came to Australia from the Philippines in 1997 and established a close personal relationship with Donald in about August of that year. When her tourist visa expired sometime in 1998 she returned to the Philippines, but in December 1998 migrated to Australia and resumed cohabitation with Donald, sponsored for immigration purposes by Donald's daughter Sharon. Laura subsequently obtained permanent residency in 2000, and changed her name to Mack, by deed poll, in 2003. 2Donald, who was born in 1932, is now 78 years of age. He had been previously married and divorced. 3After a number of shorter separations Laura and Donald finally separated in about June 2006. Following the commencement of these proceedings in the District Court, issues arose as to whether certain property - in particular the Kogarah home in which Donald resided, the antique business premises at Carlton and the antique business itself - were beneficially Donald's property, or that of Sharon. Sharon commenced the trust proceeding in this court, claiming declarations that the properties were held upon trust for her, and sought the adjournment of the de facto property proceeding in the District Court pending resolution of the trust proceeding. Instead, the de facto proceeding was removed from the District Court into this court, initially with the intention that all issues could be dealt with in one proceeding. However, difficulties persisted in obtaining evidence of value of at least some of the relevant properties, and it was apparent that resolution of the trust proceeding would have a major impact on the course of the de facto proceeding. Accordingly, it was decided that the issues in the trust proceeding should be determined first, as they were in the judgment of 26 November 2010, albeit on the basis that the evidence in that proceeding would be evidence in the de facto proceeding, available for use upon the resumed further hearing of the de facto proceeding if it became necessary. 4As it transpired, a further hearing did become necessary. However, Laura's solicitors ceased to act for her, and after a number of further directions hearings, when the matter came before the court on 17 February this year, I indicated that if one or other of the parties wished the matter to proceed to determination it would proceed to determination today in a summary manner, given the small scope of what appeared to be in issue, the circumstance that Laura was unrepresented, and having regard essentially to the material that had already been filed. 5As I have indicated, I have considered for the purposes of this hearing the pleadings - that is to say, the: third amended statement of claim of 4 September 2009, defence of 23 April 2007, cross-claim of 6 November 2007, and defence to the cross-claim of 25 March 2008. That said, I note that Mr Streeter, who appeared on behalf of Mr Mack, announced that the defendant did not press the cross-claim. I have read in the plaintiff's case, affidavits of Laura Mack sworn 1 December 2008, Giovanni Fitzgerald sworn 18 February 2009, and Konn Richard Palonis sworn 18 February 2009; and in the defendant's case an affidavit of Donald Mack sworn 9 June 2009. Laura tendered some additional material before me and I have read such of it as was admitted into evidence, comprised in exhibits SX13, 14 and 15. I have also taken into account the evidence that was before me in the proceedings in September of last year, that culminated in the previous judgment. 6As I explained on the last directions hearing, this will necessarily be a truncated, abbreviated and rudimentary judgment, because of the small amount in dispute and the way in which the proceedings have now evolved. 7The first question is whether there was a de facto relationship and/or a close personal relationship between the parties, within the definitions prescribed by sections 4 and 5 of the Act. On the pleadings, this was very much in dispute, Laura contending that there was a de facto relationship from December 1998 until June 2006 and Donald disputing that there was any de facto relationship, but asserting that there was some commercial "home sharing" arrangement. 8As I explained in the earlier judgment, particularly in the light of the circumstance that, in connection with Laura's visa application, Donald and Sharon both made statements in formal documents and elsewhere unambiguously asserting that there was on foot a de facto marital relationship between them, their subsequent denials of such a relationship approach the incredible, as does the rather sophisticated case that was constructed to support the contention that it was merely a home sharing arrangement. In Sharon's cross-examination on the last occasion, she made concessions in that respect which suggested that she accepted that there was a de facto relationship. 9I find that for most of the period from late 1998 to mid-2006 the parties shared a common residence and indeed a common bedroom, that Laura changed her name to Donald's surname, that there was sexual intimacy between the parties, that there was mutual support - financial on the one hand and domestic on the other - between them, that they took holidays together and not uncommonly went out on social occasions together. In addition to that, there are of course the clear admissions contained in the correspondence and applications concerning Laura's immigration and visa application. I am satisfied within the meaning of section 4 of the Act, they lived together as a couple in a de facto relationship from late 1998 to mid-2006, albeit that there were some periods of separation between them. 10In an application for adjustment of property interests under s 20 of the Act, the approach of the court generally is, first, to identify and value the property of each of the parties available for division under s 20, typically at the date of hearing although sometimes at the date of separation; secondly, to identify and evaluate the respective contributions made by or on behalf of each of the parties within s 20, namely, contributions to the acquisition, conservation and improvement of the property of the partners and contributions to the welfare of the partners (children being irrelevant in this case); thirdly, having evaluated and apportioned the contributions against the property, to determine what order is necessary to give effect to a proper recognition of the contributions of the applicant for relief. 11In this case, so far as the property is concerned, the evidence discloses that other than personal furniture, fittings and effects the plaintiff owns a property in the Philippines which she purchased in about 2004 or 2005 for the equivalent of $A18,000. There is no other evidence of its value, and the best I can do is to infer that it has a value equivalent to about its purchase price of $A18,000. So far as the defendant is concerned, the only assets that he discloses are the contents of his Union Street home, said to be worth $30,000. In addition to that, however, he has, as I have found, a lifetime right of occupation of that property, which is not without value. So far as the contents of Union Street are concerned, while there is no evidence of any admissible kind that they exceed their admitted value of $30,000, nonetheless having regard to the evidence as a whole, including assertions made from time to time by the defendant of funds contributed by him to bank accounts in the plaintiff's name, I have grave reservations as to whether $30,000 is not a very conservative figure. Nonetheless, there is no evidence before me that those contents are worth more than $30,000. It follows from my earlier judgment that, save for his lifetime right of residence, I accept that he has no beneficial interest in the Union Street property, the Railway Parade property or the antiques business. Accordingly, in substance all that is established so far as the divisible property is concerned is a total of $48,000, which illustrate why a very summary approach to this case is a necessary and appropriate one. 12The defendant presumably has debts associated with the present and past proceedings, and because a costs order was made against the plaintiff in respect of those proceedings it is known that she has a debt arising out of them in the order of $80,000 on the party-party costs order. Presumably, she would also have debts to her own representatives in the earlier proceedings. 13It is usual in this type of case not to take into account in the divisible pool costs incurred in connection with the proceedings for division of property being left to each party's account subject to any costs order that might be made and I propose to follow that course here. Accordingly, the divisible pool is not established to be more than $48,000. 14So far as the evidence goes, each party's only present income is a pension, save that the plaintiff earns about $100 a week from cleaning jobs. 15In regard to contributions, at the commencement of the relationship in 1998 the plaintiff had only her personal effects. She probably owed her sister, Eva Day, $5,000. She did substantially alter her position on account of the relationship, by moving from the Philippines to Australia. However, it is far from clear that that was detrimental, as it seems that her position in the Philippines was financially very difficult, if not impoverished, and that there was considerable advantage to her in coming to Australia in those circumstances. 16So far as the defendant's initial contributions are concerned, it follows from my earlier judgment that he had no interest in the Union Street or Railway Parade properties, having previously divested himself of any form of interest in favour of Sharon. He had a joint account with the Public Trustee, the amount of which has not been disclosed, and a beneficial interest in an account held in the name of the Mack Family Trust, the amount of which again has not been disclosed. As none of those amounts were disclosed, there is no basis to find that he made any initial contribution of significance through either. 17So far as the contributions during the relationship were concerned, the plaintiff undertook home duties such as cooking, cleaning, washing, ironing and attending to the personal care of the defendant, who was often not in good health. In addition, she assisted by cleaning, repairing and researching the market for antiques, so as to price them and prepare them for sale. The shopping was done by them together, on a weekly basis. She says - but on the evidence as a whole I am not prepared to find on the balance of probabilities - that her contributions were made all the more difficult by the violent nature of the relationship. In this, I bear in mind that the defendant's age and his ill-health, as asserted by the plaintiff herself, make it unlikely in the extreme that he was able to engage in the type of acts of abuse and violence towards her that is described in some of her material. 18As well as looking at those contributions that the plaintiff made, it is necessary to have regard to what she received by way of recompense for them. She was fully financially supported. She was fully provided with accommodation, in the property owned by Sharon and in which the defendant had a right to reside. She was provided with the requisite funds for her clothing and for any lifestyle expenses in Australia. She was provided with money, varying from $100 up to $200 a week, to remit to her family in the Philippines. Each of the parties asserts that the other engaged in gambling and lost money. The probabilities are that both gambled and that both lost money gambling. 19During the relationship the defendant contributed very little by way of income, so far as I can tell. It seems that he became entitled to the pension not long after the relationship broke down. He provided accommodation in the home, in which he was entitled to reside. More significantly, contributions were made, on his behalf for relevant purposes, by his daughter, who provided financial support to the parties throughout. 20During the relationship, accounts were opened in the name of the plaintiff and funds deposited in them. The evidence does not reveal in any fidelity the source of those funds. Some of it was perhaps sourced in the joint account with the Public Trustee to which I have referred, which the defendant says he had an interest in at the commencement of cohabitation. Some of it seems to have been provided by Sharon and/or her husband. In any event, at some stage $70,000 approximately found its way into the control of the plaintiff, of which she used about $35,000 to purchase the property in the Philippines to which reference has been made, to pay costs in connection with that purchase of about $3,000, and to pay off her indebtedness to her sister, Eva Day. Presumably, some was also used for travelling expenses at about that time. The other $35,000 she ultimately appears to have returned to Sharon. Nonetheless, it is significant that the only property apparently accumulated by the parties during the relationship is the Philippines property, and it was alleged, using funds provided by either the defendant or Sharon, in the name of the plaintiff, where it remains, and no application is pressed to adjust interests against her. 21If I had to engage in a mathematical exercise of apportioning the overall contributions of the parties it would be necessary to recognise that contributions were made by the defendant, or on his behalf, through the accommodation in which the parties resided throughout the relationship; the financial support of the parties throughout the relationship, including their lifestyle and any gambling; and the provision of the funds to acquire the Philippines properties; that on behalf of the plaintiff, contributions were made by way of domestic duties, care and support for the defendant who was, as I have said, at least at times in ill-health; and that those contributions are offset not only by the financial support directly received by the plaintiff, but also by the circumstance that she was enabled to remit monies to the Philippines to support her family there. 22If I had to apportion contributions in a mathematical sense I would have thought that its apportionment could not have been less than the amount 70:30 in favour of the defendant. The Philippines property, at $18,000, represents 37.5% of the divisible property. When regard is had to that, as well as to the benefits received by the plaintiff during the relationship, I am amply satisfied that no further adjustment in her favour is justified. 23I therefore order that the proceedings be dismissed with costs. 24I order that the exhibits be returned.