Manns v Kennedy - [2007] NSWCA 217 - NSWCA 2007 case summary — Zoe

NSWNSWCA

Manns v Kennedy

[2007] NSWCA 217

Court of Appeal (NSW)|2007-06-25|Before: Santow JA, Campbell JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2007-06-25

Before

Santow JA, Campbell JA

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

JUDGMENT OF: Santow JA at 1; Campbell JA at 2; Bryson AJA at 154

[2]

DECISION: (1) Set aside the orders made in this matter on 11 October 2006.; (2) The Appellant do all such acts and things and sign all such documents as may be required to transfer to the Respondent all of his right, title and interest in the real property situate at and known as Lot 130, Burra Road, Gundagai being the whole of the land more particularly described in certificate of title folio identifier 130/751421.; (3) The Respondent refinance the mortgage registered number 2074086 to the State Bank of New South Wales into her sole name within 28 days from the date of these orders.; (4) The Appellant pay to the Respondent the sum of $250,734 within 28 days from the date of these orders.; (5) The payment by the Appellant to the Respondent pursuant to Order 4 shall include the amount payable by the company, Gundagai Bee Farms Pty Limited, to the Respondent and the payment of monies pursuant to Order 4 shall operate in discharge of all monies owing by the said company to the Respondent.; (6) The Respondent is declared the sole and beneficial owner of the contents and furniture of Lot 130, Burra Road, Gundagai.; (7) The Appellant procure that any mortgage over the said Lot 130, Burra Road Gundagai that secures borrowings made for the purpose of erecting improvements on Lot 472 Burra Road Gundagai or for the business of Gundagai Bee Farms Pty Ltd be discharged within 60 days from the date of these orders.; (8) Otherwise each party is to retain any property in their own name and their present existing superannuation entitlements.; (9) Exhibits to be returned.; 10. Liberty to apply.

[3]

CATCHWORDS: FAMILY LAW - de facto relationships - property - adjustment of parties' interests in property - application under section 20 of the Property (Relationships) Act 1984 - contributions - evaluation of contributions - gift by parents of a party - interest-free credit - contributions to appellant's beekeeping business by respondent - parenting contributions - homemaking contributions - land improvements - FAMILY LAW - de facto relationships - property - adjustment of parties' interests in property - application under section 20 of the Property (Relationships) Act 1984 - valuation of property - date as at which property to be valued for purposes of formulating order under section 20 - whether correct date as at which to value property date of separation or date of hearing - where no current valuation as at date of hearing - whether latest available value should be used for purposes of formulating order under section 20 - whether assets and liabilities of business should be valued as at the same date - FAMILY LAW - de facto relationships - property - adjustment of parties' interests in property - application under section 20 of the Property (Relationships) Act 1984 - formulation of order - where trial judge determined percentage split using global approach - where consideration of contributions alone not sufficient for determining orders concerning specific individual assets - whether factors other than contributions may be considered when determining orders concerning specific individual assets - where one party has care and custody of a child - whether fact that one party has card and custody of a child relevant to determining which party awarded house - FAMILY LAW - de facto relationships - property - adjustment of parties' interests in property - application under section 20 of the Property (Relationships) Act 1984 - interest - whether interest should be awarded on monetary sum payable - whether applications under section 20 are "proceedings for the recovery of money" - whether applications under section 20 are proceedings for the "recovery of any debt" - whether award of interest necessary to make order "just and equitable" - factors to be considered in deciding whether order of interest should be made - Civil Procedure Act 2005, s 100 - APPEAL AND NEW TRIAL - appeal - appeal by way of rehearing - discretionary decisions - whether appellate court should interfere with trial judge's exercise of discretion - Property (Relationships) Act 1984, s 20 - House v The King (1936) 55 CLR 499 - APPEAL AND NEW TRIAL - appeal - appeal by way of rehearing - point not argued below - where trial judge adopted a particular course without notice to parties - natural justice and procedural fairness - whether opportunity to put argument on appeal cured breach of natural justice below - APPEAL AND NEW TRIAL - appeal - appeal by way of rehearing - insufficiency of reasons - whether trial Judge's reasons insufficient - whether appellant denied procedural fairness - STATUTES - Acts of parliament - Property (Relationships) Act 1984, s 20 - construction of phrase "having regard to" - decision-maker required to reach decision "having regard to" a list of factors - whether listed factors are the only considerations - whether listed factors to be given weight as fundamental considerations but are not the only considerations - whether listed factors must be considered but may be disregarded in actual decision - Evans v Marmont (1997) 42 NSWLR 70, considered - WORDS AND PHRASES - "having regard to"

[5]

Andrews v Diprose (1937) 58 CLR 299 Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 Bilous v Mudaliar [2006] NSWCA 38 Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1 Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360 Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 Doyle v Hall Chadwick [2007] NSWCA 159 Dwyer v Kaljo (1987) 11 Fam LR 785; (1987) DFC 95-053 Ferraro v Ferraro (1993) FLC 92-335 Foster v Evans (1997) DFC 95-193 Fox v Percy (2003) 214 CLR 118 Green v Robinson (1995) 36 NSWLR 96 In the Marriage of Harris (1991) 15 Fam LR 26 Hayek v Trujillo [2007] NSWCA 139 Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 House v The King (1936) 55 CLR 499 Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260 Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402 Hughes v Egger [2005] NSWSC 18 Ishak v Thowfeek [1968] 1 WLR 1718 James Hardie & Coy Pty Ltd v Roberts and Another [1999] NSWCA 314; (1999) 47 NSWLR 425 Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711; (2001) DFC 95-234 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550; (2006) DFC 95-332 Kennedy v Manns [2006] NSWSC 726 CASES CITED: Magera v McIntosh (No 1) [2005] NSWSC 314; (2005) DFC 95-312 Measures v McFadyen (1910) 11 CLR 723 Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Nguyen v Scheiff [2002] NSWSC 151; (2002) 29 Fam LR 177 at 192-193; (2002) DFC 95 246 Parker v Parker (1993) 16 Fam LR 863; (1993) DFC 95-139 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 Powell v Supresencia [2003] NSWCA 195 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 R v Police Complaints Board; ex parte Madden [1983] 2 All ER 353 R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Rathborne v Abel (1964) 38 ALJR 293 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 Ross v Elderfield [2006] NSWCA 192 Saric v Steward [2006] NSWCA 260; (2007) DFC 95,401 Selmore v Bull [2005] NSWCA 365 Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101 Sullman v Sullman [2002] NSWSC 169; (2002) DFC 95-248 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 Van Zonneveld v Seaton [2005] NSWSC 175; (2005) DFC 95-311 Vollmer v Hauber Davidson [2006] NSWCA 79; (2007) DFC 95-400 Zizza v Seymour [1976] 2 NSWLR 135 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

[36]

21 August 2007 PAUL ROBERT MANNS v CAROLYNE GAYE KENNEDY Judgment 1 SANTOW JA: I agree with Campbell JA. 2 CAMPBELL JA: This appeal is from an order for adjustment of property rights under section 20 Property (Relationships) Act 1984: Kennedy v Manns [2006] NSWSC 726. The woman in the relationship, Ms Carolyne Kennedy, was the plaintiff in the court below. The man in the relationship, Mr Paul Manns, was the defendant in the court below, and is the Appellant in this Court. 3 Mr Manns and Ms Kennedy were both born in 1954. The de facto relationship between them commenced in December 1992 and came to an end on 17 June 2002. 4 At the time the relationship began Ms Kennedy had two children, Elizabeth and Robert, from a prior marriage. She also had another two children, Michael and David, from another prior relationship. 5 Mr Manns had two daughters, Paula and Melissa, from a prior marriage. 6 Mr Manns had lived, at all relevant times, in or near Gundagai. In the early 1980s he began a business as a part-time beekeeper. By 1985 his work as a beekeeper was full-time. In September 1996 Mr Manns altered the structure of the beekeeping business. Instead of operating the business as a sole trader, he operated it through a company, Gundagai Bee Farms Pty Ltd, of which he was the sole shareholder and sole officer bearer. 7 Mr Kennedy had separated from his wife in 1990. Immediately before the start of the de facto relationship, he was living in a rented property in Gundagai. Immediately before the start of the de facto relationship, Ms Kennedy was living in rented Housing Commission premises in Sydney with her children, and working full-time for a company that dealt in beekeeping equipment. The de facto relationship began when the plaintiff moved with her children Michael and David, then aged approximately four and two, into Mr Manns' rented house in Gundagai. Ms Kennedy's two elder children remained in Sydney, as they were financially self-sufficient at the time. 8 In 1995 Mr Manns' father gave him a ten-acre lot of land known as Lot 130 Burra Road, Gundagai. I will call that land the House Land. Title to the House Land was registered in Mr Manns' sole name. 9 In 1996 the parties arranged for construction of a home on the House Land. The total cost of construction was approximately $182,000. The construction costs were funded as to $140,000 by a loan from the Commonwealth Bank secured by a mortgage over the House Land. The balance of the construction costs was paid from money accrued from the income of the beekeeping business. They moved into occupation of the house in June 1996. 10 Since then, Mr Manns has met all repayments of the Commonwealth Bank loan from the proceeds of the business. 11 Over the years between 1996 and 2002 various improvements were made to the home, at an additional cost of the order of $100,000. The cost of those improvements was funded by the sale of honey. 12 In March 1995 Mr Manns and his wife entered into consent orders formalising their marital property settlement. Those consent orders resulted in his wife receiving the entire interest in the former matrimonial home, and Mr Manns receiving the beekeeping business. Mr Manns borrowed $40,000 to fund a payment he was obliged to pay under the property settlement, and to meet his legal costs connected with the property settlement. 13 Two children were born in the course of the relationship. Olivia was born on 3 March 1995, and Phillip was born on 3 May 1997. 14 During 2001 Mr Manns' mother gave him a twenty-acre property known as Lot 472 Burra Road, Gundagai. I will refer to that land as the Shed Land. There was some disquiet from Mr Manns' siblings about that gift being made, in consequence of which Mr Manns agreed to pay his mother $20,000 as and when he could. At the time of the hearing in the Court below, $8,000 of that amount remained outstanding. $12,000 of it had been paid from the proceeds of the business. 15 In 2001 Mr Manns commenced construction of a large industrial-style shed on the Shed Land. That shed was to accommodate plant and equipment associated with the beekeeping business. The cost of construction of the shed was estimated at $200,000. Mr Manns obtained a loan from the Commonwealth Bank to fund the cost of construction of the shed. That loan was secured over both the House Land and the Shed Land. By the time of the hearing, $176,256 of that loan remained outstanding. 16 When the parties separated on 17 June 2002, Ms Kennedy and the four children vacated the House Land. She did not do any work for, or have any involvement with, the business between 17 June 2002 and 28 April 2003. 17 On 28 April 2003 Ms Kennedy and the four children returned to the house. Ms Kennedy and Mr Manns remained separated under one roof from that date until 23 January 2004. During the period from 28 April 2003 to 23 January 2004, Ms Kennedy did some work in connection with the business. 18 On 23 January 2004 Mr Manns vacated the House Land. Ms Kennedy and the four children continued to live there, and were still living there at the time of the hearing. Also on 23 January 2004, Ms Kennedy ceased working in any capacity in the beekeeping business.

[37]

Property of the Parties at Commencement of the Relationship 19 The primary judge found that, at the commencement of the relationship, Ms Kennedy owned a motor vehicle worth $15,000, $1,000 in cash, and some personal effects. She owned some furniture, but it was not brought into the relationship - it was left in Sydney in her Housing Commission flat so that her two older children could use it. Thus, the primary judge left that furniture out of his calculations. 20 The primary judge found that the relevant assets of Mr Manns at the commencement of the relationship consisted of his beekeeping business, and 19,200 shares in Capilano Honey Limited. All of those assets were brought into the relationship. As well, Mr Manns had a half interest in his former matrimonial home. That home was occupied by his wife, and ultimately came to be transferred to her under their property settlement. Thus, the primary judge, rightly, left it out of account. In contrast, the property settlement resulted in Mr Manns continuing to own the beekeeping business. 21 The beekeeping business had assets including some vehicles, and an interest in a honey extraction plant. The primary judge valued the totality of the assets used in connection with the beekeeping business at approximately $150,000. 22 There was no evidence of the value of the shares in Capilano Honey at the commencement of the relationship. The only evidence about the value of those shares was that their value in December 2005 was $3.50. The primary judge adopted that value per share, to arrive at a valuation of the shares in Capilano Honey of $67,200. 23 Thus, he proceeded on the basis that Mr Manns' assets at the start of the relationship had a value of $217,200. He also treated the $40,000 eventually borrowed as though it was a liability of Mr Manns, giving him net assets of $177,200. 24 Those values lead to the arithmetical result that the total pool of net assets at the commencement of the relationship was $193,200, of which Mr Manns had contributed nearly 92 percent and Ms Kennedy had contributed a little more than 8 percent.

[38]

Assets at Separation 25 The parties and the primary judge all regarded it as more appropriate to identify the property that the parties to the relationship had at the time of their physical separation, on 23 January 2004, rather than at the time the de facto relationship came to an end on 17 June 2002. As mentioned at paras [26]-[30] below, there was evidence of the value of the land and its improvements at both the date of separation (as shown by the fact that it was valued as at dates on either side of the date of separation at two identical amounts) and also in September and October 2005. Though the hearing took place on 17 and 18 July 2006, there was no evidence of value of any assets as at the date of the hearing. The September and October 2005 valuations had been obtained, it seems, for a hearing in 2005 that did not proceed, and the parties treated them as close enough to the values at the actual date of hearing. 26 The House Land had a valuation on 1 September 2005 of $390,000. That sum was apportioned as to $100,000 for the value of the land, and of $290,000 for the added value of the buildings. 27 The value of the House Land as at both 1 January 2004 and 28 July 2004 was $330,000. That value was apportioned as to $100,000 for the value of the land, and $230,000 for the added value of the buildings. 28 The retrospective market value of the House Land as at 1 July 1995 was $35,000. 29 The value of the Shed Land as at October 2005 was $350,000. That value was apportioned as to $100,000 for land, and $250,000 for the building and ground improvements. 30 The Shed Land was valued as at both 1 January 2004 and 28 July 2004 at $300,000. That amount was apportioned as to $50,000 to land value, and $250,000 to buildings and ground improvements. The Shed Land had a retrospective market value as at 1 July 2001 of $30,000. 31 Rather than seek to value the business conducted by Gundagai Bee Farms Pty Ltd, the parties agreed to treat the assets and liabilities of that company as though they were assets and liabilities of Mr Manns personally. The primary judge also adopted that course. 32 The parties were able to agree on the value of some of the physical assets of the business at the time of separation. They agreed that the plant and equipment, other than bees and beehives, were worth $391,010, and that the bees and beehives were worth $146,855. 33 The beekeeping industry is seasonal. Production of honey is higher in the warm months than in the cool months. No valuation of stock on hand, or assessment of liabilities, was made at the time of separation. Thus, the primary judge needed to estimate the value of assets and liabilities of the business at the time of separation, other than plant and equipment, bees and beehives, using such data as was available. 34 One available piece of evidence was that the current account of the business was in credit on 28 February 2004 in an amount of $240,418. No bank statement showing the amount in the current account at the actual date of separation (23 January 2004) was put into evidence. 28 February 2004 was the date closest to the date of separation concerning which there was evidence of the current account balance. 35 The business received payments on 25 February 2004, 29 March 2004, 27 May 2004 and 28 June 2004 for honey sold. Ms Kennedy argued that the amount of these payments should be treated as a proxy for the honey stock on hand at the time of separation, and included as an asset available at the time of separation. The primary judge did not adopt that approach. There was no specific evidence about the quantity of honey stock on hand at the time the relationship ended, nor about the time lag that there was in the ordinary course between production of honey and its being sold and paid for. In those circumstances, the primary judge took the view that the payments received in March, May and June would relate to the period after Ms Kennedy's involvement in the business. 36 The primary judge adopted the figure in the current account as at 28 February 2004 as being the value of an asset on hand at the date of separation. He recognised that that sum included the payment received on 25 February 2004 for honey sales. That payment of $112,930 contributed nearly 47 percent of the amount in the current account on 28 February 2004. The payments for honey sales received in March, May and June 2004 were significantly smaller individually, and amounted to $138,760 in total. 37 The business received a tax refund of $33,300 in May 2004. The primary judge took the view that that tax refund related to the period of Ms Kennedy's involvement in the business, and accordingly he treated the entitlement to receive it as an asset at the time of separation. 38 Other assets in existence at that time were a loan receivable from Capilano Honey in the sum of $4,457, shares in Capilano Honey worth $180,702, and Telstra shares worth $3,088. 39 Thus, the primary judge concluded that the total assets of a business kind had a value of $999,830, made up as follows: Plant and equipment other than bees and beehives $391,010 Bees and beehives $146,855 Cash in bank $240,418 Tax refund $33,300 Loan receivable - Capilano Honey $4,457 Capilano Honey shares $180,702 Telstra shares $3,088 Total $999,830

[41]

Contributions 46 Once the relationship began, Ms Kennedy worked in the business as well as looking after her children, and later the children of the relationship. Mr Manns drew a notional wage of some $36,000 per annum, but this was adjusted at the end of the year to cover personal expenditure that had been made. Ms Kennedy had access, after a few years, to the bank account. She did not have any paid employment, but received an allowance of $500 per fortnight from the Family Assistance Office and another $500 per fortnight through the Family Tax Benefit. She contributed those amounts to the income pool of the relationship. The business otherwise supported the family throughout the relationship. It was also the only source from which payment of Mr Manns' child support obligations relating to the children of his marriage, which at the start of the relationship were about $6,000 per annum, could be made. 47 The only other source of any addition to the parties' assets during the relationship was the gift from Mr Manns' father of the House Land, and the sale by Mr Manns' mother of the Shed Land at below market value and on favourable payment terms. 48 The parties agree that Ms Kennedy did 85 percent of the homemaking and parenting activities, and Mr Manns did 15 percent. During the time that she was not involved in looking after the children and involved in domestic work, Ms Kennedy worked in the business. She carried out some activities concerning looking after the hives, including repairing and painting them during the cooler months. As well, she looked after the bookkeeping and administration of the business, taking about fifteen hours a week to do so. 49 Mr Manns worked in the business full-time. In the warmer months this meant working particularly long hours. It involved utilising the knowledge and skill as a beekeeper that he had had when the relationship began. At the hearing of the appeal, counsel for Mr Manns accepted that the combination of work contribution and homemaker and parenting contribution by both parties was "intense". 50 The business increased during the period of the relationship. A form that Mr Manns sent to the Child Support Review Office in January 1994 shows that at that time his gross annual income from honey was $183,009. The accounts of the business as at 30 June 2005 show that honey sales in the year ended 30 June 2004 were $631,731. In the year ended 30 June 2005 honey sales were $532,325. At the start of the relationship the business employed one person. At the end of the relationship it employed three beekeeping assistants and two casuals.

[42]

The Decision of the Primary Judge 51 The primary judge noted that the assets that Mr Manns brought to the relationship were all of a business nature. The gross value of the assets of a business nature had increased from $217,200 to $999,830 during the relationship. He held (at [60]): "As this is a substantial increase, it would not be appropriate to consider the contributions in the same way as one might consider real estate which appreciates in value simply because of inflation. The increase in the value of the business was brought about by the hard work of both parties, as well as the defendant's business skills." 52 He held that, in those circumstances, it would not be appropriate to award Ms Kennedy a proportion of the increase in the value of the business based simply upon the small proportion of the total asset pool that she had contributed at the start of the relationship. 53 The primary judge held that, to the extent to which the House Land and the Shed Land were gifts from Mr Manns' parents, they should be regarded as a contribution by Mr Manns. The primary judge quantified each of those contributions. However, both properties had been improved during the relationship, and the equity available in them had increased as a result of the joint efforts of the parties in running the business that financed the improvements. 54 The primary judge noted the existence of the disproportionate superannuation entitlements of Mr Manns and Ms Kennedy, and that the source of the superannuation was the business in which they had both worked. He held that the appropriate way of dealing with that situation was for each of the parties to retain their own respective superannuation entitlements, but for the share that Ms Kennedy received to be slightly increased. 55 He came to the view that the appropriate division of the assets was for Ms Kennedy to receive 40 percent of the present assets, excluding superannuation. He checked that view by considering, so far as the evidence allowed, what contributions had been made to some individual assets, including in particular the House Land and the Shed Land. 56 The primary judge then turned to consider what assets should be appropriated to make up that 40 percent. He said: "[70] … The plaintiff and the defendant both wished to retain the house. The plaintiff because she is presently living there with the children and the defendant because it is close to where he works. However, I think it is more appropriate that the plaintiff have it as a family home. [71] The plaintiff suggested that she did not want the furniture but I think it is appropriate that the furniture remain in the home she occupies with the children." 57 The primary judge then calculated the monetary adjustment that would need to be made if Ms Kennedy were to retain the house and furniture, and take over the mortgage on the house of $120,000. He calculated that amount as $266,734.40. (The judgment as originally delivered arrived at a different adjusting sum, but on 11 October 2006, when short minutes were brought in, it was realised that the parties had overlooked an adjustment that needed to be made concerning a debt of $14,000 that was owed by the company to Ms Kennedy. The primary judge took that debt into account in the orders actually made by ordering that Ms Kennedy be paid 40 percent of it, and the debt otherwise be discharged.) 58 The reader will recall that the primary judge had valued all assets that the parties had at the conclusion of the relationship, including land, at their 2004 values. He ordered that, in addition to the adjustment that he had ordered be made, interest be paid on the amount of the adjustment from 1 July 2004 at "the Supreme Court rate". 59 The orders actually made were: "1. The Defendant do all such acts and things and sign all such documents as may be required to transfer to the Plaintiff all of his right, title and interest in the real property situate at and known as Lot 130, Burra Road, Gundagai being the whole of the land more particularly described in certificate of title folio identifier 130/751421. 2. The Plaintiff refinance the mortgage registered number 2074086 to the State Bank of New South Wales into her sole name within 28 days from the date of these orders. 3. The Defendant pay to the Plaintiff the sum of $266,734.40 together with interest calculated at the Supreme Court rate from 1 July 2004 to date and continuing until paid within 28 days from the date of these orders. 4. The payment by the Defendant to the Plaintiff pursuant to Order 3 shall include the amount payable by the company, Gundagai Bee Farms Pty Limited, to the Plaintiff and the payment of monies pursuant to Order 3 shall operate in discharge of all monies owing by the said company to the Plaintiff. 5. The Plaintiff is declared the sole and beneficial owner of the contents and furniture of Lot 130, Burra Road, Gundagai. 6. Otherwise each party is to retain any property in their own name and their present existing superannuation entitlements. 7. Exhibits to be returned. 8. Liberty to apply."

[44]

The Task Section 20 Requires 61 Section 20 Property (Relationships) Act 1984 provides: "(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties." 62 McLelland J said in Davey v Lee (1990) 13 Fam LR 688 at 689; (1990) DFC ¶95-084 at 76,146, that under section 20 "the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind". That statement was approved in this Court in Ross v Elderfield [2006] NSWCA 192 at [35] and in Kardos v Sarbutt [2006] NSWCA 11 at [36]; (2006) 34 Fam LR 550 at 561; (2006) DFC ¶95-332 at 78,542. 63 The Full Court of the Family Court of Australia (Fogarty, Murray and Baker JJ) in Ferraro v Ferraro (1993) FLC 92-335 at 79,578 approved the statement in In the Marriage of Harris (1991) 15 Fam LR 26 at 31; [1991] FLC 92,254 at 78,705 concerning section 79 Family Law Act 1975 that the task it calls for "is not akin to an accounting exercise". The same applies to section 20. 64 However, the "holistic value judgment" is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson [2005] NSWCA 149 at [25]; (2005) 33 Fam LR 402 at 407; Saric v Steward [2006] NSWCA 260 at [61]; (2007) DFC ¶95,401 at 78,713; Chanter v Catts [2005] NSWCA 411 at [22]; (2005) 64 NSWLR 360 at 366. 65 Further, even in carrying out that final step, "there is no warrant for ignoring the rigour that mathematics can provide": Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop J agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411): "… while I do not think that these matters can be determined on such mathematical calculations, I think mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making." 66 I note that in Kardos v Sarbutt (at [29]; 558; 78,539), Brereton J gave an account of the process involved in the exercise of the jurisdiction under section 20 Property (Relationships) Act in which the third step was to decide "what order is required sufficiently to recognise and compensate the applicant's contributions". That formulation of the third step in the process was also adopted by Ipp JA (with whom Giles and McColl JJA agreed) in Bilous v Mudaliar [2006] NSWCA 38 at [24]; (2006) 65 NSWLR 615 at 620. 67 It was submitted on this appeal that there may be a difference of substance in the way in which the third step is formulated in Kardos and Bilous, and the formulation used in the cases I have referred to in para [64] above, namely "determination of what if any order is just and equitable having regard to these contributions." I do not think there is any difference in substance between the two formulations. McColl JA agreed with both versions of the formulation, in Bilous and Howlett respectively. The emphasis in the judgment of Ipp JA in Bilous on the fundamental importance of the statutory text of section 20 is inconsistent with any rejection or qualification of the need to determine what, if any, order is just and equitable having regard to the contributions. Since both Bilous and Kardos, McColl JA (with whom Handley and Santow JJA agreed) has stated the third step using the "just and equitable having regard to these contributions" formulation in Saric v Steward (at [61]).

[45]

Role of the Court of Appeal in a Section 20 Appeal 68 While the entire appeal is an appeal by way of rehearing (section 75A Supreme Court Act 1970; Fox v Percy (2003) 214 CLR 118 at [21], 125), what the court can and should do on such an appeal is influenced by the particular questions concerning which the appeal is brought. Depending on the particular grounds of appeal, there can be different types of task involved in an appeal concerning an order under section 20. 69 One type of task concerns whether the primary judge has made correct findings of fact. That proceeds on exactly the same principles as any other appeal concerning findings of fact. Thus, the appellate court recognises that the trial judge has a special advantage concerning some matters of primary fact, arising from the trial judge having had the opportunity to see the witnesses, but even when that advantage is recognised, the appellate court will sometimes be in a position to be satisfied that the trial judge has made an error. Concerning findings of primary fact that are unlikely to have been influenced by the trial judge's view of the witnesses, and inferences of fact drawn from primary facts, the appellate court is in as good a position as the trial judge to decide. 70 Another type of task concerns the evaluative task that the primary judge has performed, of deciding what, in all the circumstances, having regard to the factors listed in section 20, seems just and equitable. Part of that task involves weighing the various matters that need to be taken into account. Part of that task can involve deciding what is the most appropriate methodology to use, in the circumstances, to carry out the evaluative task. Insofar as the appeal involves the question of as at what date the valuation should be taken, that is a question of the appropriate methodology to carry out the statutory task. Each of those aspects of the evaluative task involves the exercise of a judicial discretion. Its discretionary nature is underlined by the expression "to it seems" when section 20 talks of the adjustment that "to it seems just and equitable". 71 In Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101 at 113, Sheller JA was considering section 66M Conveyancing Act 1919 (which provides that where land is damaged between the time of contract and conveyance, the purchase price shall be reduced "by such amount as is just and equitable in the circumstances"). His Honour said: "The determination of what is just and equitable in the circumstances is not a matter of unfettered individual opinion, nor does it involve a discretion of an arbitrary kind: see Cominos v Cominos (1972) 127 CLR 588 at 599. As Kitto J observed in R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at 383, the criteria are of a nature with which Courts are familiar. In Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 634, Stephen J, Mason J and Jacobs J, dealing with the issue raised for the court by the Banking Act 1974 (Cth) of whether it was just and equitable that a transaction should be treated as valid, said: "... The court will have before it an existing transaction replete with all its surrounding facts and circumstances and in their light will determine what is just and equitable. In doing so it will certainly be exercising a wide discretion but this is a commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters, matters such as the plaintiffs instanced in the course of argument, which have no rational connexion with the policy of the regulations but would be expressive only of the personal predilections of the Court, cannot be allowed by it to play any part in its decision."" 72 I applied that approach to section 20 in Sullman v Sullman [2002] NSWSC 169 at [252]-[253]; (2002) DFC ¶95-248 at 77,496. Even though Stephenson concerned the expression "is just and equitable" and section 20 concerns the expression "to it seems just and equitable", that does not make this passage from Stephenson inapplicable to section 20. That is because section 20 confers its power on a judicial officer, and so it is implicit that the discretion will be exercised in a judicial manner. The limitations on exercise of the power that are referred to in Stephenson are ones that are inherent in any judicial exercise of a discretionary power. 73 An appeal concerning any discretionary matter that has been decided under section 20 must be approached in the manner laid down by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 74 I turn now to the various errors that are alleged to have been made in the course of the judgment.

[46]

Failure to Value Business Assets and Business Liabilities at the Same Date 75 The Appellant submits that the primary judge fell into error by valuing the assets at the time of separation by reference to the cash in bank as at 28 February 2004, plus the amount of the tax refund received in May 2004, while valuing the liabilities of the business as at 30 June 2004. The Appellant submits that in any operating business, it is likely that the cash on hand at any one time will be applied, at least in part, in paying liabilities that are owing at that time. Thus, the Appellant submits, there is a fundamental flaw in the primary judge having ascertained business assets at one date, but business liabilities at another, and later, date. 76 Thus, the Appellant submits, the primary judge should have adopted the figure for cash on hand shown in the accounts as at 30 June 2004, rather than the amount of cash on hand as at 28 February 2004. The cash on hand as at 30 June 2004 was $68,812. 77 The Appellant recognises that part of the reason for depletion of the cash resources of the business between the date of separation and 30 June 2004 is that a truck was purchased and modified, at a total cost of $111,620. The Appellant submits that this can be dealt with by adding back the amount expended on the truck and modifications. Thus, he submits, the primary judge should have found that the cash at the date of separation was the 30 June 2004 cash ($68,812), plus that adjustment of $111,620, namely $180,432. The primary judge's failure to adopt this methodology has, the Appellant submits, resulted in the available pool of assets being overstated by an amount of $93,286 ($273,718 minus $180,432). 78 I do not accept that the primary judge made any appellable error on this score. The evidence of asset values that was available to the primary judge was scrappy and incomplete. It was necessary for the primary judge to do the best he could with the material available. 79 No attempt was made to present evidence showing that the reason for depletion of the cash at bank between the date of separation and 30 June 2004 was (apart from purchase of the truck and payment for its modification) payment of debts that were already owed as at 28 February 2004. Indeed, the practice of the parties of paying both business and personal expenses out of the business account suggests that at least one reason for depletion of the cash between 28 February 2004 and 30 June 2004 was that Mr Manns was paying his own living expenses from the account. A partial reconciliation of the bank account that was in evidence shows cheques for payees such as "Gundagai Medical Centre", "newsagent", "chemist", "Smarts Butchery" and "Medibank Private" that seem from their description to be unlikely to be business expenses. It also shows other payees concerning whom one could not tell without evidence whether the expenses were business expenses or not. 80 I accept that it would have been preferable for assets and liabilities of the business to be ascertained as at the same date, if that were possible. However the primary judge must work with such material as he is given. I recognise that there is a potential for error arising from the matters to which the Appellant points. However, that potential for error is one that exists only by comparison to the result that might be achieved if the evidence were more complete. I am not persuaded that the methodology that the Appellant urges upon us would not involve an equal, or greater, potential for error, measured on a similar standard of more complete evidence. In those circumstances, I see no appellable error in the primary judge having approached this particular matter in the way he did, given the incomplete evidence he had.

[47]

Adoption of 2004 Values of Real Estate 81 The Appellant submits that the 2005 values of the real estate should have been adopted, rather than the 2004 values. Though the trial took place in July 2006, the 2005 valuations were the most recent ones available. Neither party contended at the trial that it was appropriate for the primary judge to use the 2004 valuations in the way he ultimately did. 82 Insofar as the primary judge gave reasons for adoption of the 2004 valuations, they appear in the following passage: "38 Property at separation included honey and wax on hand. There was difficulty in valuing this and the parties did not tender valuations on this aspect but instead relied upon the cash situation at the conclusion of the summer season for 2003 to 2004 as indicating the extent of these assets. As the parties were endeavouring to determine the value of this asset at this time, it may be more appropriate in the circumstances to adopt values in the middle of 2004 and then allow an interest factor in respect of the period thereafter. See Kardos v Sarbutt [2006] NSWCA 11 at 97-99." 83 In many cases, the contributions with which section 20(1)(a) is concerned are contributions that, as a matter of fact, were made while the de facto relationship was on foot. However, the language of the section does not exclude regard being had to contributions that meet the description given in section 20(1)(a) and that were made either before, or after, the de facto relationship was on foot: Foster v Evans (1997) DFC ¶95-193 at 77,681; Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711; (2001) DFC ¶95-234 (per Davies AJA at [24], [26]; 721-722; 77,350-77,351; and Ipp AJA at [77], [82]; 731-732; 77,358-77,359); Green v Robinson (1995) 36 NSWLR 96 per Cole JA at 115-116; Nguyen v Scheiff [2002] NSWSC 151 at [105]-[109]; (2002) 29 Fam LR 177 at 192-193; (2002) DFC ¶95-246 at 77,458; Sullman v Sullman (at [247]; 77,495); Magera v McIntosh (No 1) [2005] NSWSC 314 at [48]; (2005) DFC ¶95-312 at 78,314; Hughes v Egger [2005] NSWSC 18 at [7]; Selmore v Bull [2005] NSWCA 365 at [48]; Kardos v Sarbutt (at [35]; 561). 84 In many cases, it can be a useful aid to deciding what is a just and equitable adjustment of the interests of the parties in property to consider how those interests in property have changed during the course of the de facto relationship, and what are the causes of that change. Necessarily, such an exercise involves a comparison between the respective items of property that the parties had at the commencement of the relationship, and the respective items of property that the parties had at the end of the relationship. 85 In the present case, the type of exercise with which the primary judge was concerned was not of that kind. In the present case, the de facto relationship ended on 17 June 2002. However, because of the resumption of cohabitation (though not of the de facto relationship) between 28 April 2003 and 23 January 2004, and (in particular) because Ms Kennedy did unpaid work for the business until 23 January 2004, the time during which contributions (of the type of which section 20 speaks) were made, continued until 23 January 2004. Thus, it was appropriate for the primary judge to have regard to such contributions made up to 23 January 2004. 86 For the purpose of considering the extent to which the respective contributions of the parties increased the property and financial resources of the parties, it was in my view legitimate for the primary judge to consider asset values at the start of the relationship, and (as closely as the evidence permitted him) at the time of cessation of those contributions. 87 However, once that comparison has been made, it needs to be applied, in the making of an order, to the property and financial resources that the parties actually have at the date the order is made, insofar as the evidence permits that to be known. That is because the adjustment that section 20 permits to be made is one that is made to the property of the parties as it exists at the date of the order. In my view, the statutory task is not carried out if the primary judge seeks to make the adjustment at any other date. While the adjustment that is just and equitable is made because of matters that have occurred at other dates, the adjustment itself needs to be applied to the property as at the date of the order. In other words, a primary judge must ask himself or herself to what extent the property that the parties own at the date of the order needs to be adjusted to achieve a result that is just and equitable, having regard to the factors listed in section 20. Proper consideration of that question requires the value of the property at the time of the order to be considered, so far as the evidence permits. 88 As Brereton J said in Kardos v Sarbutt (at [30]; 558; 78,540): "The primary reason for [ordinarily valuing property as at the date of trial] is that the jurisdiction under s 20 is to adjust interest with respect to "the property of the parties to the relationship or either of them" and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available." 89 It can be productive of confusion if one asks simply "as at what date should valuation of property be made for the purposes of the Act?" (cf Parker v Parker (1993) 16 Fam LR 863 at 873-875; (1993) DFC ¶95-139 at 76,710-76,711). That is because it might, as in the present case, be appropriate to value the property as at one date (the date of separation) for one of the purposes of the Act (assessing the extent to which a pool of assets has increased in value during the course of the relationship or during the time both parties were contributing to it), but at another date for another of those purposes (actually formulating an order). 90 Here, the two parcels of land are items of property that were contributed to, within the meaning of section 20, by both of the parties to the relationship, and their 2005 values were known. In those circumstances, it was in my view an error for the primary judge to adopt a methodology whereby the land was valued at its 2004 valuation, the amount of a property adjustment arrived at on the basis of that 2004 valuation, and interest allowed on the amount of that adjustment from July 2004. 91 In the present case, the effect of that error can be, at least to some extent, demonstrated arithmetically. Part of it shows up in the fact that the House Land increased in value, between the dates of the 2004 valuation and the 2005 valuation, by $10,000 more than the value of the Shed Land increased over the same time. That $10,000 difference is nowhere taken into account in the order made. A closely related point is that, to the extent to which there was a total of $110,000 of value of assets arising from the difference between the 2004 and 2005 land values, that $110,000 has not been given any explicit consideration in arriving at the order, and the effect of the order is that Ms Kennedy receives 54.5 percent of that increase in land value, as opposed to the overall 40 percent of the asset pool that the order aims to achieve. As well, the allowing of interest has itself distorted the effect of the order when considered in relation to present values, as is shown in para [146] below. 92 I recognise that the assets of the business were valued as at 2004. However there was no evidence of their value at any dates later than 2004, so the primary judge had no practical choice but to make a decision on the basis of the 2004 valuation of the business assets. That did not justify him, in my view, in not using the most recently available values of the land as the basis for the formulation of an order.

[48]

Failure to Notify Intention to Rely Only on 2004 Land Values 93 Another aspect of the Appellant's submission concerning adoption of 2004 values for the land is that both parties' submissions in the court below concerning quantification of an order had been based upon 2005 values, and no indication was given to the parties that the primary judge might choose to adopt 2004 values for that purpose. It is not submitted on the appeal, however, that if the primary judge had informed the parties he was considering making a decision on the basis of 2004 values, that would have led to any additional evidence being adduced, or to the adducing of evidence being approached in any different way. 94 Where there is an appeal from the decision of a court, a new point can be raised on appeal in circumstances where the course of the hearing in the court below would not have been different if the point had been raised below (Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 at 889 per Isaacs J; Measures v McFadyen (1910) 11 CLR 723 at 733 per O'Connor J; Zizza v Seymour [1976] 2 NSWLR 135; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438), unless it would be contrary to the interests of justice to allow a new point to be taken on appeal, even if evidence at the trial could not have cured it: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 at [15]-[18]. While those principles are ones that are most frequently found applying where it is a party who seeks to raise a new point on appeal, they apply also to situations where the judge has decided a case by reference to a point not within the scope of the argument that occurred in the court below. 95 The Appellant has had the opportunity, on this appeal, to put any submissions he wishes concerning the adoption of 2004 land values by the primary judge. In many cases, having the opportunity to put an argument on appeal is sufficient to cure any breach of natural justice that there might have been in the court below when a decision has been made on the basis of an argument not put: Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [64]-[65]; Hayek v Trujillo [2007] NSWCA 139 at [73]; Doyle v Hall Chadwick [2007] NSWCA 159 at [41], and the only somewhat analogous principles applied concerning curing a breach of natural justice on appeal in administrative tribunals in Calvin v Carr [1980] AC 574 at 592-593; [1979] 1 NSWLR 1 at 10-12; Minister for Local Government v South Sydney City Council [2002] NSWCA 288 at [19] ff; (2002) 55 NSWLR 381 at 387 ff; Hill v Green [1999] NSWCA 477 [54]-[55], [155] ff; (1999) 48 NSWLR 161 at 172, 194 ff. In the present case, however, I am not satisfied that the decision of the primary judge concerning the proportions in which assets should be split was uninfluenced by his having decided to adopt the 2004 land values, without any argument about the appropriateness of taking that course. His decision on the proportionate split of assets was of the type where he nominated a figure, after stating the factors that he took into account in arriving at that figure, but without there being a process of deductive logic between the factors and the figure. When one of those factors was the value that he placed on the land assets, and his decision concerning the value placed on the land assets was one arrived at without the parties having had an opportunity to address on whether the land assets should be valued at their 2004 valuations, the effect is, in my view, to vitiate his decision.

[49]

Grounds Concerning Evaluation of Appellant's Contributions 96 The Appellant raises various grounds of appeal all of which concern the manner in which the primary judge evaluated the Appellant's contributions. 97 One such alleged error is said to be an error of fact, concerning the valuation of the stock on hand of the business. At the start of the relationship there was a stock of honey on hand in the business. It was not specifically valued by the primary judge. Though Mr Manns gave evidence that he valued that stock of honey at $160,000, no basis for that valuation was given. The primary judge (at [34]) gave as his reason for not attributing a specific value to that stock pile: "… The defendant was plainly referring to this at midyear, which was immediately after the main summer season when his holdings of honey would have been at their highest. However, this was not a permanent asset but was in fact nothing more than the stock on hand which he sold over the following 12 months to produce his income. For this reason the stockpile should be seen as nothing more than the source of the income which the parties had available to them in the year that they commenced their relationship." 98 In the ordinary course of things, there would also have been some stock on hand at the time the relationship ended. The primary judge did not attribute any specific value to that stock on hand. There was no finding about the comparative quantities of honey that were stock on hand at the beginning of the relationship, and the end of the relationship. Nor was there any evidence on the basis of which such a finding could have been made. 99 In my view, it is not accurate to say that the submission involves purely an allegation of error of fact. It also involved that element of choosing the appropriate methodology, in light of the evidence that was before him, for arriving at an adjustment of property that seems just and equitable. Given the state of the evidence before him, in my view the primary judge made no appellable error in leaving out of account both the stock of honey on hand at the beginning of the relationship, and the stock of honey on hand at the time that the parties physically separated. 100 Another argument that the Appellant raised in written submissions concerning the value of the hives arose from a written submission that the Respondent made to the primary judge, in which the initial plant and equipment contribution was stated to be $148,234 in addition to the hives. At the outset of the hearing of the appeal, counsel for the Respondent informed the Court that that statement in the written submissions below had been a mistake. That position was accepted by counsel for the Appellant. Thus, that particular argument does not need resolution.

[50]

Inadequate Weight to Contribution of the Land 101 The primary judge specifically recorded the values of the House Land and the Shed Land at the time of their transfer to Mr Manns. (In fact, the primary judge transposed their respective values, but the Appellant does not say that that involves any appellable error.) 102 The Appellant submits that, because the land value of the two lots of land that Mr Manns had received from his parents had increased by the time of the hearing to $100,000 each, the primary judge had undervalued the contribution that Mr Manns had made. I do not agree. It is clear enough that the value of both lots of land, at the date of separation, arose partly from the gift or partial gift of the land by Mr Manns' parents (which the primary judge counted as a contribution by Mr Manns himself), partly from inflation, and partly from improvements that were contributed to by both parties. The primary judge was well aware of that. His methodology was to arrive at an overall 60/40 percentage division of the assets, and then to check that by considering contributions made to certain specific assets, including the House Land and the Shed Land. In carrying out that check calculation at paras [66] and [67] of his judgment, he made specific mention of the value of the land component of the overall value of the House Land and the Shed Land as at July 2004. Thus, it is not as though he overlooked the extent to which the raw-state value of each of the parcels of land had increased solely through inflation or changes in the value of land in the Gundagai district. The result of his consideration of contributions measurable in money by the parties to the values of individual assets was not markedly different to the 60/40 split at which he had arrived as a matter of global assessment. He recognised that any proportionate split of available assets arrived at solely by considering the extent to which asset values resulted from contributions that were measurable in monetary terms would itself need to be adjusted by reason of the greater contribution of Ms Kennedy as homemaker and parent, and by reason of the larger superannuation entitlement of Mr Manns. In these circumstances, I am not persuaded that he gave inadequate weight to the Appellant's contribution to the two parcels of land.

[53]

Failure to Provide Reasons for Granting the Home to Ms Kennedy 107 The Appellant submits that the reasons given for providing the home to Ms Kennedy are inadequate. He submits those reasons are to be found in the passage I have set out at para [56] above. The Appellant submits that the following matters should have been taken into account: "(a) The circumstances that the land had come to the parties from the Defendant's family. (b) That at all material times the Defendant had been the registered proprietor of the land. (c) That the land had been a gift to the Defendant by his father. (d) That the land abuts other land owned by the Defendant's mother that abuts the Shed Land that was common ground would be retained by the Defendant. (e) That the Defendant had provided, including borrowings, the necessary money to build the house upon the land. (f) That both parties had made contributions to the dwelling built upon the land." 108 I do not accept that those matters were not taken into account. The substance of them was referred to in other parts of the primary judge's judgment. So also were other factors that are relevant to making a decision about who should have title to the home. These include that: by the time of the judgment it had been the family home for approximately seven and a half years (apart from the period of approximately ten months during which Ms Kennedy and the four children lived elsewhere in 2002/2003); the children who were accepted as part of the household were of an age such that it would be many years before they would all be independent; both parties had made contributions to the cost of the improvements; and, at both the date of physical separation and the date of the 2005 valuations, the improvements contributed considerably more to the value of the House Land than did the value of the land itself. Counsel for the Appellant focused on the brevity of the reasons that were specifically directed to the topic of who should retain the home, which I have set out at para [56] above. That passage cannot be read, however, in isolation from the judgment as a whole. 109 It is of some significance that the primary judge's reasoning about granting the home to Ms Kennedy occurred at a stage in the judgment after he had decided that a 60/40 split of the assets was appropriate. It is not as though considerations of sympathy or convenience have led to Ms Kennedy being granted a share of the overall pool of assets that is not appropriate having regard to her contributions. 110 It can be appropriate, in a particular case, for a primary judge to adopt a global approach to the making of an order under section 20, dividing the overall pool of assets in a certain proportion. If the judge has adopted that methodology, and has decided what that proportion should be, I do not accept that it is outside the ambit of section 20 for the primary judge to take into account factors like those I mentioned in para [108] above in deciding what particular manner of division of the assets there should be to give effect to that proportion. 111 There is a problem in construing section 20 concerning what is meant by making an adjustment of property interests "having regard to" the factors listed in section 20(1)(a) and (b). That problem has not altogether been resolved by the decision of this Court in Evans v Marmont (1997) 42 NSWLR 70. That problem of construction was not addressed in any detail in the argument on this appeal, so I propose to decide this present point on as narrow a basis as possible. 112 It is a common legislative drafting device to empower a particular type of decision-maker to make a particular type of decision "having regard to" certain factors. Cases that have considered such legislation have come to differing answers concerning the role that the listed factors play in the decision-making process. Some cases have concluded that the listed factors are the only matters on which the decision-maker can rely in reaching a decision: eg Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260; Andrews v Diprose (1937) 58 CLR 299 at 313 per Evatt J (dissenting). Others have concluded that the listed factors are to be given weight as a fundamental element in arriving at a decision but are not the only matters that can be relied upon: eg Andrews v Diprose (at 304-305, 308, 312, 315); R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 at 260; R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 145; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623; James Hardie & Coy Pty Ltd v Roberts and Another [1999] NSWCA 314; (1999) 47 NSWLR 425 at [89], 446. Others have concluded that the listed factors are matters that the decision-maker must turn his or her mind to in the course of reasoning towards a decision but is free to then disregard in the actual decision reached: Ishak v Thowfeek [1968] 1 WLR 1718; Rathborne v Abel (1964) 38 ALJR 293 at 294-295, 301, 303; R v Police Complaints Board; ex parte Madden [1983] 2 All ER 353 at 374; [1983] 1 WLR 447 at 471. Each of these shades of meaning is within the scope of the expression, as a matter of ordinary English usage. Which shade of meaning is the appropriate one to adopt for the purpose of any particular statutory provision is to be decided as a matter of construction of that particular statutory provision, in the light of its purpose, history and context. 113 In the present case, section 20(1)(b) specifically contemplates that contributions that benefit, in part, a child of the household are relevant to be taken into account in deciding what, if any, adjustment of property should be made. Section 17(2) permits the court to make an order for adjustment of property even if the domestic relationship has lasted two years or less, in circumstances that include that there is a child of the parties to the application. In section 27 and section 30, the fact that an applicant has the care and control of a child of the parties can be a relevant matter to take into account in deciding whether to make an order for maintenance. In these circumstances, the existence of a child, and who has the care and custody of that child, are matters that are within the scope of the statute. 114 I also take into account that section 20 permits adjustment of "interests with respect to the property of the parties of the relationship or either of them". In other words, the adjustment that is made must be one that seems just and equitable concerning the totality of the property of the parties to the relationship. Sometimes that adjustment will be able to be achieved by considering contributions to individual assets. However, there will be circumstances where it is possible to decide, by reference to contributions of a type described in section 20, what proportions of a total pool of property the respective parties should receive, but where consideration of the contributions alone is insufficient to identify the particular assets that one party or the other should receive. 115 It is a consequence of section 20 that there will be situations where one party to a relationship is ordered to receive a particular asset even though that party did not make the predominant proportion of the contributions to that particular asset. For example, if the parties have purchased four assets of roughly equal value from a shared bank account to which they contributed in the proportions 75:25, and no contribution of a non monetary kind needs to be brought into account, it could be an appropriate exercise of the discretion under section 20 to order that the party who contributed 25 percent receive one of those assets, and the party who contributed 75 percent receive three of them. Further, in this example the contributions, by themselves, are insufficient to enable an allocation of individual assets to be made. Clearly, the legislature intended the court to be able to carry out the task of adjusting interests with respect to the property of the parties to the relationship. In circumstances where consideration of the contributions is not enough, by itself, to arrive at an order that deals with the specific assets that the specific parties have, it must, it seems to me, have been the intention of the legislature that the court can complete the task of arriving at an order by taking into account factors other than the contributions, provided that those other factors are themselves not foreign to the overall structure and purpose of the legislation. Proceeding in that way can, in my view, properly be described as adjusting the interests of the parties in property in a manner that seems just and equitable having regard to the factors listed in paragraphs (a) and (b) of section 20. 116 This view accords with the view of Gleeson CJ and McLelland CJ in Eq in Evans v Marmont. Their Honours said (at 75) that they agreed in general with the observations of Hodgson J (as he then was) in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793; (1987) DFC ¶95-053 at 75,599-75,600. Gleeson CJ and McLelland CJ in Eq noted (at 75) that Hodgson J had said that the factors referred to in paragraphs (a) and (b) of section 20 were "fundamental factors influencing the judgment of the court", and went on to quote his observations at length: "… I also agree with Young J that this is not the only factor which can be taken into account. In my view, if one considers the plaintiff's contributions and nothing else, this cannot conceivably lead to any view on what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question: what is just and equitable having regard to the plaintiff's contributions? In my view, some other factors will be relevant in this way in all cases. One such factor arises from the question whether the contributions of the plaintiff have been sufficiently compensated. The relevance of this question is confirmed by the terms of s 17 of the Act. This in turn requires the court to reach some view of the value of the contributions of the plaintiff, and some view of the value of what the plaintiff has received in return. In most cases, I think the financial circumstances of the parties will be relevant. Certainly, it is necessary for the court to ascertain what the property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made. Further, I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to the plaintiff's contributions. However, as indicated earlier, I accept that the needs and means of the parties has no relevance except via its relevance to this question: in particular, the court cannot say that because the defendant has $11 million, and the plaintiff has something less than $50,000, for that reason it is just and equitable to make an adjustment. Other circumstances which may be relevant include such matters as the length of the relationship, any promise or expectations of marriage, and also I think opportunities lost by the plaintiff by reason of the plaintiff's contributions. This is by no means intended to be exhaustive. I do not think any limit can be set on what circumstances may be relevant, remembering always that the relevance must be to the question, what is just and equitable having regard to the plaintiff's contributions?" 117 Gleeson CJ and McLelland CJ in Eq went on to say (at 75): "It would be unrealistic to attempt to evaluate contributions of the kind referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole, relevant aspects of which may well include factors of the kind mentioned by Hodgson J. " 118 Their Honours further explained that (at 79-80), saying that the matters specified in paragraphs (a) and (b) of section 20 "… will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo . However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner." 119 I have significant doubt about whether this was the majority view of the court. Meagher JA, the other member of the majority, began his judgment (at 97) by saying: "On the question of the proper construction of the provisions of s20 of the De Facto Relationships Act (1984), I agree with Gleeson CJ and McLelland CJ in Equity." 120 However he immediately went on (at 97-98) to observe of section 20: "As a matter of English that can only mean that the court may have regard to each of the two factors and not to any other factors. In particular it precludes the Court, in a s20 application, from having any regard to fault, needs, maintenance, compensation, expectation damages, reliance damages or quasi-equitable damages. " 121 That observation does not seem consistent with the passages I have quoted from the judgment of Gleeson CJ and McLelland CJ in Eq, which allows at least some of the matters that Meagher JA says cannot be taken into account to be used in a subsidiary way that is not the focus of the enquiry. I respectfully disagree with Meagher JA's observation, both as a matter of ordinary English usage, and as a matter of construction of the statute. 122 The minority members of the court in Evans v Marmont (Mason P and Priestley JA) favoured a more expansive view of the way in which factors other than those listed in paragraphs (a) and (b) of section 20 can enter into the forming of an order under section 20. It is not necessary to consider the detail of their views here - the only thing I note concerning them is that it does not seem to be contrary to their views to take into account those factors that favour the granting of the house to Ms Kennedy in the present case. 123 Since then, Sheller JA in Powell v Supresencia [2003] NSWCA 195 at [27]; (2003) 30 Fam LR 463 at 472 (with whom Tobias JA agreed) has accepted that the adjustment of property is made "having regard to the contributions identified within paras (a) and (b) and other factors of the kind identified by Hodgson J ." (emphasis added) 124 Powell provides authority that the view of Gleeson CJ and McLelland CJ in Eq in Evans is to be followed in this respect. 125 In my view, it was open to the primary judge, in the circumstances of the present case, to decide that the house should be awarded to Ms Kennedy, and I see no erroneous exercise of his discretion in his deciding to make the award. Consideration of the contributions alone was insufficient to decide who should receive which particular assets, so it was legitimate for the primary judge to turn to other matters to complete the task of deciding what adjustment of property seems just and equitable having regard to the factors in paragraphs (a) and (b) of section 20. 126 The effect of the order made by the primary judge, granting the Shed Land to Mr Manns and the House Land to Ms Kennedy, is that, at least for the immediate future, she and the children will be living in physical proximity to where Mr Manns is working. I am not persuaded that, in circumstances of this case, there was any error in making such an order. The Court has a duty, under section 19 Property (Relationships) Act 1984 to: "… so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them." (emphasis added) 127 There is no obligation on the Court, even within the limits of practicability, to end the non-financial relations between the parties. Indeed, save in a most unusual case, when the parties to a relationship had had children who were still dependent, the Court would not proceed on the basis that all relations whatever between the parties to the relationship would cease.

[55]

I note, at the outset, the Brereton J is not here purporting to state any rule of law. 129 There are two candidates for being a juristic basis for the award of interest in a proceeding under section 20. The first is section 100 Civil Procedure Act 2005, which provides: "(1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. (2) In proceedings for the recovery of a debt or damages in which payment of the whole or a part of the debt or damages has been made after the proceedings commenced but before, or without, judgment being given, the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money paid, and (b) for the whole or any part of the period from the time the cause of action arose until the time the money was paid." 130 Under section 20 Property (Relationships) Act, the court has a discretionary power to adjust interests with respect to property as it sees fit. All the property of both parties to the relationship is, potentially, the subject of such an order. While it is within the court's power to make an order for the payment of money, in an appropriate case, an application under section 20 cannot readily be described as "proceedings for the recovery of money". Nor is it proceedings "for … recovery of any debt", because until such time as the court makes its order an applicant has no enforceable legal right to receive the property that is the subject of the order - all that the applicant has, as a matter of legal right, is the right to approach the court for the making of an order. Nor are the proceedings properly able to be described as ones "for … the recovery of damages, or of the value of any goods". 131 Further, section 100 Civil Procedure Act proceeds on the assumption that the proceedings in which interest is awarded are ones concerning which one can identify the "time the cause of action arose". That language also does not sit well with the juristic nature of an application under section 20 Property (Relationships) Act. In one sense, the right to approach the court for an order under section 20 arises as soon as the relationship terminates. However, post-relationship contributions can be taken into account in deciding what is a just and equitable adjustment of property interests, and a section 20 order, insofar as it awards a monetary sum, speaks in the money of the day the order is made. For these reasons it is not as though an applicant had, even in a chrysalis form, at the time the relationship ended any sort of right to obtain the particular order that the court might have made: see Van Zonneveld v Seaton [2005] NSWSC 175 at [3]-[4]; (2005) DFC ¶95-311 at 78,306. 132 For these reasons, I conclude that the power to award interest under section 100 Civil Procedure Act is not applicable in an application under the Property (Relationships) Act. 133 The "Supreme Court rates" of interest are set out in Schedule 5 Uniform Civil Procedure Rules 2005. That Schedule has effect under UCP Rule 6.12, which provides: "(1) A statement of claim or summons must specifically state the relief claimed by the plaintiff. … (6) An order for interest up to judgment must be specifically claimed. (7) In the case of a liquidated claim, a claim for an order for interest up to judgment: (a) must specify the period or periods for which interest is claimed, and (b) may specify the rate or rates at which interest is claimed. (8) If no rate of interest is specified under subrule (7) (b), the rate at which interest is claimed is taken to be the relevant rate of interest prescribed by Schedule 5 for the purposes of section 101 of the Civil Procedure Act 2005 ." 134 Schedule 5 also has effect under UCP Rule 36.7 as the rate that is prescribed for interest on judgments. 135 In the present case, quite apart from the inapplicability of section 100 Civil Procedure Act as a matter of construction, the Statement of Claim did not include any claim for interest up to judgment, and no application was made for Rule 6.12(6) to be dispensed with. 136 The second way in which something in the nature of interest might be awarded in an application under section 20 Property (Relationships) Act is as a part of the task set by section 20 itself, of deciding what adjustment of interests in property seems just and equitable. I take it that the primary judge in the present case was seeking to award interest on that basis. 137 However, even if that basis is adopted, it does not necessarily follow that interest should be allowed at the rates set out in Schedule 5 Uniform Civil Procedure Rules. Those rates are set at a level that a borrower of money who was less than an ideal credit risk would need to pay. They reflect the circumstance in which the Schedule 5 rates usually come to be applied, that a person who has a legal entitlement to be paid a sum of money has been kept out of his or her money, and hence ought in justice be paid interest reflecting the period during which he or she has been kept out of his or her money. That is not the situation that applies in many applications under section 20 Property (Relationships) Act. As previously mentioned, an applicant under section 20 has no legal right, before the court makes its order, to be paid any particular sum of money or receive any particular item of property. The situation that applies in many applications under section 20 is like that described by Hislop J (with whom Mason P and Ipp JA agreed) in Vollmer v Hauber Davidson [2006] NSWCA 79 at [21]; (2007) DFC ¶95-400 at 78,703 concerning applications for costs in proceedings under section 20: "(a) In the absence of agreement between the parties it was necessary for them to resort to the courts, whether pursuant to the Act, the Conveyancing Act 1919 s 66G or general equitable principles to obtain finality in respect of their property interests. (b) The parties were unable to reach agreement in respect of the adjustment of their interests, neither being prepared to make a realistic settlement offer to the other. (c) In these circumstances the commencement of the court proceedings was necessary from the perspective of each party, not just the respondent." 138 Before an interest component enters into an adjustment of property under section 20 Property (Relationships) Act, it is necessary for there to be some consideration of why, in the circumstances of the case then before the court, any element of interest is appropriate, on what sum any such interest should be awarded, and the rate at which it should be awarded. In the present case, the primary judge identified the fact that asset values were being taken at a 2004 date as the reason for award of interest. Though there was no express consideration of the reason why interest was awarded on the amount of the adjusting monetary sum at which he arrived, a reason for adopting that particular sum is readily apparent. There was no consideration, however, of the appropriate rate. 139 I have already held that the primary judge was mistaken in using the 2004 land values for any purpose other than considering the extent to which the parties' pool of assets had grown over the course of the time during which they were both making contributions to that pool. That in itself will require a re-examination of the question of whether it is appropriate to award interest. 140 In deciding whether any interest should enter into the formulation of an order under section 20, a trial judge needs to be conscious of the risk that calculation of interest will introduce a false air of precision into the award. In many cases under section 20, some of the contributions that the parties have made can be proved with minute mathematical precision, while others are established only in an extremely broad brush manner. It is not uncommon for even some expenditures to be established only at the level of round-sum estimates. That happened in the present case with the estimates of the cost of construction of the house, and of the shed. 141 Likewise in the present case, the present value of the money in superannuation funds was not ascertained. As both Mr Manns and Ms Kennedy were born in 1954, they will reach ordinary retiring age within, at the outside, 11 years. Even if they are not able to obtain access to the amount in the superannuation funds until they retire, a judge would be able to take judicial notice of the likelihood that the amount in the superannuation funds will itself be earning income, and the income of superannuation funds is, at least under the present law, taxed at concessionally low rates. This has the effect that the rate of discount that would ordinarily be applied to ascertain the present value of a sum payable in the future is less than would be appropriate in ascertaining the present value of $X payable at a particular future date. There is a possibility, in the abstract, that these two factors would mean that no discount at all was appropriate, but the evidence does not go into that topic. For these reasons the extent to which an allowance needs to be made for Mr Manns having a much larger amount in superannuation cannot, on the present evidence, be precisely calculated. Indeed, there is reason to believe it could never be precisely calculated: Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 at [67], [80]-[103]. 142 As well, and understandably, there was no attempt at all to quantify in monetary terms the value of the substantial contributions of Ms Kennedy in a home making and parenting role. 143 These factors that were unquantified or only imprecisely quantified were very important ones in the overall percentage division of assets. 144 A trial judge needs to be aware of the different dates at which contributions are made in the course of a relationship, of the effect of inflation on property and other asset values, and of the time value of money. However, particularly in cases where there is a high proportion of evidence of contributions or values that is impressionistic or imprecise, it can be preferable to take those matters into account in arriving at an overall percentage division of assets, as at the date of the order: cf Van Zonneveld v Seaton (at [5]). 145 There are some factual features of the present case to which the primary judge did not advert concerning the ordering of interest. For the whole of the time that interest has been running under the order made below, Ms Kennedy has not only been occupying the house, but, as well, all mortgage outgoings on the house have been met by Mr Manns. Having those mortgage outgoings met is a benefit that is not balanced by anything that Mr Manns received pursuant to the order. (He was occupying the Shed Land, but needed to meet the mortgage outgoings on the Shed Land himself.) As well, during the period from the 2004 valuation (January and July 2004) to the 2005 valuation (September 2005), the House Land increased in value by $60,000, while, during an approximately comparable period, the Shed Land increased in value by $50,000. That in itself has resulted in Ms Kennedy receiving an additional $10,000 of value. 146 The ordering of interest in the present case has had a significant effect on the amount that, under the primary judge's order, Ms Kennedy is entitled to receive. During the period between 1 July 2004 and the time of the primary judge's order, the rate of interest under Schedule 5 Uniform Civil Procedure Rules was 9 percent. On the adjusting amount he ordered ($266,734.40), interest accrued at $24,006 per annum. By the time the order was made on 11 October 2006, interest of over $65,000 had already accrued. Some idea of the significance of that interest order can be gained by adding the $65,000 to the award that the primary judge gave to Ms Kennedy. That has the effect of bringing the adjusting sum awarded to her to approximately $331,734 40. When that is added to the value of the assets, as ascertained by the primary judge, that she already had in her possession ($235,972), that brings the total of her award to approximately $567,706. That amounts to 45.68 percent of the amount the trial judge adopted as the total pool of assets. I recognise that there are some weaknesses in treating the award of interest as though it were simply a reallocation of assets within the available asset pool, but, even so, this calculation gives an idea of how the award of interest can distort the proportions that have otherwise been determined.