Muschinski v Dodds

LEGISLATION CITED : Property (Relationships) Act 1984

Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 CASES CITED : Davey v Lee (1990) 13 FamLR 688 Chanter v Catts (2005) 65 NSWLR 360 Bilous v Mudaliar [2006] NSWCA 38

PARTIES : Raymond Kenneth Robinson (Plaintiff) Peter Kenneth Thompson (Defendant)

COUNSEL : Ms J. Pentelow (Plaintiff) Mr R. Greenaway (Defendant)

SOLICITORS : Friend & Co. (Plaintiff) Bull, Son & Schmidt (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5662 of 2005 RAYMOND KENNETH ROBINSON -v- PETER KENNETH THOMPSON JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 The proceedings were instituted by statement of claim filed by the Plaintiff, Raymond Kenneth Robinson, on 3 June 2004 in the District Court of New South Wales at Sydney. The proceedings were later removed into the Supreme Court. Subsequently, the statement of claim was amended on two occasions, the current pleading on behalf of the Plaintiff being the amended statement of claim filed on 6 March 2006. A defence to that pleading was filed by the Defendant, Peter Kenneth Thompson, on 29 January 2007, at the outset of the hearing. 3 By the foregoing amended statement of claim the Plaintiff not only seeks the adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act, but also asserts circumstances in the nature of a constructive trust (of the kind recognised by the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583, and Baumgartner v Baumgartner (1987) 164 CLR 137). In this regard it should be recorded that on 29 January 2007, the first day of the hearing, Young CJ in Eq by consent ordered that all issues in the proceedings be tried by an Associate Judge. 4 It should also here be recorded that, although the Defendant filed a cross-claim on 11 October 2004, he filed a discontinuance of that cross-claim on 9 June 2005. 5 It was the case for the Plaintiff that he and the Defendant lived in a de facto relationship from May 1983 until mid-2002. 6 Although in his earlier pleadings the Defendant denied that he had ever been in a de facto relationship with the Plaintiff, in his defence to the amended statement of claim, filed on 29 January 2007, the Defendant states, in paragraph 4 (in response to paragraph 4 in the amended statement of claim, alleging, inter alia, that the parties resided together in a bona fide de facto relationship from May 1983 until June 2002), The defendant denies the contents of this paragraph. The defendant admits that the parties both lived at Unit 13, 16 Alma Road, Padstow Heights, from mid 1984, and lived in a close personal relationship with the plaintiff until December 2001. 7 At the time when they first met in the early 1980s each of the Plaintiff and the Defendant was employed as a flight attendant by Qantas. The Plaintiff, who was born on 26 February 1944 and is presently aged 63, was then residing in a townhouse which he owned, situate at and known as Unit 13, 16 Alma Road, Padstow Heights ("the Alma Road property"). 8 The Defendant, who was born on 24 June 1947 and is presently aged 60, was at that time married, although experiencing marital problems with his wife. The parties commenced a sexual relationship in the early 1980s (the date was in dispute). Subsequently, in about May 1983 the Defendant, who by that time had separated from his wife and was paying maintenance for his children, moved into residence with the Plaintiff in the Alma Road property. That property consisted of a townhouse which was owned by the Plaintiff, subject to a mortgage to the State Building Society. At the time when the Defendant moved into residence the mortgage instalments were $292 a month. The Plaintiff paid the entirety of those mortgage instalments and also, according to the Plaintiff, paid all household expenses and outgoings during the period from May 1983 until June 1985 whilst the parties resided together in the Alma Road property. According to the Plaintiff, throughout that period the Defendant paid no rent or board and made no contribution towards the household expenses. The Plaintiff said that the Defendant, because of the child maintenance he was paying, could not afford to do so. 9 In January 1985 the Plaintiff purchased a house property at 28 Bushland Drive, Padstow Heights ("the Bushland Drive property"). The purchase price of $108,000 was funded by a borrowing of $104,000 which the Plaintiff made from the Qantas Staff Credit Union and which was secured by mortgage over the Bushland Drive property. In addition, the Plaintiff personally paid the sum of $10,800 by way of deposit on the purchase, and also paid $6384 for expenses associated with the purchase (including $4384 for legal costs). Part of the borrowing of $104,000, being an amount of $6800, was spent by the Plaintiff on immediate renovations to the Bushland Drive property. The Plaintiff paid all instalments on the housing loan, which was of a variable interest rate. In January 1985 the repayments were at the rate of $1212 a month. 10 The parties moved into residence in the Bushland Drive property in February 1985, and lived there together for 11 years, until 1996. 11 Several months after moving into the Bushland Drive property the Plaintiff in June 1985 sold the Alma Road property, receiving (after discharge of the outstanding mortgage indebtedness thereon) the net sum of $49,649. That money was used to reduce the amount outstanding on the Plaintiff's mortgage on the Bushland Drive property. 12 The Plaintiff remained in employment with Qantas until 1989, when he took early retirement, on account of ill health. In March and June 1989 the Plaintiff received superannuation payments totalling $111,421 from the Qantas Superannuation Fund. Those superannuation payments were used by the Plaintiff to reduce his mortgage debt on the Bushland Drive property, with the result that there remained a balance of $11,038 owing upon that property. 13 On 21 April 1986 the parties entered into a deed. Whilst the parties were now in dispute as to the reasons for the execution of that deed, nevertheless, the recitals thereto suggest that they wished to acknowledge the Plaintiff's financial contributions to the purchase of the Bushland Drive property, and the "non-financial" contributions of the Defendant. It would seem that the provisions of the deed regarding payment of outgoings (including mortgage payments) in the proportion of 66 per cent by the Plaintiff and 34 per cent by the Defendant were not enforced. The Plaintiff, as I have recorded, made the entirety of the mortgage payments on the Bushland Drive property. 14 After the Plaintiff's retirement from employment in 1989 the mortgage on the Bushland Drive property was refinanced on three separate occasions, to enable the parties to continue with the refurbishment and renovation of that property. Since the Plaintiff was then no longer employed by Qantas he was no longer able to avail himself of any borrowings from the Qantas Staff Credit Union. Accordingly, the refinancing of the mortgage and the additional borrowings were effected in the name of the Defendant. However, the Plaintiff continued to make the repayments in respect to those borrowings. 15 For some time after he ceased employment with Qantas in 1988 the Plaintiff received accident or sickness benefits, until 1990. From 1990 until about 1992 he had no income at all, and he then went onto a disability pension, which has continued to the present time (although, for a period of about six months in 1999-2000 the Plaintiff was in receipt of unemployment benefits, and thereafter his disability pension was reinstated). Although details of the Plaintiff's income from those social security payments in the period after he ceased employment with Qantas were not placed before the Court with any particularity, he agreed under cross-examination that it was certainly less than $252 a week (that being the amount which he was receiving from Centrelink in 2004). 16 Nevertheless, the Plaintiff was enabled to continue making the mortgage repayments on the Bushland Drive property as a result of his receiving during the period from 1988 until 1990 the sum of $52,000 a year from a loss of income policy which he had taken out with what is now AON Insurance. Those payments were applied to mortgage repayments on the Bushland Drive property and to household expenses. In addition, the Plaintiff also in the period 1990 -1991 received compensation in a total amount of $15,000 for a workplace injury which he had sustained whilst employed by Qantas. That sum was also used towards the living and household expenses of the parties. 17 In the early 1990s the parties decided to depart Sydney and to remove to South Australia. In February 1992 they purchased, in the name of the Plaintiff, land at Aberfoyle Park in South Australia for about $81,000, most of that sum being raised by way of a further variation of the mortgage on the Bushland Drive property. A further loan was taken out in the name of the Defendant in 1994, again the Bushland Drive property being the security. That property was sold in July 1996 for $290,000. The proceeds of sale were used to discharge the outstanding mortgage on the Bushland Drive property (in an amount of almost $178,000), to pay various debts (including the Defendant's Mastercard debt and $6420 to the Australian Taxation Office in respect to an indebtedness of the Plaintiff), the purchase of a Mitsubishi Verada motor vehicle (for $23,299 and the trade in value of the motor vehicle then owned by the parties) and other furniture and furnishings for the Aberfoyle Park residence, as well as for removal expenses. 18 The house property which was constructed for the parties on the land at Aberfoyle Park, was financed from the proceeds of a mortgage raised on that property in the joint names of the parties in an amount of about $243,000. The construction of that residence was completed in late 1998, and the parties entered into residence therein on Christmas Day of that year. In the interim the parties had resided in rented accommodation in Adelaide (sequentially in two properties). Shortly before their departure from Sydney one of the Defendant's sons had resided with the parties in the Bushland Drive property for a period of several weeks. Throughout the period whilst the parties were residing in rented accommodation in Adelaide the Defendant's two sons lived with them, and both continued to reside with them when the parties moved into the residence at Aberfoyle Park. At that time the Defendant's son Nicholas was aged 22 and his son Jonathon was aged 16. 19 The Defendant met the entirety of the mortgage payments on the Aberfoyle Park property, since the Plaintiff was in receipt of a very small income (essentially, social security payments from Centrelink) during the period whilst the parties were residing in South Australia. The totality of the net proceeds of sale of the Bushland Drive property was expended on meeting various debts of the parties, purchasing motor vehicles, and acquiring furniture and furnishings for the new residence. 20 The Defendant's younger son Jonathon was still at school for most of the period while the parties were living together in South Australia. It was the evidence of the Defendant that Nicholas and Jonathon paid board while they were residing with the parties. 21 Whilst they were residing in the Aberfoyle Park property the parties traded in the Mitsubishi Verada station wagon for $15,000 and purchased a Volvo 850 motor vehicle for $38,000, the outstanding balance being raised by way of a joint loan being taken out with the Savings and Loan Credit Union (SA) Limited. 22 The Defendant departed from the Aberfoyle Park property in May 2002, and subsequently sent an e-mail to the Plaintiff in early June of that year, stating he would not be returning. It will be appreciated that throughout the period of the relationship the Defendant continued his employment as a flight attendant with Qantas, and was thus regularly away from home for varying periods of up to ten days at a time. 23 Considerable evidence was given by each of the parties concerning their respective contributions during the course of the relationship. It is not necessary for me to make separate findings concerning each of the alleged contributions. Suffice it so say that I am in agreement with the assertion of the Plaintiff that throughout the period whilst the parties were living together the Plaintiff essentially attended to indoor activities whilst the Defendant essentially attended to outdoor activities, (including some construction work, maintenance and gardening). 24 At the termination of the relationship the assets of the parties consisted of their conjoint interest in the Aberfoyle Park property and their joint ownership of the furniture and furnishings therein, as well as their respective personal effects and possessions. In addition, the Defendant had a superannuation entitlement as a result of his employment with Qantas. 25 After the departure of the Defendant from the Aberfoyle Park property and his e-mail to the Plaintiff in early June 2002, the Plaintiff continued to reside in the Aberfoyle Park property and retained the Volvo motor vehicle. For a short period the Defendant continued to meet the mortgage payments on that property. Since the Plaintiff could not afford to make the mortgage payments, he and the Defendant agreed to sell the Aberfoyle Park property. It was sold in August 2003 for $380,000. After discharge of the mortgage and payment of various joint debts an amount of $103,500 was paid into an interest bearing account in the joint names of the parties. The amount held in that account had, in consequence of interest earned thereon, increased somewhat by the time of the hearing. 26 It is in the light of the foregoing facts and circumstances that the Court must approach the claim of the Plaintiff.

27 I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court filed. 28 Section 20 (1) of the Property (Relationships) Act provides, 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. 29 The phrase "domestic relationship" is defined, relevantly, by section 5 (1) of the Act as follows, For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. 30 As I have already recorded, it was admitted by the Defendant upon the pleadings that the parties lived in a close personal relationship from mid-1984 until December 2001. However, it was the case of the Plaintiff that the relationship ended on 4 June 2002, and not in December 2001, as asserted by the Defendant. 31 It is appropriate at the outset that I should express my conclusions as to whether or not the parties were, as asserted by the Plaintiff, living in a de facto relationship or, as asserted by the Defendant, living only in a close personal relationship. Further, it is appropriate that I should express my conclusions concerning the dates of commencement and termination of whatever relationship obtained between the parties. 32 Section 4(1) of the Property (Relationship) Act defines a de facto relationship, for the purposes of that statute, as a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. 33 Subsection (2) of that section provides, In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. 34 In the instant case the relationship obtained for at least seventeen years, on the case for the Defendant, or for nineteen years, on the case for the Plaintiff. Throughout the totality of that period the parties lived together in common residences. Despite the assertion of the Defendant that a sexual relationship existed for only a short period, I prefer the evidence of the Plaintiff in that regard. There was a considerable degree of financial dependence or interdependence between the parties, especially in respect to the acquisition of the Aberfoyle Park property, and during the period when the Plaintiff was not in receipt of income. Despite the assertions of the Defendant to the contrary, I am satisfied that there was a considerable degree of mutual commitment to a shared life, which is evidenced by the various photographs of the parties (Exhibit G) and the many cards sent by the Defendant to the Plaintiff (Exhibit D), containing messages of affection and of an intimate nature. 35 For a considerable period throughout the relationship the parties jointly had the care and support of two of the Defendant's children. Indeed, throughout the period while Jonathon was at school the Plaintiff acted towards him in loco parentis. Not only did he ensure that Jonathon attended school each day, and provided him with transport and meals, but the Defendant had given to the school an authority that the Plaintiff should act in loco parentis towards Jonathon. 36 Although the Defendant denied that there were any public aspects of the relationship or that the parties had the reputation of being in a de facto relationship, there was considerable evidence from other witnesses to support the existence of a de facto relationship. The Defendant did not choose to challenge that evidence by seeking to cross-examine any of those witnesses. 37 Further, where the only evidence regarding some matter in issue was the oral evidence of the Plaintiff on the one hand and of the Defendant on the other hand, I prefer the evidence of the Plaintiff. I was not favourably impressed by the Defendant during the course of his oral testimony. He was absolutely determined not to concede in any way that the parties were living in a de facto relationship throughout any part of the lengthy period whilst they were residing together. He was totally unwilling to admit that the Plaintiff was his partner, and used various words to describe the character in which he regarded the Plaintiff, such as "friend" or "mate". I did not regard the Defendant as being as frank or as reliable a witness as was the Plaintiff. For example, I could not accept the Defendant's statement that he had forgotten about the deed into which he and the Plaintiff had entered in 1986. Further, I found it difficult to accept the Defendant's assertion that he contributed to household expenses, despite his stating that he had no recollection as to the manner of such contribution. 38 In addition to the foregoing matters, not only did the parties execute the deed to which I have already referred, but they each at about the same time made a will, each making provision for the other party. Further, the defendant nominated the Plaintiff as the beneficiary in respect to the Defendant's superannuation entitlement, the Plaintiff being described in that nomination as being the Defendant's "partner". In a form setting forth his personal details in respect to his employment by Qantas, signed by the Defendant on 5 May 2001, the Defendant identified the Plaintiff as his emergency contact, describing the relationship of the Plaintiff as "partner". He also in the same form, in respect to staff travel beneficiaries, nominated the Plaintiff as one such beneficiary, describing the relationship of the Plaintiff as being "companion". 39 I have no hesitation in expressing my conclusion that I am entirely satisfied that from the time when the Defendant moved into the Alma Road property until early June 2002 the parties were in a de facto relationship. 40 It was the case for the Defendant that, whether the Court does or does not also make a finding that the parties lived in a de facto relationship, the relationship (whether it be a close personal relationship, as asserted by the Defendant, or a de facto relationship, as asserted by the Plaintiff) terminated at the end of 2001 when the parties ceased to reside together. The Defendant points to the assertion of the Plaintiff in the amended statement of claim that the parties resided together in a bona fide de facto relationship from May 1983 until June 2002. 41 It was submitted on behalf of the Defendant that the proceedings were not commenced until 11 October 2004, and that, in consequence, the proceedings were commenced after the expiry of the two year limitation period provided by section 18 (1) of the Act, and, further, the Plaintiff not having sought leave to bring the proceedings after the expiry of the foregoing limitation period, that the proceedings should be dismissed. 42 However, the statement of claim by which the Plaintiff instituted the proceedings in the District Court of New South Wales at Sydney was filed in that Court on 3 June 2004. It was the case for the Plaintiff that the parties lived together in a bona fide de facto relationship from May 1983 until June 2002. It is only if, as asserted by the Defendant, the relationship came to an end in December 2001, that the institution of the proceedings was out of time and that the question of leave arises. I am satisfied that, as asserted by the Plaintiff, the relationship between the parties (which, as I have already stated, was, in my conclusion, a de facto relationship) obtained from May 1983, when the Defendant moved into residence at the Plaintiff's townhouse, at Alma Road, Padstow Heights, until June 2002, when the Defendant, absent in the course of his employment from the Aberfoyle Park property, sent an e-mail to the Plaintiff, announcing the termination of the relationship. 43 I am satisfied that the parties lived in not merely a close personal relationship but, indeed, a de facto relationship, until 4 June 2002. The proceedings were therefore instituted within time.

44 At the termination of the relationship the significant asset of the parties was the house property at Aberfoyle in South Australia. The only separate asset of the Defendant was his superannuation entitlement. That entitlement had not then vested, and, indeed, has not yet vested. 45 A considerable quantity of time and energy at the hearing and in the subsequent written submissions was directed to the question of whether or not the Defendant's superannuation entitlement could be the subject of an order pursuant to section 20 of the Property (Relationships) Act. Those arguments and submissions appeared to proceed upon the basis that there was no other property of the Defendant which might be subject to an order of the nature aforesaid. That was an incorrect assumption by the parties. It is abundantly obvious that, consequent upon the distribution between the parties of the proceeds of sale of the Aberfoyle Park property, which has been effected by agreement, the Defendant has one half of those proceeds of sale, and that that one half amount, being a little over $50,000 can be the subject of an order adjusting the interests of the parties in property. I should, however, in this regard observe that it was the evidence of the Defendant that of those proceeds of sale the Defendant has disbursed the major part, and that there remains only the sum of $46,217, which is held on trust for him by his solicitors. 46 It seems to me that the arguments and submissions concerning the Defendant's superannuation entitlement were quite unnecessary, since they proceded upon the false premise that the only asset of the Defendant was an interest in a superannuation entitlement which has not yet vested. 47 Were it necessary for me to do so, however, I would be satisfied, upon the authority of Chanter v Catts (2005) 65 NSWLR 360 at 366 per Hodgson JA and at 385 per Bryson JA, that the Court has ample power to make an order in respect to a superannuation entitlement of one of the parties to a de facto relationship, which entitlement has not vested. In the instant case it is not necessary for me to do so. 48 Each of the parties made contributions to the relationship. The outdoor maintenance and work upon the various residences in which the parties resided throughout their relationship was carried out essentially by the Defendant, whilst the Plaintiff had the chief responsibility in respect to indoor activities. 49 It must not be overlooked that at the time of the commencement of the relationship the Plaintiff was residing in his own residence, the townhouse in Alma Road, and that the Defendant came to live with him in that residence. When the parties left the Alma Road property another residence, the Bushland Drive property, was purchased in the sole name of the Plaintiff, and when the Alma Road property was sold a few months later, the proceeds of sale were used to reduce the mortgage on the Bushland Drive property. 50 It was only after the parties had moved to South Australia and when they purchased the Aberfoyle Park property that there was any acquisition of property in the joint names of the parties. I do not overlook the fact that the totality of the mortgage payments on the Aberfoyle Park property from the time of the acquisition of that property until the departure of the Defendant therefrom in mid-2002 were paid by the Defendant. 51 Whilst the proceeds of sale of the Aberfoyle property have been divided equally between the parties, I am satisfied that that equal division does not represent the nature of the contributions of the parties to the relationship during the period of about 19 years during which it subsisted. At the commencement of the relationship the Defendant had little or nothing in the way of assets. The Plaintiff owned the Alma Road property (albeit subject to a mortgage). For the next nine years, until the parties purchased the land at Aberfoyle Park in early 1992, all mortgage payments in respect to the residences of the parties (at Alma Road and Bushland Drive) were paid by the Plaintiff, who also used most of his superannuation payments (totalling in excess of $111,000) in reduction of the principal of the mortgage debt, and expended the totality of his compensation payment of $15,000 on household and living expenses for the parties. The Defendant, unlike the Plaintiff, made no contribution of lump sums to the relationship. 52 I do not overlook the fact that the advances which were obtained from the Qantas Credit Union in 1989 and 1990 were obtained in the name of the Defendant, and that he was thus accepting a liability if the amounts of those advances were not repaid. Nevertheless, they were secured by mortgages over the properties owned by the Plaintiff, and, until the early 1990s the mortgage payments were made by the Plaintiff alone. At least until the parties removed to South Australia the household expenses and outgoings were essentially borne by the Plaintiff.

53 In approaching a claim for adjusting of interests of the parties in property pursuant to section 20 (1) of the Property (Relationships) Act, the Court must make a wholistic judgment and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688; see also Bilous v Mudaliar [2006] NSWCA 38 at[43], where Ipp JA said that some situations do not lend themselves to either a pure global approach or a pure asset by asset approach in determining what orders should be made.) 54 I am satisfied that the contributions of the Plaintiff, especially his initial contribution in the form of his Alma Road townhouse, owned by him before he met the Defendant, and the various lump sum contributions, from his superannuation and from his compensation, exceeded the contributions of the Defendant. 55 In the instant case, I consider that the Plaintiff has established an entitlement to receive, by way of adjustment of interests in property, a relatively small payment to be made to him by the Defendant. I consider that an amount of $30,000 would be adequate. Since an amount well in excess of that sum is presently held on trust for the Defendant by his solicitors, I do not consider it necessary that there be some form of charge upon the superannuation entitlement of the Defendant in order to secure payment of that amount. It is appropriate that the Court should merely order that the Defendant pay to the Plaintiff that amount. 56 In the light of my foregoing findings concerning the existence of a de facto relationship and the fact that the proceedings in respect to that relationship were brought within two years of the termination of the relationship, it is not necessary for the Plaintiff to rely upon the principles relating to a constructive trust in order for him to receive the relief which he claims. 57 Accordingly, I make the following orders: 1. I order that the Defendant pay to the Plaintiff the sum of $30,000, such sum to bear interest at Supreme Court rates if not paid on or before 17 November 2007.

2. I order that the Defendant pay the costs of the Plaintiff.

3. The exhibits may be returned. **********

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