Contributions - preliminary matters
73 In approaching the matter of the parties' contributions, I begin with some observations which I consider uncontroversial. First, the plaintiff acquired no property of consequence during the relationship. Second, there was no joint ownership or co-ownership of property by the parties at any time, although the plaintiff was given by the defendant an 8.35% shareholding interest in the company Gemini Industries Pty Ltd. Third, the plaintiff did not make any financial outlay by way of contribution to the acquisition, conservation and improvement of any of the defendant's property or (except perhaps incidentally) to their domestic life, her case being that she made non-financial contributions to the defendant's business and homemaker contributions. Fourth, the only skills and experience the plaintiff had when she became the defendant's secretary were in that field, that is, stenography, typing, filing, telephone answering and basic office administration - plus proficiency in both English and Italian.
74 The plaintiff was employed as the defendant's secretary in 1981. Payment of wages continued until late 1993 or early 1994. The defendant provided the plaintiff with accommodation and meals at the Gemini Hotel as previously described. He later took her into his home at Point Piper at no cost or expense to her and provided everything she needed, again at no cost or expense to her. He maintained her in an extremely comfortable lifestyle. The plaintiff said (and it was not disputed in cross-examination) that before the separation her own sole weekly expenses totalled $1,960, being $800 for clothes and shoes, $600 for hairdressing, toiletries and personal care and $560 for holidays. Her total weekly expenditure, as estimated by her, including household expenses, was $3,965. The defendant paid all this. Her total credit card expenditure in 1999 and 2000 (wholly met by the defendant) was $50,220.64 and $62,283.22. The defendant also took the plaintiff on overseas trips (which she described as "luxurious") at least once a year between 1983 and 1999 at a cost per trip estimated by the plaintiff to be between $35,000 and $65,000. The defendant paid for all these. The defendant, according to the plaintiff, gave her gifts of a mink coat ($30,000), a watch ($20,000) and a bracelet ($18,000) and other jewellery. She has returned the watch, says the bracelet was lost and has retained the rest. The plaintiff had unlimited access to cash and credit cards provided by the defendant. The plaintiff gave the defendant some gifts but there is no evidence of their value. The funds to buy these must have come from the defendant.
75 While the plaintiff lived at Point Piper, there was usually a full-time housekeeper and a part-time gardener. Staff from the Gemini Hotel also helped with housekeeping particularly between housekeepers. Meals were often brought to the house from the hotel restaurant. The plaintiff made no financial contribution to any of this.
76 It is, however, clear (and not disputed by the defendant) that the plaintiff made non-financial contributions of the kind contemplated by the Property (Relationships) Act. There is, however, a dispute as to whether those non-financial contributions were confined to domestic and homemaker contributions or extended also to contributions related to the business and property assets and activities of the defendant.
Welfare/homemaker contributions
77 The defendant concedes that the plaintiff made contributions to his welfare and that of the domestic unit. The plaintiff looked after the home, albeit in a context where housekeeping, gardening and other staff were employed. She cooked and cleaned, but not to the same extent as a woman in a household not employing domestic staff. She concerned herself with the upkeep and decoration of the home. She had good taste and attended to these matters with skill and flair. She brought the same qualities to bear when acting as hostess at what appear to have been relatively frequent parties and social events at the Point Piper house. The evidence of Ms Desiree Berry, Ms Coratella and Ms Moretti, among others, makes it clear that the plaintiff took a hands-on role on such occasions.
78 Both the plaintiff and the defendant suffered major illnesses during the relationship. Each supported and comforted the other during those times. The plaintiff devoted herself to the defendant's welfare in matters of health care and made it her business to make sure that he received the best medical attention and treatment. When he was in hospital, she was a constant visitor. The defendant appreciated her care in these respects and readily acknowledged her contribution to his welfare. He, for his part, acted in precisely the same way and with the same devotion when the plaintiff was ill.
79 From some time in 1989 until her death in November 1991, the defendant's mother lived with the parties at Point Piper. She was old, ill and bed-ridden and needed virtually constant attention and care. The plaintiff played a role in this - again, however, in a context where domestic staff were employed. The defendant says that the plaintiff's role was small, since nurses were employed in shifts at all relevant times and were with the mother 24 hours a day. One of them, Ms Dunn who lived in at Point Piper during 1991, testified to the affectionate way in which the plaintiff dealt with the defendant's mother and the reliance the mother placed on the plaintiff. There is also evidence, however (particularly from the defendant and his daughter Corina), that the mother did not like the plaintiff. Whether she liked the plaintiff or not is beside the point. The evidence shows that the plaintiff not only cared for various needs of a sick old lady as part of the household at Point Piper but did so willingly and out of regard for both the defendant and his mother.
80 Although the plaintiff attended to her homemaker role with diligence, her activities in that arena were sometimes the cause of dissension and stress. There is evidence from several sources of a perfectionist attitude that caused domestic staff and visiting tradesmen to be put to unnecessary effort and trouble in doing things again when she did not like them. For example, Mr Rando, an elderly handyman/gardener, spoke of having to move heavy pot plants up and down the same flight of stairs to and from the same spots repeatedly at the plaintiff's direction.
81 In the later stages of the relationship, there was an episode in which the defendant had to rush home during the day when he received a message indicating that the plaintiff may have harmed herself or intended doing so. Mrs Durotovic, who held a domestic appointment at Point Piper, gave evidence of this and analogous episodes in the period 1997 to 1999. I put little weight on these matters. The plaintiff and the defendant, as a couple, had good times and bad times. That she may have engaged in attention-seeking behaviour on certain occasions does not detract from the proposition that the plaintiff was attentive to the needs and interests of the defendant and of the couple in a way warranting the conclusion that she made appreciable homemaker contributions.
82 One matter of a family or domestic kind assumed undue proportions in the case. It involves the acquisition of a site in Waverley Cemetery for a family vault. The plaintiff says that she located the site, designed the tomb and composed a two-word Latin inscription. Mr Finn, an architect, was retained to design the vault. He says he never had any discussions with the plaintiff about the matter and never took any instructions from her. It is the defendant's case that he played the major role in this matter. This isolated matter of the tomb is, of itself, insignificant. Whatever the plaintiff did (and my impression is that it was minor) was part and parcel of the domestic support she afforded to the plaintiff.
83 I should make particular comment about another matter. Submissions made on behalf of the defendant emphasised the level of comfort to which the plaintiff was introduced by the defendant and which she enjoyed throughout the de facto relationship - with domestic staff, nurses to care for the defendant's mother, meals delivered from the hotel and other similar facilities which, for most people, would represent luxuries. (Mr Cox, the airconditioning repairer, says he was usually let into the house by a domestic worker.) I am not persuaded that these matters deserve much weight in assessing the plaintiff's contributions. A partner who washes up by hand in the sink and goes to the supermarket by bus does not, because of those factors, make a contribution superior to that of a partner who has a dishwasher and orders groceries online for delivery to the home. Domestic or homemaker contribution, in the sense of committed pursuit of the domestic happiness of the other party and the couple, has an intangible quality that does not lend itself to measurement by reference to the relative ease or hardship of the surrounding circumstances. The nature of the kind of homemaker contribution referred to in s.20(1)(b) was described by Cole JA in Green v Robinson (1995) 36 NSWLR 96 at p.119:
"The concept of 'homemaker' or 'making a home' has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability."
84 As Clarke JA observed in Black v Black (1991) 15 Fam LR 109 at p.117, a homemaker may perform domestic services "but her contribution to the family unit will usually be infinitely greater than that".
85 Although, particularly in the later stages of the relationship, there existed dissension and stress to which I have referred, there was, by and large, a significant degree of emotional ambience of stability in the parties' domestic arrangements. And the plaintiff was obviously a contributor to that.
86 So, too, it must be emphasised, was the defendant. It was his wealth that allowed the employment of domestic staff and the other expenditures on which the parties' expensive lifestyle depended. He appears to have been unstinting in his financial generosity to the plaintiff and in his financial commitment to the maintenance of the way of life they shared together. He made non-financial contributions as well. I have already mentioned his support for and attention to the plaintiff when she was ill. And just as she was a good hostess, so he was a generous and attentive host at the relatively frequent parties and social events at Point Piper. He was permanently engaged in business activities. He went to his office each day, or, at all events, on all or most working days, after allowing for holidays. He had less time than the plaintiff for domestic and homemaking matters of a direct kind.
Business contributions - introduction
87 It is the contention of the plaintiff that she made non-financial but nevertheless substantial contributions to the defendant's various businesses. Those contributions are said to have been contributions within s.20(1)(a), that is, "non-financial contributions made directly or indirectly by … [the plaintiff] … to the acquisition, conservation or improvement of … property of … [the defendant] … or to the financial resources of … [the defendant]."
88 The amended statement of claim pleads that the plaintiff performed a number of functions and provided various forms of support and assistance in relation to numerous aspects of the defendant's business activities. The particular areas in which contributions were made are said to have been the properties on the island of Filicudi in Italy, the Gemini Hotel (where her efforts, as claimed, are substantial), the hotel at Griffith, the Mitre 10 hardware business at Randwick, the development site at Smithfield near Cairns and the related palm plantation and nursery, and the Gemini Industries business. The defendant also operated a travel agency business at the Gemini Hotel for about six years from 1988.
89 It will be necessary to traverse each of the areas of activity separately.
Business contributions - Gemini Hotel
90 The defendant, in his defence, admits that, from the mid 1980's, the plaintiff began work assisting the defendant to improve the Gemini Hotel at Randwick. This obviously relates to the period after the defendant resumed management following Mr Hofbauer's departure in about March 1984. The defendant also admits that the plaintiff carried out certain tasks as particularised in the amended statement of claim, but says that she worked at his direction to restore existing customers and contacts that he had established before the intervention of Mr Hofbauer's management. The areas covered by the admissions are: the selling of rooms to various customers; the employment of staff; reconstruction and redesign of halls and lifts in the lobbies on five floors and the reconstruction and redesigning of interiors of certain areas; negotiating with an airport manager to encourage airlines or travel agencies to resume business with the hotel (but, the defendant says, at his direction); liaising with airline officials as a source of business (although the defendant says that this was for only two or three months and was only a restoration or continuation of something that had pre-dated Mr Hofbauer's management); offering of inspection visits to managers and staff of private companies and airlines; designing and choosing colours for brochures (albeit, says the defendant, in conjunction with others). The plaintiff's claim that she personally attended to decorations, including flowers, each week, that she set tables in the banquet rooms, set menus and prepared menu options and pricing packages for potential clients is admitted by the defendant to a minor extent only. He admits that she served food to guests on one occasion because staff had left; that she attended to decorations for two or three days every three or four months up to the mid 1990's but only very occasionally thereafter; that she set tables once in twelve years; and that she prepared menu options on some occasions but not many.
91 It must thus be accepted that the plaintiff did perform some useful functions in relation to the Gemini Hotel business. She was, after all, the defendant's employee. The dispute is as to the extent of the plaintiff's contributions. Each of the several fields of activity needs to be considered.
92 In relation to renovation and refurbishment of the hotel, the plaintiff says in her affidavit in chief that she was "directly involved" in such matters between 1989 and 2001. She refers to various areas that were renovated and refurbished. She says that she prepared detailed drawings and specifications. She says that she started work at 7 am on these matters, that there was no budget and that the defendant would leave expenditure up to her, although she would always get his final approval.
93 In relation to sales, the plaintiff says that she arranged to see the airport manager of Qantas and acquainted him with the fact that the defendant had resumed management of the hotel (although she says this was in 1983, it must have been after March 1984); also that she visited the airport "on an almost daily basis" and had contact with that person and others there. The plaintiff says that she arranged with the airport contacts for guests to be brought to the hotel in its own minibus. She also established and maintained relationships with staff at the airport's travellers' information desk to further these connections.
94 Regarding establishment of an "English style club" (or gambling room) within the hotel, the plaintiff says that this was suggested by the defendant and then pursued by her. She converted a storage area for the purpose and arranged decoration. She also arranged for staff members to be taught by a croupier. In early 1985, she arranged what she calls "a grand opening of the club".
95 Also in about 1985, the plaintiff says, she began organising fashion parades at the hotel for Barbara Leovois who operated a dress shop nearby.
96 The plaintiff says that, in about 1986, she renovated the restaurant. She says that she took plans to the local council and obtained approval of them. She arranged for builders to carry out work. She named the restaurant "Don Turiddu". She made up menus, conferred with the chef and did other things.
97 In about 1990, the plaintiff says, she prepared design plans to close one of the kitchen doors and to construct an extra wall which improved the appearance of the restaurant. She "again personally attended at the Council and obtained approval for these changes".
98 The plaintiff gave evidence that she went to Canberra in about 1987 to visit the Minister for Tourism with a view to obtaining some form of Government approval for an Inbound Tour Operation. In the same period, she gathered information from travel agents by way of market research.
99 The defendant takes issue with much of this evidence of the plaintiff. He says that when he took over management in 1984, he employed a manager, Allen Wade, who remained in the position for only a few months. When Mr Wade left, the defendant decided to send the plaintiff to Italy. This was because he needed to give close attention to the business and did not want her in the way. As will be seen in the discussion of the plaintiff's Filicudi activities, she did go to Italy alone in 1984.
100 The defendant says that the plaintiff assisted for only four to six weeks with promotional work at the airport. As for refurbishment in the period 1989 to 2001, the defendant says that this occurred in 1995 and that the plaintiff assisted only in relation to the design of restructuring of rooms and bathrooms on the fourth floor. He says that some of the work to which the plaintiff refers was never done; also that she started at 7 am on only one or two days. As to budgeting for renovations, the defendant says that he obtained costings from tradespersons. Regarding the scheme for the use of the hotel by airline passengers during the day, the defendant says that he directed her in relation to the re-commencement of that system which had previously applied at the hotel, that is, before Mr Hofbauer's time. He says that this occurred in 1984 but that the plaintiff was not involved because she was in Italy for most of that year.
101 In relation to the approach to the Tourism Minister and the market research activities, the defendant says that these were undertaken by the plaintiff at his initiative and direction.
102 There is evidence from other witnesses in relation to the matters relied upon by the plaintiff as showing her contribution to the Gemini Hotel business. It is to that evidence that I now turn.
103 Mr McCleary was a consultant to the hotel in the early 1990s and became manager on 17 February 1993. He resigned in December 1995. He testified that the defendant came to the office most days, usually accompanied by the plaintiff. While the defendant took a close interest in the business and often spoke to Mr McCleary about operations and marketing, the plaintiff had no direct involvement in the operation of the hotel. She was, however, involved in renovations which were nearing completion when Mr McCleary started. Mr Nava was, from about 1988 to 1994, the manager of the travel agency that operated within the Gemini Hotel. He did not see the plaintiff there on a daily basis; only perhaps three or four times a week.
104 Mr Taranto was the marketing manager of the hotel from January 1995 to October 1997. He worked for the first year of this period with Mr McCleary and was not aware of any involvement by the plaintiff in the business. For the whole of the period, he reported to the defendant. At a later point, the plaintiff began to take an interest in marketing, which was Mr Taranto's responsibility. She did not discuss with him any specific role or what their working relationship and respective responsibilities were to be. Nor did the defendant discuss with him any role that the plaintiff was to have in marketing. Mr Taranto found the plaintiff's efforts unhelpful. He says that she was disorganised, erratic and intrusive and that, as it seemed to him, she had no real knowledge of what she was doing. She did not follow through with initiatives of her own. The plaintiff called a staff meeting at which she raised marketing matters in a way Mr Taranto considered critical of him. He wanted to speak to the defendant about his concerns but the defendant was away. He spoke instead to Steven Paino, who offered him a position at the Griffith hotel which he accepted.
105 Mr Aloe did joinery work at the hotel at various times. He dealt mainly with the plaintiff. He saw her draw sketches of what was to be done. He discussed her ideas with her. In cross-examination, he said he understood the defendant to be "the boss" and it was the defendant who was to approve the work and the pricing; also that he was aware of discussions between the plaintiff and the defendant as to what was to be done. Mr Bonanno did carpentry work at the hotel. He saw the plaintiff make sketches of work to be done but noticed that she discussed her ideas with the defendant. Mr Fazio (plasterboard installer), Mr Pacetta (plasterer) and Mr Smith (blinds and drapes) gave evidence of the plaintiff having given them instructions in relation to work at the hotel. Mr Tonetto (who supplied tiles) said he dealt with the plaintiff and the defendant on an equal basis but it was normally the plaintiff who chose colours and designs. Mr Dinsdale, a builder, received sketches from the plaintiff but obtained confirmatory instructions from the defendant. Mr Rando, the hotel bus driver (who also did handyman work at Point Piper), saw the plaintiff directing tradesmen in relation to renovation work in 1998.
106 Mr Cipolla testified that the plaintiff bought lights and lampshades for the hotel from his shop. Mr Eishou gave like evidence about picture framing, as did Ms Joseph in relation to flowers.
107 Mr Hunt, a carpenter and joiner, did renovation work on the function rooms at the hotel in 1998. He met first with the plaintiff who took him around the relevant area and described what was needed. He prepared an estimate and a timetable which he gave to the plaintiff, who said that she would speak to the defendant and get back to him. She later told him that the defendant was happy with the quote. Work then began. He met with the plaintiff almost daily to discuss the job. She frequently asked for variations and additions. She required some parts of the work to be done again several times. Her requirements, says Mr Hunt, caused a relatively small and straightforward job to be significantly extended in both time and cost at every stage.
108 Mr Ingrisano, a painter, also spoke of the plaintiff frequently changing her mind in relation to work at the hotel. He says the defendant said to him, "For the sake of peace, please do what Angela is asking".
109 Mr Loudjani, food and beverage manager at the hotel, refers to renovation work during the second period of his employment between June 1996 and April 1999. He observed the plaintiff, the defendant and both of them together talking with tradesmen. In late 1996 when there was renovation of the restaurant's kitchen, he dealt solely with the defendant. They went together to buy the appliances and Mr Loudjani organised the tradesmen and arranged the fit-out.
110 Mr Ozdirik was retained to re-design the reception area and a small staff area in early 1997. The plaintiff showed him the areas but he took instructions throughout mainly from the defendant and, to a minor extent only from the plaintiff. On only one of four other occasions on which Mr Ozdirik was retained to do work did the plaintiff give him any instructions. On the three other occasions, he was given instructions by the defendant. In all matters, the defendant had the final say.
111 Mr Hage, head receptionist, from early 1985 to early 1986, saw the plaintiff setting up the function room, arranging tables, arranging flowers, hanging decorations and organising staff. He recalls her having participated in setting up the gaming club.
112 Mr Lauricella worked at the hotel as a part-time handyman from about 1994 to 1997. He saw the plaintiff directing employees on what to do and how to do it. Ms Markantonatos, another hotel employee, gave similar evidence.
113 Ms Winchester was a receptionist for about ten months in 1984-85. She was restaurant manager for eight months in 1999. She saw the plaintiff involved in arranging a Christmas party and, in the later period, worked with the plaintiff arranging menus.
114 Mr Cogan worked as the hotel manager from about September 1985 to May 1987. The plaintiff was introduced to him as the defendant's "secretary and girlfriend". He did not see her do much secretarial work. Nor does he recall her attending staff meetings. He does recall her involvement in the design of new staff uniforms which were phased out after a few months of use. (Ms Langen testified that the uniforms were uncomfortable and impractical.) Mr Cogan saw the defendant working at the hotel from 9 am to 5 pm or 6 pm daily.
115 Ms Constanti was employed by the hotel as a sales representative from 1990 to 1992. She rejoined in 1997. She had been aware of the hotel's airport transfer system from 1984 when she began working as a travel consultant with East West Airlines. During her first period of employment, her office was next door to the offices of the plaintiff and the defendant but she saw the plaintiff at the hotel only about once a week on average and never saw her do any work. During her second period of employment, she saw the plaintiff in an office at the hotel for a maximum of about one hour a day or, as she put it in cross-examination, "a couple of hours on a daily basis two or three times a week". She was required to take the plaintiff shopping at Leichhardt and Double Bay.
116 Ms Dennis was employed as manager of the Travellers Information Service at Sydney International Airport from 1970 to 2000. She met the defendant in 1973 and says that it was he who instituted the airport transfer scheme in that year, being the first hotel to have such a scheme. She attended "beautiful" Christmas parties at the hotel before the plaintiff came on the scene. She described the plaintiff as enthusiastic about promoting the hotel in the initial period of 1984, as was the defendant. She agreed that work done in the foyer in 1999 improved the hotel and influenced her decisions to direct people there, although the room rate was also relevant.
117 That the airport transfer scheme had begun long before the plaintiff came on the scene is confirmed by the evidence of Mr Giannotis. He was assistant manager of the hotel from about a year after when the defendant took over the business in the early 1970's. He was involved in the establishment of the airport transfer scheme which he says occurred in about 1975. He referred in his evidence to representations by the defendant to the Chief Secretary's Department and the Premier to obtain some form of official permission.
118 Ms Peropoulos, a traveller from the United States, gave evidence of an occasion in 1999 when she, as part of a group, arrived at the Gemini Hotel after a long flight to find that there was no record of their booking. She testified to the efforts the plaintiff personally made to find them accommodation and to resolve the matter.
119 From all this evidence about activities at and in relation to the Gemini Hotel, I draw the following conclusions: