//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] VSC 205
plaintiff. The Court proposed orders requiring the defendant to pay the plaintiff $166,500, providing for the sale of Botanica Springs to secure payment and, if necessary, a sale of McKenzie Street, declaring...
The Court accepted the plaintiff's evidence that she contributed substantially to the household, cared for the parties' child, and provided a large part of the funds used for the Botanica Springs property. Although the properties were registered in the defendant's name, the Court assessed the parties' contributions under Part IX of the Property Law Act 1958 (Vic). It proposed that the defendant pay the plaintiff $166,500, with sale orders intended to secure payment, and found that specified personal goods belonged to the plaintiff. It did not decide the alternative resulting trust claim.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,178 words · generated 29/09/2026
Worboyes v Vieth concerned an application by Kellie Louise Worboyes to adjust property interests after the end of a domestic relationship with Ritchie Vieth. She said the relationship ran from January 2003 to mid-September 2007. Her claim under Part IX of the Property Law Act 1958 (Vic) concerned two properties registered in Vieth's name, at Botanica Springs Boulevard and McKenzie Street, as well as personal property. Alternatively, she alleged that Vieth held the properties on trust for her (paras 1–3).
3 cited instruments linked from this judgment.
Vieth entered an appearance, but did not file a defence and did not attend the trial, despite notice. The Court heard Worboyes' evidence without cross-examination. Associate Justice Kings described her as honest and forthright and noted that documents, including bank statements, supported her account (paras 5–7).
Worboyes and Vieth began living together at her Eaton Street home in January 2003. She said she paid most of the home's mortgage and household expenses, while Vieth made smaller weekly cash contributions. They had a daughter, Matilda, in September 2005. The Court accepted Worboyes' evidence that she was Matilda's primary carer and continued working during the relationship (paras 9–19, 34).
In 2005, the couple decided to buy land at Botanica Springs and build a home. Worboyes contributed to the deposit and, after Eaton Street was sold in February 2007, contributed proceeds from that sale. The Botanica Springs property was registered in Vieth's name. The Court found that the parties were both involved in the decision to acquire the property, while Worboyes contributed to its design, fittings and household expenses (paras 16, 20–24, 32–33).
Vieth also acquired the McKenzie Street office property. Worboyes said she made no direct financial contribution to that property. She did, however, say that she covered much of the household expenditure, which the Court treated as an indirect contribution that enabled Vieth to finance property and business interests (paras 52–56, 66–69).
The relationship ended in September 2007. Worboyes left the Botanica Springs home with neither the furniture nor her and Matilda's possessions. She then lived with her mother (para 25). She commenced proceedings in April 2008, within two years of the relationship ending (para 36).
The Court assessed the net asset pool at $277,500: $150,000 equity in Botanica Springs and $127,500 equity in McKenzie Street (para 57). It proposed that Vieth pay Worboyes $166,500, with a sale of Botanica Springs to secure payment and a further sale mechanism for McKenzie Street if the first sale did not produce enough. It also proposed orders concerning goods listed in a schedule and costs. The judgment says the proposed orders were subject to any further submissions by counsel (paras 75–78).
The Court first had to decide whether the statutory threshold for a Part IX adjustment was met. It set out s 275's definition of a domestic relationship and the circumstances relevant to deciding whether one existed, including relationship duration, residence, financial interdependence, property dealings, commitment, care of children and the public aspects of the relationship (paras 27–28).
The evidence satisfied the Court that Worboyes and Vieth lived together as a couple on a genuine domestic basis from January 2003 to September 2007. Their shared homes, child, financial arrangements and family care were among the relevant circumstances. The Court therefore found a relationship lasting more than two years. It also found that the application, issued on 24 April 2008, was within the two-year period specified in s 282 (paras 29–36).
For the adjustment itself, the judgment adopted the three-step process summarised in Cressy v Johnson (No 3), drawing on Kardos v Sarbutt: identify and value the relevant property; assess and balance contributions by reference to s 285; then determine an order giving effect to that assessment (paras 39–40). The judgment also referred to a global approach to contributions, full recognition of homemaking and parenting, and the relevance of contributions after separation, including continued care of a child (para 41).
The Court identified a combined net asset pool of $277,500. For Botanica Springs, it accepted a trial value of $330,000 based on evidence of an accepted offer, and adopted a liability figure of $180,000, resulting in $150,000 equity (paras 45–51). For McKenzie Street, it accepted a value of $237,500 and liabilities of $110,000, resulting in $127,500 equity (paras 52–57).
A notable evidentiary step concerned mortgage drawdowns. The bank records showed money drawn after Worboyes left the relationship. The Court inferred that $30,000 drawn against Botanica Springs was for Vieth's own benefit. For McKenzie Street, it found no evidence that $55,000 in drawdowns had been used for that property and inferred that the funds were for Vieth's personal benefit (paras 49–56). The judgment's treatment depended on the bank records and the absence of evidence connecting those sums to the properties.
The Court then assessed direct financial, indirect financial, and family-welfare contributions. Worboyes had contributed approximately $8,000 to the land deposit and $72,133.37 from the Eaton Street sale, a total of $80,133.37 toward Botanica Springs (paras 59–62). She also paid for items and made regular contributions to the new household. Her furniture was used in the home and remained there after she left (paras 61, 64–65).
The Court accepted that Worboyes paid most household costs at Eaton Street, while Vieth made weekly contributions totalling $14,300 over the period described. It assessed Worboyes' contributions to those costs at $58,390, and accepted that her expenditure freed resources that Vieth could use for property and business interests (paras 66–69). It also gave weight to her work as homemaker and parent, her continued employment, and her care for Matilda after separation (paras 70–73).
Taking those matters globally, the Court considered that Worboyes should receive more than half of the asset pool and proposed the $166,500 payment (paras 74–75). It separately found that the scheduled goods belonged to her (para 76).
This judgment does not present itself as changing the law. It applies the statutory framework in Part IX of the Property Law Act 1958 (Vic) and existing approaches to assessing contributions. Its account of the three-step process comes from Cressy v Johnson (No 3), which in turn adopted the approach in Kardos v Sarbutt (paras 39–40).
The judgment also invokes principles it attributes to Giller v Procopets, including the relevance of post-separation contributions, generally valuing property at trial, using a global approach, and giving full value to homemaker and parenting contributions (para 41). It refers to Findlay v Besley for the flexible meaning of “contributions”, including the possibility of negative contributions, and to Steinbarth v Peters for a more robust approach where a defendant's non-participation creates difficulty in establishing their financial position (paras 42–43).
On the facts before it, the judgment applies those propositions by including Worboyes' parenting and household work in its assessment, considering indirect benefits to Vieth's financial resources, and drawing inferences from records where Vieth did not provide an account of certain drawdowns. It does not claim that those factual conclusions apply automatically in other cases. Nor does the supplied judgment establish how the law stood before or changed after this decision. It is therefore more accurate to describe the decision as an application of the stated statutory and cited approaches rather than as a new rule.
The Court's statutory route is important to understanding the result. It made an adjustment under s 285 and relied on ss 291 and 292 for the proposed range of orders and execution of sale documents (paras 74, 78). The alternative resulting trust claim did not produce a ruling because the Court considered it unnecessary to decide that issue after finding for Worboyes under Part IX (para 77).
At paragraph 35, the Court said the relationship “bore the hallmarks of a domestic relationship” under s 275(2). In plain English, it considered the relationship as a whole, including the couple's shared homes, child, financial arrangements and care responsibilities, rather than relying on one feature alone.
At paragraphs 39–40, the judgment set out a three-step process: identify and value the property, assess contributions, and then decide what order gives effect to the assessment. In practical terms, the Court first worked out what property and equity were in issue, then compared contributions, and finally considered the form and amount of relief.
At paragraph 50, the Court said it would infer that a $30,000 drawdown was for Vieth's own benefit. This is a case-specific inference drawn from the evidence about the mortgage and bank accounts. Paragraphs 54–56 record a similar conclusion about McKenzie Street drawdowns, where the Court found no evidence that they had been used for the property.
At paragraph 75, the Court said it considered Worboyes entitled to “greater than 50% of the total asset pool” and proposed that Vieth pay her $166,500. The statement reflects the Court's evaluation of the combined financial, non-financial and family-welfare contributions described earlier in the reasons.
At paragraph 77, the Court stated it was unnecessary to decide the resulting trust claim. In plain English, the judgment resolves the claim through the statutory property-adjustment route and leaves the alternative trust argument undecided.
The judgment may be relevant as an example where a party seeks statutory adjustment of property after a qualifying domestic relationship, especially where property is legally registered in one partner's name but the other partner alleges substantial direct or indirect contributions. The facts the Court considered included a relationship of more than two years, a shared home, a child, financial interdependence, use of one partner's sale proceeds to acquire another property, and significant homemaking and parenting work (paras 27–36, 59–73).
It may also be useful as an example of a court assessing contributions across multiple assets rather than treating each property in isolation. The Court identified the two properties, valued each, assessed liabilities and then considered the combined asset pool and the contributions overall (paras 44–57, 74–75).
The decision also illustrates how unexplained loan drawdowns may become an evidentiary issue where bank statements are available but the person associated with the transactions does not provide evidence. Here, the Court drew inferences about the use of certain funds after considering the account records (paras 49–56). The inference was based on this record and should not be detached from its factual context.
The procedural context matters. The defendant did not attend trial, and the plaintiff's evidence was untested by cross-examination, although the Court considered that it was supported by documents (paras 5–7). The judgment's approach to the evidence and inferences should be read with those features in mind, rather than treated as a general account of how every contested property proceeding will be determined.
The supplied judgment does not contain any later decisions discussing or applying Worboyes v Vieth. It therefore cannot establish how later courts have treated this decision, whether they have followed it, or whether they have confined its reasoning to its facts.
Within its own reasons, the decision refers to earlier authorities. It states that Cressy v Johnson (No 3) summarised the applicable law and adopted the three-step process from Kardos v Sarbutt (para 39). It then refers to Giller v Procopets, Findlay v Besley and Steinbarth v Peters for propositions relevant to contribution assessment and evidence (paras 41–43). These are the judgment's stated sources, not evidence of later treatment of Worboyes itself.
The judgment leaves the alternative resulting trust claim unresolved. The Court noted that counsel had not fully argued it and declined to make findings because the Part IX claim had succeeded (para 77). Accordingly, this decision does not determine whether the alleged contributions would have supported a resulting trust on these facts.
The evidence concerning the caveats lodged by Margaret Vieth was also limited. The judgment records counsel's account that the caveats referred to an alleged written equitable agreement, but expressly says that no evidence was led about them (para 4). The proposed orders provided for sale proceeds to be held in trust if a caveat remained at settlement, pending resolution of any dispute with Margaret Vieth (para 78). The judgment did not decide the merits of that alleged agreement or any competing claim to sale proceeds.
Other factual limits include the absence of evidence about Vieth's income and net assets over the relationship and at trial. The Court acknowledged that difficulty and referred to the approach in Steinbarth v Peters when a defendant's failure to participate makes assessment harder (paras 43–44). The judgment does not specify the full financial picture that might have been available had Vieth appeared and provided evidence.
Finally, the orders are expressed as proposed, subject to further submissions by counsel (para 78). The supplied text is the reasons for judgment and records the proposed orders, but does not provide subsequent material establishing whether the terms were altered or finally entered in that form.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have it checked by a qualified Australian lawyer.
PROPERTY - De facto relationship - Application for adjustment of property interests under Part IX of the Property Law Act 1958 (Vic) - financial and non-financial contributions
1 In this proceeding the plaintiff, Kellie Worboyes, makes a claim against the defendant, Ritchie Vieth, seeking orders for the adjustment of property under Part IX of the Property Law Act 1958 (Vic) ("PLA"), arising from a domestic relationship which she alleges she had with Mr Vieth between January 2003 and mid September 2007. Ms Worboyes' claim is based on the acquisition, during the relationship, of two properties in the name of Mr Vieth and some personal property. Alternatively, Ms Worboyes claims that Mr Vieth holds the properties, purchased in his name, as trustee for her alone or in such amount as the Court finds just and equitable.
2 The claims made by Ms Worboyes are made on the basis of contributions, both financial and non-financial, which she alleges that she made to the relationship and to the properties for the benefit of herself and Mr Vieth.
• 24 Botanica Springs Boulevard, Brookfield (Certificate of Title Volume 10951 Folio 148) ("the Botanica Springs Property"); and
• 114 McKenzie Street, Melton (Certificate of Title Volume 8813 Folio 064) ("McKenzie Street").
4 The Court was advised by Ms Worboyes' counsel that Mr Vieth's mother, Mrs Margaret Vieth, has lodged two caveats in respect of the properties. One caveat was lodged on McKenzie Street on 19 September 2007 and another on the Botanica Springs property on 23 January 2008. I was advised by counsel that both caveats refer to an "equitable agreement in writing" which allegedly was made on 10 February 2005. No evidence was led in respect to these caveats. Ms Worboyes also has a caveat lodged on the Botanica Springs Property which was registered on 29 June 2007.
5 Mr Vieth entered an appearance but did not file a defence. He was given notice of the trial but did not attend.
6 The evidence before me was the evidence of Ms Worboyes who impressed me as honest and forthright, even though her evidence was untested as she was not subject to cross examination. She had a good memory. Furthermore, her version of events were supported by the documents tendered, which included bank statements that recorded in detail her expenditure and named the payee of the amounts paid from her account.
7 A subpoena was issued and answered by the Commonwealth Bank of Australia ("CBA"). The CBA produced its file in relation to the application by Mr Vieth for a home loan in respect of the Botanica Springs Property. It also produced bank statements for specified periods for the following accounts in Mr Vieth's name:
4940 521306926668 27 October 2006 to 23 February 2009
9 They met in late 1999. She was aged 25, he was aged 27. They both lived with their respective parents. Mr Vieth was a self employed conveyancer, operating under the name of Arvee Conveyancing and later OZ Property Transfers. She was a receptionist with Imack Communications and later worked as a receptionist at Calvista Star Pty Ltd. They dated until January 2003 when they commenced living together.
10 In February 2000, she purchased a house, 25 Eaton Street Melton ("Eaton St"), for approximately $83,500. She paid a small deposit and believed that she borrowed 95% of the purchase price from MECU Limited. The borrowed sum was $77,425 and mortgage repayments were $242 per fortnight. Mr Vieth performed the conveyancing for the Eaton Street property. Prior to moving into the house her father and brother assisted her in minor renovations including painting and replacing the carpets. Throughout the period she owned Eaton Street, renovations were undertaken by members of her family but paid for out of her income.
11 In about January 2003, Mr Vieth moved in with her and they commenced living together at Eaton Street. At that time she had savings of approximately $5000, owned a Mazda 323 motor vehicle valued at $18,000 and had superannuation entitlements of approximately $27,000. She owned furniture to the value of $10,000 and was paying a loan on the motor vehicle.
12 Ms Worboyes did not give evidence as to what Mr Vieth brought with him into the relationship. However, Ms Worboyes' counsel submitted to the Court that all Mr Vieth owned at the commencement of the relationship was a car, a stereo, CDs and clothes. This accords with paragraph four of the Statement of Claim
13 Mr Vieth paid her $50 per week in cash for rent. She paid all the outgoings on the house including, mortgage repayments, utilities and food. They shared the cost of takeaway meals and holidays. She was responsible for and performed all housework, cooking, cleaning and shopping. Very occasionally he would cook and very rarely did he work in the garden. Her evidence was that he basically ate, slept and on occasions went to work.
14 She was salary sacrificing her car repayments of $130 per fortnight and her mortgage repayments of $260 per fortnight. $565.45 per fortnight was the balance of her salary after tax and superannuation payments. She paid $120 per fortnight into a savings account. This evidence was supported by her bank statements.
15 At this time Mr Vieth was working from his parents' home. Later he worked from her house for a period of approximately 6 months. Then he rented an office in McKenzie Street, Melton which he subsequently purchased. Ms Worboyes' evidence was that he operated the business on his own, had a laptop computer and mobile phone. He very rarely went to the office on a daily basis. He had no work routine. Often she would ring him, always ringing the office number first, and then ringing him at home; invariably he was at home. He told her that he had no superannuation.
16 In February 2005, when she was pregnant, a decision was made by the parties to purchase a block of land and build a house on it. They found the Botanica Springs land which they thought was suitable for a home. A holding deposit was paid of $1000 and was financed by each of the parties contributing $500. She refinanced the mortgage on the Eaton Street property so as to provide the balance of $7,500. She said the price of the land was $85,000 plus costs which she thought took it up to $88,000. At that time in June 2005 the mortgage on Eaton Street had been reduced to $70,291.73 and the mortgage was increased to $79,5000. Payments were $255 per fortnight. The evidence was that Ms Worboyes paid $8,000 towards the deposit (including the initial $500). Her bank statements confirm that there was a transfer on 20 June 2005 of $7,500 to "Goldhirsh & Schi". She assumed Mr Vieth was paying the mortgage payments on the land.
17 On 15 September 2005 Matilda Jade, the only child of the relationship, was born. She was born by caesarean section which meant that Ms Worboyes was not allowed to drive or engage in heavy lifting or housework for a period of 6 weeks. During an approximate period of 4 weeks Mr Vieth assisted in the caring of Matilda and performed the household duties of cooking, cleaning, and washing until Ms Worboyes regained her strength. He increased his rental payments to $100 per week and gave her a one off payment of $1000. She also received the Baby Bonus of approximately $3,356.27.
18 Ms Worboyes' evidence was that she worked until the week before Matilda was born. During the period that she was on maternity leave she received income from contract work, for which she was renumerated at approximately $300 per fortnight, and a part pension from the government. She also relied upon her savings to pay for her car loan, the mortgage repayments and living expenses. This is confirmed by her bank statements. Ms Worboyes supported Matilda and continued to finance the household expenditure. Only occasionally would Mr Vieth assist. On one occasion he and his brothers built a pergola at Eaton Street, Ms Worboyes paid for the materials.
19 Ms Worboyes returned to work on 6 June 2006, working 3 days per week. She was still responsible for the care of Matilda. On the days Ms Worboyes worked Matilda was cared for by her grandparents: Ms Worboyes' mother 2 days per week and Mr Vieth's parents 1 day per week. On that day Mr Vieth and Ms Worboyes would have dinner at the Vieth's house. Ms Worboyes was responsible for dropping off and picking up Matilda from her grandparents' homes. Ms Worboyes' evidence was that at about the time she returned to work she and Mr Vieth were looking at display homes. In January 2007 Ms Worboyes returned to work 4 days per week. Matilda spent the extra day per week at child care which was paid for by Ms Worboyes, which is confirmed by her bank statements. She paid for all costs associated with Matilda. Her recollection was that Mr Vieth only ever purchased one article of clothing for Matilda.
20 In February 2007 Eaton Street was sold for $165,000. Mr Vieth did the conveyancing and handled the proceeds of sale. The MECU loan was paid out in full in the sum of $78,713.06. Ms Worboyes received $6,000 which was paid into her account. This is shown on her bank statements. The balance was owed to her. That money was not paid into her account. The parties continued to live in the property, renting it from the new purchasers until the house was built on the Botanica Springs land. Rent was $200 per week and was paid equally by the parties. It was at that time that Mr Vieth ceased giving Ms Worboyes the weekly payment of $100 per week, converting that payment to his 50% share of the rent to the new owners of Eaton Street.
21 In February 2007 a contract was entered into for the construction of the house on the Botanica Springs land. This evidence was confirmed by the subpoena documents from the CBA. The contract was witnessed by Ms Worboyes. Mr Vieth was responsible for the paperwork, loans and mortgage. Ms Worboyes was responsible for the design of the house and chose the fittings and fixtures.
22 The Botanica Springs Property was registered in Mr Vieth's name. Mr Vieth borrowed money from the CBA which was secured by mortgage. Ms Worboyes gave evidence that she paid for the various expenses including window furnishings, sofa bed and a two seater sofa, lawn mower, a television and a television antenna, and that Mr Vieth reimbursed her for some of these expenses. I was referred to her bank statements.
23 Ms Worboyes' recollection is that Mr Vieth asked her to sign a letter prepared by him . Her evidence was that he used complicated language, which she did not understand, when explaining the document. She read the document and believed that it acknowledged that she had lent him a sum of money which she thought was $70,000 or $80,000, and which gave her the option of getting the money back and charging interest in the event the parties separated. She said that the interest rate was high but did not exceed 10%.
24 The parties moved into the Botanica Springs Property in about mid August 2007. The agreement was that the expenses at the Botanica Springs Property were to be shared equally including the mortgage repayments, insurance, water charges, council rates, gas and electricity which were calculated at $440 per week, her share being $220 per week. This was evidenced by the attachment to exhibit "W12" a document prepared by Mr Vieth. Further, her bank statements indicate payments of $220 per week were made.
25 Ms Worboyes left the relationship in mid September 2007 in circumstances where she left all the household furniture and both her and Matilda's possessions. Since that time she has been living at her mother's house, sharing expenses and paying board of $150 per fortnight to her mother. She believes Mr Vieth has remained in the house.
Part IX of the Property Law Act 1958
26 The first issue is whether Ms Worboyes and Mr Vieth were domestic partners for a period of at least 2 years. That issue is relevant to the alternative claim made by Ms Worboyes based on the principle of constructive trust.
27 Section 281(1) provides that, subject to subsection (2), a Court may only make an order, if it is satisfied that the domestic partners lived together in a domestic relationship for a period of at least 2 years.
Section 275 (1) defines "domestic relationship" as -
the relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis ( irrespective of gender)
28 Section 275(2) provides that in determining whether a domestic relationship exists or has existed, all the circumstances of the relationship are to be taken into account including:-
• the degree of the financial dependence or interdependence, and any arrangement for financial support, between the parties;
• the degree of mutual commitment to a shared life;
• the reputation and public aspects of the relationship.
29 Based on the evidence of Ms Worboyes I am satisfied that she and Mr Vieth were in a domestic relationship for the period of January 2003 until September 2007. During that period they lived together first at Eaton Street and then at the Botanica Springs Property.
30 There was a child of the relationship, Matilda, born 15 September 2005.
31 I am satisfied that there was clearly a degree of financial dependence by Mr Vieth upon Ms Worboyes based on the evidence of Ms Worboyes and her bank statements, exhibit "W10". Ms Worboyes was responsible for the mortgage repayments, utilities and maintenance of Eaton Street. She contributed overwhelmingly to the majority of the household's expenditure at Eaton Street. While at the Botanica Springs Property she contributed 50% to the loan repayments, utilities and insurance (exhibit "W12") as well as paying for food and living expenses. Mr Vieth contributed $50 per week in cash from the commencement of the relationship until Matilda was born, and then a $100 contribution until they moved into the Botanica Springs Property. The $100 contribution changed when Eaton Street was sold, and was paid as his share of the rent to the new owner.
32 The evidence was that Ms Worboyes owned Eaton Street which was sold in February 2007. The Botanica Springs Property was purchased in the name of Mr Vieth. Ms Worboyes contributed the net proceeds of sale of Eaton Street at a figure of approximately $80,000 (including deposit except for the sum of $6000) to the purchase of the land and the cost of the construction of the house on the Botanica Springs Property. According to an email dated 24 August 2007 and attachment being exhibit "W12" sent by Mr Vieth to Ms Worboyes, Mr Vieth acknowledged the receipt of $72,133.37 from the settlement of the Eaton Street property.
33 I was told by Ms Worboyes that both parties were involved in the decision to purchase the Botanica Springs property including the construction of the house and the fixture and fittings. Ms Worboyes witnessed Mr Vieth's signature on the contract between the builder and Mr Vieth (a document in exhibit "W1").
34 I accept the evidence of Ms Worboyes and conclude that she was the primary carer for Matilda and both of their families accepted responsibility in caring for Matilda when Ms Worboyes was at work.
35 The relationship bore the hallmarks of a domestic relationship indicated in the factors as specified by section 275 (2) of the PLA. I am satisfied, on the balance of probability that Ms Worboyes and Mr Vieth did live together as a couple in a genuine domestic basis for the period commencing January 2003 and terminating in September 2007.
36 An application for an order under Part IX must be made within 2 years after the day on which the relationship ended, except with the leave of the Court (section 282). Ms Worboyes' claim was issued on 24 April 2008 and made within the two years after the day on which the relationship ended.
37 The next question which arises is whether Ms Worboyes has established an entitlement to an adjustment of the interest in the property of which Mr Vieth is the registered proprietor, pursuant to s 285 of the PLA.
(1) A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to -
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to financial resources of one or both of the partners; and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following -
(ii) a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and
(c) any written agreement entered into by the domestic partners.
39 In Cressy v Johnson (No 3) [2009] VSC 52 (25 February 2009) Kaye J summarised the applicable law and adopted the approach taken by the New South Wales Court of Appeal in Kardos v Sarbutt [2006] NSWCA 11 (14 December 2006) which was described as a "three step process".
1. Identify and value the property of the parties or either of them the subject of an adjustive property order.
2. Evaluate and balance the respective contributions in light of the matters set out in s 285 of the PLAt on a percentage basis up to the date of hearing.
3. Determine the order required to give effect to the percentage identified in step 2 of the property identified in step 1.
41 Justice Kaye also adopted what was said by the Court of Appeal in Giller v Procopets [2008] VSCA 236 (10 December 2008) at 135 in respect to the application of s 285 in determining the contributions by each party:
For the purpose of this case the following is relevant:
1. Contributions by either party after the termination of the relationship are relevant. Thus the ongoing role of Ms Worboyes as the primary carer for Matilda is a relevant contribution for the purpose of s 285 (ibid at 261, 272).
2. Generally, the Court values the property as at date of trial (ibid at 317).
3. In determining a parties contribution and determining what adjustment is just and equitable a "global" approach is preferred as it is more consistent with the way parties in a relationship conduct their affairs (ibid at 287).
4. Full value must be given to the role of the homemaker or parent in the relationship. Neave JA (with whom Maxwell P agreed) emphasised that, "the contributions of a de facto partner as homemaker and parent should not be regarded as inferior to the corresponding contributions of the other partner, nor should the contributions of a partner as homemaker or parent be valued in reference to the commercial value of those services..."
42 In Findlay v Besley [2003] VSC 247 (3 July 2003) Morris J stated at paragraph 56:
Further, the word "contributions" is a flexible one: it could even embrace negative contributions (for example, where property was diminished by a partner); and there is a need to have regard to benefits enjoyed by a domestic partner as a result of a contribution.
43 In Steinbarth v Peters [2005] VSC 87 Balmford J adopted the view that where the failure of the defendant to take part in the proceeding creates difficulties for the plaintiff to ascertain his current financial position, it is appropriate for the Court to take a "more robust view" when making orders pursuant to s 285. That the Court "should not be unduly cautious about making findings in favour of the innocent party" it is appropriate and consistent with the power conferred by s 285.
44 In accordance with those principles, it is necessary to identify the assets which are the subject of the application. There are difficulties in assessing the total asset pool due to lack of evidence. Mr Vieth's net assets and income now and over the period of the relationship are not known. The evidence establishes that he must have contributed to the acquisition of the two properties and that the acquisitions were funded, in the most part by loans.
45 The evidence is that in June 2005 the land at Botanica Springs was purchased for $85,000. A deposit of $8,500 was paid. Ms Worboyes did not know how the balance was financed. However upon careful reading of the subpoenaed documents from the CBA there is a letter dated 4 March 2007 signed by Mr Vieth to the manager of CDA Securities, requesting the preparation of a discharge of mortgage over Botanica Springs. The evidence was that the cost of the home construction was $163,020.30 and as at 31 December 2008 an amount of $209,000 was owed to the CBA. Costs associated with the mortgage amounted to $1188 as per the attachment to the email from Mr Vieth to Ms Worboyes exhibit "W12".
46 Mrs Lynette Margaret Cook was called as a witness to provide evidence of the value of the property as at the date of trial.
47 She stated that in January 2009 she was looking to purchase a property, searched the internet and saw that 24 Botanica Springs, Brookfield was for sale. Mrs Cook, through her solicitor, made an offer on the house of $330,000, for a 120 day settlement period, which was accepted. A Contract of Sale was prepared and signed by Mr Vieth and Mr and Mrs Cook. Mrs Cook was three days late in obtaining the loan from Westpac Bank and when Mrs Cook's solicitor contacted the vendor he advised that he did not wish to proceed with the sale. The agreed deposit of 10% of the purchasing price was not paid by Mr and Mrs Cook.
48 Based on the evidence of Mrs Cook I accept the value of the Botanica Springs Property at the time of trial was $330,000.
49 The CBA statements (exhibit "W7") show approximately $209,000 owing, as at 31 December 2008, on the home loan. However as at 17 September 2007, $176,000 was outstanding and by 4 October 2007, $193,000 was outstanding. The statement for the NetBank Saver account discloses a credit of $15,000 on 17 September 2007 which corresponds with the debit from the Home Loan account of the same date. A further debit of $15,000 was made on 21 September 2007 and a corresponding credit was entered into the NetBank Saver account on the same day. On 21 September 2007 a car was purchased for $12,516.80 and $27,068.59 was transferred "To Business" on 8 October 2007. There was a further drawdown on the mortgage after Ms Worboyes left the relationship of approximately $16,000.
50 Given the above, adopting what Kaye J said in Cressy v Johnson (No 3) at paragraph 178, I shall infer that the $30,000 was a drawdown by Mr Vieth for his own benefit. It was submitted by counsel for Ms Worboyes that in calculating the amount owing to the CBA, the figure of $190,000 should be adopted.
51 In view of the above evidence I propose to adopt the figure of $180,000. This would mean there was a net worth of $150,000 in the Botanica Springs Property.
52 Ms Worboyes' evidence was that, this property is an office which was rented by Mr Vieth and subsequently purchased by him in February 2005 for about $127,500. It was financed by an interest only loan of $110,000 secured by mortgage to the CBA.
53 I accept that the value of McKenzie Street, at the time of trial, is $237,500. This amount is per the notice to admit Ms Worboyes served on Mr Vieth dated 20 February 2009 which states the value at $237,500. The subpoenaed documents disclosed that in March 2007 Mr Vieth valued McKenzie Street at $330,000 when applying for finance for a home loan from the CBA.
54 In respect to McKenzie Street the first drawdown was, during the relationship, in early February 2006 of $40,000 and the second of $15,000 was in October 2007 after the relationship had ended. The evidence was that the original loan was for an amount of $110,000.
55 Adopting the principle on drawdowns I accept that there is no evidence that the $55,000 was used for the property. It is an office block and there was no evidence before me that it had been improved. Further, $38,189.89 was credited to Mr Vieth's CBA Cash Investment Account on 8 February 2006. A debit of $5000 via phone transfer was made on 11 April 2006. Between 30 May 2006 and 12 June 2006 withdrawals of $8,726 were made to Oz Property or Arvee, businesses operated by Mr Vieth. $6,000 was withdrawn to F Poli Loan. A withdrawal of $24,009.11 was made on 20 July 2006. I accept that I can infer that the $55,000 was used for Mr Vieth's personal benefit.
56 Currently, the liabilities on that property are $165,000, providing an equity of $127,500.
58 I must next reach a conclusion as to the evidence relating to the contributions which the parties have made to the properties in terms of s 285 of the PLA between January 2003 and September 2007.
59 The direct financial contributions to this property were established through Ms Worboyes' evidence and by emails from Mr Vieth to Ms Worboyes being exhibit "W12". Exhibit "W12" listed the costs for the Botanica Springs Property as follows:
60 The evidence of Ms Worboyes was that she contributed $8000 to the deposit of the land. Accordingly her contribution was $80,133.37. Ms Worboyes gave evidence that a document was prepared by Mr Vieth which was an acknowledgment of her contribution to the Botanica Springs Property. It was given to her to sign. I accept the submission of counsel, Mr Bromley, that there is insufficient evidence to establish that the document was a loan document.
61 In addition, Ms Worboyes gave evidence that she paid $2,312.79 for the window furnishings and television antenna which were included in the total for fixtures and fittings. She also paid $1158 for the lawn mower and sofa bed/settee included in the total for home furnishings being $2092.73. Further, it is clear on the evidence of Ms Worboyes and her bank statements that she was asked to and did contribute to the expenses of Botanica Springs Property on a fortnightly basis for the period she remained in the property.
62 Ms Worboyes' direct financial contribution from her evidence was a figure of $8000 for the deposit and $72,133.37 from the proceeds of sale of Eaton Street being a total of $80,133.37. Exhibit "W12" confirmed her contribution of $72,133.37.
63 Ms Worboyes' evidence was that she made no financial contribution to the McKenzie Street property and Mr Vieth's contribution was 100% namely $127,500.
64 Ms Worboyes gave evidence that she owned furniture when Mr Vieth commenced living with her. That furniture was used to furnish the Botanica Springs Property all of which have remained there. I was provided with an extensive list of furniture and personal items in a document titled attachment "A".
65 I am satisfied from the evidence of Ms Worboyes that she did substantially contribute to the person property at Botanica Springs.
66 I accept Ms Worboyes' evidence that she contributed to the majority of the household expenditure during the relationship.
67 Her evidence was that she paid all rates, mortgage payments, utilities for Eaton Street and food for the family from January 2003 to August 2007. Ms Worboyes' evidence was that these direct costs were calculated at $281.50 per week for the period until Matilda's birth in September 2005 and then about $320 per week thereafter.
68 Mr Vieth contributed the following: $50 per week from January 2003 to September 2005 and $100 per week until August 2007 to Ms Worboyes. The evidence was that Mr Vieth only contributed to housekeeping expenses when she asked, however, she rarely asked for contributions. Therefore Mr Vieth's contribution was $14,300 and Ms Worboyes' contribution was $58,390.
69 It was put to me, and I accept, that Mr Vieth received an indirect financial contribution to the acquisition, conservation, or improvement of the property and his financial resources. In other words this was a factor that enabled Mr Vieth to finance his interest in McKenzie Street and the Botanica Springs Property. There were also child care expenses from January 2007 paid by Ms Worboyes (which may have been offset by payments made by the government to Ms Worboyes).
70 The evidence establishes that Ms Worboyes contributed significantly in the capacity as homemaker to the welfare of both Mr Vieth and Matilda during the relationship, by doing almost all of the cooking and house work, together with caring for Matilda. In addition she worked throughout the relationship.
71 I was taken to her Notices of Assessment issued by the ATO for the financial years ending 30 June 2003 to 30 June 2008. Her income was as follows:
72 She has continued to care for Matilda after the relationship ended. Further, Ms Worboyes brought to the relationship the equity she had in Eaton Street and the furniture. I accept that the bulk of the equity in the Botanic Springs Property is due to her contribution.
73 Her financial contribution to the assets were very significant. The purchase of the Botanica Springs Property was due to the monies she provided for the deposit on the land and the proceeds from her Eaton Street property.
Relief under Part IX of the Property Law Act
74 I turn to consider what relief is to be granted to Ms Worboyes in respect of her claim against Mr Vieth under part IX of the PLA. Section 285(1) empowers the Court to make an order adjusting the interests of the domestic partners in the property of one or both of them that seems "just and equitable" having regard to the three types of contributions referred to in that subsection. Section 291 sets out a broad range of orders which the Court can make in exercising those powers.
75 As to the injection of capital by Ms Worboyes, taking a "global approach" to the asset pool of $277,500, and all other matters of an intangible nature, I consider Ms Worboyes is entitled to be awarded greater than 50% of the total asset pool. Accordingly I propose to order that Mr Vieth pay to Ms Worboyes the sum of $166,500.
76 As to the goods identified in the document entitled schedule "A" annexed hereto I find that they are the property of Ms Worboyes.
77 As an alternative Ms Worboyes claims that Mr Vieth holds any interest he has in the Botanica Springs Property and the McKenzie Street property as trustee for her benefit. Ms Worboyes' counsel did not fully argue this submission at trial. Given that I have found in favour of Ms Worboyes, in respect of her claim under Part IX of the Property Law Act, it is unnecessary that I make findings in respect of Ms Worboyes' alternative claim.
78 I propose to make the following orders subject to any further submissions by counsel:
1. That the defendant forthwith pay to the plaintiff $166,500.
2. Pursuant to section 291 of the PLA (as per section 74(3) of the Relationships Act 2008), in order to secure the sum payable to the plaintiff, the real property at 24 Botanica Springs Boulevard, Brookfield, being the land described in Certificate of Title Volume 10951 folio 148, ("Botanica Springs") be forthwith sold wholly out of Court and upon the settlement of the sale the proceeds be dispersed as follows:
a. First, to pay all sale costs, estate agents' commissions and any conveyancing expenses of the sale;
b. Secondly, to pay such sum as will enable the plaintiff to obtain a discharge of the mortgage numbered AF047688D to the Commonwealth Bank of Australia Limited;
c. Thirdly, to pay such sum as is necessary to satisfy:
i. The plaintiff's entitlement pursuant to paragraph 1 of these orders; and
ii. The plaintiff's costs and any reserved costs of this action;
iii. Save that if any caveat lodged by Margaret Vieth has not been removed prior to settlement then the balance of the monies be paid into the plaintiff's solicitor's trust account pending the resolution of any dispute between the plaintiff and Margaret Vieth as to the proceeds of the sale;
iv. Further, for the purposes of any proceeding to remove the caveat the plaintiff is hereby declared to be a person interested in the real property or adversely affected by the caveat for the purposes of section 89A and 90(3) of the Transfer of Land Act 1958;
d. Fourthly, the balance (if any) to be paid to the defendant.
3. For the purposes of paragraph 2 of these orders and pursuant to section 292 of the PLA, the plaintiff's solicitor John Wertheimer of Melton Law Offices is appointed to sign in the name of the defendant, the section 32 certificate, appointment of real estate agent, contract of sale, transfer of land and any other necessary document, deed or instrument or such other documents as are reasonably and necessarily required to be executed in the usual course of sale, conveyance and settlement of Botanica Springs to convey Botanica Springs. Further and for the sake of clarity:
a. Botanica Springs be sold at auction or privately at a reserve price set by the plaintiff's solicitor after consulting with the real estate agent appointed to sell the property;
b. Subject to the provisions of the Sale of Land Act 1962, the plaintiff and the defendant be at liberty to bid at the auction for the purchase of the Property;
c. Any contract of sale entered into by the purchaser shall provide that -
i. The deposit be 10% of the purchase price to be paid on the signing of the contract by the purchaser;
ii. The deposit be held by the plaintiff's solicitor as stakeholder;
iii. The balance of the purchase price be paid in not less than 60 days;
iv. Contain such other special conditions as the plaintiff's solicitor shall determine are reasonable and necessary for the protection of the plaintiff and the defendant as vendors;
v. Be otherwise in the terms of the Law Institute of Victoria pro forma contract of sale.
4. In the event that the Property does not sell at auction or within 14 days after the auction then either party shall be at liberty to apply to this Honourable Court for further directions or orders.
5. If the proceeds paid to the plaintiff pursuant to the sale of Botanica Springs are not sufficient to pay the amount ordered pursuant to paragraph 1 then paragraphs 2, 3 and 4 shall apply mutatis mutandis to the property known as 114 McKenzie Street Melton (Volume 8813 Folio 064) ("McKenzie Street").
6. That unless the plaintiff has been paid the amount payable pursuant to paragraph 1, the defendant is herby prohibited from selling or attempting to sell Botanica Springs or McKenzie Street.
7. Until the properties are sold the defendant to continue to be solely liable for and make any payments due to any mortgagees of the properties.
8. The defendant co-operate with the plaintiff's solicitor or any real estate agent appointed with respect to any property and do all things necessary to facilitate the orderly sale of any property pursuant to this judgment.
9. That the goods identified in schedule "A" annexed hereto are the property of the plaintiff.
10. That the defendant hereby forthwith deliver up to the plaintiff the goods identified in schedule "A" that is annexed hereto.
11. That the defendant pay the plaintiff's costs including all reserved costs.
I certify that this and the 19 preceding pages are a true copy of the reasons for Judgment of Associate Justice Kings of the Supreme Court of Victoria delivered on 27 May 2009.
Worboyes
Vieth [2009] VSC 205
The Court proposed orders requiring the defendant to pay the plaintiff $166,500, providing for the sale of Botanica Springs to secure payment and, if necessary, a sale of McKenzie Street, declaring specified goods to be the plaintiff's property and requiring their delivery, and requiring payment of the plaintiff's costs. The proposed orders were subject to any further submissions by counsel (para 78).