Plaintiff v Defendants

Supreme Court of Victoria|2005-09-16|Before: Hansen J

Equity - Estoppel - Promise to transfer interest in land on marriage - Reliance - Detriment - Relief

Mr P R Hayes Q.C. and Mr N Dragojlovic to 8 April 2005, then Mr P C Golombek and Mr N Dragojlovic

Introduction

1 Susie Stojanovska and Steven Victor Donis married on 16 February 1997 with every expectation of a happy future together, that expectation doubtless enhanced by her early pregnancy and the birth of their child Jamie Steven Donis on 10 November 1997. However, happiness eluded them and their differences became such that they separated in January 2000. Until then they lived at a house at 1575 Plenty Road, Mernda situated on a 40 acre rural property which Steven's parents, Victor and Rosa Donis, purchased in 1995 and of which the parents were registered proprietors. There was a second, and older, house on the property the address of that house being 1565 Plenty Road. The question in this case is whether, as in essence Susie alleges, Victor, Rosa and Steven promised her that when she married Steven she would be made an owner with him of one half of the property, a promise which was repeated following the marriage, and that in reliance thereon she (and Steven) made financial and non-financial contributions to the house and its surrounds at 1575 Plenty Road. On that basis she claims to be entitled in equity to a one-quarter interest as tenant in common with Victor, Rosa and Steven in the whole 40 acre property. As, however, Victor and Rosa sold the property on 10 October 2002 she seeks, in addition to a declaration as to her right, an order for payment of the sum which represents the value of her interest or, alternatively, the amount otherwise determined as appropriate to be paid to her. Victor, Rosa and Steven, as the defendants, deny the making of any such promise, contending that Victor and Rosa did no more than offer Susie and Steven the right to live in the house at 1575 Plenty Road rent free to enable them to save money and establish themselves financially until they could afford to leave the property. They further deny that Susie has suffered any significant detriment.

2 No question of principle arises in the case, there being no dispute between counsel that the relevant principles are amply expressed and their application illustrated in Giumelli v Giumelli[1] and Flinn v Flinn[2]; see too my decision in Rogers v Rogers[3]. The case turns entirely on its facts or, to be more precise, on the facts as I find them to be. I put it that way because it is a case in which each side contends that the central evidence of the other is a lie.

Background concerning the parties and their families

3 I now set out certain facts by way of background. In doing so I state the facts as I find them to be.

4 The plaintiff, Susie Donis, was born on 17 March 1973 and was thus aged 23 when she married. She is the second of three children of Nikola and Nadezda Stojanovska, of Epping. The plaintiff has an older sister Vesna, a business analyst, and a younger sister Valentina, a solicitor. Vesna and Valentina live at the same address in Sydney. The plaintiff also now lives in Sydney with her child Jamie, although not at the same address as her sisters.

5 Susie completed her Year 12 studies at Thomastown Secondary College in 1990. She then undertook and in 1993 completed a Bachelor of Teaching and in 1995 a Bachelor of Education. During this time she lived at Thomastown with her parents and sisters. She met Steven in 1995 at the Bundoora factory of Melbourne Mushrooms where she undertook casual work.

6 Susie naturally aspired to a career as a teacher and worked as such after completing her qualification. Following the marriage she worked as a teacher at Thomastown Meadows Primary School. However, having become pregnant on their honeymoon Steven and his parents desired that she stay at home and look after the child (or children) and the house and support Steven, and she and Steven agreed that she would stop working as a teacher in order to devote herself to the care of their child, Steven and the house. She stopped work some months before Jamie was born, an additional factor in her deciding to do so being, she said, statements that there was no need for her to work as she and Steven owned half the land and the house. She did not resume work prior to their separation. She expressed concerns to Steven that ceasing to work as a teacher would affect her chances of working as a teacher when their child was older.

7 Mr and Mrs Stojanovska were born in Macedonia and long ago migrated to Australia. He was a factory worker. She worked at Melbourne Mushrooms as a mushroom picker. They have both retired. Although they have lived in Australia many years and have some understanding of the English language their language of use is Macedonian, and they gave evidence in that language through an interpreter. Their children were educated in and speak English well.

8 Mr and Mrs Stojanovska are Macedonian Orthodox. The observance of Macedonian traditions, and adherence to the Macedonian Orthodox Church, was and is important to them. As Macedonian Orthodox they would not attend a Greek Orthodox Church. They expected their children to follow Macedonian tradition. In relation to marriage there was the tradition of the man giving his word to his intended's parents as to his intention to marry their daughter; this event was referred to in evidence as the giving of the word or The Word. The Word is a necessary precursor to the couple becoming engaged and married. Then, the marriage will take place in the Macedonian Orthodox Church.

9 Another Macedonian tradition, on the plaintiff's case, but denied by the defendants, is that the father of the groom give the couple a house or land for a house.

10 Steven Victor Donis, who was born on 15 July 1972 and was thus aged 24 when he was married, is the eldest son of Victor and Rosa Donis. He has a younger brother Michael who was born in July 1976.

11 Victor and Rosa were born in areas that are now part of Macedonia. They describe themselves as Aegean Macedonian, and, as with some people from that area, are Greek Orthodox notwithstanding that they are Macedonian. They respectively migrated to Australia in the 1960s, each coming with their mother and siblings. They met in Melbourne and married at the Greek Orthodox Church on 15 August 1971. Steven was baptised in the Greek Orthodox Church at Preston. Victor and Rosa gave evidence in the English language exhibiting a good ability with that language. They also speak Macedonian. It was apparent also that Steven understands and can speak Macedonian.

12 Victor and Rosa both left school during their Form 2 year, Victor to commence an apprenticeship as a shoemaker and Rosa to commence employment as a garment cutter at a clothing factory. On their marriage they lived with her parents in Preston until 1973 when they purchased a house. In 1979 they purchased a block of land in Mill Park upon which they built a house completing it in 1981. In 1987 Victor and Rosa acquired and commenced to conduct a fish and chip shop business in Bundoora, and sold their house in Mill Park. In April 1987 Victor and Rosa bought an investment property at 1 Maywood Drive, Epping. In July 1987 they bought another house at 12 Manuka Court, Mill Park. By 1988 they had sold their Bundoora business and bought another fish and chip shop business in Epping which they sold in 1989. Victor then worked for food wholesalers until 1993. In February 1990 they bought an investment property at 14 Queen Street, Lalor. In 1993 they purchased a fish and chip shop business in Lalor. In July 1995 they purchased the Mernda property. In October 1995 they sold their house in Manuka Court, Mill Park and decided to sell their investment properties in Epping and Lalor to buy the 40 acre property at Mernda to which they moved with their sons in or shortly following November 1995[4]. On 4 April 1996 they sold the property at 1 Maywood Drive, Epping. On 2 July 1997 they sold 14 Queen Street, Lalor. In June 1999 they sold the fish and chip shop business.

13 After completing Year 12 at Reservoir High School in 1990 Steven commenced casual employment at Melbourne Mushrooms where Susie's mother worked, and commenced a course at TAFE part-time in Information and Technology. In 1994 he undertook training at the Victoria Police Academy from which he graduated on 20 January 1995 as a Probationary Constable. He lived with his parents rent free at their home in Mill Park and, when they moved, at the Mernda property. Initially the family moved into the house at 1575 Plenty Road, which was newer and larger than the house at 1565 Plenty Road, but because of the distance of that house from the sheds and farming equipment at the property they all very soon moved into the latter house. However due to Steven's sleeping habits as a result of working on night shift he, at the suggestion of his parents, moved back to the house at 1575 Plenty Road in late 1995 or early 1996 where he continued to live until he married Susie.

14 After three years on secondment to the Australian Federal Police, in March 2005 Steven took up full-time employment with that body as a technical service officer.

15 The marriage of Susie and Steven was dissolved by a decree nisi granted by the Family Court of Australia on 28 August 2002. Steven has remarried.

The Mernda Property

Description

16 The property at Mernda purchased by Victor and Rosa had been passed in at auction on 17 December 1994. The agent's flyer for the auction went into evidence as Exhibit 3. In addition to the description contained in it, an aerial photograph of the property was tendered[5] and an overview sketch of the improvements and fencing on the land prepared by Steven was tendered[6].

17 In addition to a description of the property, the auction flyer bore photographs of the property and the two houses on it. The property was a "Prime Northern Edge Of Melbourne Investment" called "Bimbimbie" at Mernda and consisted of 40 acres or 15.89 hectares on Plenty Road and it was described as - "featuring two brick homes - lush pastures - excellent investment potential - 30 km Melb. zoning - 'Urban Development'". The property was approximately one km north of Mernda, 10 minutes south of Whittlesea and 30 km from Melbourne. Two named schools were only minutes away. As to the land itself, it was stated that there were two main paddocks which were suited to cattle and horses. There was shedding and stockyards. One home was eight years old with 18 squares of living space including three bedrooms, ensuite, lounge, dining room and with a second bathroom/spa bath. The second house was an "attractive older" brick veneer with three bedrooms and other facilities. The description of the land and the houses thus provided accords with the evidence.

18 The newer house referred to in the flyer was that at 1575 Plenty Road at which Susie and Steven resided, while the older house was that at 1565 at which Victor, Rosa and Michael resided. Both houses faced toward, and were entered from, Plenty Road, neither of them being set back far from that road. The aerial photograph shows trees on the property while that photograph and Steven's sketch show the shedding and cattle yard.

19 The property is rectangular in shape and located on the western side of Plenty Road which runs in a north-south direction. The newer house at 1575 Plenty Road which Susie and Steven occupied was located in a fenced off area in the front north-east corner of the property. The house at 1565 Plenty Road was to the opposite south-east corner and was also fenced off. Each property was thus fenced to keep animals out. The farm shedding and cattle yard was within a further fenced area immediately behind 1565 Plenty Road. There was no farm shedding or cattle yard at 1575 Plenty Road, that was a stand alone house. There was vacant land between the two fenced house areas including the fenced area which contained the farm sheds and cattle yard.

20 I note that in the statement of claim and in a letter dated 2 February 2001 from an estate agent called The Professionals[7] the area thus enclosed at the 1575 Plenty Road house block is said to be approximately two acres. The defendants would have it that the area was in the order of three quarters of an acre, and Stephen sought to support that by stating the dimensions of the surrounding fence. I deal with Stephen's credit below. For the moment I record that I do not accept his evidence. Apart from that, the rival views as to the area were assertion, although as an impression the area seems larger than three quarters of an acre. The parties did not establish the actual area in an accurate way. Steven's sketch was not to scale, the auction flyer did not state the area, and if it could be satisfactorily done the parties did not put forward a measurement based on the aerial photograph.

21 A further and important matter concerning the fencing is this. The property was not divided in half by a fence. There was not a fence that ran down the mid point of the property from the eastern to the western rear boundary. Such a fence would have created two 20 acre paddocks, ignoring any other fencing and developments on the property, with one house on each paddock.

Purchase of property

22 It was not clear on Victor's evidence when the property first came to his attention. He said that the property came to his attention when he and his wife saw the board on the property while they were driving one Sunday afternoon. They stopped, looked, got the number and rang the agent who came and saw them at their shop and they bought the property. The agent was Ken Buckland, not the firm whose name appeared on the auction flyer. He first contacted the agent "a very short time" before buying it. He inspected the property once. After they bought it and paid the deposit he consulted his solicitor John Collard of Collards. He was not sure on what bank account the deposit cheque was drawn.

23 The actual contract of sale was not produced at the trial. In place of that there was tendered the Particulars of Sale page from the contract and the instructions for settlement sheet prepared by Collards which lists the various cheques required at settlement[8]. What is disclosed is that the property was purchased for $350,000 payable as to $38,500 by way of deposit on the signing of the contract and the balance within 120 days, and that the day of the sale was 11 July 1995. It is seen that the deposit is more than 10 per cent; the explanation is that the contract had stated a selling price of $385,000 but Victor had offered only $350,000 which offer was accepted. While the purchase price was reduced to $350,000 Victor and Rosa yet agreed to pay a deposit of $38,500 which was the deposit stated in the contract and which had been calculated by reference to the price which the agent had sought. Victor and Rosa obtained a loan of $390,000 from the National Australia Bank Ltd ("the NAB") to fund the purchase.[9] The loan was secured by a mortgage.

24 The contract settled on Friday, 10 November 1995, the NAB loan being drawn down. On 27 November 1995 the transfer to Victor and Rosa and the mortgage to the NAB were duly registered on title.

Use of the property

25 On settlement the defendants and Michael commenced to occupy the house at 1575 Plenty Road but, as mentioned earlier, for reasons of convenience to the sheds and farm facilities all of which were proximate to the house at 1565 Plenty Road and within the fenced off area connected to it, they moved to that house. (As also mentioned earlier, Steven soon moved back to 1575 Plenty Road.) As to the land generally, the defendants used it to fatten cattle and sheep which they bought and sold.

26 Until possession was given under the contract of sale entered into in 2002, Victor and Rosa resided at 1565 Plenty Road. At a time which Victor agreed was shortly after the separation and Steven said was around May, Steven resumed living at 1575 Plenty Road. He did so free of rent and his parents paid the rates and insurances. Steven remained living there until 2003 when he moved to Moonee Ponds. Subsequently Victor and Rosa duly gave possession under the contract following which, in late 2004[10], the purchaser demolished the houses.

Sale of the property

27 By a contract of sale dated 10 October 2002 Victor and Rosa sold the Mernda property to Stockland (Constructors) Pty Ltd for $3,797,110 payable as to 10% by way of deposit and the residue by instalments stipulated in the contract. The settlement date, being the date on which possession was to be given, was on payment of half of the purchase price, which appears to be at the expiration of one year. The sale included specified chattels in particular "one colorbond fence and one garage door automatic opening system at 1575 Plenty Road Mernda and two security doors". The deposit of $379,711 was paid to the agent who on 17 October 2002 accounted for it to Victor and Rosa. After allowing for commission, advertising and related expenses of the agent, the balance of the deposit payable to Victor and Rosa was $313,551.69. In addition there were legal costs on the sale[11] of $2,327.75.

28 The purchaser is a developer which at the same time acquired adjoining land with a view to sub-division. A rezoning permitted residential subdivision.

29 Subsequent to Susie and Steven separating and following proceedings in the Family Court Susie lodged a caveat claiming an equitable interest in fee simple on the ground that Victor and Rosa held the land for themselves and as trustee for her pursuant to a constructive trust. The caveat is dated 25 October 2000 and was lodged within a short time thereafter. The chronology provided by counsel gives the date of lodging as 15 November 2000.

30 In December 2002 the plaintiff withdrew her caveat in accordance with a without prejudice agreement made between the parties under which sums totalling $450,000 were required to be placed in a trust account[12]. The sale has proceeded.

Pleadings

Statement of claim

31 In the further amended statement of claim dated 15 April 2003 ("statement of claim") the plaintiff's case is pleaded in the following way.

(a) Victor and Rosa were the registered proprietors of the 40 acre property known as 1565 Plenty Road, Mernda (called "the real property").

(b) Within the real property was a house known as 1575 Plenty Road which was located within a fenced area of approximately two acres (called "the house property").

(c) Throughout the marriage Susie and Steven lived in the residence on the house property until their separation on 1 February 2000.

(d) On occasions prior to the marriage the defendants told Susie that:

(i) Steven had purchased half the real property and Victor and Rosa the balance of the real property;

(ii) half the real property (including the house property) belonged to Steven, his name was on title as the registered proprietor in relation to that land and he was paying the mortgage on his half of the real property; and

(iii) half the real property (including the house property) would belong to Susie and Steven after their marriage, and this property would be theirs to do with as they liked once the mortgage had been fully paid.

(e) On occasions during the marriage the defendants told Susie that:

(i) the residence on the house property belonged to her and Steven;

(ii) half of the real property (including the house property) belonged to Susie and Steven;

(iii) Steven was paying the mortgage on half of the real property (including the house property) on behalf of Susie and himself;

(iv) Susie and Steven were on title as registered proprietors in relation to half the real property (including the house property).

(f) At all times until Susie and Steven separated the defendants acted as though half of the real property (including the house property) belonged to Susie and Steven.

(g) The statements and conduct of the defendants induced Susie to contribute financially to the real property with monies contributed jointly by her and Steven -

(x) in making payments on the mortgage on the property,

(y) towards the renovation, improvement, maintenance and conservation of the house property.

In particulars it is alleged that monies were contributed as follows:

• Prior to and during the marriage, Steven applied monies from bank accounts in his name or the joint names of Susie and himself in payment of the mortgage.

• Monies given to Susie and Steven as gifts for their engagement, wedding etc were used for renovation, improvement and maintenance of the house property.

• Approximately $9,000 given to Susie and Steven by her parents was used towards renovation and improvement of the house property.

Further particulars list 24 items on which the monies were expended together with the estimated cost.

(h) It is further alleged that the statements and conduct of the defendants induced Susie to contribute non-financially to the improvement, maintenance and conservation of the real property including the house property. Particulars are provided which state that much of the work on renovations and improvements (referred to in the above particulars) was done by Susie and Steven or her parents. It is further stated that Susie spent many hours per week prior to and during the marriage on a variety of tasks related to cleaning the house and outside area.

(i) By reason of the matters referred to in (g) and (h) above, the defendants are estopped from denying that the plaintiff had an interest in the real property to the extent of a moiety.

(j) Further, by reason of the matters referred to in (g) and (h) para above, the plaintiff "had an equitable interest in and over the real property and is entitled to an order that one-quarter of the net proceeds of the sale of the real property be paid over to her".

(k) Further alternative pleas followed each claiming an interest in the real property.

(l) The prayer for relief sought relief to the effect of the above pleas.

Defence and counterclaim

32 The defendants filed a further amended defence and counterclaim ("defence and counterclaim") dated 19 June 2003.

33 Concentrating on essential points I note that the defence denies the representations in the statement of claim and states (in para 8) that Victor and Rosa represented to Susie and Steven that they could occupy the residence upon the house property rent free for a period to help them save money and establish themselves financially in their marriage until such time as they could afford to leave the residence upon the house property. In particulars it is stated that the representation was oral and to be implied. Insofar as it was to be implied it was from the fact that Susie and Steven had very little money, the residence on the house property was furnished with furniture of Victor and Rosa and they permitted Susie and Steven to reside there while they and their younger son Michael resided in the other residence on the real property, and it would be expected they would afford Michael the same opportunity when he married. Elsewhere (in para 4) the defence did not admit the allegation that the fenced area of the house property consisted of approximately two acres, it being stated that the defendants had not made a precise measurement of the dimensions of the house property. It is alleged, in para 6, that Susie and Steven commenced to reside in the residence on the house property upon their return from their honeymoon, that in January 2000 Victor and Rosa served a notice on Susie and Steven demanding they vacate the residence on the house property, and that Susie and Steven vacated the house property. There is then, in paras 9 and 10, an extensive pleading as to the various items of financial and non-financial contribution alleged by Susie including particulars as to amounts and who paid for what. It is then, in para 11, alleged that if Susie performed any of the activities or made any of the contributions alleged by her such activities and/or contributions were not significant or substantial, and that Susie had not suffered any or any significant or substantial detriment by reason thereof.

34 The counterclaim consisted of two claims. First, if it was held that Susie or Steven held an interest in the real property, there should be a declaration that such interest was held by Steven alone, alternatively by Susie and Steven jointly. Secondly, damages were sought on the basis that Susie had removed certain items from the house property which were the property of Victor and Rosa and which, despite demand, she had not delivered up to them. The items were listed in particulars; there were 18 items or category of item commencing with "Gold coins and other jewellery" and concluding with "Car mats". Victor and Rosa claimed the delivery up of the items or damages for their conversion or detention. The counterclaim did not include any particulars of value or damages. In particulars provided subsequently it was stated that Victor and Rosa were unable to specify the values of the items except to estimate the value of the gold coins and jewellery to be approximately $20,000 and the value of the other 17 items to be approximately $10,000.

35 Counsel for the defendants abandoned the counterclaim in the course of the trial. I became aware that it was abandoned when on the seventh day of the trial, while Steven was being cross-examined, I asked counsel for the defendant what was the status of the counterclaim. Counsel informed me, simply and blandly, that "it is not being pursued. There is no evidence about it".

Reply and Defence to Counterclaim

36 The plaintiff filed a reply and defence to counterclaim dated 17 July 2003. Apart from some positive assertions this pleading essentially joined issue - including specific denials of the allegation that she had removed items of Victor and Rosa's from the house property - on the defence and counterclaim and it is unnecessary to make further specific reference to it.

The trial

37 The Listing Master fixed the case for trial on an estimate of duration of four to five days. By her order, made on 25 July 2004, she required the filing of a court book containing the current pleadings and particulars and documents to be tendered in evidence, and required the parties to file "an outline of all the oral evidence" to be adduced at the trial and stating the substance of the evidence expected to be given by each witness.

38 At the trial it quickly became apparent that the estimate of duration was unrealistic having regard to the nature of the case which depended upon oral testimony and turned on the credit of witnesses, the number of witnesses and the overall poor standard of the outlines of evidence. Five witnesses gave evidence in the plaintiff's case and ten in the defendants' case. Unfortunately, but doubtless for financial reasons, the plaintiff's outlines of evidence were prepared by the witnesses. They were neither drafted nor settled by the plaintiff's solicitor or counsel. The statements reflect that omission. Nevertheless they were used, and tendered, as witness statements containing the evidence in chief of the witness; the same thing occurred with the statements of the defendants' witnesses.

39 Counsel for the defendants took a general objection to the plaintiff's witness statements to cover any ground of inadmissibility such as hearsay or other want of form. He did not seek a ruling, accepting, as is the case, that the case will not be decided on inadmissible material but not wanting to delay the trial. The same approach was taken by counsel for the plaintiff.

40 It was said by counsel for the defendants, or at least it seemed inferred, that Valentina, who is a solicitor and prepared her own outline, had a hand in the preparation of or oversaw some or all of the other statements of the plaintiff's witnesses. I accept Valentina's evidence on this and consider, further, that if her role had been as that of a solicitor responsible for preparation the outlines would have been of a higher professional standard. The truth is that they were prepared late by the witnesses when it was apparent the case was to proceed.

41 As for the defendants, what they provided in purported compliance with the order for outlines came either very late or during the trial and was not altogether satisfactory. In this and other respects it was evident during the trial that the defendants' case suffered from a lack of timely and proper preparation, one aspect of which was an ongoing failure to make proper discovery or production of documents, a failure which in certain respects remained at the end of the trial, and another aspect of which was the failure to properly instruct counsel as to proceedings between Susie and Steven in the Family Court.

42 A court book was filed which included 168 pages of discovered documents none of which were tendered. The court book also included the pleadings and particulars and the plaintiff's answers to interrogatories; one answer was tendered. Otherwise the documents and photographs tendered during the trial were not contained in the court book.

43 Whether or not as the product of these and other factors, but reflecting that in this case the credit of witnesses was vital, counsel engaged in some lengthy cross-examination. Susie, Steven and Victor were each cross-examined for over a day, Susie in an argumentative and confrontational style and Steven and Victor in a manner more steady and patient. The plaintiff's other witnesses, and Rosa, were cross-examined for lesser periods but nevertheless in a rigorous and searching manner. The evidence of the other seven witnesses called by the defendants was brief, but that was all that was warranted, and in total occupied a little less than 70 pages of transcript. It was thus that the duration of the trial blew out to 10 days. But that only took the trial to the completion of evidence. It was then convenient, and suggested by counsel, that counsel provide written submissions and these were provided on a sequential basis with a view to resuming for oral argument on 30 May 2005. As it transpired, the written submissions were of such a standard and sufficiency that for that reason and to avoid the parties incurring unnecessary cost, I cancelled the hearing on 30 May and reserved my decision without requiring further attendance of the parties. Neither party objected to that course or said that they wished to be heard. In fact counsel had suggested this course in the discussion at the close of evidence.

44 Finally, while the trial took a long time the result was that I was able to observe the primary witnesses give their evidence over sustained periods. By primary witnesses I mean the plaintiff and her sisters and parents on the one hand, and the defendants on the other hand. I do not overlook the other witnesses called by the defendants. As to those other witnesses however their evidence was of relatively narrow compass and the time they spent giving evidence was sufficient opportunity to form an appreciation of them. As to the primary witnesses though, it was an advantage of inestimable benefit to be able to see them and observe both the manner in which they were cross-examined and their reactions and answers, and in light thereof to form an assessment of them and their evidence.

Chronology

45 At the end of the trial counsel agreed to provide me with a chronology of events. The chronology was provided with the defendants' written submission. Counsel for the plaintiff accepts it as correct. It is convenient to incorporate the chronology in the judgment. It is a convenient reference point to relevant facts, and I will use it in that way when referring to what was said, or is alleged to have been said, on a particular occasion such as The Word, the engagement party, the wedding, the barbecue following the honeymoon and the Prviche. In the chronology the following letters and expressions have the following meaning -

A Macedonian tradition, it is an occasion when the man gives his word to her parents of his intention to marry their daughter. This precedes, and is a necessary precursor to, the couple becoming engaged and married.

A Macedonian tradition, described by Nikola Stojanovski as a traditional lunch after a wedding. In this case the Prviche was held at Smorgy's restaurant in March 1997 following the honeymoon. Shortly before that in March a barbecue was held at Victor and Rosa's house - this was not the Prviche.

D3 says he first met P [T440, 600 & Exhibit 8, para 10].

D3 says he commenced work at Preston Police Station. [T599].

D1 & D2 execute contract of sale for Mernda property. [Exhibit 5].

The "Word" (initially at P's parents house, then later at modern house in Mernda).

Formal engagement party (at Gloria Receptions in Epping) and "after-party" (at P's parents' house).

D1 & D2 sell fish & chip shop business. [refer to Exhibit BB].

Argument between P & D3. D3 vacates matrimonial home. End of cohabitation.

D1 & D2 serve notice to P & D3 to vacate Mernda property.

D3 files application in Family Court seeking child contact orders.

P responds to D3's application in Family Court and seeks: (1) residence (custody); (2) defined contact to D3; (3) spousal maintenance; and (4) property settlement of "such amount as this Honourable Court deems appropriate".

Affidavits relating to Family Court proceeding sworn by P and D3. [Exhibit 10].

Family Court orders D3 pay spousal maintenance to P of $150 per week.

D3 commences 3 months unpaid leave from Victoria Police.

P lodges caveat on title of Mernda property claiming "an equitable interest in fee simple" in whole property.

D3's solicitors send letter to P's solicitors suggesting reconciliation between D3 & P. [Exhibit J].

Letter from Professionals to P regarding appraisal of house and 2 acres on Mernda property. [Exhibit 2].

P files application in Magistrates' Court for intervention order against D3, and obtains an interim order against D3.

Hearing of P's application for intervention order against D3 is adjourned to 8 May 2001, interim order extended to same date.

Hearing of P's application for intervention order against D3 is adjourned to 14 June 2001, interim order extended to same date.

Hearing of P's application for intervention order against D3 is adjourned to 23 July 2001, interim order extended to same date.

Hearing of P's application for intervention order against D3 is adjourned to 21 March 2002, interim order extended to same date.

P files writ and statement of claim in Supreme Court against D1 & D2.

P files amended statement of claim in Supreme Court and joins D3 as a party.

P files amended response to D3's application in Family Court seeking: (1) D3 attend parenting and anger management courses;

(2) child to reside with P and D3 to have contact; and (3) permission for P to relocate to Sydney.

Family Court makes procedural orders regarding D3's application and P's response.

Magistrates' Court - orders made by consent that: (1) P's application for intervention order against D3 is struck out; (2) interim order is discharged; and (3) no order as to costs.

D3 files amended application to Family Court seeking: (1) detailed contact orders; (2) discharge of spousal maintenance order made on 21 September 2000; and (3) orders that spousal maintenance paid 15 October 2000 to 6 January 2001 be credited to D3 as child support.

Family Court makes procedural orders for half-day trial dealing with relocation, children's issues and spousal maintenance (but not property settlement)

Family Court makes orders by consent that: (1) child reside with P; (2) detailed contact order for D3; (3) spousal maintenance order made on 21 September 2001 be discharged; and (4) D3 to pay $5000 lump sum maintenance to P within 14 days. Also noted: D3 to pay child support arrears to P within 21 days.

D1 & D2 execute contract for sale of Mernda property for $3.797M. [Exhibit X].

P withdraws caveat over Mernda property pursuant to without prejudice agreement between the parties.

P writes letters to Child Support Agency. [Exhibit 1].

P files further amended statement of claim in Supreme Court.

Buildings on Mernda property are demolished. [T532].

Evidence

46 Evidence was given by the following witnesses:

(a) For the plaintiff, by herself and her sisters and parents.

(b) For the defendants, by themselves and the following persons:

(i) John Neil Horton, a Senior Sergeant of police stationed at Epping Police Station since 1994.

(ii) Sotir Georgievski, a brother of Rosa with whom he has a good relationship.

(iii) Jim Donis, a Protective Services Officer attached to the Victoria Police and a first cousin of Steven.

(iv) Jim Panovski, who is employed as a Chief Executive Purchaser for HLM Hotels and whose wife is a second cousin of Susie.

(v) George Donis, who is aged 67, is a pensioner and the oldest brother of Victor and the father of Jim Donis.

(vi) Mary Donis, who is employed as a teacher's aide and has been married to Jim Donis for about 10 years.

(vii) Michael Donis, the 28 year old younger son of Victor and Rosa.

47 I now turn to summarise the evidence. It is unnecessary and impractical to set it all out. However, in preparing this judgment and reaching my conclusions I have reread and considered all of the evidence.

48 I shall first refer to the evidence of Susie and then to the witnesses in the order in which they gave evidence. While in the course of doing so I may make a finding I defer until later dealing with matters of credit and findings. I do however make this observation, that by the time of the trial many years have passed since the making of the oral statements in the 1995 to 1997 period which the plaintiff and her witnesses attested to, and which she relies upon, and which the defendants deny. Nothing is in writing. It is all recollection. I note too that in the evidence Steven is generally referred to as Steve.

Susie

49 Susie's evidence in chief was largely contained in her witness statement[13]. This was supplemented by some oral evidence which mainly concerned her answer to statements in the witness statements of the defendants and Georgievski.

50 Susie said that she met Steven very early in 1995 at Melbourne Mushrooms where she had casual employment. He had previously worked there and, having just graduated from the Police Academy, visited the premises in his police uniform to see former colleagues. They spoke and Steven asked her out. Susie said, and this was disputed by Steven, that almost immediately after they started going out they formed a very close relationship. Steven introduced her to his parents at their fish and chip shop during 1995 and she met them at the Mernda property around the end of 1995. She got on extremely well with Steven's parents who made it clear that they liked her.

51 In her outline of evidence Susie recounted a number of occasions on which statements were made to her by Victor and Rosa, and Steven, as to her having or acquiring an interest in the Mernda land.

52 At the commencement of her statement, under the heading "The Agreement", Susie referred to a Sunday afternoon when Rosa came over to "our house", meaning the house at 1575 Plenty Road. This became known as the occasion of the snake incident. Although Susie could not recall the date when it occurred[14], her statement indicates that it was before the marriage. As to this occasion, Susie said that Rosa was upset saying she had nearly been bitten by a snake. Later that day Victor came over and Steven arrived home. In conversations about the state of the property Victor said words to the effect "Well, this house and half the land is yours, you can do whatever you like with it. We have no say in what you and Steve do. It's not our property". Victor said that Steven had been working since he was young and always wanted to save up for a property for when he got married. Susie said that she asked them "Whose name was on the title of our house", and that they "told me that Steve's name was on the title and that he [meaning Victor] specifically bought the house and 20 acres for Steve and I to live in and start our own family". Victor said "Once you and Steve are married, we'll make sure your name is on the title of the property. Plus when you're married, it belongs to both of you anyway". Victor said "There is no need to worry about these things since we all know it is your house and 20 acres belongs to you and Steve. We'll never go against our word". Rosa agreed with Victor and said "Trust me, we would never go against our word. We love you like a daughter and would do anything for you". She said "We're making sure you and Steve own your own property so you don't have to worry about financial matters. You can start your own family and give us grandchildren sooner". Rosa told her she should trust them. "They said that Steve paid money towards our property and that of course it was his, and now it was going to be mine too since we were getting married". Susie said that she believed and trusted them. Susie said that it made sense as Steve had no assets other than his Holden Calais (which he said was his but after the fall-out said was in his parents' name) and he told her he rarely went out and wasted money. He always said that he was saving for a large property on which to start his family.

53 Susie proceeded in her witness statement to statements made on other occasions. First, she referred to Steve having told her that "the house and 20 acres were his". He was "always telling me before we got married, how he was always saving, so that he could buy a house on a large property for his wife and children [and] ... now that he had me, he could concentrate on working hard and making money for our family. He would always say that we would save as much as we could and invest most of our money in our property, as that was the smartest and safest investment".

54 Susie then referred to the occasion of The Word when the two families got together to celebrate Susie having accepted Steve's proposal of marriage. Susie said that her father asked Victor and Rosa whose name was on the title "of Steve's and my property (since it is custom to ensure that the parents of the groom do whatever they could to ensure their son and wife own their own property)" and that Victor and Rosa said that Steve's name was on the title, and that when they married they would make sure Susie's name was on the title too, although it did not really matter because the house and land was for Steve and Susie. They said not to worry, there was no doubt the property belonged to Steve and Susie, regardless of who was on title, but they would make sure Susie was too. Further on in her witness statement, Susie said that at The Word the defendants kept telling her family and her that the 20 acres of land which the house was on belonged to Steve and Susie, that they had heaps of land to do whatever they wanted to.

55 Susie then referred to statements made at the after party in the living room at her parents' home following the formal engagement party at Gloria Reception. Victor and Rosa said in front of Susie and her parents and sisters that Susie would own the house and about 20 acres after the marriage. Rosa said that she and Victor would do anything they could and sacrifice whatever they had to ensure that Steve and Susie were financially set for life. Rosa said the newer of the two houses was for Steve and Susie since their happiness was more important than Victor's and hers. She also said that since they would own their own property there was no need to wait to have kids. Victor said that half of the total property was Steve's and Susie's without a doubt. He said that Rosa and he were working all their lives for their kids, to set them up when they got married, so they could start their own families in their own home. Further on in her statement Susie said she recalled Valentina saying "So the house and 20 acres of land belongs to Steve and Susie" and that Rosa said it did, that Susie was like a daughter to her, that she loved her like she was her own and would do anything for her kids.

56 Susie went on in her witness statement to give further evidence of statements made to the above effect under the headings "Before The Marriage", "Early Days After The Wedding", and "Later, After the Marriage". While I have regard to all of her evidence, I do not set it all out. What I have already set out records the substance of the statements that Susie relies upon. I therefore now refer as summarily as practicable to the balance of her evidence in chief.

57 Susie said it was custom in Macedonian culture for the wife to call her in-laws mum and dad and for her husband to call his in-laws grandmother and grandfather. That is what Steve and Susie did. A reason for the wife calling her in-laws mum and dad is because after the marriage she is considered to be a daughter to her husband's parents and they are responsible for taking care of and supporting the wife, in addition to their son.

58 I now refer to statements and events Susie referred to under the heading "Before The Marriage". On occasions prior to the marriage when they talked about their future and in particular about "our property", Steve made statements as to the property, or 20 acres, belonging to them. On one of these occasions he said that he had put all his savings towards the purchase of the 20 acres. Susie said that when she said to Steve that she did not want "to live in an old, filthy and worn-out house on a farm, isolated and a fair distance from my parents and sisters, even if it had 20 acres of land", Steve said it would take getting used to, and time and money to be properly fixed as they want it. He said it was the best investment they could make, bringing so much land, that the house may be old but they have 20 acres of land.

59 And before the engagement Victor and Rosa said on a number of occasions, especially when Susie discussed buying a new home, that the house on the property and half of the 40 acres was theirs and that she and Steve could renovate it and it would be like a new house. They said "You don't need a new house, you can renovate the one you own and if you buy a new house, you won't have anywhere near the 20 acres".

60 Susie said that she wanted to buy a new home for their family but because of the assurance that the house and 20 acres was theirs, they did not buy a new one and they decided to use their money on fixing up the property. Victor and Rosa also said they should stay together as a family, the house being close to them, all Susie had to worry about was starting her family and giving them grandchildren.

61 Susie gave other instances of Victor and Rosa telling her that the house and 20 acres is hers and Steven's, and as to starting a family right away because she would already own her own property and they will be living close by. Further, on many occasions while they were engaged Susie slept over at the house; on two such occasions Victor and Rosa came over to "our place" and said words to the effect of "why not move in since it was her house anyway". Susie said that she completely believed and trusted the defendants that the property was going to be under Steve's and her name.

62 Susie proceeded to refer to occasions following the marriage when Victor and Rosa, and Steven, repeated the substance of the statements as to she and Steven owning the house and 20 acres of the property. I mention one occasion because a deal of cross-examination was directed to Susie about it. It was an occasion shortly after the honeymoon when Victor and Rosa came over to the house after Susie had cleaned up the mess of a rat which Steven had killed. She told them she hated living in conditions where there were rats and she had to clean up their droppings, that they said in substance that that is what happens on a farm and that the upside was all the land you own. Susie said that in the discussions she asked Victor and Rosa if they had put her on the title of the house and 20 acres as they had promised, and that they said they had. In further comments Victor said they had taken care of everything for her, it was her property and she need not worry. She was not to worry about the mortgage, "that's Steve's job, Steve will take care of the financial side of things and you just worry about taking care of your family and your home". Rosa said she was their daughter and having their grandchild, she can trust them, they would never lie or do anything to hurt her. Susie said they were very traditional in thinking that Steve should handle financial matters and be the only one working and that she should concentrate on child-rearing and home duties.

63 Steven too assured her after the marriage that the property was in their joint names. She was convinced by the defendants that her name was on the title and that Steven and she owned the house and 20 acres.

64 Susie gave a deal of evidence about renovations to their house. She said that they did not ask Victor and Rosa's permission and that they complimented them on the work done.

65 At a time prior to the birth of Jamie and apropos of preparing the house for his arrival, Steven said he was putting in as much money from his pay as possible to pay off the mortgage so they could pay it off soon but at the same time their property needed major renovating. Steven often said the best thing about the property was the 20 acres and that was the main reason he bought the property, definitely not the house.

66 They worked out what needed to be done to the house and undertook works. Apart from those works, Susie spent a lot of time cleaning up the house and its surrounds. Susie said that if it were not for the reassurances and promises as to the property being hers and Steven's she would not have agreed to the extensive renovations which were financed from their savings, or put in the effort to clean up and transform the house. Nor would she have given up her career. She said that her parents assisted greatly in the improvement and renovation of the house and land.

67 Susie then proceeded to refer to statements made by Victor and Rosa after the birth of Jamie. On two of the occasions there was reference to the mortgage on the property, Rosa saying that the mortgage will be paid off soon. Rosa also referred to them (Steven and Susie) paying off the mortgage on their half of the property. Susie said she did not ask for details as they always brushed her off and told her not to concern herself with financial details.

68 Susie said that Steven's abusive behaviour towards her commenced shortly after they were married and increased over time. In August 1999 Steven left the home for about two weeks.

69 The final separation occurred on 18 January 2000 when Steven and Susie argued and he struck her to the face and Steven then left the home. When this happened Susie rang the Epping Police Station (where Steven was stationed) to report the incident and wanting police to come. She said she was scared and did not know what to do. I refer to and deal with this matter of contact with the police below in dealing with the evidence of Senior Sergeant Horton.

70 In the course of the argument on 18 January Steven told Susie "for the first time that the property was not ours". He told her that his parents owned the whole 40 acre property and only their names were on the title. He told her to suffer, she would not get anything, he had no assets, he arranged it that way so she would not get anything if she left him.

71 I note that in her evidence Susie referred more fully to things that Steven said, just as Steven did in his evidence. So also was there such evidence from Victor and Rosa. I have regard to the evidence but find it unnecessary to set it out. This case is not to be determined on the assessment of abusive and point scoring comments made in the stressful circumstance of the collapse of a marriage with an infant involved.

72 After Steven had left the house on 18 January, Susie and Jamie were in the car when Victor and Rosa came over to the house. They told her that she would be financially worse off than before she married, that they were gaining at her expense and that she was losing everything. She was not on the title and would get nothing from them or Steve.

73 On or about 1 February 2000 she received a letter from Victor and Rosa addressed to Steven and herself that requested the premises at 1575 Plenty Road be vacated, and their Holden sedan be left at the home, by 4.00 pm on 31 February 2000 failing which the locks would be changed. One night a few days later when Susie was driving home she noticed many people in front of Victor and Rosa's house and they were unloading from one of the cars. On arriving at her house she noticed that the house had been stripped bare[15]. On about 5 February, having no choice, she vacated the premises and with Jamie went to live with her parents at their home where her sisters also lived.

74 Susie later discovered that Steven had frozen their joint bank account which meant she could not access it for money to support Jamie and herself. Susie said that she and Steven had received approximately $8,000 in money at their engagement and approximately $20,000 in money at their wedding. The $8,000 was placed in an account which she had no control over; she said she did not know what happened to it. The latter amount of approximately $20,000 was placed on term deposit with the Commonwealth Bank where it remains, the account having been frozen by order of the Family Court. In fact, the amount and date of the deposit was $22,000 on 3 March 1997 for a term of seven months[16]. I interpolate that I find that the $22,000 placed on deposit was given to Susie and Steven at the wedding.

75 Susie then said that she had not wanted to give up her career as a teacher but Steve and his parents repeatedly told her that she and Steve owned half the land and the house and that there was no need for her to work, that her job was to take care of Jamie and the house and support Steve so he could succeed in his career. She reluctantly gave up her career so Steve could concentrate on his while she concentrated on Jamie, Steve and the home. She said that she relied on the defendants' statements that living on the farm would pay off because 20 acres of land would be worth a fortune and would make the sacrifice worthwhile.

76 Susie further said that she had said to the defendants that she did not want to marry unless she and Steve purchased a home together. She was happy to continue living with her family, unmarried. She was not in a rush to marry. She said that Steve and his parents assured her there was no reason to wait as the house and 20 acres where Steve lived belonged to him, his name was on the title, they loved each other and the property would be registered in their names after marriage. She would not have agreed to live at the property if she knew the 20 acres was not in Steve's or her name, would not have agreed to their money being spent on improvements to the property, or to paying off the mortgage, or given up her career to be left with no assets. The only asset she brought to the marriage was a motor car which Steven had crashed and not had properly repaired.

77 Susie's statement concluded with several pages dealing, item by item, with the improvements carried out to the house by Steven and herself and a description of her non-financial contributions. In respect of each item of improvement she provided a figure for the cost, often as an estimate, and gave a short description of the item, the work involved and by whom it was performed. In some but not all instances she referred to documentary material including Steven's Police Credit Co-operative account but documents were not tendered to establish the allegation. Essentially, the case in this respect rested on the oral evidence. The same is true of her case of non-financial contributions. Starting from the premise that Steven told her to do the cleaning as that was her job, and the house being filthy and there being rats, mice, spiders and occasionally snakes, she described the various respects in which she cleaned the house internally and externally and assistance provided by her parents. I note that with little exception the same approach of relying on oral evidence was taken in the defendants' case. For the moment I say no more about this aspect of the case; I will return to it later.

78 I now turn to Susie's cross-examination. In doing so I do not attempt to set it all out or even to summarise it all. The case was about credit and who is to be believed. I will deal with matters of credit later. For the moment I focus on her evidence as it relates to when something happened and what was said.

79 Early in the cross-examination Susie was asked when any of the defendants first told her she would have some ownership of the house. It was "many months before" The Word. They all told her, she could not recall if that was all of them together. She could not recall when it was first said, and by whom, but after she was married she would be a half owner or have an interest. They all said it, not all at once, the house and property was ours. Susie then recalled the snake incident. As to that, she could not remember what was said word for word but what was in her witness statement was many hours of work. On that occasion "they said the house and 20 acres of land", not just the two acres the house was on. She went on to give her recollection of what was said to her on the occasion of the snake incident; having regard to her earlier evidence it is unnecessary to set it out.

80 At an early point Susie was asked some questions about renovations. For the moment I note only that she referred to renovations being discussed, and carried out, prior to the marriage, as well as works being carried out after the marriage.

81 Susie said that when they were married the carpet was dirty and was cleaned. She denied that Victor and Rosa refused to replace the carpet.

82 Susie said that she was told before the marriage that there was a mortgage on the property but she was not told the amount owing. She was told that it was just about paid off. She was often told this. Steven and his parents told her that he (Steven) paid the mortgage. She was not told straight after the marriage that it was going to be paid off. As to when and what she was told, her answer to an interrogatory was put to her and tendered[17] in which she said that prior to and after the marriage she was told that the mortgage would be paid off soon, the property is yours, don't worry about the mortgage. Later she said that the defendants told her that they were paying off the mortgage. She believed that something was said about the mortgage nearly being paid off after the marriage. She believed that before or after the marriage she asked how much was owing but she was not told. They told her not to worry about financial matters. She did not know if she asked before The Word.

83 At The Word she, her parents and sisters were present, and the defendants. There were a few other people who she could not recall.

84 As to the party after the engagement, Jim Donis was present. She did not remember Jim being by Steven's side. Jim was not present when Victor and Rosa said the property was hers and that she would be on the title. She did not remember George or Mary Donis being present. It was a family gathering. She did not remember that everyone was in the one room. The statements were made in the presence of herself, her parents and sisters and the defendants.

85 Susie said she never said to Steven that she would not marry him unless his parents gave her property. She would have married Steven even if his parents had not said that she would have half the property. She married Steven regardless of the statements[18].

86 However, the promises affected the timing of the marriage. She left her comfortable parents' home to live on an isolated farm property. She could have been engaged for years until they saved enough to buy their own property. And children could have been up to 10 years later. And she could have been a teacher which she now found hard to get back into. The promises affected a lot of decisions at that time[19].

87 When she went overseas in 1995 [and Steven went also in that time] they were in a committed relationship. They had spoken about marriage. The relationship resumed when she returned. She could not remember anything being said about ownership of the property before she went overseas. She denied that she had refused to meet Steven while overseas. It was before the engagement that Victor and Rosa said she was to own half the property.

88 She met Steven's mother in 1995 but was not sure if it was before or after she went overseas.

89 Returning to the occasion of the snake incident, that was before the engagement[20], she could not remember if it was before The Word. Nor could she remember if Victor and Rosa had been told they were getting married, or whether on the occasion of the snake she discussed marriage. Then she was asked how long before The Word the occasion was and she said she could not remember. She insisted that it did happen. She could not remember if the occasion of the snake was the first time ownership of the property was mentioned; Victor or Rosa had mentioned it before The Word.

90 A little further on Susie said that the snake incident was in approximately September 1995 after she got back from overseas. I note that it was later ascertained from her passport that she arrived back in Australia on 13 October 1995.

91 Susie said that she first told her sisters or family of Victor and Rosa's statements before she became engaged.

92 She denied that Steven had told her what his financial position was; when she asked she was told not to worry.

93 Prior to The Word the respective parents were aware they were in a very committed relationship and had some idea of where the relationship was headed because the property was bought in preparation for the marriage. Shortly after Steven proposed the parents were told that they proposed to marry. She had previously told her parents that she would accept his proposal.

94 Susie denied that Victor and Rosa had offered Steven and herself the house at 1575 Plenty Road to live in rent free so that they could save money for a deposit on a house. She and Steven did not save money by not paying rent, their savings went on the renovations. That was what Steven said and there was no mention of reimbursement by Victor and Rosa. Then, to a further question, she said Steven may have said something about reimbursement but there was never any reimbursement by Victor or Rosa. She would have been told if there was.

95 A little further on, in relation to a question as to whether she considered the position of Michael, and how his parents could benefit him, Susie said that the Macedonian tradition was that the oldest son move out of home and the youngest son and his wife live with and look after his parents.

96 She denied that she and Steven discussed putting the $20,000 away to use as a deposit on a house when they were ready to buy one, rather Steve said to leave it as a nest egg in case of an emergency and they may use it on renovations. Susie said that she brought up buying their own house with Steven and told him that she would like to buy their own house, "but it all goes back to the timing"[21]. The defendants said there was no need to buy a new house and worry about a mortgage, and Steve said we have a home and can renovate it, and that was intended from the beginning between Rosa, Victor and Steven, that was their intention when they bought the property.

97 Susie was asked about the separation on 18 January 2000, about what happened and whom had said what. She obtained an interim intervention order in March 2000. She said that the arguing started shortly after they were married "that the abuse, sort of physical and emotional abuse, started more when I had Jamie". She said that Steven did not like her to have people over when he was not at home, and that she did not have friends during the marriage, the ties with her friends were cut off because that was Steven's wish.

98 She was questioned about the time when shortly after the honeymoon Victor and Rosa came to their house and she asked if she was on title. She said that this came up in conversation, she could not recall exactly how, that she wanted to know whether they had done what they had promised. She remembered the conversation, it was important. They convinced her they were telling the truth. She believed the property was in Steven's and her name.

99 In the latter part of the cross-examination Susie was asked about the after engagement party. Panovski, she said, did not hear the statements because he was not there at the time the promises were made. The statements were made after everyone had gone home except the defendants and her family. The promise of the house and 20 acres was repeated "throughout the night". It was said "many, many times to me and my family" and she recalled "Rosa saying something about a bed and she was happy, that's all she needed". To a further question about Panovski she could not recall if he was there at her parents' place but if he was he had left (meaning, when the statements were made). They were made "once people had left". She believed Jim Donis had left - it was not true that he was with Steven throughout the night. All she could recall was that when the promises were made it was the defendants, her family and herself who were present.

100 Susie was then questioned about improvements to the property. There was reference to a dam being constructed, a tree falling on the fence, the issue of whether the carpet in the house would be replaced, the garage and the related works, the state of the house, and the items of improvements in the plaintiff's claim. Counsel passed through these matters quickly, clearly wishing (as had counsel for the plaintiff) to minimise the time spent upon them. I will return to the matter of improvements later.

101 In re-examination Susie referred to her oral evidence in chief that before they went overseas in 1995 they were very committed, that Steven told her that she was the one, that they were going to be married, that they had talked about marriage, and said that that occurred a little while before going overseas. Further, prior to The Word Steven had told her what his entitlements were in relation to the Mernda property and that he was paying the mortgage "on the property, the 20 acres and the house". Further on she said that the engagement party commenced at about 5 to 6 pm and ceased after midnight followed by the second party at her parents' home. The guests left her parents' home at different times. Some only stayed a little while because they were tired and a lot of people left shortly after. At the house people circulated.

Valentina

102 Valentina wrote her witness statement and provided it to Susie's solicitor. Her statement, like that of Susie, her parents and Vesna, proceeds by giving evidence under headings such as The Word, the engagement and the wedding. The similarity gave rise to some questions in cross-examination and it is therefore convenient to note the evidence Valentina gave as to her role, if any, in the preparation of the statements of the other witnesses. Commencing with Susie, she did not type out Susie's statement or read it before preparing her own. Susie prepared her statement and gave her a disc with the statement on it and Valentina emailed it to Susie's solicitor in Melbourne. She did not discuss the evidence with Susie before she (Valentina) prepared her statement. Valentina spoke to her parents about their witness statement a few weeks ago, as she said, meaning a few weeks before the trial. At that time she had prepared the majority of her own statement. She typed up her parent's statements. The process was that she typed what they told her they had heard. It was not a question and answer process. At the outset she told them that they needed to tell her what they had heard and seen and done or whatever they felt they needed to tell her. No other lawyer was present; I note that by this time Valentina had qualified as a solicitor. Having typed the statements she then mailed them to Susie's solicitor. There was similarity in headings because they were the main events. Valentina did not prepare Vesna's witness statement.

103 As just mentioned, Valentina's witness statement set out her evidence under headings. The principal headings were "Statements made by the other party", "Comments made to me by Steve", "Comments made to me by Susie", "Other", "After separation" and "Non-financial contributions". Under the first heading of statements made by the other party the evidence was given under several sub-headings, namely "The Word", "Engagement", "Wedding", "After the wedding", and "After Jamie was born". In consequence the statement is not in the usual form of the recounting of a story in the chronological order of events. It is directed to recording the substance of Valentina's recollection as to what was said by the defendants on the relevant occasion. This is true of the other statements of witnesses for the plaintiff. They were prepared by the client and her witnesses, and late, doubtless for reasons of expense. For this purpose Valentina's role was not a substitute for that properly performed by an independent solicitor acting for a party.

104 With those references and findings I turn to Valentina's evidence in chief, commencing with the section dealing with statements made by the other party. Overall, what Valentina says here as to statements made by the defendants accords with the substance of Susie's evidence.

105 Hence, commencing with The Word, Victor and Rosa said, in summary, that they and Steve have made sure that Steve and Susie will own their own house and 20 acres of land so they will be set financially; that half of the 40 acres is Victor and Rosa's and the other half for Steve and Susie, why would they want two houses and 40 acres if their son and his wife owned nothing, they were working for this day when their son got married so they could give him and his wife everything they could to make their life easier; Victor said Susie would be put on title after she and Steve got married, he gave his word; Victor and Rosa said there was no doubt that the house and 20 acres belongs to Steve and Susie, their intention was they be set up financially, there wasn't anything she would not sacrifice; Rosa said that even though Steve and Susie will have to make a few sacrifices living on the farm and have to renovate and clean it up, they will know it is their property and it will be worth millions one day.

106 Then, on the night of the engagement Valentina recalled Rosa telling Susie in front of her family words to the effect "You and Steve own your own property with 20 acres of land in Mernda. This beautiful property is all yours and Steve's. You'll be happy living there next to us and there's no reason to put off starting your own family". Valentina asked Rosa by way of confirmation that the house and 20 acres of land belonged to Susie and Steve, to which Rosa said words to the effect "Yes darling, Susie is like a daughter to me, a daughter I never had". She would do anything for Susie and Steve. Rosa said Valentina should not worry about Susie, that Susie and Steve were set for life, they owned their own house and 20 acres and the 20 acres would be worth millions in the future. Rosa said that this is what Victor, Steve and herself had planned all along. Rosa said that she and Victor would do anything for Susie and Steve, to make sure they were financially set, and at the very least own their own property so they did not have to delay starting their family. There was nothing she would not sacrifice for Susie and Steve. Victor said to Susie, in front of the family, that Susie and Steve would both be on the title for the house and 20 acres of property, not just Steve, and that they could do what they wanted with it because it was theirs. Victor said that Rosa and he had no say in what Steve and Susie did with the property because it was theirs. Victor said half of the 40 acre property belonged to Susie and Steve and the other half to him and Rosa, that was their intention when they bought the property with Steve. Valentina recalled Victor saying that he was not going to take his money to the grave with him and that all that mattered was that Susie and Steve started off on the right foot. Victor and Rosa said they had been working all these years so they could give their son and new daughter a property of their own, he would make sure the house and 20 acres would be in Steve and Susie's name, but it was theirs anyway. Valentina said that she expressed her concerns that Susie wanted to live closer to her family and in a new house, and not on the farm, to which Rosa said that new houses, even those with the biggest blocks, would not have even a fraction of the land they had at Mernda. She said the 20 acres of land and the house was always intended for Steve and Susie and that she should be thrilled with it.

107 Valentina next commented that at the wedding she heard Victor tell Susie that he and Rosa would take care of her like she was their own, that Susie was now part of their family and they would do anything for her and Steve.

108 Valentina then turned to events after the wedding. In relation to this it will be noted that in the chronology there is a reference to a barbecue and the Prviche in March 1997. Valentina refers to these and other occasions. At the barbecue held on a Sunday shortly after the wedding, Valentina recalled Victor saying that half of the 40 acre property belonged to Steve and Susie. He said that Susie was added on the title for her and Steve's house and 20 acres of their land, and that Steve and Susie's land was going to be worth a fortune one day. She recalled Victor and her father going for a walk and showed her father the land that belonged to Steve and Susie and remembered her father commenting as to how much land Steve and Susie owned.

109 At the Prviche at Victor and Rosa's house, Valentina recalled Rosa saying words to the effect of "Steve and Susie's 20 acres are going to be worth a fortune one day. It's the best investment for the future" and "all the hard work and sacrifices will be worth it, you'll see, we wouldn't put them through this if we thought it wouldn't pay off for them later".

110 On another occasion at Susie and Steve's house Valentina said that she brought up the idea of Susie and Steve selling their property and buying a new one - she knew that Susie was unhappy living on the farm but felt she had no choice because it belonged to her and Steve. Victor said words to the effect that Steve and Susie did not need to buy a house, they already owned a house and had 20 acres of land on top of that, it was a great investment for their future. Rosa said words to the effect "We know Susie is sacrificing having a brand new house the way she wants it, but it will all be worth it one day. She'll thank us all for it when her and Steve's property is worth millions".

111 On another occasion at Susie and Steve's house when she brought up holidaying, Victor said that Steve and Susie needed to keep putting all their money towards their property not throw it away on holidays. Rosa said she wanted Steve and Susie to give her grandchildren before she and Victor got too old and there was no reason to wait because they owned their own property.

112 Finally, Valentina referred to comments of Victor and Rosa after Jamie was born. At Steve and Susie's house one night she recalled speaking to Susie about getting back into teaching, even on a casual basis. She recalled Rosa telling her not to worry about Susie, that she and Steve owned their own house, 20 acres of land which would be worth a fortune one day, their own cars and that they were financially set for life. Rosa said words to the effect of "Susie doesn't need to work, her role is to be a good mother and housewife, to take care of Steve, Jamie and the farm". Valentina remembered this as she knew that Susie always wanted to be a teacher and had spent five years studying for that vocation.

113 Valentina then turned to comments made to her by Steve. He had said not to worry about "your sister", that he and his parents will make sure she is taken care of financially, his parents would do anything for them, they even gave them the bigger house of the two plus we have the same amount of land as they do. Another statement was that together Susie and he owned 20 acres of land and our house which they will renovate like new. The land will be worth millions one day and he and Susie will be rich. Susie and I are on the title, it's our property and not my parents' property, they own half the land and Susie and I own the other half.

114 A further statement by Steve was that the plan was always for mum and dad to own half the property and Susie and I to own the other half with a house each. Plus that way he and Susie can live next door to his parents. Another comment of Steve was that even if they were not paying for their half in the property "we all know half is mine and Susie's anyway. What are my parents going to do with two houses and 40 acres of land?"

115 Valentina further said that "Steve was always bragging about how massive the land was, how he and Susie owned it themselves, and how they can build anything on it if they wanted to".

116 Valentina then turned to comments made to her by Susie.

117 While referring to these comments I note the general objection to which I referred earlier that counsel for the defendants took to the witness statements. I do not accept any of this material as going to proof of the fact. Accordingly, I pass over it.

118 Then, under the heading "Other" Valentina said that while Steve and Susie were married, Rosa and Victor continually referred to "Steve and Susie's house", "Steve and Susie's 20 acres", and "Steve and Susie's half of the land". She said that Rosa and Victor constantly complimented Susie and Steve on how well the renovations were going to their property and encouraged them to invest more time and money on their property because real estate was the best investment.

119 Then, under the heading "After separation" Valentina said that since the separation she had helped Susie financially in paying her legal bills and other expenses and paying for various other things when Susie had no money.

120 As to non-financial contributions, Valentina recalled her father painting the outside of Susie and Steve's house, helping construct a double garage and carport, and a colorbond fence. She recalled Susie, her mother and Vesna doing extensive cleaning to the house and property, in which Valentina also assisted. She also recalled her parents spending many weekends at Steve and Susie's place fixing it up. Her mother was attending to the backyard/gardening for most weekends for many months.

121 Turning then to her cross-examination, Valentina agreed that she had an extremely close relationship with Susie and that she was her best friend.

122 Valentina was asked as to the language spoken at the occasion of The Word and said that the matters referred to in her witness statement were spoken in English, that her parents did not speak very good English and that the conversation was translated "a lot of the time", sometimes it was in Macedonian and sometimes it was in English.

123 As with Susie, I do not refer to all matters in the cross-examination although I do not overlook them. At an early stage Valentina was asked about the letter of The Professionals[22] for the purpose of establishing any role she had in relation to that agent and in assisting Susie. The same was true of Exhibit 1. I accept Valentina's evidence as to these matters and in particular as to the limited role that she performed. It was no more than a facilitating role.

124 Valentina recalled first meeting Steve in early 1995 at the police station where he was working. She was then a first year law student. She met Steven again before Susie returned from overseas, also recalling that she met Steven's parents at their fish and chip shop before Susie went overseas. She met Steven on occasions when he came to her parents' house. They had also been out socially.

125 Valentina was asked a number of questions about The Word. It commenced at her parents' place and later they went to Steve and Susie's house at 1575 Plenty Road where it continued. It went for many hours. At home she was busy preparing for and assisting with guests. At her parents' home there were her "aunties and uncles" but they were not present at Susie and Steve's house. She gave evidence about persons who were present at her parents' home. They were at her parents' home for hours. Her family went to Steve and Susie's house, she did not recall other relatives going. At Steven and Susie's house she recalled Victor saying that the title of the property being Susie and Steve's house at 1575 Plenty Road and the 20 acres that the house was on was going to be put in Susie and Steve's name, that it was already in Steve's name, so that after the wedding it would be in both names. That was said towards the end. Her family, Victor, Rosa and Steven were present. She said Victor's statement was not news to her because Susie had told her previously that that was the plan. She told her that before she went overseas. She remembered Susie telling her that Steven's parents were looking to buy a property which had two houses, one to be for Mr and Mrs Donis and the other for Steve and Susie, they would be next door to each other and they would have half the land each, about 20 acres or so. Valentina believed that Susie had mentioned that that was what they were planning, what they were thinking about. She did not have a clear recollection. When Susie came back from overseas there was "this discussion of how there was a plan for Susie and Steve to live in one house on the farm and Victor and Rosa to live in the other house on the farm ... and that they'd both have half the property each and that's how it was planned once they got married, that's where they'd live". By the stage Susie went overseas "it was certain that they were planning to get married and they were in love, and they were discussing where they're going to be living". She had not said that in her witness statement. She did not know if Susie had told her parents that. She had discussions with Susie on many occasions about many things. She did not recall the exact circumstances around the time that Susie told her but it was clear that they were intending to be living on this property where there were two houses with Victor and Rosa in one and she and Steve in the other and that they would be neighbours; she remembered because she thought she did not want to be neighbours with her in-laws. Before Susie went overseas she did not recall any discussion about her name being put on the title. What she said was more in terms of planning, that this is what they have intended for us, we have this house, we have this and this property, she did not know whether it had been bought. Once Susie came back from overseas before The Word she remembered Susie saying that "this property had now been bought for Susie and Steve and for Victor and Rosa". Prior to Susie going overseas she did not think that Steven was present when any mention was made of his parents' plan in relation to the Mernda property. After Susie and Steven had come back from overseas but before The Word, Steven said at his parents' place that he and Susie were going to be living "in this great house. His parents had given him this house. It's for him and Susie, they're going to own it. There is so much land, you know, they can do anything. It's massive. It's going to be worth so much". She said that Steve and herself were quite close, she saw him on many occasions and on many occasions discussed the property. The comments attributed by her to Steven in her witness statement were made throughout the time that she knew him after he came back from overseas.

126 Valentina was then asked about the engagement party and as to persons who were present at her parents' house. She denied that Jim Donis was by Steve's side pretty well the whole evening. She very much doubted that he left with Steve as her recollection was that those present were Steve and his parents and her family so she presumed Jim had left. Jim Donis was not present during the discussions referred to in her witness statement. She would have been at her parents' place for hours. She described the occasion at her parents' home as sociable with people being in a good mood and getting along well. She acknowledged that she had not said in her witness statement that the statements she refers to were made after the others left. Jim Donis was not present, nor were George or Mary, because she could not recall them being there when the discussions took place. As to the discussions, she did not remember the first person that spoke, it went for a while, Victor, Rosa and Steve all spoke, Victor saying that Susie would be added to the title so that Susie and Steve would be on the title - not just Steve - of the house and the 20 acres that the house was on at 1575 Plenty Road, the bigger house, after they got married. They would both be on the title. She remembered Rosa saying that you own your own property, you're going to be so happy there, there's no point delaying I want you to give me grandchildren. She was very happy and bragging. Victor said he was not going to take his money to the grave and he would help out Steve and Susie wherever he could, he wanted them to start off on the right foot. And she remembered questioning Rosa to clarify whether it was the case that Susie and Steve owned their house and the 20 acres, and Rosa did so.

127 The cross-examination returned to the occasion of The Word and as to who was present at her parents' house where the occasion commenced. As to that she recalled, correctly, that Michael Donis was not present. She had no knowledge of Victor and Rosa making statements about the property at her parents' home. But, she said, she was walking in and out, helping, putting things on the table, pouring drinks, she did not know what was said.

128 Valentina was then asked about what Susie and Steve planned when they went overseas. She said she knew that they planned to meet overseas, did not believe it was true that Susie had said no to meeting Steve overseas and said it was "completely untrue" that when they went overseas they were not at the stage of a committed relationship. It was "Very much not" the situation that Susie said he was free to date other women while they were overseas. I interpolate as to this that the suggestion was not put to Susie in cross-examination and I reject the suggestion as false, made up by Steven for the purpose of the case.

129 Counsel then reverted to whether any of the statements made by Steven as referred to by Valentina in her witness statement, were made before The Word. She said that she had not put his statements under the headings relating to occasions because "these comments were made to me throughout the time that I knew Steve and I couldn't pinpoint certain comments. A lot of them had been repeated in so many words throughout the time that I knew him". As she could not pinpoint the comments she had not attempted to. It was not true that she had no recollection of Steve saying anything to her about Susie owning the property or any promises by his parents prior to the occasion of The Word. As to Steven, she did not know when he made these comments as they were made "throughout. He'd said them many, many times, in so many words. I don't know exactly what he said; these were the comments I remember him making. I don't know when, there were so many occasions that I spoke with Steve. Whereas, with his parents, it was the Word, the engagement, and they - I could say to you that I spoke to them - with Steve, it was - I constantly spoke to Steve". Prior to the occasion of The Word I was aware of commitment by Steve to marry Susie because they had told me. A little later Valentina said it was "completely untrue" to suggest that she had no basis of knowledge for saying that when Susie and Steve went overseas they had any expectation of marriage.

130 At this point the cross-examination reverted to the engagement party at Valentina's parents' home. Valentina recounted what was said by Victor and Rosa. It is unnecessary to set out again what she said on this topic. I note though that Valentina said she remembered saying at this time something like Susie always wanted a new house, a house of her own. Valentina said she thought she raised something about them buying their own house and remembered Rosa saying that new houses, even ones with bigger blocks, would not have a fraction of the land that Susie and Steve have, the 20 acres. Valentina was asked how long the discussion about these promises took and said that they were not just said all at once, it was part of the conversation. "I mean, this is a big deal for Susie and my parents and everyone. I mean, we're - so the conversation went on for quite a while". It occurred when "sort of everyone went home and it was winding down, we all sat down and we just started talking about it. How long after? It could have been hours, I don't know, I don't remember. It was a long day". Jim Donis was not there when "we" had this conversation. It was a private conversation. Jim Donis was not asked to leave the room while they talked, "everyone was tired, they left". She remembered all the guests going home other than our family and their family.

131 Valentina recalled that the engagement party commenced in the afternoon. As to Victor, Rosa, Steven and Jim tending to be "in a bunch together throughout", Valentina said "it was more so Susie and Steve together". It was suggested that Victor, Rosa, Steven and Jim all left together to which she said she did not believe that to be true. It was "completely untrue" to suggest that on no occasion up to and including the day of the engagement did Victor or Rosa ever say in her presence that they promised that Susie would own a part of the property.

132 Valentina was asked about the position of Michael Donis if her evidence as to Victor and Rosa's promises were correct. What would his position be? She was asked to point to anything in her experience that would indicate any culture or behaviour that would indicate it was taken by her as likely that Victor and Rosa would have given half their property away to Susie. She said "Yes, I've heard of friends all the time being given houses and blocks and brand new houses, relatives, my first cousin, his parents have given him and his wife a house, and they're not even married yet. A brand new one".

133 Valentina was then asked whether anything had been said in her presence about a mortgage. She believed so but as to the occasion of The Word she said she could not recall anything being said about a mortgage. Her written statement did not refer to a mortgage being mentioned at the engagement party, and Valentina said that the word "mortgage" was not said at The Word and the engagement, but she did have a recollection that there was a mortgage in existence. She did not remember Victor and Rosa saying that after they were married Steven and Susie would pay off the mortgage as part of their ownership of the property, but assumed that was the case because she was told that.

134 Valentina was asked some questions about the word "title". In the course of her evidence she said it was believed that it was at The Word that Victor or Rosa said that Steven was on the title because her father asked who was on the title and they then said that Steve was. She believed that was at The Word, she could not be sure. She had not included that in her witness statement because she could not guarantee that it was said at The Word. She was not going to put it in if she could not be sure that it was said at The Word. It had happened but she was not going to put something in if she did not know that it was said at a certain time. She remembered that Steve was on the title and so both Susie and Steve would be on the title after they were married. Victor and Rosa talked about ownership and title.

135 Valentina was asked if it was ever said to her by Victor or Rosa that Steven was "acquiring, purchasing, buying, half of the property at Mernda" and she said no. Nor was that said by Steven prior to the engagement. Valentina said that "they were always speaking in 'we', 'us'. It was as though the three of them were acting in unison".

136 Valentina was then asked about the house at 1575 Plenty Road which she saw for the first time on the day of The Word. She referred to her observation of work that was carried out. As to improvements, she knew they fixed the toilet because it was not working on the day of The Word. The bathroom she said "they must have fixed because it was revolting on the day of The Word". That was her first impression on going to the bathroom. She referred to the construction of a double or almost triple garage and carport, the placing of sun cloth around the back of the house, work on the driveway which had potholes and rocks to the extent she did not want to drive her car in at one stage, a large wooden fence at the front of the property, her father painting outside, an alarm system installed just before the wedding, sensor lights, air conditioning installed, they purchased furniture and put light fittings in, an oven and stove were installed and she further referred to the property. The carpet, she agreed, was "pretty revolting" to begin with and she did not know why it was not replaced. Susie did not say she had asked Victor and Rosa to replace the carpet and that they had said no. Susie said that she and Steve were paying to fix up the house. To Valentina's knowledge Steve and Susie started fixing up the house after The Word. She thought that Steven had said they would have to renovate the house, clean it and fix it before The Word.

137 At the barbecue following the wedding she remembered Victor saying that Susie's name had been put on the title because they had been married. He said that now, officially, half of the 40 acres belonged to Susie and Steve and the other half to Rosa and himself and he walked off with her father to show him around the property. She did not remember how it came up, she did not know what exactly started the whole conversation, she just heard that being spoken. Only the immediate family on each side were at the barbecue, they were all standing around, not in separate groups "it was a close family thing". She also remembered Victor saying that the property was going to be worth a fortune and her father's comment as to seeing how much land Susie and Steve own.

138 Finally, Valentina gave evidence as to what was said at the Prviche.

139 Then, Valentina was asked about the occasion referred to in her witness statement as an occasion at Susie and Steve's house when she brought up the idea of them selling their property and buying a new house. That was weeks or months after the honeymoon.

140 In re-examination Valentina said that Victor speaks both Macedonian and English and in conversation sometimes slips from one language into the other. He used the English word "title" but a lot of the times he would translate what was said and use a Macedonian equivalent, which Valentina said was spelt "Tapiata"[23]. As to the engagement party, she could not recall the time of the day or night when the "tail end" of it occurred. She could not recall the time, it was late. The last people to leave the house were Steve and Victor and Rosa.

Vesna

141 Vesna prepared her witness statement in point form under headings. The structure was to set out Victor's comments at The Word, the engagement, the wedding and the barbecue held shortly after the wedding, then to set out Rosa's comments made on the same occasions, then to set out comments made by Steve at The Word, the engagement party and during the marriage and then some other information. The convenient course in referring to Vesna's evidence is to incorporate the comments of Victor, Rosa and Steven as they were made on each occasion rather than set them out sequentially.

142 On the occasion of The Word, the various comments were made at Susie and Steven's property at Mernda. Victor said to Vesna in front of Susie, Valentina and their parents that they did not have to worry about Susie and that she would be well taken care of. Victor said that Steve and Susie were set for life and did not have to worry about money, that one day Steve and Susie's house and 20 acres would be worth a fortune, that Steve and Susie could do so much with the house and land - fix it up, build, as there is a lot of land, that he and Rosa had worked all their life to now see Steve and Susie financially set and happy and that one day they (Steven and Susie) will be millionaires because of the 20 acres they own.

143 As to Rosa, she said to Vesna in front of Susie, Valentina and their parents that Steve and Susie were set because they had a house and 20 acres of land, that even though the house and land needed a lot of work Steve and Susie could fix it up and live very happy, that one day the property would be worth a fortune and Steve and Susie would be millionaires. Rosa said that Steve and Susie would be happier on a farm of 20 acres of land rather than stuck on a small block in the suburbs, which Vesna remembered because Rosa lived in Mill Park and hated that all the neighbours could hear what they said.

144 As to Steven on this occasion, he said not to worry about Susie, he and his parents have made sure that she is financially taken care of for life, that Susie and he owned 20 acres of land and their own house, the land will be worth millions one day and they will be millionaires, Susie and I own 20 acres of land and my parents own the other half, Susie does not need to work, she can look after me and the house. We have our own home and one day this property will make us millionaires. My parents adore Susie, they are very happy for us.

145 The next occasion was the engagement party at Susie's parents' home. Victor said that Susie and Steve owned their own house and 20 acres of land, in front of Vesna's family. He said that he and Rosa were working all their lives for their kids so that they could ensure they could set them up financially when they got married. Victor said that Steve and Susie did not have to put off starting a family as they were financially set and that they own half the whole property at Mernda. As to Rosa, she said that Steve and Susie own their own house and 20 acres of land; she said she was happy that Steve and Susie were going to be living next door to her and Victor and that they could help each other out. Rosa said that Susie and Steve could focus on starting a family as they were financially set. Rosa said that she was very happy having Susie as her future daughter in law and that she would be well taken care of, and said that she and Victor worked all their life for their kids and would give them anything they wanted. Rosa commented that Steve and Susie's house was the better of the two as it was more important for them to have the newer house. Rosa said all she needed to be happy was a bed and that she does not need a big house. Rosa said they worked for their kids and would do anything for them. As to Steven, he said that he and Susie were set for life, he wanted to start a family straight away now that "we are set financially", it was great that they lived next door to his parents, they can help them out, and his parents would do anything for them, having worked all their life to see he and Susie set up financially and happy.

146 Vesna then referred to comments made on the evening of, but after, the wedding. Victor said that Steve and Susie are financially set for life as they own their own house and 20 acres of land, they were smart to put their money into their house and land, Victor and Rosa worked for "our kids, our money is for them", and that he and Rosa love Susie like a daughter. As to Rosa on this occasion, she said that Susie does not need to work as she and Steve already own their own home and 20 acres of land. She and Victor had told Steve the this was a great investment and that he and Susie would be millionaires one day. She says it had worked out perfectly, two houses, one for Steve and Susie and the other one for us with half the land each. She and Victor love Susie like a daughter.

147 The final occasion of comments was at the barbecue held after the wedding. Here, Victor was talking to Vesna's father when she and Valentina were in close vicinity about how big the property was. Victor said that half of the 40 acre property belonged to Steve and Susie and that one day their half would be worth a fortune. Her father and Victor went for a walk around the land. Victor said that Steve and Susie would never have this much land in the suburbs and that one day the sacrifice of living here would be worth it for them. Vesna did not refer to Rosa or Steven making any comments on this occasion.

148 Vesna then said that during the marriage Steven said that he and Susie were going to renovate "our house and land and fix it up" it will look great when it is finished. He was explaining that he was going to landscape the roundabout near the front of the house and put in a proper driveway. Vesna remembered this as she assisted Susie in cleaning Susie and Steve's house.

149 As to other information, Vesna said that after the honeymoon she assisted Susie with cleaning at her house. There was a lot to do. Vesna said that other than Susie, her mother and herself did the majority of cleaning as the house was in such a bad condition they felt it was not liveable. Valentina helped clean also even though she was studying at the time.

150 Finally, Vesna said that she has financially assisted Susie and Jamie after the separation with legal bills, living expenses, bills, and other expenses.

151 I turn then to cross-examination of Vesna. At the outset she said that she prepared her witness statement without any assistance and without having talked about it with her sisters.

152 Vesna said that she first met Steven in 1995 a little while before Susie went overseas. He came to her work place with Susie. They were overseas at approximately the same time and they planned to meet up. Her recollection was that they did not meet when overseas. Vesna had not met Steve's parents before they went overseas. At that time Susie had told Vesna that Steve's parents were planning to buy a farm property and that there were two houses on the property, one for Steve and one for Victor and Rosa and that half the land with one house was for Victor and Rosa and the other one for Steve and Susie to live in, and, she added to have, to own, to be theirs. Susie told her that a little while before she went away. That was something significant so Vesna remembered that.

153 Vesna was then asked about the occasion of The Word. She was present. Initially it was at her parents' place and then went to Steve and Susie's house. Nothing was said about the Mernda property at her parents' place. At Steve and Susie's house there were Victor, Rosa, Steve and her family. They were there for a couple of hours. It was a social gathering. There were drinks. She had not met Steve's parents so it was light-hearted but then, on the other hand, there were serious things discussed. Vesna's then husband came for a time. She remembered Victor saying that we did not have to worry about Susie, that she would be well taken care of, that they would be financially set because they would have their own house and the 20 acres the house was on. Rosa agreed to that and they were happy. It was a conversation. People were saying things and people were answering back to that. Also, we were at Susie and Steve's house so Rosa and Victor pointed out that the place needed a lot of work, the house and the land, but that Susie and Steve could fix it up and be happy there. When Victor said "we" don't have to worry about Susie he was referring to Vesna's family. He said, basically, that Susie and Steve were going to be millionaires one day and that the land they had - the 20 acres and the house that was on it - was going to be worth a fortune. He also said that there was so much land they could build or fix it up, that they could do whatever they liked with it, it was theirs. Victor was saying this as part of a conversation. Vesna could not remember if he specifically aimed it at people but we were there and he said in part of the conversation. These things stuck in her mind because you do not forget something like this. He may have mentioned the word "title", Vesna did not remember, saying that to her title, own your own home and house and land is the same thing. The word "title" might have come up in conversation. She might have substituted title for owning their own home or house so she could not tell for a fact but she thought the word might have come up. Victor and Rosa speak English really well but her parents do not. Her parents understand English but not as well as Victor and Rosa so the conversation went from Macedonian to English and sometimes they would say it in Macedonian for her parents purposes and then repeat it in English. Victor and Rosa feel comfortable with both. Victor would say something and then Rosa would back him up. It was like a conversation. She could not recall that the word mortgage was used, it may have been. She could not remember whether they owed money on the property. She made some assumptions that they would have and, as they were mentioning that Steve had worked hard to have his own house, that he would be making payment for that. Although she had not said so in her witness statement, it was said that Steve had worked hard to buy the property. What she included in her witness statement were "the major points that stick out to me about this".

154 Vesna did not recall discussing matters about the property with Steve prior to the occasion of The Word.

155 Moving to the engagement party, Vesna said nothing was said at the party at Gloria Reception about the promises. The statements were made at the after engagement party at her parents' home. Vesna referred to people outside the immediate family who she remembered being present. She was uncertain as to some. Being at her parents' place she helped her mother with the evening. The statements or promises referred to in her witness statement were made late in the party. Jim Donis was not then present, all the guests had left and it was just the families. We would not have discussed this in front of everybody. She disputed that Jim Donis left with Steve. She remembered that he left separately, they had separate cars, they were not together the whole time. She disputed that Jim was next to Steve pretty well the whole time. After everyone had left the families were having a conversation and then promises were made. Basically it was repetition. She remembered Victor saying and Rosa backing him up that the house and the 20 acres were Susie and Steve's and Rosa saying that she was happy that Susie and Steve would be living next door and they could help each other out, comments like that. Rosa was saying that she was really happy that Susie was going to be her future daughter-in-law and that they had been working hard all their lives. Rosa said that they would do anything for them and give them anything they wanted. It was said that their land would be worth a fortune, they would be millionaires one day and comments to that effect. This was said in the presence of everybody in the same way as happened at the occasion of The Word. Some remarks were probably addressed to Susie, some were addressed to the whole family. "I mean, it depends, like I said, there was a conversation. There was, you know, someone would say something, the other person would respond. It wasn't just like, you know, one statement was made and that was it. You know, we had a conversation". Steve also said that they were financially set with Susie, they own their own house and the 20 acres that it's on, he was saying that the land would be worth a fortune, that his parents had been working really hard to set their kids up financially. She remembered what she had written in her witness statement as to what Steven had said.

156 When it was suggested to Vesna that the word "ownership" was not mentioned at the after engagement party she said that there were promises of ownership especially by Victor and Rosa. As to what Steven said, the matters referred to in her witness statement was the general feeling of what he said.

157 A little further on counsel suggested that Susie and Steve had commenced going out in around May 1995 which Vesna said was not correct. She knew that when she met Steve it was closer to the middle of 1995 and that Susie was seeing him way before then. Prior to going overseas in July 1995 Susie had spoken about the property at Mernda.

158 Vesna was then referred to the allegation in the statement of claim that Susie was told that Steven had purchased half of the property including the house and was asked whether that had been said to her, to which Vesna said she did not recall it being said exactly that way, her recollection being that it was the three of them making plans to purchase the one property and that half would be for Victor and Rosa and the other half for Steve and Susie when they married.

159 Counsel then proceeded to ask further questions as to what was said at different occasions. Prior to the wedding there were lots of comments and promises that half of the property at Mernda was for Victor and Rosa and the other half for Susie and Steve, that Susie and Steve owned the 20 acres and the house that was situated on it, that there was a lot of work that needed to be done on the property, it was theirs and they could do with it what they wanted, they could fix it up, they could build, they would be financially set, they had been working all their lives to see their children financially set, they would do anything for them. This was a combination of what was said at The Word and the engagement because she had been asked to say what had been said prior to the wedding.

160 Counsel then asked as to what was said at the occasion of The Word. In the course of this, Vesna recalled that Rosa said that Steve and Susie owned the 20 acres and the house and it was her recollection that Victor did not say that in exactly those words, but he was saying that as well and backing her up. And, on this occasion Steve said that they owned the 20 acres and their own house. And he made a comment to Susie that she should stay at home and look after him and the house. Vesna thought that was an unusual sort of comment, because Susie's got two degrees and she really wanted to be a teacher so, I thought that was a bit odd, but, you know, I'm not the one who was in love with him, so, you know, that was for them to decide. She was not sure exactly what Susie said to that. It was in a conversation. She said that Susie had not even begun her teaching career properly. Vesna said that Susie had done a little bit of emergency teaching and some contract work. On the occasion of The Word at Susie and Steve's place she did not remember Victor "in those specific words" using the word "ownership" to describe that Steve and Susie owned the property. Her recollection is that she did not doubt from Victor that he meant that Susie and Steve owned their house and land. She did not know that Victor said it in exactly the words that "Steve owned the property", but that was what she recalled. She denied that she was going on an impression rather than particular words that she could remember and said that Victor also said that the property will be worth a fortune, that Susie and Steve would not have to worry about money. He did not say "in those words" that Steven had purchased half the property. Rosa said that Susie and Steve owned the 20 acres and the house that was on it. Vesna's best recollection was that neither Victor nor Rosa said that Steven had purchased half the property but Victor had said that half the whole property was Steve's and Susie's. Vesna could not specifically recall that on the occasion of The Word Steve, Rosa or Victor said anything about money owed on the property.

161 Vesna was then asked questions about the engagement after party. She said, as to her best recollection of what Victor said about the property, that he talked about the 20 acres and the house being Susie and Steve's, saying they had worked hard for their kids to set them up financially when they got married, that they did not have to worry, they could focus on having a family. There was a repeat of what he had said at The Word, he made the promises over and over again and at The Word he talked about the fact that they could fix it up and build and all the rest of it; she did not recall that at the engagement after party. At the engagement after party there was no specific reference to the word title or to any debt owing in relation to the Mernda property.

162 Vesna was then asked questions as to what was said following the wedding. This was in a shed at the Mernda property, she recalled her parents, herself and Victor and Rosa being present. She also referred to a few families from Victor and Rosa's side. She recalled Victor saying that Susie was like a daughter to him and that they owned their own property.

163 Vesna was asked if Victor or Rosa ever spelt out on what basis Susie was to be the half owner of the property and said she supposed being Steve's wife. As to Steven, Susie had told her that the purchase was a joint venture between Steve, Victor and Rosa. And at the after wedding party Victor said it was smart that Susie and Steve put their money into the property. Her recollection was that on the occasion of The Word nothing was said about Steve having spent money on buying the property, and that it was not said in those words at the engagement after party. She specifically remembered the comment from Victor after the wedding.

164 Vesna said a lot of renovations were done to the house after the wedding, and some things might have been done before the wedding as to which she referred to an alarm that Steve was going to put in for Susie. Being a police officer Steve wanted to make sure that when Susie moved in the farm, being isolated, had an alarm. Vesna said that besides Victor and Rosa's house and Steven's house there were just trees, bush, and at night it was quite scary, she remembered thinking to herself that she did not know she could live out there.

165 Further as to the matter of Steve putting money into the property, Vesna said that he did not tell her of the details with regard to their mortgage or the payments and who made exactly what payment. She assumed that Steve was contributing rather than that she was told. She thought it was not her business to know the exact payments that they were making.

166 Vesna's understanding before the wedding was that Susie was a half owner of the property at Mernda.

167 At the end of the cross-examination it was put to Vesna, and Vesna denied, that the only thing that Victor and Rosa said about the property was that Susie and Steve could live there for as long as they liked, rent free, to put themselves in a good position to buy their own house. She also denied a suggestion that they said they would do the same thing for their other son Michael, and that Michael was not mentioned in the discussions. Michael attended the official engagement reception but he was not present at The Word or the engagement after party.

168 In re-examination Vesna clarified that Jim and Mary Donis were not present on the occasion of The Word, either at her parents' place or at Steve and Susie's place.

169 As to the engagement after party, it started in the evening or later during the evening, she thought it was dark, and finished later on, she would say before midnight. She could not say exactly when Jim Donis left the after party because people were leaving at different times but she definitely knew that he did leave and that Victor, Rosa and Steve stayed on. Jim left with his wife and children. It was ridiculous to suggest that Jim Donis never left Steve's side at the after party. Further, Steve did not leave with Jim Donis. Finally, neither Victor or Rosa or Steve said nothing like Steve and Susie could live in the Mernda property rent free.

Nikola

170 Commencing with the occasion of The Word Susie's father gave his account of statements made by Victor and Rosa.

171 At Steve and Susie's house on the night of The Word, Victor said that the house and half of the 40 acre land was Steve and Susie's and the other half was for Victor and Rosa and that this was the plan all along with Steve. Nikola said that he asked Victor and Rosa whose names were on the title of Steve and Susie's property as he wanted to be sure his daughter was going to be taken care of by her new family as is Macedonian custom. They told him that Steve was on the title. Victor gave his word that they would make sure that the property title would be under both Steve and Susie's name after the wedding, but that it did not matter because the house and the land was for Susie and Steve. Victor told Nikola not to worry about that because it would be done. Victor and Rosa said they would take care of Steve and Susie and that they were working for them to give them everything they could to make their lives easier. Nikola said that he wanted to make sure that Susie and Steve had a property of their own to start their new life together; it was expected that the groom's side take on the bride as part of their family, she joins their family as their daughter and they take care of her. Nikola said it is also a tradition that the bride calls her parents-in-law mum and dad and that the groom calls his parents-in-law grandfather and grandmother, and that happened in this case. Nikola said that Victor and Rosa promised him that there was no doubt that Steve and Susie would own the house and half the land which they said was about 20 acres. They said to Susie in front of himself, his wife and other daughters that all they cared about was making sure that Susie and Steve were set up by owning their own house and 20 acres of land. Victor was bragging a fair bit about how much land Susie and Steve had. In his evidence Nikola observed that if he had had any doubt that the property would not belong to Steve and Susie after they were married, he would not have wanted Susie to get married without knowing that she and her husband had their own roof over their heads.

172 Turning then to the engagement, Victor and Rosa told Susie in front of him and his family that Susie's name would be on the title to the house and 20 acres of land as well, once she and Steve got married. They said that everyone knew the house and land belonged to Susie and Steve anyway, but both should be on the title. They said to Susie that she could trust them now that they were family. Nikola said that Victor and Rosa told Susie that the house and 20 acres of land in Mernda was Steve and Susie's, and that Rosa, Victor and Steve planned it that way all along. Rosa said she and Victor considered Susie a part of their family and would treat her like a daughter, and that she and Victor would do anything for Susie and Steve to make sure they did not have to worry about money and could start a family straight away. It was also said by Victor that Susie and Steve could do whatever they wanted with the land. Victor said that he and Rosa had been working all these years so they could make sure their son and new daughter had a property of their own. The farm with 20 acres of land would be in both Steve and Susie's name after the wedding, but it was theirs anyway.

173 Nikola then turned to the wedding and said that on this night Victor told "us" not to worry about Susie because he and Rosa would take care of her. Victor told Nikola and his wife "that Susie was going to be put on the title with Steve for their house and the 20 acres of land, just like he gave us his word". Victor said that Susie was part of the family now and that he and Rosa would make sure Susie and Steve owned their own property and that we did not have to worry about her.

174 Nikola then turned to the barbecue at Steve and Susie's place following the wedding in March 1997. Nikola remembered Victor saying in front of his family that Steve and Susie were now on the title for the house and the 20 acres, and Victor asking him if he wanted to go for a walk to see how much land Steve and Susie actually owned. They went for a walk and he was shown the land area which was "huge".

175 Then at the Prviche at Victor and Rosa's house, Rosa said that Steve and Susie's 20 acres would be worth a lot of money in the future, and that living on the farm would pay off for Steve and Susie. Nikola said that Susie wanted a new house in the suburbs closer to him and his family and that Rosa was trying to convince Susie that in the end it would be worth it and that Susie would be thankful later for making the sacrifice because their property would be worth millions of dollars.

176 Nikola then said that he assisted in constructing the double garage and carport and roller doors for the property. Steve and himself purchased the two roller doors plus a smaller roller door together which he (Nikola) paid for in cash. He was not reimbursed for this. Prior to them constructing the double garage and carport, they removed an existing old fern garden in its place. He also said that he painted the exterior of Steve and Susie's house, front and back, and helped in the construction of the new steel colorbond fence with Steve and a third person. Neither Michael nor Victor Donis helped construct the fence. Steve told him the fence cost he and Susie about $8,000 and did not mention anything about being reimbursed by Victor.

177 Nikola said that he and his wife gave Susie and Steve two cheques, one to the value of $5,000 and the other to the value of $2,000, plus $2,000 cash. They gave other amounts but these were the main amounts given to Susie and Steve.

178 Finally, Nikola said he would not have approved of Susie and Steve using their own money to improve another person's property if they did not have a property of their own.

179 Turning then to cross-examination, Nikola said at the outset that when Vesna married she lived with her husband's parents who gave the couple the vacant block of land next door. Nikola said that when he married his parents gave his wife vacant land and after they got married a house had been built for them. They lived with his parents until the house had been constructed. He said that the tradition in his culture is not to live in the groom's parents' house to try and save money but "there ought to be a house when somebody gets married". He then clarified that by saying that "In our tradition it is desirable that there is a house there for them".

180 Nikola said he met Steven prior to him going to Greece. Steven came to his house, Susie was present. They came over so that he could meet them and he referred to a bottle of whiskey Steven brought. Susie had told him months before that she had a boyfriend. He had not met Steve's parents before Susie went overseas and knew nothing about them.

181 After Susie returned from overseas Steve visited constantly, told them that he and Susie were in love and they said that they want to get married.

182 Nikola said that the first time Steven told him that he proposed to marry Susie was when he brought the bottle of whiskey.

183 Susie first told him that she proposed to marry Steven before she went on holidays. He then said that he was told they were going to marry when Steve came over with the bottle of whiskey, he said he wanted to marry Susie.

184 Nikola had not met Steven's parents before The Word. Susie had said that they were going to sell their house in Mill Park to buy a farm in Mernda which had two houses. That was before the time of the bottle of whiskey. Susie said that one of the houses would be for Steve and herself and the other for Victor and Rosa. And Victor told him that at The Word. By the occasion of The word he knew that Victor and Rosa had moved into the farm.

185 Nikola was then asked questions about the occasion of The Word. When they went to Steve and Susie's house the only people there were his family and Steve's family. It was the first time he had met Steven's parents. They were communicating in Macedonian, the major things were in English. As to English, Nikola said he was able to understand more than he is able to respond. Nikola said that Victor raised the issue of the farm and the houses, saying that the house and half of the property would go to Susie and Steve and the other half would be Victor and Rosa's. That would be included in the title and they would have the title to show that. That was volunteered by Victor and Rosa. Nikola said to them that he would like to know in whose name was the title for that half of the property. He used the word "title" and "Tapiata". He was told by them that Steve's name is "in the title, the title" to 20 acres including the house.

186 Following this Nikola was taken back to the time of the bottle of whiskey and it was suggested that happened in early 1996 which he denied. He then said it was possible that he first met Steven in early 1996. When he brought the bottle of whiskey he came to see that he could marry Susie. He then said that the occasion when Steven brought the whiskey was before he and Susie went overseas.

187 Counsel returned to the matter of Macedonian tradition as to the bride and groom living with the groom's parents, and said that sometimes they do but at other times they are given a house or a house is constructed. The father of the groom would give the house and the bride's parents would give the wedding and some money.

188 Nikola said that in response to his asking, Victor and Rosa said they follow the Macedonian tradition about looking after their daughter-in-law. He said they were Macedonian, and that he asked them as to the tradition at The Word. As far as he knew Victor and Rosa were Orthodox Macedonian. They told him they were Macedonian, "the same as us". He said he asked them if they went to and were married in the Macedonian church. He did not know that Steven was christened Greek Orthodox but knew that Victor came from Aegean Macedonia. Nikola came from the area close to that, where the border is. He did not know that Victor and Rosa were Greek Orthodox. Nikola said that he would never attend a church service in a Greek Orthodox church, nor would members of his family. Nikola said that he celebrated Christmas on 7 January, and denied that Victor and Rosa celebrated Christmas on 25 December. He believed that Victor and Rosa would follow the traditions that he was brought up with. Steven told him that he is Macedonian and that he goes to a Macedonian church. Nikola agreed that the great majority of Aegean Macedonians are Greek Orthodox but then he denied that an Aegean Macedonian is likely to be Greek Orthodox.

189 Nikola said that after The Word "we" met Victor and Rosa regularly. They were always close. Victor and Rosa did not say anything about giving Susie property in the farm between The Word and the engagement.

190 Nikola was then asked some questions about the engagement after party at his house following the reception. George and Jim came and left. He did not think that Jim Panovski came. After they left Victor and Rosa said "in front of me, Susie and my family, ... that the house in Mernda, the 20 acres, that after the wedding it would be - they said that Steve's name is in the title and that after the wedding, Susie's name will be included". He added that they said that everyone knew that the house and the 20 acres belongs to Steve and Susie. They gave Nikola a promise as to Susie's name being included after the wedding. They said that Susie is part of their family and they respect her as their daughter and would help her if it was necessary with whatever. They were the main things. They also referred to having worked for many years for Steve and Susie and would help with whatever was needed. They said they had given Susie and Steve a house and they can do what they like and they can start with a family. Nikola then said that they said that after the wedding, but that they had also talked about that before.

191 Then at the barbecue after the wedding they said that Susie and Steve are now on the title and Victor showed him the farm.

192 Then, in accordance with tradition they went to Victor and Rosa's place after the wedding and were at a shed on the property where Rosa said that Steve and Susie's farm is going to be worth millions one day.

193 Then, nothing was said at the Prviche at Smorgy's restaurant. The reference in Nikola's witness statement to the Prviche being held at Victor and Rosa's place was not correct.

194 The balance of the cross-examination was concerned with assistance Nikola provided to Susie and Steve in the matter of improvements to their house. This concerned in particular the garage and carport and what Nikola had done and paid for, Nikola painting the veranda at the front and back of the house for which Steve bought the paint, Nikola mostly working when he had a day off or on a Saturday and Sunday. The work was done after the wedding.

195 He had seen the house on the day of The Word. The house was cleaned before the wedding as it had not been cleaned before.

196 Nikola also referred to other items of improvement; he said that we made a colorbond fence, and vertical blinds and security doors at the front and the back were installed before the wedding.

197 In re-examination Nikola said that he gave $9,000 odd to Susie and Steve at the time of their wedding and, he added, perhaps a bit more than that. There was a cheque for $5,000 and for $2,000 and $2,000 in cash plus other monies.

198 Nikola said that he first met Steve before Susie went to Macedonia. The bottle of whiskey was produced after she returned. From then until The Word he saw Steve every day. After September or middle of October, Nikola was not sure, Steve told him that he wanted to marry Susie. At the ceremony of The Word he was one hundred per cent certain that Susie would accept the proposal because of what Susie had told him. She had said that they were very close and that when they came back from Macedonia they could commence marriage plans. When she returned she said that "we have to accept now".

199 Finally, it had not been suggested until today that Victor and Rosa were married, and Steve was christened, in a Greek Orthodox church.

Nadezda

200 Nadezda's written statement followed the same format as Nikola's. Although in substance her evidence was to the same effect it was with somewhat different expression and I should set it out.

201 On the occasion of The Word Victor said there was no doubt that the house and 20 acres belonged to Susie and Steve. He gave his word in front of Nadezda and her family that the house and half the land would be in Susie's name too when they were married. Nadezda remembered her husband specifically asking who was on the title of Susie and Steve's property. Victor and Rosa told Susie that all along the plan was that Susie and Steve would own their own house and half of all the land and that Victor and Rosa live next door in the other house. Nadezda said that she and Nikola had always told Susie they did not want her to get married unless she and her husband could live in their own property and start their own family knowing they were financially stable. Nadezda said that Victor and Rosa assured Susie and "my family" that they would definitely make sure that the title for the house and land would be in both Susie and Steve's name. They said they would give them everything they could. They said they would sacrifice their own happiness for Steve and Susie and that they even made sure Steve and Susie would have the bigger house of the two. Rosa said something like all she needed was a bed and she was happy. Rosa told Nadezda that she and Victor would treat Susie like their own daughter and that there was not anything she would not give or sacrifice for Steve and Susie.

202 On the occasion of the engagement Rosa told Susie that the house and the 20 acres of land was for her and Steve, and that she, Victor and Steve planned it like this all along. Rosa said that way Steve and Susie would own their own farm and still be next to them. Rosa kept telling Nadezda how much it meant to her having Steve and Susie live next door. Rosa said that Steve and Susie would not to have worry about buying a new house because they already had the farm and therefore there was no reason to put off starting their own family. Victor and Rosa told Susie and "the rest of us" that Susie's name would be on the title for her and Steve's house and the 20 acres of land surrounding, once Susie and Steve got married. They said Susie should not worry about it, that she was part of their family now and she could trust them. Victor and Rosa said they would do anything for Susie and Steve. Victor said that the farm with 20 acres of land would be in both Steve and Susie's name after the wedding, but that it was theirs so it did not really matter whether Susie was on title or not. Victor and Rosa said they were working for the kids, talking about Steve and Susie, and said they wanted to give them everything they possibly could.

203 On the wedding night, Victor told Nadezda and her husband that Susie would be on the title with Steve for the house and the 20 acres of land. Victor told us not to worry about Susie because he and Rosa would take care of her as she was part of their family.

204 At a barbecue after the wedding at Steve and Susie's house, Nadezda remembered Victor saying the house and the 20 acres was now Steve and Susie's legally because they were on the title. And, when they were at Victor and Rosa's house for the traditional after wedding lunch, Rosa said that she knew Susie did not like living on the farm but that Susie needed to put up with it because other than it being Steve's and Susie's, the 20 acres of land would be worth millions of dollars for them one day and it will all be worth it. Rosa and Victor told Susie that she and Steve could do whatever they wanted with the house and their land because it was theirs.

205 Nadezda remembered an occasion when Vesna and Valentina were looking into some apartments for investing and Susie spoke to Steve about it, that Steve told "us" he was not interested and said to us something like "Susie and I are finally out of debt with the farm".

206 Nadezda said that she and Nikola gave Susie and Steve two cheques to the value of $5,000 and $2,000 respectively plus $2,000. They had also given Susie and Steve other smaller amounts of money.

207 Nadezda then referred to having assisted Susie in "a large clean up" of her and Steve's property. She and Vesna did the majority of the cleaning of the house, along with Susie, and Valentina also helped. This included scrubbing and cleaning the entire kitchen including the insides of cupboards which was beyond normal cleaning required of a kitchen. In 1997 Nadezda dug up and prepared soil in the back yard and removed weeds from Susie and Steve's property and grass growing where it was not wanted. She also prepared the soil for the planting of a vegetable garden. She attended Susie and Steve's house on numerous occasions to work on the outside and inside of the property.

208 I turn then to Nadezda's evidence in cross-examination. Steve had asked Susie to marry him before the occasion of The Word, she did not remember exactly how long before, a few weeks, two or three weeks. For that reason the families agreed they should celebrate the occasion. She added that they were much in love before they went overseas. The occasion of The Word was the first time she met Victor and Rosa. They celebrated at Nadezda's house; there was no discussion there about anything. It was later at Steve and Susie's house that "we" were told that half the property of 20 acres and the house will be given to Steve and Susie. That had been said "prior", because Steven was telling Susie that "we are buying this lot of land with a house. The land was a big farm with two houses. He would specifically say that: in one of the houses we will live, myself and you and in the other house my parents will be living and we will share the lot we will be neighbours but we are buying that land". Susie told her that.

209 Nadezda was then asked some questions about the engagement after party at her home. In addition to her family Steve, Victor, Rosa and several other people attended. She thought Jim Donis was there but was not sure, she could not remember everything, she did not remember his wife being present, perhaps George Donis was. As to Panovski, there were several people but she did not remember all of them. Also, her sister and several other families were present but she did not remember which. It was in the evening. Victor and Rosa said they were going to give half the property to Susie and Steve, and Steven was listening. Steven did not say anything but Victor was speaking and at times Rosa would fill in and say something as well. Victor was speaking to my husband, to me, to my family. It happened after the others had left, the conversation was between my husband, myself and my daughters and Victor, Rosa and Steven. She did not remember if Michael Donis was there that night.

210 Nadezda was then asked when she first met Steven. The first time was when he came to her home to see Susie on Valentine's Day 1995 and he brought a bunch of roses. Nikola was not home. The next occasion was at her home prior to Susie and Steve going overseas; on that occasion Nikola, Susie and Valentina were home and Steven brought a bottle of whiskey bearing the flag of Macedonia and chocolates for Nadezda. Steven said that he loved Susie and wanted to marry her.

211 Returning to the occasion of The Word, Victor and Rosa did not mention anything about rent or mortgage repayments. They mentioned that Susie and Steve will be on the title for the house and the 20 acres of land. They said that Steve was already on the title. Nikola asked the question: I would like to know who is the title bearer of the house and the land. She did not remember that at that time Victor and Rosa said that Steven had bought the property with Victor and Rosa, only that they said that the land of 20 acres and the house will be theirs because that's been planned for some time.

212 Prior to Susie going overseas she told me, and Steve also told me, that "we're buying a farm with two houses on it". Susie told her that Steven had told her (Susie) that Victor and Rosa planned to sell their house in Mill Park and that half of the farm would be in Steven's name and half of the farm in the name of the parents.

213 Nadezda was asked about matters following the wedding. At a barbecue at Susie and Steve's house Victor said to Nadezda, her husband and their daughters not to worry about Susie now, she is on the title for the house and 20 acres, "Susie and Steve are on the title". Rosa was present and listening. Rosa said that that is what it will be because now Susie is part of their family and they are going to look after Susie.

214 Nadezda did not know that Victor and Rosa were married in a Greek Orthodox church or that Steven was christened in a Greek Orthodox church. Susie told them that Steven was Macedonian.

215 Before Susie married she told "us" that Steven was paying off the mortgage and once they were married she said that both of them were paying off the mortgage.

216 Susie did not mention that she and Steven were thinking about buying a house of their own, they said the house on the farm was her house and she treated it as her own house.

217 It is then necessary to mention some evidence in re-examination. Immediately Nadezda said that she first saw Steve at work at the mushroom company where she worked and he worked before he became a policeman. She did not see him regularly there as he worked in Mernda and she worked at the Bundoora premises. She had seen him twice at the factory. The first time that he came to her house was when he gave Susie roses on Valentine's Day. After that he came around to take Susie out and after some time he came with a bottle of whiskey. As to her evidence in cross-examination that she first met Steve when he brought the bottle of whiskey around, she said that was a more special occasion, a time "when we can exchange talk etc", prior to that it was like waving and just saying hello with not a great deal of interaction. She agreed that the whiskey occasion was the first formal meeting she had with Steve.

Defendants' Evidence - Introduction

218 I now turn to the evidence of the defendants and their witnesses. As to the defendants themselves, it is not necessary to set out their evidence in the way or to the extent that I have thought appropriate with the plaintiff and her witnesses. That is because the defendants' essential case is a denial of the making of any of the statements or promises alleged by the plaintiff and her witnesses and relied on by the plaintiff to establish her case. It is not a matter of the defendants' version of the discussions in which the statements and promises alleged by the plaintiff were made as the defendants say that they never were made. For this essential and fundamental reason the rival cases are like ships passing in the night. Thus it was that much of the cross-examination of the defendants, and their witnesses, was concerned with their credit and reliability as witnesses. Were they, or were the plaintiffs, to be believed? Of course, even if the defendants are not believed, or their evidence is not accepted, it does not follow that the plaintiff must succeed. That is because the question would be whether, assuming relevant evidence of the plaintiff and her witnesses was accepted, that evidence established an entitlement to the relief sought. For this reason, and because it was subjected to critical attack, I have set out the evidence in the plaintiff's case in the way that I have. I now refer to the evidence of the defendants and their witnesses. However, for the reason mentioned, the reference will be to their primary evidence, the evidence in chief. Of course I do not overlook their evidence overall, and I will deal with matters of credit later.

Steven

219 In his witness statement Steven said he had never been involved in any decisions that his parents had made in relation to their finances and neither had his brother. He had not been involved in making the decision to purchase any of the properties or businesses his parents have owned, he had not contributed financially towards the purchase of any of the properties or businesses, and he had not paid rent or board to live with his parents in their houses.

220 He met Susie in or about May 1995 when she worked as a casual mushroom picker at Campbells Mushroom Farm in Bundoora. They met for coffee and later saw each other briefly until Susie left Australia for a holiday in Europe. He too left Australia for a European vacation after Susie.

221 Steven said that on arriving home in September 1995 he received a postcard from Susie. He called her and found she had just arrived from her trip overseas. They made plans to meet again.

222 In November 1995 his parents, his brother Michael and himself moved to the Mernda property, at first into the newer house because it was larger and more comfortable, however after about one month his parents moved to the older house. His parents were planning to rent the newer house for extra income.

223 In late 1995 or early 1996 he was working different shifts at the Preston Police Station and found it difficult to sleep when his parents or Michael arrived home from work and went on their ways at home. His parents suggested he live in the newer house and in December 1995 or January 1996 he did so. The house was fully furnished.

224 In or about January or February 1996 Susie met his parents and he met her parents and sisters.

225 In March or April 1996 their relationship was becoming stronger and they decided to marry. They informed their parents and on 28 April 1996, in line with Macedonian custom, he and his parents went to Susie's parents' home where he announced his intention to marry Susie.

226 The first time he recollects his parents saying anything about Susie and him in respect of the Mernda property was one month before they married. On that occasion, at his parents' house in Mernda, his father said to him and Susie words to the effect that once Susie and he married they could live in the newer house on the farm rent free so they could save money to buy their own house. His father said that he and his mother were simply trying to help us out and that he offered no special favour, that they would do the same for Michael. When they left his parents, Susie and he said to each other words to the effect "this will give us a great head start".

227 Steven said that his parents never said to he or Susie in his presence that "we would own the house or I was the registered owner of the house or I was making mortgage payments". Susie never said to him that she thought what his father meant was that Susie and he own the house or had an interest in the property, or that she had a different understanding to what his father had said. Steven could not remember his parents raising the topic until one month prior to Susie and he marrying.

228 On return from the honeymoon, they began living in the newer house. Susie announced she was pregnant. Susie did not bring any furniture or other items with her apart from her clothing and her motor vehicle. She had and maintained her own bank account. He had about $2,000 in savings in his bank account, his clothes and some furniture, electrical items and a sound system and drove a 1992 Holden Calais belonging to his father.

229 They received about $25,000 in cash as wedding gifts. Susie's uncle said it was a good deposit to buy a home, and her father suggested buying a block of land and building a new home on it. The $25,000 was deposited into a term deposit bank account on the understanding the money would be used to purchase or build our home[24].

230 Steven said that his parents never said anything to Susie and he about the house after they were married. There were occasions when his parents visited them at their house when they would show them things they had bought, and he remembered his parents saying words to the effect "don't spend your money, save it because you are going to need it". Steven did not remember Susie ever querying whether she and Steven were owners of the property.

231 Steven said that following the birth of Jamie problems started to develop in the relationship. He referred to Susie beginning "to display irrational behaviour" and said she "would often be abusive at me and towards my parents" and that she "would withdraw herself from other people including my immediate family and spend more time with her parents and sisters". He went on to refer to arguments developing in which regard he made an allegation about Susie insisting to stay at a cousin's 21st birthday party to wait for a stripper to perform her act, and that despite his protest they stayed. I do not set out all that he has said as to this and other events, and criticisms of Susie which in my view, having observed him closely, are affected by bitterness if not perverseness and should be taken with a grain of salt. I specifically reject his evidence as to the stripper.

232 Steven referred to an argument which he said occurred in August 1999 following which he left and returned after two weeks when they reconciled in Jamie's best interest. He said that at Susie's request he agreed, for the sake of saving the marriage, that his parents not come to their home and that she not attend their home or they see Jamie. In summary, the marriage was coming to an end, Steven saying that he tried to reach a rational compromise but Susie continued to abuse his parents and himself. He decided to end the relationship and said that on or about 1 February he received a letter from his parents to vacate the house. He said that on the same day he moved out and took his clothing and personal effects. I interpolate that in fact cohabitation ceased on 18 January 2000 when Steven left the home.

233 Steven said that following the separation Susie would call him asking him to reconsider his decision to end their relationship. She would say that she would get a job, or for us to move into another house and rent for a while. He asked for Jamie but told her that the marriage was definitely over and she became very upset. I interpolate that in cross-examination Steven clarified that there were only two such calls made by Susie[25].

234 Steven said further, in summary, that he had never said to Susie or to any relative or friend of Susie's or his that he owned or was to own any part of the Mernda property. Nor had he ever told Susie he was registered on the title to the Mernda property or any other property, or that he had made mortgage payments on the Mernda property or any other property or assisted his parents with any mortgage payments. Nor had he ever discussed mortgage payments or title registrations or ownership of the Mernda property or other properties with his parents. He said he had no detailed knowledge of his parents' finances. And at no time did he ever say to anyone that he owned any part of the Mernda property or had any interest in the land or was to be given an interest in the land. He had never owned or had any interest in real estate in Victoria or elsewhere in Australia. Finally, as to money, at the time of the marriage he was earning approximately $35,000 per annum and his earnings were on average $42,000 per year. When Jamie was born he and Susie opened a Commonwealth bank saving account in Jamie's name to which his parents regularly contributed and any money that Jamie got for the christening and his birthdays also went into that account. Susie was the trustee of the account which had a balance of around $8,000 at the time of separation. Since separation Susie had withdrawn all funds in the account. I interpolate that that is correct, Susie having done so to pay living expenses for herself and Jamie.

235 Steven gave a deal of oral evidence in chief, to which I now refer.

236 Steven said he first met Susie in May 1995 and her parents in January 1996. He did not meet Susie's parents on Valentine's Day 1995.

237 Steven said that when Susie went overseas in 1995 they were boyfriend and girlfriend. He suggested that they meet when they were away, but Susie said she did not want to meet him while overseas. Steven said that he was only going to be a matter of kilometres away from her.

238 As to Susie's evidence of the occasion of the snake incident, Steven said there was never such an occasion.

239 As to Susie's evidence that at his house before the occasion of The Word his parents said words to the effect that half the land is yours and you can do whatever you like, that that was never said. Nor had Susie ever asked whose name was on the title. He had never been told that he was on the title and had never told anyone that he was.

240 Steven said he was baptised in the Greek Orthodox Church in Preston and that prior to their marriage he had no discussion with Susie or her parents about the traditions of Macedonian upbringing in relation to giving property. He was not aware from his upbringing of any tradition whereby the parents of the groom give property like a house to the bride and no such matter was ever asked of him by Susie or her parents or discussed with his parents. Further, at his house after The Word there was no reference made by his parents or by Susie or her parents to ownership of the property at Mernda. Nor was there reference to his name being on the title, to Susie being an owner, or to him paying off the mortgage.

241 Prior to the occasion of The Word Susie never said that she did not want to live in an old filthy worn down house on an isolated farm and he had never said to her that it was the best investment they could make. Nor did they discuss doing up the newer house at Mernda, he believed that it did not need things being done to it. Things were done to it before the wedding at the initiative of his father and himself, just a bit of cleaning up.

242 Steven said that prior to the wedding there was no discussion in which her parents tried to persuade Susie to move into the house. They never said move in, the house belongs to you and Steve.

243 Steven said that he never proposed to Susie prior to The Word.

244 At his parents' place after The Word nothing was said by his parents in his presence about ownership of the property at Mernda or the plaintiff having an interest in it. No such matter had been discussed before he went overseas.

245 Steven said that prior to going overseas he did not discuss marriage with Susie.

246 Steven went to the plaintiff's parents' house with a bottle of whiskey in January 1996, the first occasion he met her parents.

247 As to the engagement after party, Steven listed persons present and said that Jim Donis was near him during the night and that the Donis family all got there at the same time and left at the same time leaving Susie's relatives behind to clean up. His parents did not say anything about ownership of the property at Mernda, nothing was asked of them about it, and it was not said that he was on the title or an owner or that Susie was an owner or would be on the title or that he would be paying off the mortgage or that he and Susie would have 20 acres of land.

248 Steven said that prior to getting married he did not discuss the acquisition of a house with Susie.

249 Steven said that prior to getting married Susie never asked him questions about his financial position and he did not tell her what it was. In explanation, he said that "we all knew how much money we got out of the engagement and that was used to purchase things for the wedding". He further said that Susie did not tell him what her financial position was, adding that they were not in a position where they had lots of money, they were struggling. In further explanation as to neither of them telling the other what their respective financial position was, Steven said they were probably a bit naive at the time. He did not discuss his financial position with Susie in even general terms.

250 Steven said that the fenced off area of the newer property (at which he and Susie lived after they were married) had an area of around three quarters of an acre.

251 Steven said there was no occasion before the marriage when he and Susie's parents walked around the whole 40 acres and Susie did not do that with him. He could not recall if Susie asked him how much land there was. There was no discussion prior to getting married with his parents, himself and the plaintiff in which the amount of land was discussed.

252 The first time that Steven discussed with Susie living at the Mernda property was one month before they married on the occasion when Victor offered rent free accommodation. To the question where had it been intended that they would live, Steven said "I don't know", adding that they had not talked about it.

253 Steven said there were mice at the house but never any rats. Susie mentioned her concern about the rats and mice. He denied Susie's evidence that he had used a boot to kill a rat[26]. He denied that Susie had told his parents that she was sickened by living in a rat infested house and that his parents had said to her that if you live on a farm it is a different lifestyle and you've got to get used to it.

254 Steven said there was no discussion at or shortly after the wedding about he or Susie being on the title of the property.

255 As to Susie working after the marriage, Steven said that it was up to her and that she said that she wanted to stay home. She did not say she would like to be out working.

256 Susie never said she regretted being pregnant or having a child, never expressed opposition to staying in the house, and never said that a condition of doing so was that she would be given part of the ownership of the property. Nor did her parents ever say that to him and it was never discussed.

257 As to works that were done on the house, Steven said that Susie's lifestyle dictated what was to be done to the house, he was happy with the house as it was. Some of the "cosmetic" changes they did to the house were paid for by himself and Susie and they were not reimbursed but around half of the cosmetic changes were reimbursed by his parents. Steven denied saying to Susie that he was putting in as much money from his pay as possible so they could off the mortgage as soon as possible. He said that no more than $20,000 was spent on the house. He based that on his knowledge of what was spent and that he could not afford to spend any more. He paid half and his parents paid around half. He was reimbursed half. They discussed the work with his parents. He did not feel he had the right to do things without their permission. He said that significant work done after the marriage without consultation with his parents was the installation of roller shutters and air conditioning which Susie and he paid for. His parents refused permission to replace the carpet.

258 Steven said that to his knowledge the first time that Susie claimed to have been promised an interest in the property was made in the caveat lodged in late 2000. She had never raised with him the question of the promises allegedly made by his parents about her ownership of the property. I interpolate that in cross-examination Steven said that the first time he heard anything about a promise was on reading her answers to interrogatories[27].

259 Steven gave some evidence as to cleaning up and other work done at the property. The evidence involved some conflicts with evidence in the plaintiff's case. Included in this was evidence that he had not said that the mortgage would be paid off soon and that he would keep on adding to the list of renovations. He said Susie was a good housekeeper, that they were happy initially and that things progressively got worse. He said it would be untrue to suggest that Susie was kept at home, discouraged from working and forced to do the domestic work because of promises made by his parents that she owned the property.

260 Steven said that his parents did not encourage Susie to have more children by saying that the mortgage will be paid off soon, do not worry about money, have more kids.

261 He also denied that his behaviour towards Susie became abusive shortly after the marriage and that on 18 January he punched her on the face. He gave an account of what happened on that day, 18 January 2000. Steven ventured the view that he thought Susie had suffered from post natal depression for which he had asked her to get help and as to which she had said that he needed help. He said she became withdrawn from his family and basically that she did not like his parents. Steven went on to deny statements and actions of his that Susie described as having occurred on the day of their final separation.

262 Steven gave some evidence as to statements of Susie as to why she gave up teaching and stayed at home[28] which included denying that Susie said to him and his parents that she did not want to get married unless she and Steven purchased a home together and that she never said that she was happy to continue living with her family unmarried as she was in no rush to get married. He also denied that he and his parents assured her that the house and 20 acres belonged to her and Steven.

263 Steven denied Susie's evidence that since separation he had admitted to her that he and his parents had lied about ownership of the property.

264 As to payment for items of work done at the house, Steven said that items he paid for that were not reimbursed were paid from their general savings account, his pay. He paid for the air conditioner, the roller shutters, oven and hot plate and light fittings. He referred to other items for which he received reimbursement from his parents or for which his parents paid.

Victor

265 In his evidence in chief Victor outlined the history of himself and Rosa buying houses and businesses. For present purposes I pick the account up at the time when the Mernda property was purchased in 1995. Victor described one house on the property as being about 30 years old and the other about 10-15 years old, the plan being to lease the newer house to supplement their income. The proceeds from the sale of their house in Mill Park not being enough to settle the purchase of the Mernda property, he and his wife borrowed $311,500 from the NAB to finalise the purchase[29]. Around October or November 1995 he and his family moved to the newer of the houses on the property but, for reasons of convenience when working on the farm, moved to the older house. By 1996 Steven, due to his odd working hours and need for sleep, moved back to the newer house which was furnished.

266 Steven first introduced his parents to Susie in February or March 1996. Around April 1996 Steven told them that they were planning to get married and in accordance with custom arrangements were made for Steven, Victor and Rosa to attend Susie's parents' home for Steven to request Susie's father for her hand as a bride. Also present on this occasion were Susie's sisters.

267 About one month prior to the wedding Steven and Susie visited Rosa and himself on a Sunday afternoon. Victor said to them that "there's two houses on the property, after youse get married you are more than welcome to stay in the newer house rent free, until youse can save some money to put a deposit on your own house. I'd do the same thing for Michael if he got married first". Victor said that Steven and Susie seemed happy at his offer, that Steven said "thanks" and Susie said "that will be nice". Victor said that his wife and he never discussed with Steven or Michael who was on title to any of the properties and particularly in relation to the Mernda property, and that he and his wife never discussed their intentions regarding the Mernda property with Steven or Michael.

268 A short time after Steven and Susie returned from their honeymoon Steven asked Victor to replace the carpet in the new house because Susie did not like what was there. Victor said the carpet had just been steam cleaned and there was nothing wrong with it.

269 In about mid to late 1999 Rosa and Victor noticed that Steven and Susie were having problems in their marriage. Victor said that Susie would often accuse he and Rosa of trying to destroy their marriage and that Susie would tell Rosa and Victor that she "would destroy you all", that "you are nothing but uneducated and work in a stinking fish shop", that "you think we are scared of another divorce, please, my sister is a solicitor". Victor said that while Rosa and himself did not interfere with their marriage, at times they would disagree with some of the changes Susie wanted to be done to the house. He refused to change the carpet and they refused to pay for a new driveway which Susie repeatedly asked for. Victor said there were things done to the house that he had no knowledge of and that when he saw some items purchased for the house he would say that it was nice but not to waste their money because you may need money for your own place and who knows what was going to happen with the house. He said that Michael might move in one day or he might rent it out. Victor said that sometimes Steven and Susie "would do stuff on the house without asking me and it really upset me because I didn't want them to do that to my house". He said he argued with Steven about the window winder roller shutters when he put them in but Steven said that Susie was scared when he worked at night and that he would take them with him when he bought his own house. Victor said that he had the septic tank fixed for $2,000.

270 In late 1999 Steven and Susie separated for about two weeks but reunited for about four months. During that period Susie was becoming abusive towards Victor and Rosa and blaming them for destroying the marriage and she would not allow them to see Jamie. He said they became sick and tired of the situation and the continual disrespect Susie had shown them and wrote to Steven and Susie requesting them to vacate the house by the end of February 2000. When he inspected the house after Susie had left he discovered a cream had been poured onto the carpet, the electric hot plate left on, a cream spilt on the hot plate, and a glue like substance over the drainage holes in the kitchen, laundry and bathroom. I interpolate that Susie denied doing these things.

271 Victor supplemented his witness statement with some oral evidence in chief to which I now refer.

272 There was first tendered through him an incoming cash flow summary for Victor and Rosa which had been prepared by their lawyers[30], a bundle of NAB statements of account for the loan of $390,000 secured by the mortgage on the Mernda property[31], and the adjustment and settlement statement for the sale of 14 Queen Street, Lalor, dated 1 August 1997[32].

273 The NAB statements of account showed that on 4 August 1997 the loan was fully paid off with a payment of $89,105.15. Victor said that the sources of money used to repay the NAB loan were those set out in the incoming cash flow summary sheet. They were the proceeds of sale of the Mill Park, Epping and Lalor properties, and profit and drawings from the fish and chip shop.

274 Victor said that interest on the loan was paid from the fish and chip shop business. Steven did not pay the interest. Victor further said that he and Rosa paid their own living expenses.

275 Victor said that he carried about $30,000 cash "all the time because I used to go to the market and buy my fresh fish".

276 Victor said that when he bought the farm at Mernda he put cattle and sheep on it, saying that he "put 15 cows and I bought about 30 sheep"; he maintained that throughout the time. He made a profit. The money he received from the sale of cattle and sheep was received in cash and cheques. He said he sold them at Mernda Market and once at Pakenham Market, but he also referred to a butcher coming and picking them up from the property. He was not paid in cash for a sale at a market. Finally, he said he had 15 cows, "that's all". Victor said they let the property in Queen Street, Lalor at a rent of $150 a week.

277 Victor referred to a Westpac account in the name of Rosa as trustee for their son Michael and said that Michael's salary went to that account and that they made no gifts of money to Michael in the period 1999 to 2001.

278 Victor said that when they moved to the Mernda property he had neither met the plaintiff nor heard of her.

279 When they bought the Mernda property he did not discuss whether he should buy it with Steven. Nor was the property purchased so that Steven and his wife to be could live in one house and he and Rosa in the other.

280 He first met the plaintiff in early 1996, around January, February, he was not sure. It was a week before The Word, something like that, that he knew that Steven and Susie were planning to marry. He did not know exactly what "The Word" means, Steven never said anything about a word, "he said let's go and meet their parents".

281 Victor said that he had not heard of or met Susie before Steve went overseas in 1995, and had not met her parents before she went overseas in 1995. He had not promised Susie ownership of any property before Steven went overseas in 1995. And the purchase of the property at Mernda had nothing to do with Susie.

282 On the occasion of The Word ownership of the Mernda property was not discussed.

283 At the engagement after party he said nothing to the plaintiff or her parents about ownership of the Mernda property, did not say that Steven was on the title to the property, did not say that he was going to give half the property to the plaintiff, and Susie's father did not ask any question about the ownership of the property.

284 At the wedding he said nothing to the plaintiff or her parents about her having an interest in the Mernda property.

285 Prior to making the offer to Steven and Susie of living in the newer house rent free, Steven had said nothing as to where they were going to live and he had not asked Victor and Rosa. He could have rented the property out.

286 Victor was married in the Greek Orthodox Church, North Carlton. He was not brought up with any tradition about the making of financial provision to your son's wife. Prior to the plaintiff and Steven marrying, her parents did not ask any question about traditional gifts and he was not conscious of any tradition in relation to making gifts to his son's wife.

287 Victor denied that there was an occasion when Rosa was scared by a snake. There was never an occasion before the plaintiff and Steven married when he discussed making a gift of any part of the Mernda property to the plaintiff.

288 Victor gave evidence of some items of work done to the house that Steven and the plaintiff lived in, and as to payment for them. Among other things, Victor said that he told Steven that if anything was to be done to the house he was to ask him. He refused to replace the carpet. He denied saying to the plaintiff and Steven that they could do as they wanted to the house because it was their house.

289 Victor said that at both The Word and the engagement he and Rosa gave Steven and Susie $100 each. At the wedding he "paid for the band, I paid for half of the wedding, for my people. Steven paid half of it and I paid half of it. I paid for all his engagement. I paid for the cake and I also gave him $500 when he left for his honeymoon". After the marriage he provided money for bills or groceries, as to how often he said on a few occasions then referred to shopping constantly.

Rosa

290 Rosa's witness statement was very brief. She recounted her upbringing and earlier years to her marriage to Victor when they lived with his parents in Preston until they were able to buy their own home.

291 Rosa then recalled a conversation with her husband, Steven and Susie at the old house at the Mernda property at which she was present, about one month before Susie and Steven married. Victor said words to the effect "youse are more than welcome to stay in the new house when youse marry, youse can stay there rent free until youse save money to get your own home. I've got to do the same for Michael when he gets married".

292 Rosa referred to Susie's answer to an interrogatory[33], a copy of which was attached to her witness statement, in which Susie set out statements and promises made to her. Rosa said that no conversations to that effect ever took place. The only conversation between her husband, Susie and Steven about the house was that stated above referring to living there rent free.

293 Rosa said there were times that Victor and she would visit Steven and Susie but she (Rosa) would never speak to them about the house. Their visits were mainly to see Jamie.

294 Rosa said that she and Victor paid for the insurance, rates and most service charges for the entire property. She and Victor paid some of Steven's and Susie's bills because they wanted Susie and Steven to save their money so they could have a deposit for a house.

295 Finally, Rosa said that the mortgage on the property was paid off soon after Victor and she bought it. Steven and Susie made no payments on the mortgage. If any work had to be done on the house Susie and Steven were living in, Steven would ask Victor for permission and Victor would agree or not. Sometimes they did things around the house by putting up light fittings without permission. When they would visit Steven and Susie, Victor would say words to the effect "don't waste your money, maybe one day someone else will rent here, youse save your own money so youse can buy your own house".

296 Rosa gave some brief oral evidence in chief in which she denied the making of the promises and statements relied on by the plaintiff, and said that she and Victor paid the purchase price for the Mernda property and repaid the mortgage. She said that Steven made no payment on the loan.

Observations and findings on witnesses

297 As mentioned, counsel's final submissions were provided in written form[34]. The submissions dealt at length with reasons why the evidence on one side or the other should be accepted and the case decided accordingly. As I said at the outset, the case is one in which each side contends that the central evidence of the other is a lie. In seeking to make out their submissions counsel have subjected the evidence of the witnesses, particularly the plaintiff and her witnesses and the defendants, to critical analysis. I have regard to all that is put in the submissions whether or not I expressly refer to a matter in these reasons. I turn now to an overview of the witnesses.

298 The plaintiff is an educated, intelligent, well spoken and well presented person. In giving her evidence she was nervous, tense, and wary of the cross-examiner which in part was reflected in a concern to understand the question before answering, at times with confusion, and at times with error, and at times relying (or falling back) on her witness statement as containing her account. At the same time, to be fair to the plaintiff, she was under considerable pressure. As a single mother with limited means it would seem reasonable to infer that she financed the case with the assistance of her family. Indeed there is evidence that indicates her family has assisted her. (In the same way Steven's parents have financed him.) In addition to the financial pressure, there was a significant pressure to succeed in the case in order to be able to achieve a property settlement of some significance, thereby to ameliorate her financial position from her own point of view and as the primary carer for her son.

299 As to the overall context I note the following matters. At the request of the plaintiff made before evidence commenced I made an order for witnesses to be out of court. Notwithstanding, the three defendants, being parties, sat in court. That was their right but on my observation their continuing presence in a relatively small court room attending directly to the plaintiff in giving her evidence added to the tension and stress on the plaintiff. It was noticeable that throughout the trial the plaintiff on the one hand and the defendants on the other hand avoided looking in the direction of the other. The tension was palpable. The cavalcade of litigation which has engulfed Susie and Steven since they separated, and which has involved Victor and Rosa financially and emotionally, as well as those on the plaintiff's side, was, I find, a significant factor in producing this situation, together with the further factor of the distress and bitterness the overall circumstances have produced in the parties. Those circumstances include the intervention proceeding in the Magistrates' Court and proceedings in the Family Court each of which has required affidavits and appearances and been fought, although sometimes with agreement at the end. The costs, both personal and financial, must have been enormous. Save for family assisting her, I have no idea how Susie could have paid costs, being a single mother who had not worked for over two years prior to separation and had a limited financial resource. As to Steven, he said that more than $100,000 had been spent on the disputes; he had paid a few thousand out of his own money and his parents had paid the balance. One application that was not settled was Susie's application for spousal maintenance. Steven contested the application but on 21 September 2000 was ordered to pay Susie $150 per week, which was in addition to the existing child support payment. Then, having made three payments of spousal maintenance, on 15 October 2000 Steven voluntarily commenced a period of three months' leave without pay[35], and ceased paying spousal maintenance. Thereafter the spousal maintenance went into arrears of thousands of dollars. In consequence of taking unpaid leave, Steven's child support payments fell to $22 a month, hardly a princely sum for a young single mother to live on. There were also substantial disputes on child contact to Steven, as to which there were indications in the evidence that all has not yet settled down in that area. I mention these matters not in any sense to set out an accurate and complete chronology of the curial proceedings between Susie and Steven, but for the purpose of indicating the troubled and unhappy background to the present litigation and in the context of which the witnesses gave their evidence. And, of course, the litigation in the Family Court, or at least Susie's application for a property settlement, is held up pending the decision in this case. On it being stated in the Family Court proceeding by Steven and his parents that Susie and Steven had no interest in the Mernda property, and the title to the property being in the name of Victor and Rosa who were not parties to the marriage, Susie commenced the present application in this Court, indeed she had to as the Family Court did not have jurisdiction to deal with her claim. If and to the extent that Susie's claim is upheld she will have established a right to property and, that having been determined, the proceeding in the Family Court can resume. I mention this as, again, awareness of it aids understanding the situation of the parties at the trial including the pressures they were under. One of those pressures was financial and it was most evident in Susie's case and was reflected in she and her witnesses preparing their witness statements, as I have already remarked. It was also evident that the amount of past and ongoing costs is hurting the defendants. Nevertheless, the case came to trial and the plaintiff went into the witness box. She was cross-examined in a searching, hostile and argumentative manner, at times responding as stated above.

300 Valentina and Vesna were both evidently intelligent, well educated and articulate. They, like Susie, had been educated in English which they spoke and understood well. They are daughters in a close loving family. On my assessment Valentina is somewhat closer to Susie than Vesna, and that was reflected in the giving of their evidence. Valentina was an alert and honest witness. Vesna is an open, forthcoming type of person who impressed me as a frank witness, possessed of detachment, common sense and reasonableness who clearly gave her evidence as she recalled events. She and Valentina gave their evidence with an obvious sense of conviction and self assurance, Valentina perhaps with a stronger impression of emotional support or involvement. It was noticeable that their evidence, indeed the evidence of the plaintiff and all her witnesses, was not uniformly similar. There were differences in the accounts, here and there, as to what was said. The differences were such as to indicate a lack of rehearsal of the terms of the relevant statements.

301 Their parents Nikola and Nadezda, had nothing like their daughters' degree of education and had to give evidence by an interpreter. They had evidently been hard working people. Nikola was obviously confused in his evidence as to when Steven came with the bottle of whiskey. In my view that confusion reflected honest but imperfect recollection and not that he had set out with a made up or rehearsed story. He gave his evidence with a quiet dignity, humility and sincerity. Nadezda impressed me as an honest witness who gave her evidence simply and directly.

302 There is a similarity in background with Steven's parents, although Victor and Rosa have a good understanding of, and ability to express themselves in, the English language.

303 While both couples were direct and proud people, sensitive in relation to the other and to a loss of face as it seemed to me, and both possessing a natural interest to support their child, I observed a more evident earthiness in Victor and Rosa and more a degree of refinement and dignity in Nikola and Nadezda.

304 Rosa was affected by the most marked, and expressed bitterness and anger towards Susie and her family, and although not overtly apparent I find that Victor was of the same feeling.

305 The last of the defendants to mention is Steven. In giving evidence he had the considerable advantage of having often given evidence before in the course of his police duties. At the outset of his evidence in chief he adopted the tactic of staring directly at me, seemingly as though to add conviction to his evidence. He continued to do so until his counsel asked him how much was "spent on renovation, on fixing up the house ... whatever was done on the house" at which he looked down, paused and said "I'd say no more than $20,000"[36]. Thereafter, in giving his evidence, he did not revert to staring fixedly at me as he had before. Overall his demeanour in giving evidence did not impress me. He impressed me as an intense man, somewhat introspective, lacking imagination and inclined to authority and temper. He clearly holds strong feelings of bitterness towards Susie. His gratuitous statement that Susie suffered post natal depression was uninformed by expert opinion, he not having taken up the opportunity to ask the doctor about his wife's health in that respect. I reject that assertion. The fact that he had not sought medical opinion when he could have reflected on him as a person and husband, rather than on his wife as he intended it to in the sense of explaining the marriage breakdown.

306 Each witness was subjected to critical analysis in the submissions. Having considered the evidence in light of the submissions I conclude as follows. I find the plaintiff and her witnesses to be honest witnesses although I consider that some of the evidence suffered from a degree of reconstruction and resulting embellishment. I prefer the evidence of the plaintiff and her witnesses to that of the defendants who were not honest or reliable witnesses and whose evidence I do not accept where it conflicts with that of the plaintiff and her witnesses. I refer below to reasons for so concluding as to the defendants.

307 In so concluding I have borne in mind the long time elapsed between the making of the statements and promises relied on by the plaintiff and the trial of the present proceeding. The period in question was ten to eight years from 1995/1997 to the trial. That is a very long time over which to expect a person to have a reasonably accurate recall of statements made in a conversation, particularly when it was not called into question for some time. As to that, however, the fact of the property settlement claim commenced in August 2000 and the caveat lodged in November 2000 should not be overlooked, and the present proceeding was commenced as long ago as 11 September 2001. I do not overlook the changes in the statement of claim since the proceeding was commenced.

308 I also take into account in the resolution of the legal and factual issues in the case the seriousness of the claim in terms of seeking an entitlement to an interest in another person's property on the basis of oral promises made long ago. For this purpose, counsel for the defendants characterised the case as involving an allegation of fraud or the like, namely that the defendants made a promise or representation (that Steven was an owner and on title of 20 acres including the newer house and the plaintiff would be and after the marriage was an owner and on title to that land) knowing it to be false. It was submitted that to find such a serious allegation proved the plaintiff must provide clear cogent and strict proof of the allegation on the balance of probabilities, and counsel referred in that regard to Briginshaw v Briginshaw[37], Anderson v Blashki[38], Ghazal v Government Insurance Office of New South Wales[39], Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd [40].

309 I turn now to deal more particularly with the defendants' submissions concerning the plaintiff commencing with the matters in para 9 of their submission. These matters concern the actions and statements of the plaintiff and are said to be inconsistent with the making of the representation as to Steven being an owner and on title to 20 acres and the promise that after the marriage the plaintiff will be an owner and on title of the 20 acres. I deal with each matter in turn.

(a) para 9(i)

This concerns the handwritten letter attached to Exhibit 1. Two points are made: first, the failure of the plaintiff to state a belief that she had an equitable interest in 20 acres of the property indicated that she had no such belief at the time and that her subsequent statement of such belief is not genuine and, secondly, that her knowledge of the sale was inconsistent with her evidence that she first knew of the sale in 2004. I reject the submission. It has no substance. The handwritten note is attached to a letter dated 20 December 2002 by which time the plaintiff had sought a property settlement and, as a result of the defendants taking the position that Steven and she had no interest in the property, she had commenced the present proceeding in which, among other things, she claimed an equitable interest in the 40 acres and an order for a sale and payment to her of one quarter of the net proceeds. Clearly, from the outset, the plaintiff was claiming an equitable interest in the whole property. Further, the plaintiff's statement in the handwritten letter was that the entire property is under Steve's parents' name and "at present I'm not entitled to any part of the house and land", an accurate statement, and read in context perfectly to be understood. Finally, it is obvious that the plaintiff's impugned answer in cross-examination that she believed she first learnt of the sale price last year (2004) was wrong. In 2002 the parties' solicitors made the without prejudice agreement which permitted the sale to proceed. It is evident, as the plaintiff's solicitors must have acted on her instructions, and I find that they did, that the plaintiff was aware of the sale price when she wrote the handwritten attachment to Exhibit 1.

This concerns statements of the plaintiff in an affidavit she swore in the Family Court proceeding on 7 September 2000[41]. The affidavit was concerned with two matters, child contact and spousal maintenance. The statements relied on were contained in para 20 which was concerned with the issue of spousal maintenance. The submission was that her reference to "the former matrimonial home" and "the home of the husband's parents", and the lack of any reference to a claim by her to the promise of an interest in the land when she then knew that Victor and Rosa were on title for the 40 acres, was consistent with her not then having a belief as to an entitlement to the newer house and 20 acres, and that she was not then alleging any false representation or promise against Steven as she now does. It was further submitted that the Court should not accept that the reference to "the matrimonial home" was a reference to 20 acres and the newer house; it was more likely that she was referring to the house and the fenced off area of two acres referred to in the initial and the present statement of claim as "the house property". I reject the submission. It is important to keep in mind that the paragraph in question was concerned with the matter of spousal maintenance. And I accept the evidence of the plaintiff that at that time her main focus was related to Jamie and contact issues[42]. The affidavit was not concerned with the plaintiff's claim for a property settlement. Secondly, the affidavit refers only to the home without any reference to the size of the surrounding area. In the circumstances the inference could not reasonably be drawn that she was then referring to the newer house and the fenced off area of two acres. Thirdly, I do not accept that one can reason backwards from the initial statement of claim, and the amended statement of claim when Steven was added as a defendant, to found the conclusion as to the plaintiff's belief at 7 September 2000 (when she swore the affidavit) contended for by the defendants. In addition to the above matters, those statements of claim included a claim for a one quarter interest in the whole of the Mernda property. The claim was not limited to the matrimonial home and a fenced off area of two acres. It is true, as the defendants point out, that in the earlier statements of claim it was alleged that it was represented to the plaintiff that the house property (being the newer house on approximately two acres) belonged to her and Steven but it yet remains that the relief claimed included a one quarter interest in the whole 40 acres. I do not overlook the defendants' reliance on the plaintiff's answer to interrogatory 2 which inquired as to that then pleaded representation, and which answer used the expression "house property". I take account of the answer in evaluating the reliability of the plaintiff as a witness and the likely correctness of her evidence. And in that respect I take account of the earlier form of the pleading of the case, as the defendants urged me to do so. But ultimately of course the case is to be decided on the pleadings as they now are and in light of the facts as I find them to be.

This submission concerns the plaintiff leaving the home after receiving Victor and Rosa's demand to vacate, and without making a claim of ownership of the house and 20 acres. These actions of the plaintiff and her failure to disregard the demand were, it was submitted, only consistent with the defendants not having made the alleged representation and promise. In my view the submission ignores the realities of the circumstances in which the plaintiff found herself at the time. I also accept the submission of the plaintiff that in the field of human relationships it may well be found that a person who is a registered owner of a property, singly or jointly, will leave that property in the event of a marriage break-up in light of the whole spectrum of the applicable personal circumstances. Let us recall the circumstances which were affecting Susie. Following an argument in the course of which she had been hit, Steven left the home. She has been told that she has no right to the property. Hence on her case she realises that the defendants have lied to her. Steven has also frozen her access to his bank account. A few days later she comes home with Jamie to find the house stripped. She is alone with Jamie with her in-laws her nearest neighbour, and living in a house she did not enjoy living in. To be reasonable and practical about it, what was she meant to do? Of course the submission did not confront this simple human question. Was she to go out and purchase items to replace those removed by the defendants and, if so, who was to pay for them? That the plaintiff and Jamie returned to her family and took up residence was in my view an entirely reasonable and understandable reaction to the situation. It was in my view to ignore the realities of life, which include the need for companionship and love most obviously in this case filled by her family, to submit that the plaintiff should have adopted a formalistic and defiant stance, remained in possession and manned the door against eviction. Nor do I find the plaintiff's failure to articulate her entitlement to a proprietary claim founded in equity to be a point of substance turning against her claim in this proceeding. Such attention to the legalities was hardly to be expected in the stressful few days between separation and departure from the house.

This submission relies on the reference in The Professionals letter[43] to the plaintiff, dated 2 February 2001, to the house being on approximately two acres. It was submitted that the plaintiff's instructions must have been that she was entitled to the newer house and two acres of land. It was further submitted that this must have been her belief on 7 September 2000 when she swore her affidavit, and that that is what she would have told her solicitor. I reject the submission. The agent did not give evidence, and it is not clear what instructions the agent received that led to the agent providing an estimate of value and referring to the area of approximately two acres. Even if it be accepted that the plaintiff so advised that area to the agent, the inference provides a slender foundation for warranting the conclusion that the plaintiff believed, as at 7 September 2000 or 2 February 2001, that her entitlement to the Mernda property was limited to the house and two acres. In that regard it is not to be overlooked that earlier, on 15 November 2000, the plaintiff had lodged a caveat in which she claimed an equitable interest in fee simple in the whole property.

310 The defendants' submission went on to state a number of contentions concerned with the strength of the evidence of the plaintiff and her witnesses and the likelihood of the plaintiff's case being correct. The submission is lengthy in this respect, as is the plaintiff's answer. I summarise the points made commencing in each instance with the submission of the defendants:

(a) There was no pre-existing relationship between the plaintiff and the defendants, the plaintiff gave no consideration for the promise of the interest in the land, and experience indicated that such a promise was unlikely to be made unless consideration was given for it. Further, there was no independent evidence of the promise. It was said to be unlikely that at their age Susie and Steven engaged in discussions of the sort alleged by her.

In answer, counsel for the plaintiff submitted as follows. First, he was not aware of the "experience" referred to. Secondly, the question whether a promise was made is to be determined on the evidence and in that respect the defendants' submission flew in the face of the unequivocal evidence of credible witnesses. Thirdly, it was in fact likely that well prior to their marriage a young couple would have discussed where they proposed to live. Further, the evidence is that all of the Macedonian witnesses live with or near the groom's parents after marriage. In addition to the plaintiff's evidence of promises, she took gifts to the house prior to the marriage.

In my view the plaintiff's submissions effectively answered the defendants' submission and I accept them as such. In doing so I expressly find that contrary to the evidence of Steven, he and Susie did discuss where they proposed to live well prior to his parents' alleged offer of rent free accommodation.

(b) There was no expert evidence of the alleged Macedonian tradition of giving property to a daughter-in-law.

Counsel for the plaintiff in effect conceded that there was no expert evidence but pointed to and relied upon the evidence which showed that consistently with the alleged Macedonian tradition the newly married couple lived with or close to the groom's parents and acquired real estate very close to them. The evidence was that which happened following the marriage of Victor and Rosa, Jim Donis and Jim Panovski and the persons referred to in Panovski's cross-examination. No example was given of a newly married couple living with or close to the bride's parents. The promises alleged by the plaintiff were consistent with what had happened with other Macedonian couples after they married.

All that is necessary to say about these submissions is that counsel for the plaintiff correctly refers to the evidence given in the case.

Counsel for the defendants further pointed to the evidence of Jim Donis, Panovski and George Donis that there was no tradition as alleged by the plaintiff, and of course the defendants also denied the tradition and stated that they did not act upon it. Further, it was submitted that when in her evidence the plaintiff described the tradition as being that "they could either give the couple a house, assist the couple financially by giving them money to purchase a house" and that "the expectation based on tradition is that the groom's parents help the young couple, assist them financially or provide them with a home", she was really saying that parents of a young couple try to assist them financially. That could be said of most parents irrespective of nationality or religion. Accordingly it was submitted that the Court should not be satisfied that the claimed tradition existed or had been proved or that the defendants agreed to follow the tradition. Further, it was submitted that no witness gave evidence of actually receiving a proprietary interest by reason of such tradition.

In my view there is substance in these contentions of the defendants. The evidence as to the existence of a Macedonian tradition of the groom's parents giving property to the newly married couple was assertive in the plaintiff's case and not substantiated by expert evidence. The evidence that supports the tradition is more anecdotal from those that gave evidence. Further, it must be the fact that whatever the nationality or traditions of parents may be, the natural desire in a parent would be to assist a child on marriage but the extent to which that might be done must be conditioned on the financial and other relevant circumstances of the parent. The evidence reflects a helping attitude by parents of the groom which may be seen in an inexact sense to be consistent with the existence of the alleged tradition but in itself does not establish a tradition to the level contended for by the plaintiff or that the promises relied on by the plaintiff are to be explained by the existence of the claimed tradition. While I take into account the evidence of the support that parents of grooms have provided yet the case falls to be determined, in my view, on the acceptance or otherwise of the evidence given by and on behalf of the plaintiff as to the making of the promise that she was and would be an owner and placed on the title for the newer house and 20 acres. I note in this respect that part of the defendants' submission was that Nikola should not be believed in his evidence that on the occasion after The Word he asked Victor and Rosa if they followed the Macedonian tradition and that they said they did, none of which evidence was given by the plaintiff or her other witnesses and which the plaintiff's father did not give in his witness statement, and that he should not be believed in his evidence that he would not have wanted Susie to get married without knowing she and her husband had their own roof over their heads. I take that into account in assessing the credit of Nikola.

(c) The probability is that Victor and Rosa promised Steven and Susie that they could occupy the newer house rent free for an indefinite period.

As to this, the plaintiff relied on the evidence of herself and her witnesses which if accepted meant that Victor and Rosa had not merely offered rent free accommodation.

(d) It was improbable that Victor and Rosa bought the Mernda property in preparation for Steven and Susie's marriage or, if they did, that the plaintiff would have been told of that intention. Susie's evidence that the property was bought with that intention should be rejected, as should Valentina's evidence that prior to going overseas Susie told her that Steven's parents were looking to buy a property which had two houses, one to be for Mr and Mrs Donis and one for Steven and Susie. Nor should the Court accept Valentina's evidence that before going overseas Susie told her that they were planning to get married and discussing where they were going to live. The evidence was not in Valentina's witness statement and it was highly improbable that this was said to Susie before she went overseas or that Susie said this to Valentina before she went overseas. At this time Susie and Steven were very much at the infancy stage of any relationship and it was thus inherently unlikely that such alleged conversation occurred, as the defendants say it did not. Presumably, it was said, the evidence was led to provide a basis for the allegation that Steven was making mortgage repayments on the property. It was submitted that he would not be making mortgage payments if he had no ownership of the property, he was aged 24 and on a junior police officer's salary, and the plaintiff's evidence about mortgage repayments was very vague.

The plaintiff's response was, again, to press acceptance of the evidence of herself and Valentina. Valentina, as a lawyer, was aware of the consequences of giving perjured evidence. It was submitted that Victor and Rosa wished to advance the interests of Steven, of whom they were proud, and had there been no marriage the plaintiff would have had no interest in the property. As to the vagueness of her evidence concerning mortgage repayments, she relied on what Steven and his parents told her which she was entitled to do.

(e) There is no direct evidence that Steven was a co-purchaser of the property or that he contributed to the purchase price or made mortgage payments. The defendants' evidence establishes that Victor and Rosa were the sole beneficial and legal owners of the land. Further, the plaintiff does not plead that Steven had any legal or beneficial interest in the land and he does not allege or claim any such interest. It would be speculative to infer, as the plaintiff seeks, that Steven made payments on the basis of the cross-examination of Victor and Rosa to the effect they were not in a financial position to pay all of the purchase price and repay the mortgage loan. Even if it be found that Victor and Rosa did not have sufficient finances to make the payments, it did not follow that Steven made them and it would be speculation to conclude that he did.

The plaintiff's response to this is implicitly to rely on the statements made to her as to Steven having an interest in the property and making mortgage payments and expressly to make some observations about the pleadings. As to the latter, by the time the further amended statement of claim was filed it was clear the plaintiff was asserting rights while facing the combined opposition of the three defendants. Further, it was to be noted that one of the alternative prayers for relief in the now abandoned counterclaim was a declaration that the plaintiff and Steven had a half interest in the Mernda property.

(f) It is improbable that before the plaintiff went overseas, and bearing in mind the period she and Steven had known each other, that they would have by then discussed marriage or where they would live or that Victor and Rosa would be promising Susie joint ownership of one-half of their property. Susie's evidence as to such discussions should not be accepted. In this respect Susie's statement on page 1 of her witness statement that Steven was living at the Mernda property "right from the commencement of our relationship" was likely to be incorrect. That evidence is inconsistent with her evidence as to a committed relationship before she went overseas but is consistent with the defendants' evidence.

As to this I accept the submission of counsel for the plaintiff that the evidence of Susie referred to was inconsistent with the evidence of the plaintiff and the third defendant, or at least I so find it to be. I find it to have been a loose statement that did not reflect the fact.

(g) It is improbable that Steven, who was not on the title or a party to the mortgage, would have made mortgage repayments or said that he made mortgage repayments. $97,000 was owing at marriage and the loan was repaid on 4 August 1997. There is no evidence as to any specific amount paid by Steven.

In answer, the plaintiff submitted that Victor and Rosa simply did not have the money to make the monthly payments referred to in the NAB statements of account[44] and did not have the financial resources to make the alleged reimbursements to Steven in relation to the improvements to the former matrimonial home. I accept that submission.

(h) It was unlikely that Victor and Rosa would have given half of their "only asset" to one child aged 24 and leave themselves with the other half and nothing to give their other son when he attained the age of 24.

Counsel for the plaintiff submitted that this submission was fundamentally misconceived. It was never suggested by the plaintiff that Victor and Rosa gave half of their only asset to one child. The plaintiff's case was that she was told by each defendant that Steven was already on title which gave him a one third interest in the property and that he was contributing to the mortgage payment. Further, there was no justification for the suggestion in the defendants' submission that "they would place themselves in a vulnerable financial position", having regard to the close relationship between Steven and his parents and the fact that any property proceedings between the plaintiff and Steven would be determined by the Family Court in accordance with law.

(i) Rosa's evidence[45] that she and Victor paid for rates, insurance and most service charges for the entire property was not challenged. It was inherently unlikely that they would make those payments if one half of the property belonged to Steven and Susie.

Counsel for the plaintiff replied to this as follows. First, he pointed to the fact that there was no documentary evidence on this matter. Secondly, given the very close relationship between the defendants it was not surprising that he (counsel) asked no questions on the matter. The relevance of the issue is that whilst it was accepted by the plaintiff that Victor and Rosa loved their son Michael they also gave evidence that they loved Steven and that prior to separation they loved the plaintiff. Each of these contentions of the plaintiff has substance in my view.

(j) Then in para 19 the defendants submitted that the plaintiff's witness statement contained internal inconsistencies and identified the respects in question.

The plaintiff denied the contention, pointing out that she believed from the time the promises were made in early 1996 that she had every justification for referring to the newer house at Mernda as "our house".

(k) Counsel for the plaintiff then turned to raise several matters concerning the evidence of the plaintiff. Paragraph 20 concerned her evidence of being told as to having rights to the Mernda property before The Word which was said to be inconsistent with other evidence and that the snake incident, said to be the first time she was told about her having rights to the Mernda property, could not have been until after Victor and Rosa obtained possession in November 1995. The plaintiff and Victor and Rosa had not met or had not long met and it was inherently unlikely they would make the alleged promise at that time.

To this the plaintiff countered that the evidence should be read in context in the transcript and, so read, it was not suggested by the plaintiff that a promise or representation took effect at the time it was made but rather that she would have rights in relation to the property after marriage.

Then, in para 21 there was reference again to the plaintiff's answer to interrogatory and the allegation of a proprietary interest in the house property and that the plaintiff stated in the answer that the first conversation about the house property belonging to her was when she and Steven were dating just before their engagement in 1996 when they were discussing in the presence of Victor and Rosa purchasing a new home together. That answer, it was submitted, was inconsistent with the plaintiff's evidence[46] that it was "some months before the word".

To this point counsel for the plaintiff submitted that the case at trial was concerned with the further amended statement of claim and the defence and counterclaim thereto and that the answers to interrogatories were sworn in relation to the prior statement of claim.

The defendants then, in para 22, made two submissions. The first was that evidence of the plaintiff that she could not remember if it was important to her when she was first told by Victor and Rosa that she would own the land or be on the title should lead the Court to conclude that no such promise was made. The submission was that if such a promise had been made she would have remembered it. As to that, I thought at the time when the evidence was given and I remain of that view now having reread the relevant pages of the transcript, that her answer that she could not remember concerned only whether she remembered if it was important to her when she was first told that she would own the land or be on the title. I accept her evidence that she could not remember whether it was important to her when she was first told.

The second point made by the defendants is that it was unlikely that at the time of the snake incident the plaintiff would have asked who was on title to the property and at the same time not be able to remember if it was important to her to be told she would have a half interest in the property. As to that, whether or not she asked who was on the title of the Mernda property is a matter for me to determine on the evidence.

(l) The defendants then, in para 23, submitted that generally the evidence of the plaintiff and her witnesses in cross-examination was unsatisfactory. There was reference to the plaintiff's evidence that she spent many hours preparing her witness statement, to the plaintiff giving answers that were inconsistent, non-responsive or evasive, and vague or ambiguous. The memory of the plaintiff and her witnesses as to when critical conversations occurred and who said what was poor, the plaintiff in particular required simple questions to be repeated a number of times before answering them. At times the plaintiff was reluctant to answer the question, and it was obvious that some evidence was reconstructed as to which the example given was that on 7 September 2000 her belief was that her interest in the property was as to 20 acres and not 2 acres. It was submitted that in scrutinizing the evidence of the plaintiff and her witnesses the Court should have regard to the fact that a number of the witness statements were prepared by the plaintiff's sister, Valentina, who was a solicitor and also a witness, which aspect had great significance in the case as there was no documentary evidence or independent evidence to support the alleged representation and promise. As part of this submission the defendants provided a 14 page attachment which set out examples, witness by witness of the type of inconsistent or unsatisfactory answers referred to. I have regard to all that is set out in the attachment in evaluating the reliability of the witnesses and the correctness of their evidence.

311 It is appropriate at this point to state some particular reasons why I find that the defendants were not honest or reliable witnesses and I do not accept their evidence on matters of central significance. I deal with each defendant in turn.

Steven

312 (a) In his witness statement Steven said that he and Susie decided to get married in March or April 1996 and that they informed their parents of their intention to marry. That was followed by The Word where he announced his intention to marry Susie. I find it is the fact that Steven proposed to Susie, and she accepted, before The Word. Notwithstanding this, both in oral evidence in chief and in cross-examination Steven said that he had not proposed prior to The Word, that he proposed subsequently. I reject this evidence as false and find that it was made up in an attempt to suit the defendants' case.

(b) Steven's evidence that Susie had post natal depression was a gratuitous unsubstantiated assertion not made previously, never taken up with a doctor, and not put to Susie in cross-examination. I reject it.

(c) Steven gave evidence that prior to the marriage he and Susie did not ask or advise the other of their financial position and that they had not talked about where they would live until one month before the wedding when Victor offered the house rent free. Regarded alone it is implausible that they had no such discussion, but it is understandable on Susie's case of the early promise concerning the newer house and 20 acres of land.

(d) I do not accept Steven's evidence in chief that no more than $20,000 was spent on renovations. His evidence as to that was given with an obvious lack of conviction, and it is contrary to the fact as I find it to be.

(e) Steven's evidence as to how his after tax income was spent was inconsistent with his evidence in an affidavit he swore in the Family Court[47]. The two pieces of evidence are inconsistent. The obvious explanation for the difference is that in each case the evidence was designed to suit the requirements of the particular case as they seemed at the time. In the present case the purpose was to have his money spent in ways that reduced the amount available to spend on renovations. I do not accept the relevant evidence given before me.

(f) The ongoing failure to disclose on discovery and to produce at the trial documents pertaining to the ANZ account. Allied to this was the failure to call Collards to give evidence as to the custody, possession or loss of the passbook or account documents. Further, in the circumstances of this case it is reasonable to infer that if the requested ANZ documents had been produced they would not have assisted the defendants' case.

(g) Steven denied in cross-examination that shortly after Susie was required to leave the premises his parents caused the contents of the property to be removed[48]. I find that to be false. I accept the evidence of Susie on this which is supported by the evidence of Georgievski that after Susie left the house he helped Victor and Rosa remove all the furniture from the house. Having said that in cross-examination, Georgievski was not re-examined.

(h) The taking of three months' unpaid leave after making only three payments of spousal maintenance was, I find, done out of spite, knowing it would place Susie, who had the daily responsibility of providing for their son, in an even more difficult financial position. A letter from his solicitors, Collards, dated 18 October 2002 stated that the leave was not work related and sought advice whether Susie was "agreeable to suspend payment of spousal maintenance as ordered by the Court until our client resumes employment"[49]. This was within one month of an order of the Family Court made on a contested application. Notwithstanding that Susie did not agree to that request, Steven did not pay the spousal maintenance until thousands of dollars of arrears had accrued. Even if spousal maintenance were one thing, the provision of child support was another for a policeman in employment living in rent free accommodation and with a car provided by his parents. At one point in his evidence he agreed that by the middle of 2002 child support arrears were about $3,500. He said he could not pay it. Then he said the amount was just over $2,000 because there were penalties which were waived. Steven's conduct, and the attitude manifested to his wife and child, reflect badly on his character and integrity.

(i) Steven's evidence in para 10 of his witness statement that he and Susie saw each other briefly after they met for coffee until she went overseas, was false. I accept the evidence to the contrary of Susie. I also accept the evidence of Nadezda that he visited on Valentine's Day 1995. Even apart from accepting such evidence, Steven contradicted his evidence in cross-examination when he agreed that affection between he and Susie blossomed very shortly after they went out and they became a close couple in early 1995[50]. This is consistent with the evidence of Susie and Nadezda. The inconsistency was due, in my view, to a desire to tailor the case.

(j) Steven gave inconsistent evidence as to whether his parents told him they had purchased the Mernda property. At one point he said that they had not told him but later he said that it appeared they would have told him just before he went overseas. The latter answer accords with the probability of the situation. The family lived together and the Mernda property was a substantial acquisition and would mean a change of house. I find that the latter evidence was correct and that the former evidence was false.

(k) Steven's evidence that he was not allowed into the plaintiff's parents' house until after The Word was not put to the plaintiff or her witnesses and I reject it.

(l) That Steven's parents have paid most of his costs gives him an interest and incentive to defeat Susie's claim in order to minimise the financial impact on his parents.

(m) Steven's evidence that Susie lied to him about her departure date as an attempt "to sever the relationship" was not put to the plaintiff and I find it was false. So also was his evidence that he left one or two months after she did; in cross-examination he said that he left on the same day as Susie, adding that he had found that out "through these proceedings".

(n) In connection with the application for spousal maintenance Steven stated in an affidavit that he was paying $100 a week board. That was false. He was living with his parents and not paying board. It was further evidence of a propensity to lie on oath to suit his case.

313 (a) The evidence established that Victor and Rosa cheated on tax. Their personal and partnership tax returns for the years ended 30 June 1996 to 2000 became Exhibits U (Victor), V (partnership) and Z (Rosa). Hence the findings concerning compliance with their taxation obligations relate only to those years. They disclose the following.

(i) In their personal returns for the year ended 30 June 1996 Victor and Rosa claimed interest in relation to the property at 14 Queen Street, Lalor of $6,168 as to which each claimed $3,084. In fact the property was not subject to a mortgage or loan. When asked about this Victor said "You will have to talk to the accountant". I note that the defendants did not call the accountant to give evidence. At a later point, when he was pressed as to this claim for interest Victor said that he did not know what the interest was but he had borrowed money from his sister and he mentioned $75,000. At a later point however he referred to this loan as being interest free. I note that the matter of this loan was referred to later in Victor's evidence. For the moment it is sufficient that I reject the evidence that the claimed interest may have been in relation to a loan from his sister. Mrs Donis gave a vague answer that she thought there was a mortgage and denied cheating. I find that the claim was false.

(ii) In their above personal returns Victor and Rosa did not disclose the sale of the investment property at 14 Queen Street which Mrs Donis agreed was sold for a substantial profit, or the sale of the fish and chip shop business. I note that it was not suggested that amended returns had been submitted. And, again, I note that Victor and Rosa's accountant did not give evidence to explain the return. I reject as false Rosa's evidence that they told the Tax Department about the sale of the property.

(iii) It appears from Rosa's evidence that when they sold the fish and chip shop business the purchaser paid an amount for stock in cash, the amount being greater than the maximum amount of stock stated in the contract and that this aspect was dealt with by the parties privately without involvement of Victor and Rosa's solicitor. The reason, I find, was to avoid a liability to tax on the sale of stock, or perhaps the sale of stock over $3,000.

(iv) The proceeds from the sale of stock on the Mernda property were not disclosed in Victor or Rosa's tax returns. Moreover, the proceeds were deposited to the credit of a passbook account held by Rosa as trustee for Michael, thus saving tax on any interest which might have been earned on the money if it had been in their hands. Rosa's evidence indicates that deposits totalling $14,583.63 in the October/November 1999 period were receipts from stock sales. I reject as false Rosa's evidence that they told Centrelink and the Tax Department of income from the sale of stock.

(b) On the matter of the financial resources of Victor and Rosa, in particular to pay the NAB loan:

(i) notwithstanding the trial adjourned for three weeks while Victor was in cross-examination and counsel for the plaintiff having requested Victor make available the bank account on which he drew the cheque for the deposit on the Mernda property[51], no such document was produced on resumption of the trial. Victor said he went to Westpac and the NAB but they could only go back seven years. It was put to Victor that the bank records he had produced in the case never had a substantial credit balance, and he replied "I've always had money". When it was put that the fish and chip shop business never had a credit balance in a bank account of more than $2,000 Victor said that he did not know, the accountant had the figures. These answers were not responsive or frank and whether the deposit was paid by cash or cheque and if so from what account was never disclosed. Again, one notes the fall back on the accountant who was not called.

(ii) Victor was cross-examined with a view to identifying his and Rosa's source of income in order to establish whether they alone had the financial capacity to pay for the Mernda property including paying the NAB mortgage loan. For this purpose Victor and Rosa were cross-examined on their personal and partnership tax returns, the partnership being for the fish and chip shop business. The returns stated the following:

Except for the 1997/1998 and 1999/2000 years these figures apply to both Victor and Rosa. In the former year there was a difference due to Victor having a certain business deduction and in the latter year there was a rounding difference. The above figures took into account rental from the investment properties at Maywood Drive and Queen Street. In 1995/1996 the total of the amounts shown by Victor and Rosa as net rental was $900 (after allowing for the interest claimed of $6,618). Following the sale of those properties in April 1996 and July 1997 respectively, the only source of income was the fish and chip shop business. There was, of course, the matter of receipts from the sale of stock grazed on the Mernda property but these were never disclosed to tax. Furthermore, the net profit or loss on dealings in stock was not disclosed to me. I conclude on the evidence that no significant profit was earned from this activity. Further to this, Victor said that he "had $30,000 cash all the time with businesses, buying fish and potatoes and bits and pieces, I always had cash money"[52].

Turning then to the financial statements of the partnership the relevant figures are:

It is then pertinent to note Exhibit 15, prepared by the defendants' lawyers, which purports to state the sources from which Victor and Rosa repaid the NAB mortgage of $390,000. The sources are:

On 4 August 1997 the balance owing on the NAB loan was repaid.

The following should be noted about this table. It was prepared by the defendants' lawyers, not by the defendants or their accountant. Secondly, the amounts stated as the proceeds of sale of the three properties appear as deposits in the NAB statements of account[53]; the amounts were credited to that account on the day stated. Thirdly, the amount for Queen Street is a little more than the amount of $89,032.16 which was received as the balance of purchase price at settlement on 4 August 1997[54]. In addition to that amount, Victor and Rosa received the deposit of $9,900 less agent's commission and expenses; I do not know the net amount. The full balance of the deposit appears not to have been deposited to the credit of the NAB account, the only credit between 9 July 1997 and 4 August 1997 being $1,500. Fourthly, it was stated by Victor in re-examination that the table also does not include the deposit for Manuka Court and Maywood Drive. I accept his evidence as to Queen Street as that is substantiated by the adjustment statement. But I have no such evidence in relation to the other properties and in the absence of such evidence Victor's contention is not established. Fifthly, the amounts shown as profit from the business accord with the net profit shown in the partnership accounts. Sixthly, the amounts shown for drawings appear as such in the partner's loan account summary which forms part of the partnership accounts. However the profit and loss account does not include any items for wages or drawings and the accounts record net profit as divided between Victor and Rosa equally. Furthermore, I accept as correct the unanswered contention of counsel for the plaintiff that the bank accounts show that neither the business nor Victor or Rosa ever had more than about $2,000 in their bank.

Counsel for the plaintiff suggested to Victor that there were not and could not have been drawings to which Victor said that he did not know what the accountant was doing. Counsel then asked Victor into what account he placed the drawings. Victor said that he did not know, he had a cheque account, he did not know what he had and that he "was paying [for] the property from the business"[55].

Counsel for the plaintiff submitted that in giving this evidence Victor was lying. He submitted that there were no drawings, relying on the absence from the profit and loss account of any amount for wages or drawings. It was clear to me that Victor and Rosa did not understand the relevant accounting or tax principle that might explain the presence and treatment of drawings in the partnership accounts, and did not provide a cogent explanation. And, as I have mentioned before, the defendants did not call the accountant who it might be supposed could have provided evidence of assistance. But, nevertheless, I venture that there may be a difference between wages of employees as a business expense and drawings. In the present case the partners conducted the business full-time with the assistance of some pensioners as employees who were paid in cash. Essentially it was a small business conducted by the proprietors. It is plain enough that Victor and Rosa must have drawn money out of the business to enable themselves to live, but doubtless also to pay costs and expenses of one form or another not connected with the business. It is impossible to suppose that they did not take money from the business, whether the withdrawal be called wages or drawings. It seems to me to be probable that there was a proper accounting/tax reason why all proprietors drawings were dealt with as "drawings" and the profit and loss account did not include an amount for wages. I assume regularity in the accounts in that respect.

However, it by no means follows that the total amount shown as drawings in the accounts and Exhibit 15 was applied in reduction of the NAB loan. It was mere assertion that it was, but the overwhelming probability is that it was not. For one thing, Victor and Rosa had to meet their ordinary costs of living including rates, taxes, insurances etc. And the fish and chip shop business was their sole appreciable source of income.

I now make some reference to Victor's evidence that he had or would have about $30,000 in cash. Of course, the truth of this assertion is untestable. It cannot be verified by accounting and bank records. But, having regard to the nature of the business and Victor and Rosa's unsatisfactory tax returns in the respects mentioned above, it may not be surprising that Victor and Rosa ran the business with a measure of unaccounted cash in hand taken from business receipts. As I find Victor and Rosa not to be honest witnesses I am otherwise unable to accept that the amount of cash so held, and not banked, was of the order stated. It could have been less or, presumably, more. It was not in Victor and Rosa's interest from the point of view of honest accounts and compliance with their taxation obligations to disclose too much. In the end I do not accept Victor's evidence as to having about $30,000 in cash. While I accept that he customarily held cash I am unable to find at what level it was generally held. It would be speculation to do so. Accordingly, I am not satisfied that in holding cash Victor and Rosa thereby had an appreciable capacity to repay the NAB loan.

It is then necessary to consider the NAB's statements of account. In addition to the deposit of the amounts received on the sale of the three residential properties, the statements record that a little over $72,000 was credited to the account as deposits of "cash and/or cheques" between 27 November 1995 and 22 July 1997. That amount greatly exceeded the total of the partners' drawings of $35,826.25 for the 1995/1996 and 1996/1997 years. This gave rise to the question where did the amounts deposited to the NAB come from? Was the difference accounted for by the stated profit of the business which for those two years aggregated $25,713.62? Adding the drawings and the profits for those two years produces $61,539.87 which is still short of the amount deposited. Bearing in mind that Victor and Rosa had to meet their costs of living and associated expenses it is obvious that the total amount of the drawings and profits could not have been applied to the NAB loan. What other sources of income were available? There is the matter of the deposits received on the sale of the properties, money received from the sale of cattle and cash held in the hand. As to these, I have referred above to the position with the deposits and do not repeat the finding. As to the proceeds of sale of stock I have also referred to this above, and add that the proceeds were not applied in reduction of the NAB loan. And I have dealt with the holding of cash. Then, Victor referred to having $75,000 from his sister interest free but it was not deposited to the credit of the NAB account. I add as to this alleged loan, that Victor and Rosa could not produce an account to which it was deposited, their story being, as I followed it, that it was used in connection with the acquisition of the fish and chip shop business and was repaid on the sale. Whatever the situation be, I find that no such funds were used to repay the NAB loan. I reject Victor's suggestion that they were so used. Then, having said that he never owned shares or had other investments, Victor said that he got $5,000 or $10,000 from insurance when he hurt his back at the fish shop. He said that he was not sure when that was paid and suggested 1997 or 1998, he was not sure. Nor did he know into what account he paid the cheque, adding that there had been no need to disclose the account for the purpose of the present case. The evidence was so vague that combined with the failure to produce any record concerning it and to establish the time of receipt and a link to repaying the NAB loan, I find that, even assuming there was a payment, there was no relationship between the payment and payment of the NAB loan.

A further expense was a monthly home loan payment of $1,101 on Victor and Rosa's home loan (for their Mill Park residence) with the NAB. At 5 July 1995, following a repayment on that day, the amount outstanding on that loan was $60,919.49. Thereafter repayments of $1,101 were made in August, September, October and November with a final payment of $58,914.35 on 13 November 1995.

Having considered these matters and the evidence of the defendants overall, I find as follows. I reject Victor and Rosa's case, or that of the defendants, that all of the payments to the NAB loan account came from Victor and Rosa in the sense of their money alone. I am not satisfied on the balance of probabilities, and I so find, that Victor and Rosa alone, without any contribution from another person, repaid the NAB loan from their own resources. I find in fact that Steven assisted them although it is not possible to conclude as to any particular amount. In so finding I reject the evidence of the defendants.

(iii) Another aspect as to Victor's spending arose in relation to the renovation of the newer house. As to this Victor said he had spent $20,000. Most of this, as particularised, was by cash reimbursement of Steven, some of which was before the NAB loan was discharged. Again, the difficulty in relating this to his financial capacity at a particular time is due to the imprecision of the evidence, the absence of documentary substantiation, and the assertion of cash payments.

(c) Victor said that he could not "remember what was happening 10 years ago" and he could not remember how much he was earning from the business prior to its sale in 1999. I accept this evidence.

(d) Victor gave evidence that Steven and Susie were not hard working people, and that Steven did not work hard around the home. He also said that Susie never worked. There is much evidence to the contrary that Steven and Susie worked hard on renovations, cleaning up and improving the house and its grounds. I find that to be the fact. Until the breakdown of their marriage and separation Steven and Susie worked hard to improve the property. I conclude that Victor's evidence was designed to downplay the level and significance of that work in the context of the plaintiff's claim. Further, the reference to Susie not working was an unwarranted swipe at her when the defendants, as I find, had urged her not to do so.

(e) Victor gave evidence[56] concerning the NAB loan, namely that "I paid off the farm at the beginning, I never owed money on the farm", which was plainly wrong.

Rosa

314 A deal of the discussion in relation to Victor relates to Rosa and I do not repeat it.

315 It was apparent from her evidence that Rosa is bitter towards and resents the plaintiff and her family. I do not set out all the instances in her evidence that reflected that, apart from her manifest demeanour which reflected her inner feeling. Early on in her cross-examination she commenced trying to besmirch Susie and her family in relation to The Word, saying (contrary to the evidence of other witnesses) it was not a happy occasion because she and Victor had been asked to re-enter the plaintiff's parents' house for the purpose of taking a video. That, she said, was an insult. The matter of being asked to re-enter the house had not previously been mentioned in the case. Whether or not it occurred her claimed reaction was bizarre. Further, I do not accept her evidence that before The Word she did not know that Steven had proposed to Susie; I find that she did know.

316 Rosa's attitude to the engagement party was similar. While other witnesses said it was a happy occasion she said it was happy until "they started with all this tradition and everything ... we just wanted a plain engagement party and they still carried on with their traditions". She also was unhappy because Susie's father said he was in charge.

317 In cross-examination Rosa agreed that she continued to be angry with Susie and her family saying that they caused the break up of the marriage, adding that "They were more interested in the land than saving the marriage. They were more interested in money, they were more interested in anything else but saving Susie and Steven's marriage"[57]. This allegation was not established on the evidence and I reject it. It is further to be noted that the allegation does not sit well with the fact that Susie did not file an application in the Family Court until 29 August 2000, by which time Steven had filed the initiating application. In giving this and the above evidence Rosa reflected her inner attitude of bitterness, resentment and anger which affected the evidence she gave, in my view. An aspect of this was a feeling that Susie had looked down on her. In addition to these matters Rosa had, with Victor, a financial interest to defeat Susie's claim and recoup some costs. This attitude too affected her evidence.

318 Rosa swore in an affidavit in the Family Court proceeding that she had the opportunity to see Steven, Susie and Jamie on almost a daily basis. In cross-examination she admitted that was not true, she would not see Jamie on almost a daily basis, she could not possibly have seen him every day. I find that the statement in the affidavit gave a misleading impression of the frequency of contact, doubtless for the purpose of aiding the then application in the Family Court. At the same time, it is the case that Rosa had frequent contact with Steven, Susie and Jamie before the separation.

319 Rosa, like Victor, said that the $390,000 loan from the NAB was used to pay business expenses. The NAB statements of the loan account disclose that following the initial drawdown of $390,000 the only debits thereafter were for interest, fees and taxes. On this basis it was submitted by the plaintiff that the evidence that the account had been used for business purposes was wrong. That is to test the evidence by regarding the conduct of the account following drawdown. But to be fair to Rosa and Victor, it is necessary to regard what was done with the funds drawndown. As the deposit for the Mernda property had been paid, the unadjusted balance of purchase price for the property was $311,500 but the amount drawndown on 13 November 1995 was $390,000 which means that an additional $78,500 was drawndown. How was this applied? On the same day $58,914.35 was credited to Victor and Rosa's home loan account. It is a reasonable inference that the source of those funds was the advance of $390,000. Assuming that to be so, there remained a further $19,586 of drawndown funds which may have been used to pay business expenses. On this hypothesis the evidence of Rosa, and Victor, may be correct and I would not hold to the contrary. As with other aspects of the case evidence was not led to establish the application of the funds drawndown. I have dealt with this at this point as it was a matter relied on by the plaintiff as going to credit, and it is only fair to indicate that the point is not sustained.

320 In cross-examination Rosa was asked as to the amount received on the sale of the fish and chip shop business in 1999. I note that the particulars of sale in the contract[58] provided for a sale price of $60,000 payable as to $11,500 by way of deposit and the balance on 9 August 1999, and stock at a maximum value of $3,000. The entire contract was not tendered. Rosa said that "a bit more than" $60,000 was received explaining that they had stock of fish and potatoes of over $30,000. Rosa said that they engaged an agent for the sale, that there would be documents that showed how stock was dealt with, that Collards acted for them on the sale and that Victor collected a cheque from Collards. The cheque was payable to Philip Ilias from whom they had a receipt for $75,000[59]. It may be thought to be an inference open to be made that the amount received on settlement was $75,000, but I find that was not so. That is because the particulars of sale show a purchase price of $60,000 plus stock to $3,000. Further, Rosa conceded that the stock was not included in the letter from Collards stating what had happened to the proceeds of sale. Rosa said that the stock was "separate ... nothing to do with the solicitor"[60]. The inference is open on this evidence that the parties dealt with stock as between themselves, not involving the solicitors and, furthermore, that they dealt with it in cash on the side. Not surprisingly, counsel for the plaintiff called for production of the contract of sale, settlement statement and bank accounts into which money from the sale was paid. The defendants produced nothing in response; nothing from Collards, nothing from the agent, no documents at all. It is a reasonable inference that if they had produced anything it would not have assisted their case. I find Rosa's evidence not merely unpersuasive but unreliable just as I find her and Victor and Steven overall. It is impossible to understand how $60,000 or $63,000 could become $75,000. And, what she describes as the situation with stock indicates an unrecorded cash sale of goods, done that way presumably to avoid their taxation obligation. I find that is what happened. Of course I have already noted that Victor and Rosa did not disclose the sale of the business at all in their tax returns, let alone a sale of stock for cash on the side.

321 I find that Rosa's evidence that she gave Susie $2,000 to buy an engagement dress around the time when Victor asked Steven and Susie where they would be living after they married, which the defendants say was about a month before the wedding, was false. She volunteered this when she was being cross-examined about financial support provided to Steven and Susie by Susie's parents and was questioned as to Victor and Rosa giving less. Rosa was then asked if she remembered when Jamie was christened and in reply volunteered that she "gave Susie $2,000 prior to buy herself an engagement dress"[61]. The answer was non-responsive to the question and I find was made-up on the spot to counter the criticism implied in the questioning as to the relative disparity in the amounts given by the parents, more having been given by Susie's parents.

Defendants' witnesses

322 I turn now to the evidence of the persons called by the defendants.

Senior Sergeant Horton

323 He gave evidence by reference to notes in his diary for 18 and 25 January 2000. The note for 18 January first recorded that Sergeant Wooster (now deceased) had advised him of having spoken to Susie Donis the wife of Senior Constable Donis [who was stationed at Epping] and that she said that during a domestic dispute she had received a backhanded slap to the face. Later, at 1515 hours, Senior Sergeant Horton spoke to Susie. She sought his advice and intervention in the situation. He recalled that the reason for her ringing was that Steven had tried to remove the child from the premises which she felt he should not be doing. He explained to her that this was not a police matter and that unless there was an intervention order and/or a custody order in place the police could not take action. Senior Sergeant Horton noted that Susie wanted the matter handled by him at the local level with a request to Steven to seek marriage counselling, he to contact Steven on 19 January. He spoke to Susie and Steven on 19 January.

324 On 25 January Victor Donis telephoned at 2.00 pm and advised his intention to change the locks at his house to lock Susie Donis out of it. He told Victor that that had nothing to do with him.

325 I reject the suggestion put to Susie in cross-examination that she telephoned the Epping Police Station "to try and make trouble for" Steven. I accept her evidence that following the incident with Steven in which she was hit and he left, that she was distraught, distressed, in pain and felt she needed assistance. She rang the police for help. I accept too that it was Senior Sergeant Horton who suggested marriage guidance counselling in their discussion, and I find that Susie went along with the suggestion. As it turned out, and doubtless for the reason given by Senior Sergeant Horton, no police attended Susie at her house.

Sotir Georgievski

326 He has been unemployed for 12 years, and on unemployment benefits all or most of that time, owns his home, gave Susie and Steven $500 at their wedding, regularly did work for Victor and Rosa at the Mernda Road property for no reward, and described some work he did on the fernery/carport and fencing at Susie and Steven's at 1575 Plenty Road. After Susie left the house he helped Victor and Rosa remove all the furniture.

Jim Donis

327 His father George is a brother of Victor. He has a younger brother Arthur. He has known the defendants all his life and has had a close relationship with them over the years. He was Steven's best man at the wedding. Steven and himself had been best mates for years.

328 Jim is married to Mary Donis; they have two children. For the first three years of their marriage they lived with his parents until they saved enough to buy a house. He had not heard of a Macedonian custom or tradition of the groom's parents making a gift of land.

329 He and Mary met Susie with Steven at a function on New Year's Eve 1996, that is 31 December 1995. He and his wife and children attended their engagement party at Gloria Reception Centre in Epping which started in the early afternoon. Over 200 guests attended including his parents and brother and most close relatives of the defendants. The party finished at about 6 or 7 pm when they, his parents, his brother, the defendants and Michael Donis went on to Susie's parents' home for light snacks. It gave the immediate families an opportunity to get to know each other. That was the first occasion he had been to their home. He did not have a close relationship with Susie's parents or sisters at this time. He said that he spent most of the time with Steven and that when he left, which was after one or two hours, his parents, the defendants and Michael left at the same time. He had read pages 2 and 3 of Susie's statement[62] (where she sets out statements made by Victor and Rosa at Susie's parents' home) and said that he did not hear the defendants make any statement as to having given or intending to give the property to Steven or Susie. Finally, he offered a storm damaged roller door to Victor for a carport at the Mernda property for free.

330 Jim did not impress me as a reliable witness. He was, and is, a close friend of Steven's, and a first cousin in what is evidently a close family. He has sworn an affidavit for Steven in the Family Court proceeding. And it was only four or five weeks prior to the trial that he was asked to prepare a witness statement, that is to recall events in 1996/1997. Having observed the defendants give evidence and the manifest bitterness apparent in Steven and Rosa, which bitterness is reflected in the way Steven (aided by his parents) has fought Susie at every turn and at considerable expense, I do not accept Jim's evidence as to not having spoken with Steven, or Victor and Rosa, about the troubles with Susie and what she had done, and that they had never said anything against Susie or her family. His evidence that he thought there was not a lot of hostility exhibited by Victor and Rosa towards Susie and her family is contrary to what was overtly manifested before me and I reject it. Further, his evidence that Steven "sometimes" had the use of the Holden Calais was contrary to the fact, and I reject it. The baby seat was fitted in it and it was for all practical purposes given into Steven's use and was so used by him. Overall, I find that Jim tailored his evidence to suit the defendants' case and that his evidence is unreliable. I do not accept his evidence as to what was not said at the engagement party and the party following at Susie's parents' house, or as to him being with Steven all the time or as to all the people on the defendants' side leaving at the same time.

Jim Panovski

331 He and his wife were present at the engagement party and at the after party at Susie's parents' home. Also present were the defendants, Michael Donis, Jim and Mary Donis, and George Donis and his wife and son Arthur. They were at Susie's parents' house for about an hour and all left together. He and his wife remained for about a further half an hour and left. He did not hear Victor or Rosa make any statement that they had given or intended to give their property at Mernda to Steven or Susie. He had been to over 50 Macedonian weddings and worked at the Macedonian Community Centre in Epping and never heard of any parent transferring half their property to a new daughter in law. He would not have forgotten that being said.

332 In cross-examination he said that they left Susie's parents' place at "twelve-ish roughly", having commenced at the engagement party at about 2.00 pm. The engagement was a happy function and he drank alcohol at both functions. At Susie's parents' place he went to the kitchen refrigerator for beer on a number of occasions. He did not drive home.

333 He said that in the last decade he had been to Susie's parents' home half a dozen times but only in the company of Susie and Steven. Between 1995 and 2000 he visited Victor and Rosa's house twice, to do with the wedding, he had never had a close relationship with them. He denied that there was some hostility between himself and Susie's parents. He said that when he married he was in business with his parents (in a hotel) and he bought land and built. In addition to being in business, his parents helped financially with curtains for the house and his wife worked in the hotel. He had help from both parents. However, he denied it was a tradition for the groom's parents to assist the young couple in getting accommodation.

334 I find, having attended closely to Panovski giving his evidence, that he drank an appreciable amount of alcohol during the engagement party and the after party at Susie's parents' home, to the point where, combined with the passage of years, he did not have an accurate recollection of the course of events as to the order in which, or time when, people left, let alone what might have been said between Susie and her parents and the defendants. As to the likelihood that statements as private as those relied on by Susie would have been said in front of Panovski, not only did Panovski not have a close relationship with Victor and Rosa to whom he was not related, he was not, I find, close to Susie's parents. I find it to be unlikely that any such statement would have been made in his presence. However, even if it be assumed that Panovski did not hear Victor or Rosa say that they had given or intended to give property to Susie, that does not mean that no such statement was made.

335 Finally, his witness statement[63] concluded with the statement that he had never heard the defendants say that Victor and Rosa proposed to transfer a proprietary interest in any part of the Mernda property to Susie. This evidence had the potential to mislead as it carried the suggestion that if Victor and Rosa made any such statement Panovski was likely to have heard it. But, if anything, on the evidence to which I have referred, the contrary was the case.

George Donis

336 He speaks Macedonian and gave evidence by a translator.

337 In his witness statement[64] he said that he was present at the engagement party of Steven and Susie and at the party held at Susie's parents immediately afterwards. He went on to Susie's parents' house and left at the same time as the defendants "and the rest of the people that attended". They were invited for coffee. He did not hear the defendants make any of the statements attributed to them in Susie's witness statement[65] commencing from the bottom of page 2 to the bottom of page 3. That, I interpolate, included Susie's evidence of statements made at Susie's house following the engagement party.

338 George said that it was not Macedonian tradition or custom to give away property to a daughter in law, he had never heard of such a tradition.

339 Finally in his witness statement, George said that he was very close to Victor and Rosa and their family. He had never heard the defendants say that Victor or Rosa proposed to transfer a proprietary interest in their Mernda property to Susie.

340 In cross-examination he agreed that he did not know what arrangements were made between the defendants and the plaintiff about the house. He said that following the engagement party he arrived at Susie's parents' house around 6.00 pm and left roughly around 8.00 pm. There was drink at both places, "a lot of drink on the table". He did not see anyone drunk.

341 As to whether his son Jim and Steven were close friends, he said "We are relatives, we like each other, we go and visiting [sic] each other". On being asked for the third time whether Jim and Steven were good friends he said that "they are good friends".

342 He was asked about his son Jim and Steven going to the city to protests and replied that he did not know about that. He did not know that Jim was angry about Greek occupation of Macedonia, adding that "we" respect Greece and Australia. He said that "It never happened" that Jim and Steven protested.

343 He said that Jim and Mary lived with George and his wife when they married, for three years, to help them save and then they bought a house in the same street. They gave them as much financial help as they could.

344 Finally, he visited Victor at the Mernda property whenever he had free time. Steven lived with his parents until he got married.

345 I found George an unsatisfactory witness. In the first place he is a brother of Victor and I find very close to him and his family. That closeness is reflected in the next generation in which his son and Victor's son are close friends. Then, it was evident that George set out to assist the defendants in their case. He also fell into the error of giving evidence that was beyond his knowledge, doubtless because of his desire (in common with witnesses for the defendants other than Senior Sergeant Horton) to assist the defendants' case. I reject his evidence, given in unqualified terms, that Jim and Steven did not engage in protests. I accept Steven's evidence as to that[66]. George might have thought that it would be a mark against Jim and Steven if they had attended protests against the Greeks and tried to cover for them. Of course it is possible that he did not know that they had attended protests, in which case his evidence was an unfounded assertion. Whatever, the evidence reflected adversely on his credit and reliability as a witness. Likewise with his evidence as to Steven living with his parents until marriage; that was incorrect but he stated it positively. Then there is his evidence, which I accept as correct, that he did not know what arrangements had been made between the plaintiff and the defendants about the house Susie and Steven lived in. As against that, his evidence that at Susie's parents' home he did not hear the defendants make any of the statements attributed to them in Susie's statement was quite unconvincing. He gave no account of the events at the function so as to indicate that if he did not hear any such statement it was probable that no such statement was made. In that respect I was also left with doubt as to his understanding of the portion of Susie's witness statement attached to his statement. Regarding his evidence overall I accept his evidence on the matter of assistance he provided to his son when he married but otherwise I find that he gave evidence out of a strong desire to help the defendants and tailored his evidence accordingly. I do not accept his account as to the events at Susie's parents' home including his evidence that he left with the defendants.

Mary Donis

346 As stated above, she has two children. She sees Jim's parents regularly; they have a very close relationship.

347 With her husband she met Susie on New Year's Eve 1996. She observed Steven and Susie to be a very affectionate, close couple. A short time later, Steven announced they were planning to marry. Steven and Jim were always close and Steven asked Jim to be his best man. A close relationship developed between the couple.

348 Jim and Mary attended the engagement party at Gloria Reception Centre in Thomastown; about 200 attended. The party commenced in the early afternoon and went to just after 6.00 pm. Just before leaving Susie's parents invited the close family to their house for coffee. She remembered sweets and coffee being put out, Steven's parents and his uncle George were there, people were happy, many congratulations were offered. Mary said that they stayed about two hours. She said that at neither engagement function did she hear the defendants make any of the statements attributed to them in Susie's witness statement the relevant passage from which she had read (in common with the other witnesses).

349 Mary said that she saw Susie more often after the marriage but not so much from the middle of 1999. They went to the movies a few times and also went shopping. She recalled Susie showing unopened wedding gifts in the spare room of her house and saying that she would wait to open them when she and Steven bought their new house. I interpolate that some evidence of Mary in cross-examination indicated that this may have been at 1575 Plenty Road before the wedding and the defendants alleged offer of rent free accommodation.

350 Mary also recalled that they bought a timber dining or kitchen table with cast iron chairs and Susie saying she could not wait until they bought their new home to use the table. Susie said that they were interested in moving to Mill Park some time in the future.

351 In re-examination Mary said that Susie never talked to her, or said anything about, the ownership of the Mernda property. She further said that Susie told her that she and Steven wanted new carpet in the house because Jamie was about to be born, that Steven showed his parents samples of carpet but they said no.

352 Mary concluded her witness statement by saying that it was not Macedonian tradition to give away property to a daughter in law. She had never heard of such a tradition. She had never heard the defendants say that Victor or Rosa proposed to transfer a proprietary interest in their Mernda property to Susie.

353 As to this evidence, and taking account of her cross-examination, I note the following. I accept her evidence that she, Jim and their children left Susie's parents' home after about two hours. I find that Mary drove home. I note that Mary does not say that the defendants left at the same time as she and her family. I observed her to be a more careful and apparently intelligent person than the other witnesses in the defendants' case excluding Senior Sergeant Horton for this purpose. She had not been drinking like Jim had during the engagement function. If she had recollected leaving with the defendants she would, I find, have said so. She would have supported the defendants' interest in that respect. That she gave no such evidence in her witness statement or in her oral evidence was significant and telling in my view. I find that she had no recollection of leaving at the same time as the defendants. I find in fact that they left before the defendants. Jim's evidence to the contrary was simply untrue, I find. The untruth was borne of a line worked out to aid the defendants' rejection of the plaintiff's case. The line was that other persons were present at all times and that as they did not hear any relevant statement, no such statement could have been made. To cement the line evidence is given that guests left the function at the same time as the defendants. As against that, the likelihood, and that which I find to have been the case, is that the defendants stayed on at Susie's parents' home after all other guests had left to talk between the immediate families and wind up the day. It may be that Mary heard none of the alleged statements of the defendants but, even accepting that, it does not mean that no such statements were made. Her evidence does not, and could not, establish that. Moreover, in assessing the accuracy of her memory in this respect, (as with the other witnesses) and bearing in mind she comes from a camp with a bias to the defendants, her poor recollection of improvements to the house at 1575 Plenty Road stands in contrast to the definiteness of her recollection that no statements were made. In that respect too it is to be noted that in cross-examination Mary said as to her knowledge of Greek Macedonian tradition, "Just a certain extent, not much ... I was born in Australia ... I know a little bit about them". This undermined the firmness of the assertion in her witness statement that it was not a Macedonian tradition to give property to a daughter in law. Again, it was an attempt to put the defendants' case too highly. I do not accept her evidence on this aspect of tradition.

354 In cross-examination Mary gave further evidence that Susie wanted to live in her own home when they could afford it. She did not know the value of gifts that Susie and Steven had received.

355 Further in cross-examination, Mary confirmed that they had lived with Jim's parents for three years rent free, that they saved money and bought a block and built a house. She said that Jim's parents "helped us when we built our house".

Michael Donis

356 He is a qualified motor mechanic but had been unemployed since late January when he gave evidence. He had previously been unemployed for a year and a half after Steven and Susie married. It is evident, and I find, that he had a period when he had problems with drink driving, was smoking or trying marijuana, and with "stress" as he described it.

357 In summary, in his witness statement he said that he first met Susie in July 1996. He was present at the engagement party and afterwards at Susie's parents' home. He did not hear the defendants make any of the statements attributed to them in Susie's statement (he also having read the same passage as the other witnesses). He left with the defendants, Jim and Mary Donis and their children, his uncle George Donis and his wife and son. I can say at once that I do not accept that all those people left at the same time.

358 Michael said further that he had never heard his parents or Steven say that Victor or Rosa proposed to transfer a proprietary interest in the Mernda property and that no such promise had been made to him. He was not aware of Macedonian tradition to give property to a daughter-in-law.

359 He also denied evidence of Susie[67] as to his use of drugs. He had two drink driving offences for which he had been fined and lost his licence for periods of six months and twenty four months respectively.

360 From this point in his witness statement, Michael referred to assisting in performing works at the Mernda Road property. The matter of improvements may be deferred until later, although I note that in cross-examination Michael acknowledged that the property in which Susie and Steven lived was improved.

361 In cross-examination Michael said he was aware that Rosa had a trust account in his name and that she had deposited to it proceeds of the sale of cattle. Rosa did not explain why she did that. He had never heard that she did that so as to avoid disclosure to the Tax Department. The money was used for "mum and my parents". He did not know that money went from the trust account to Collards. The account commenced when he was 16 and could not have an account on his own.

362 He was not able to attend The Word because he was given short notice and was otherwise committed. He was very close to Steven.

363 Michael agreed that in the earlier part of the marriage there was a very close relationship between the defendants, himself and Susie. His parents told him that the house (at 1575 Plenty Road) was for Steven and Susie to live in rent free so they can save to buy their own house. After they separated Steven remained living there. Michael still lives with his parents, his long term girlfriend lives there also part of the time while he sometimes lives with her at her parents' house.

364 I put no store beside Michael's evidence that he heard no statements of the defendants as alleged by Susie. That is because of his position in the family and evident interest to support the defendants as well as the fact that I do not accept his evidence as to the time when people left the function at Susie's parents home. Furthermore, as I have previously observed, even if it were true that he heard no such statements, it does not follow that they were not made.

Contributions to the property

365 It will be recalled that the statement of claim alleged the making of financial and non-financial contributions by reason of which the defendants were estopped from denying that the plaintiff had an interest in the real property. The value or benefit of the contributions was entirely lost to the plaintiff as a result of the parties separating and her leaving the house. Since she left the house items remaining in it, such as the stove, air conditioner, shutters, roller doors and the like were either removed by others or destroyed on demolition of the house. She never received recompense in respect of any item of improvement to the house. However, she does not seek recompense for loss of the value or benefit of the contributions. The relief that is sought, as her counsel made clear in his final submission, is declaratory as to her interest in the real property and payment of such portion of the net proceeds of sale as represents that interest.

366 That the plaintiff does not seek recompense is hardly surprising because the amount of her own funds that might be established to have been expended on the improvements would be relatively small, and very much less than the total claimed by her to have been spent overall. At the time of the marriage she had modest savings and a half share of the cash given to her and Steven on their engagement and wedding. As to the latter, the gifts totalling $22,000 were set aside in an account where the money remains. It is not surprising that no attempt was made to establish that she had suffered detriment constituted by the outlay of funds of her own, and no quantification of such an amount was advanced.

367 Further, it was no part of the plaintiff's case to establish that the value of the Mernda property, or the house occupied by the plaintiff and Steven, was increased by any particular amount by reason of the financial and non-financial contributions. Nor is it part of the plaintiff's case that by reason of the contributions Victor and Rosa obtained a financial benefit on the sale of the property. In other words, the plaintiff did not on account of such matters seek to establish a case of detriment to her, or of benefit that had advantaged Victor and Rosa, that was appropriate to consider in the determination of the case.

368 Thus the detriment relied on by the plaintiff to establish her claimed equity would on the statement of claim appear to have been founded on the alleged financial and non-financial contributions. But, of course, the essential element of the alleged promise was that if the plaintiff married she would be put on title. While it was not suggested that the act of marriage, or having a child, alone constituted relevant detriment counsel for the plaintiff relied on some factors additional to the alleged financial and non-financial contributions as constituting the plaintiff's detriment. I will return to this below after I have dealt with the matter of contributions. For the moment my concern is to place the matter of contributions in context; they are pleaded as constituting detriment that leads to recognition of a proprietary interest, but no order of recompense is sought in respect of them.

369 On the other hand, counsel for the defendants submitted, as an alternative, that if equitable relief was granted the quantum of such relief should be limited to one quarter of $20,000 or $60,000 or $75,000, these amounts being derived as follows: Steven estimated the improvements cost no more than $20,000 while the plaintiff had estimated approximately $61,000 in her affidavit sworn on 7 September 2000[68] and later approximately $75,000.

370 This variation in the estimated cost of the improvements was the subject of evidence, in the sense that the plaintiff gave evidence identifying the items of improvement or work and the cost or value thereof and the defendants gave contradictory evidence in terms of the work done and the cost thereof. There was an obvious interest each way, the plaintiff to have the cost at the highest level to build up the dollar amount of the alleged detriment and the defendants at the lowest level. The parties left it to me to resolve the differences. This is not easy because items were paid in cash and there is a lack of substantiating documentation such as invoices, cheque butts and statements etc.

371 A point made by counsel for the defendants is that some of the items were purchased, or the work was performed, prior to the marriage. It was submitted that none of such items could be counted as detriment. That was because on the plaintiff's version of the promise she was not entitled to any interest in the property until she married Steven. Hence, improvements performed prior to fulfilment of the condition of marriage could not have been done in reliance on the promise as the promise was not then effective. The difficulty which this submission meets is that the plaintiff relies on a promise made to her and on which she relied in agreeing to live at the house on the Mernda property and the relevant work was undertaken for the purpose of that occupation.

372 With these observations I turn to the alleged financial contributions and make the following findings doing the best I can on the very limited evidence, and as shortly as possible taking my cue in that regard from the brevity of the evidence and the submissions.

373 I first note that on these matters I prefer the evidence of the plaintiff but with the following qualification. In large part the plaintiff had to estimate the amounts as she either did not have personal knowledge of the amount or has relied on what she recalled being told, usually by Steven. Further, I consider that some of the plaintiff's estimates are inflated above actual, for example item (d), (h), (i), (h) and (l) although I do not accept the evidence for the defendants as reliably establishing the actual or approximate cost. Equally it seems to me that some items might have cost more. The difficulty is the paucity and quality of the evidence. Regarding the evidence overall, taking a conservative approach and being reasonable to both parties I find that a total amount of approximately $40,000 was spent on the items referred to by the plaintiff.

374 Steven gave a global estimate of the total amount spent of no more than $20,000 and that Victor reimbursed him half. I have already rejected Steven's estimate. At this point I add further that I do not accept that Victor reimbursed Steven half. Nor do I accept Rosa's evidence that she reckoned Victor had reimbursed Steven more than $7,000. I am led to these conclusions not merely having regard to my previous findings concerning their reliability and honesty as witnesses, but in addition by the vague and unsatisfactory evidence on the point, and the limitations on Victor and Rosa's financial capacity referred to earlier.

375 This leads me to a further aspect of this part of the claim. The allegation is that the financial contributions included making payments on the mortgage. I have already found that Steven did make contributions to assist Victor and Rosa, but I am not able on the evidence to find the amount of that contribution.

376 Finally, in view of the way the case is put little need be said about the claim of non-financial contributions. It is sufficient to say, as I have already, that Susie and Steven worked hard to clean up and improve the house and its surrounds. I accept that Susie worked very hard indeed and that she received assistance from her family although in the case of her parents, having regard to their evidence, not to the full extent described.

Decision

377 As mentioned at the outset of this judgment, the case was run on the facts on the basis that the applicable legal principles were those stated in Giumelli v Giumelli[69] and Flinn v Flinn[70]. There was no debate as to those principles. I was left to resolve the facts and then apply the principles to the facts found. On that basis counsel submitted as follows on the ultimate disposition of the case.

378 The Mernda property having been sold the relief sought by the plaintiff is that Victor and Rosa pay her a sum representing one-quarter of the net sale price of the property together with interest and costs. The property was sold on 10 October 2002 for $3,797,110 of which half has been paid and the remainder is due on or by 10 October 2006. It is agreed that the net proceeds of sale, after allowing for commission and GST, advertising and legal costs, is $3,728,640.94. A one-quarter share of this sum is $932,160.22.

379 To this the defendants submitted: first, that the case should be dismissed on the facts, the defendants' evidence being preferred to that of the plaintiff and her witnesses or at least because the plaintiff had failed to establish her case on the balance of probabilities; but, secondly, if the plaintiff succeeded in establishing her case the appropriate relief was:

(a) one-quarter of the value of the improvements which -

(i) if $20,000 produced $5,000, or

(ii) if $60,000 produced $15,000, or

(iii) if $75,000 produced $18,750.

(b) alternatively, one-quarter of $350,000 being the value of the property at the time of making the alleged promise, namely $87,500.

It was submitted that an amount determined in accordance with (a) or (b) would be proportionate to, and constitute sufficient recompense in respect of, any detriment suffered by the plaintiff.

(c) alternatively, if the Court found the promise was of a half interest in the house and its surrounding area of three quarters of an acre, $34,956 being the value of half of three quarters of an acre calculated by reference to the net proceeds of sale.

380 I have referred to the fact that even if I did not accept the defendants' evidence it would yet remain to decide whether the evidence in the plaintiff's case was sufficient to establish her right to relief. In fact I have rejected the central plank of the defendants' case that they made no such statements or promises as the plaintiff alleges. I have borne in mind in determining the issues concerning the witnesses and the conflicts in the evidence the submission of the defendants as to being satisfied on the balance of probabilities, and I do so in concluding, as I do, that I accept the evidence of the plaintiff and her witnesses as reflecting the substance of the statements made by the defendants. I find that statements to the effect pleaded were made to the plaintiff. I further find that acting reasonably she believed what she was told, that she acted on that basis and suffered detriment when the marriage collapsed and the essential promise of being made an owner with Steven of one half of the land had not been and was not honoured.

381 Counsel for the plaintiff conceded that there was no direct evidence as to why the defendants, in particular Victor and Rosa, made the promises alleged by the plaintiff and her witnesses. The reason, I find, lies in a combination of circumstances to which I now refer.

382 Victor and Rosa were parents in a close knit loving family and provided their sons with rent free accommodation and motor cars. When the plaintiff and Steven fell in love and she accepted his proposal Victor and Rosa were very pleased. Susie was very well educated, intelligent, articulate, a most attractive young woman with a pleasant personality who came from a good Macedonian family. She presented as an ideal partner for Steven, and Victor and Rosa liked her and developed a close and loving relationship with her.

383 At the time when Victor and Rosa were contemplating buying the Mernda property Steven had met Susie and a strong relationship had developed. In deciding to buy the Mernda property Victor and Rosa's financial position was such that Steven would, in addition to living at the property, financially assist them with the burden of the mortgage. It is to be noted that according to Victor the decision to sell the investment properties was made subsequently. The presence of two houses on the property made it immediately apparent that if Steven's relationship with Susie continued to develop to marriage that one of the houses offered the ideal and ready solution to their need for accommodation. It also readily provided a means by which Victor and Rosa would be able to assist their son and his wife in their marriage. Hence, I find, is to be understood the early statements as to purchasing the property with a house for Steven and Susie and further statements along the way in the development of the relationship. There was a mutuality in this from Victor and Rosa's point of view, financial and in respect of assisting the young couple. Victor's parents had assisted he and Rosa when they married and, it is to be noted, there was a pattern of assistance in the evidence of other witnesses. Apart from any supposed Macedonian tradition in this respect it was natural that Victor and Rosa would seek to advance the interests of Steven and having the house would make it easier for him to provide accommodation for Susie. The arrangement was also attractive to Victor and Rosa in that it would mean they were close to Steven and Susie and any grandchildren. Further, it would be expected that Steven and Susie would tend to the property and thus enhance the overall Mernda property more than a tenant might do so.

384 There were however other important circumstances. The Mernda property was out from the suburbs. From Susie's point of view the property was remote. I find that she stated that she preferred that she and Steven purchase a home in the suburbs, rather than live at the house on the Mernda property. This, I find, was a factor leading to Victor and Rosa, and Steven, making the relevant statements relied on by Susie. Further, in accordance with Macedonian tradition it was to be expected that when they became engaged to marry Susie and Steven would be given, as they were, substantial amounts of cash which could be applied to the purchase of a home. And, Steven being a policeman and Susie a qualified teacher, they were set on careers. Thus by careful management it is reasonable to suppose they could have financed the purchase of their own home.

385 It is in this context of circumstances that the making by the defendants of the statements and promises, commencing on the occasion of The Word, is to be understood.

386 I find that the plaintiff believed what the defendants said and promised as indeed I find they intended her to do. Being made as early as they were at The Word, and the plaintiff believing them, the statements and promises had an effect on the subsequent course of events between Susie and Steven and decisions they made. Relevant in this context were the statements as to the future value of the property, as to Susie and Steven's security, that there was no need for Susie to work, and that Susie should stay home and have children. All this was a pressure on her as a young woman in love. I find that the combined effect of all this was that Susie, believing in and relying on the truth of the promises, fell in with Steven as to living at the new house on the Mernda property, they married earlier than they might otherwise have done and Susie became pregnant as early as on their honeymoon. The result was that Susie did not set out on and establish herself in her chosen career, being able to do only a little amount of teaching before having to stop when about six months into her pregnancy. She did not thereafter work prior to the parties separating and she said in evidence she had found it difficult to get back into her career.

387 Then, insofar as the property itself was concerned, I find that it required much cleaning up, inside and out, and I have found that Susie and Steven worked hard in this respect. I also find that there was a problem with mice and rats which upset Susie. I find too that in carrying out improvements to the property Steven and Susie spent money of their own. It is not possible to find the actual amount but I find that it was substantial and the greater part of the cost of the improvements, and was sourced from gifts of money, Steven's wage and Susie's more modest savings and earnings. At the same time, as I have found, Steven also contributed to the mortgage, again to an extent I am unable to find.

388 Then, unfortunately, the marriage broke down and the plaintiff was told that the title was in Victor and Rosa's name, and the parties separated.

389 The net result to the plaintiff may be summarised thus. She was led by the promises, which she reasonably believed to be true and would be acted upon, to marry earlier than she would have, to accept living at the Mernda property rather than purchase a home of their own in the closer in suburbs which was her preference, to spend their money on their Mernda house, and to have a child and stay at home rather than pursue her career. On the collapse of the marriage and the separation of the parties it could be seen that these decisions had disadvantaged the plaintiff. If she and Steven had taken the course of buying their own home and had applied their money on that home, or even saved it, she would have had an asset. And if she had delayed children and pursued her career she would have been in a much better position financially and generally. But those opportunities were lost when induced thereby she acted on the faith of the defendants' statements and promises. I do not overlook that in the statement of claim the only detriment pleaded was the making of the contributions but all these other factors to which I have referred were raised in evidence and were readily apparent. It is clear, when the facts and circumstances are regarded overall, that the plaintiff's detriment is not confined to the contributions.

390 To the above matters of detriment is to be added the further factor that shortly after separation the new house was "stripped" to use the plaintiff's description. On her evidence little was left. As I said earlier, the plaintiff has received no recompense for the improvements effected to the house including fixed items left in it.

391 All told in my view the plaintiff has suffered substantial detriment as a result of relying on the defendants' statements and promises.

392 I conclude in these circumstances that the elements of equitable estoppel are made out.

Relief

393 The question is, as Brooking JA stated in Flinn v Flinn[71] what is required to satisfy the equity that has arisen? In deciding this question regard must be had to the circumstances of the case[72]. As to this, and the scope of relief in equity, I have regard to the statements in Giumelli and Flynn, and Commonwealth of Australia v Verwayen[73].

394 The order sought by the plaintiff would in effect compel performance of the promise. That is, it would hold the plaintiff entitled to a full one-quarter interest in that which now represents the land. It would be the same as declaring a trust of a one-quarter interest in the land if it remained in the ownership of Victor and Rosa. Not only does the land not remain in their ownership, but that which will come to stand in its place on receiving the full net purchase price, is greater than it otherwise would have been as a result of the land having been rezoned and purchased along with adjoining land by a developer. This is a relevant circumstance.

395 The values of the property established by the evidence is $350,000 in July 1995 and $3,797,110 in October 2002. The only other indication of value is the appraisal in The Professionals letter dated 2 February 2001[74] of approximately $400,000 for the newer home stated in the letter to be on approximately two acres. There is no evidence of the value of the entire property or the newer house or whatever at any other time such as, for instance, the time of marriage, the date of separation or the date of sale in 2002 excluding the effect of the rezoning. Hence counsel's submissions have addressed only the purchase price or the sale price.

396 It would not seem appropriate that the plaintiff receive the full benefit of the gain in the value of the land as rezoned. That is because the increase in value was in the nature of a windfall gain to the property owner, something which can happen but which in terms of identifying that which is appropriate to satisfy the plaintiff's equity is another matter altogether. It would not be just as between the plaintiff and Victor and Rosa to award her the full benefit of that gain.

397 Equally, it might not seem just in satisfying the equity to award an amount based on the purchase price in July 1995. The value thus ascertained preceded the making of the promises, the marriage, and the incurring of the detriment the burden of which the plaintiff continues to bear. Of course, to an amount ascertained as the defendants would have it could be added an allowance for interest, but that would be to conclude on the appropriate allowance in ignorance of the value at, say, the date of marriage, the date of separation or the date of sale in October 2002 considering the value of the property at the latter date without the benefit of rezoning. Equipped with such evidence of value the Court would be better placed to determine what was required to satisfy the plaintiff's equity. The Court would be better placed to settle on an amount, with such allowance for interest if any as may be appropriate, that accords with the justice of the case in light of the relevant principle.

398 It is important to bear in mind that in deciding on that which is appropriate to satisfy the equity the Court regards the matter at the present time, as Brooking JA pointed out in Flinn[75]. The approach of the plaintiff has the hint of enforcing a claim under a contract. But the present claim is not in contract, whether for performance of a promise or damages for breach. And, on the defendants' side, the reliance on the 1995 purchase price predates by years the breaking of the promise. There is no reason to suppose that the value of the land at marriage or at separation when the promise was declared broken or in 2002 when the land was sold (but excluding the factor of rezoning) was the same as when the land was purchased in July 1995. Indeed there is every reason to suppose that the value had increased.

399 It seems to me in these circumstances that further evidence is required to enable the amount that is appropriate to satisfy the equity to be ascertained. The appropriate course is to afford the parties an opportunity, having considered this judgment, to submit evidence on the value of the property as they may be advised. Accordingly I will stand the matter over for hearing on another day with such directions as may be appropriate.

[1] [1999] HCA 10; (1998) 196 CLR 101.

[2] [1999] VSCA 109; [1999] 3 VR 712.

[3] [2001] VSC 141.

[4] See Victor Donis outline of evidence, Exhibit 14, para 18.

[5] Exhibit 20.

[6] Exhibit 6.

[7] Exhibit 2.

[8] Exhibit 5.

[9] Exhibit 16.

[10] Transcript 532.

[11] Exhibit 19.

[12] The agreement is referred to at transcript 809.

[13] Exhibit A.

[14] She was cross-examined as to this occasion and as to when it occurred. I refer to the cross-examination below.

[15] As to Steven's concessions as to the removal of items, see transcript 623-625. And see his evidence in re-examination at transcript 669.

[16] Exhibit K.

[17] Exhibit 4.

[18] Transcript 103.

[19] Transcript 105.

[20] Transcript 118.

[21] Transcript 146.

[22] Exhibit 2.

[23] Later, Nikola Stojanovski said that the Macedonian word for title was "Tapija" and, on counsel then asking the interpreter for the English meaning of that word I suggested a dictionary be consulted. The next day counsel advised their agreement that a Macedonian word for title is phonetically "Tapia".

[24] This is the account which has been frozen by order of the Family Court; see at [74]. As noted at [74] the amount placed on deposit was $22,000; see Exhibit K, being the Acknowledgment of Term Deposit. In cross-examination Steven agreed that the correct figure was about $22,000 (transcript 560).

[25] Transcript 612.

[26] In cross-examination he further said that he had not used a boot to kill a mouse; transcript 621.

[27] Transcript 618.

[28] Transcript 477.

[29] In fact the NAB advanced $390,000 at drawdown: Exhibit 16.

[30] Exhibit 15.

[31] Exhibit 16.

[32] Exhibit 17.

[33] Exhibit 4.

[34] Defendants' submission provided 13 May 2005, plaintiff's submission dated 21 May 2005 and further particulars thereof provided on 27 May 2005 pursuant to my request, and defendants' submission in reply provided 27 May 2005.

[35] Exhibit H.

[36] Transcript 458.

[37] [1938] HCA 34; (1938) 60 CLR 336 at 359-362.

[38] [1993] VicRp 60; [1993] 2 VR 89 at 95-96.

[39] (1992) 29 NSWLR 336 at 349.

[40] [1992] HCA 66; (1992) 67 ALJR 170 at 171.

[41] Exhibit 10.

[42] Transcript 987.

[43] Exhibit 2.

[44] Exhibit 16.

[45] Exhibit 21 para 9.

[46] At Transcript 50.

[47] Transcript 486-488.

[48] Transcript 508.

[49] Exhibit H.

[50] Transcript 578.

[51] Transcript 699.

[52] Transcript 727.

[53] Exhibit 16.

[54] Exhibit 17.

[55] Transcript 734.

[56] Transcript 797-798.

[57] Transcript 895.

[58] Exhibit BB.

[59] Exhibit W.

[60] Transcript 869.

[61] Transcript 871.

[62] Exhibit A.

[63] Exhibit 25 para 6.

[64] Exhibit 26.

[65] Exhibit A.

[66] Transcript 545-546.

[67] Exhibit A p 14.

[68] Exhibit 10, para 20.

[69] [1999] HCA 10; (1999) 196 CLR 101.

[70] [1999] VSCA 109; [1999] 3 VR 712.

[71] [1999] VSCA 109; [1999] 3 VR 712 at p 749 [118].

[72] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at p 113 [10].

[73] (1990) 170 CLR 394 in particular Deane J at 441-443.

[74] Exhibit 2.

[75] [1993] 3 VR 712 at p 752 [128].

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (6)