Price v Clinton

Supreme Court of NSW|2000-08-02|Before: Bergin J

CITATION : Price v Clinton [2000] NSWSC 1041 FILE NUMBER(S) : SC 2985 of 1998 HEARING DATE(S) : 1, 2 August 2000 JUDGMENT DATE : 9 November 2000

PARTIES : Patricia Helen Price (Plaintiff) Andrew Gifford Clinton (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : P. Dowdy (Plaintiff) E. Cohen (Defendant) SOLICITORS : Cassidy Gibson Howlin Solicitors (Plaintiff) Broun Abrahams (Defendant) CATCHWORDS : De Facto Relationship - Adjustment of interests of parties in property - Relationship for a period of 7 years - Parties resided together in New South Wales for 2 years and on Norfolk Island for balance of relationship - Respective contributions of de facto partners - Loan by Plaintiff to Defendant - Whether loan carried interest and, if so, at what rate - Entitlement of Plaintiff under the general law to repayment of loan, together with interest - In claim under De Facto Relationships Act Plaintiff is not entitled to duplicate her foregoing entitlement under the general law. LEGISLATION CITED : Property (Relationships) Act 1984 Supreme Court Act 1970 DECISION : See paragraph 72

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2985/98 PATRICIA HELEN PRICE -v- ANDREW GIFFORD CLINTON JUDGMENT

1 MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 The proceedings were instituted by Statement of Claim filed by the Plaintiff Patricia Helen Price on 30 June 1998. By that pleading the Plaintiff claimed, pursuant to section 20 of the De Facto Relationships Act, relief adjusting the interests of the parties in property, in particular, an order that the Defendant Andrew Gifford Clinton pay to the Plaintiff the sum of $500,000. 3 On 27 July 2000 (that being only five days before the commencement of the hearing) application was made by the Plaintiff for an order that leave be granted to her to file an Amended Statement of Claim, and for certain consequential orders. That application was granted by Justice Bergin, sitting as Duty Judge in the Equity Division. Her Honour granted that application, and made further consequential orders, including an order that the hearing and determination of the proceedings be referred to a Master in the Equity Division, and an order reserving the question of the costs of the motion to the Master hearing the matter. 4 Consequent upon the foregoing leave granted by Her Honour, the Plaintiff on 31 July 2000 filed an Amended Statement of Claim. The only difference between that pleading and the Statement of Claim which had originally been filed was the addition of a further paragraph, being paragraph 9, in the following terms, Alternatively, the Plaintiff claims repayment of the sum of $100,000 being monies payable by the Defendant to the Plaintiff for money lent by the Plaintiff to the Defendant on or about 9 July 1991. 5 The Amended Statement of Claim also contained a further additional prayer for relief, being prayer (f), as follows, Alternatively to relief under the Property (Relationships) Act, 1984 judgment for $100,000 together with interest under the Supreme Court Act or on some other appropriate basis. 6 By his Amended Defence, filed at the commencement of the hearing on 1 August 2000, the Defendant as follows responded to the allegation contained in paragraph 9 of the Amended Statement of Claim, 11. In answer to paragraph 9 of the Amended Statement of Claim the Defendant denies that the Defendant still owes $100,000 to the Plaintiff.

In further answer to paragraph 9 of the Amended Statement of Claim the Defendant says that the moneys lent by the Plaintiff to the Defendant were repaid by the Defendant to the Plaintiff with interest.

In further answer to paragraph 9 of the Amended Statement of Claim the Defendant says that any moneys paid by the Plaintiff to the Defendant which have not been repaid were moneys payable for [ sic ] by the Plaintiff for 10 of the 77 allotted shared [ sic ] in Aloha Pty Limited (formerly Clinton Pty Limited). 7 It was not in dispute that the parties entered into a de facto relationship on or about 3 August 1989. At that time the Plaintiff (who had been born on 7 July 1931) was aged 58 years (she is now aged 69 years); and the Defendant (who had been born on 29 November 1923) was aged 65 years (he is now aged 76 years). 8 At the time of the commencement of the de facto relationship the Plaintiff was a divorced lady, with grown up children. She was in full-time employment as a conservator with the State Library of New South Wales, having trained in that occupation in the 1980s. 9 At the time of the commencement of the relationship the assets of the Plaintiff consisted of: Two pieces of real estate in Canberra Company title home unit at Kirribilli Motor vehicle 10 The foregoing assets were sold by the Plaintiff in 1990, and she had, in consequence of the liquidation of such assets, an amount of $320,000 in cash. 11 The Defendant at the commencement of the de facto relationship was a retired stockbroker (having practised as such both in Singapore and in Sydney). The Defendant also had been previously married, on two occasions. Each of those marriages ended in divorce. The Defendant had three children by his first marriage and none by his second marriage. 12 At the commencement of the de facto relationship the assets of the Defendant consisted of: 1. Shares in and control of a company Tujoh Pty Ltd, which owned: (a) House property situate at and known as 42 Moruben Road, Mosman

(b) Home unit situate at and known as 13/32 Gerard Street, Cremorne.

(d) Other assets worth $1,440,000 (including shares, options, insurance bonds and other investments, less debts of $457,934).

(e) Sundry debtors ($18,761) 2. Shares in listed companies (valued at about $252,574).

Honda Legend motor vehicle (to which a value of $55,000 was ascribed).

Honda Civic motor vehicle (to which a value of $24,000 was ascribed).

Cheque Account - Westpac Banking Corporation (about $21,000)

Total Assets: $3,300,000 (approximate). 13 At the commencement of the de facto relationship the Plaintiff was residing in what she described as "shared accommodation", in respect of which I gather that she was paying rent or some other form of occupation fee. 14 Upon the commencement of the de facto relationship the Plaintiff moved into occupation with the Defendant on 3 August 1989 in his house at 42 Moruben Road, Mosman. That was a substantial, commodious and expensively appointed residence. The Defendant maintained a house-keeper who attended there on three mornings a week. 15 Throughout the period whilst the Plaintiff and the Defendant were residing together at the Mosman property until (as will shortly emerge) they re-located their residence to Norfolk Island in June 1991, they maintained a comfortable and pleasant lifestyle in Sydney. 16 Throughout that period the Defendant provided the accommodation and upkeep for the Plaintiff; he paid for holidays (including several trips overseas); he also purchased another motor vehicle, which was essentially used by the Plaintiff. In consequence, the Plaintiff was enabled to dispose of her own motor vehicle during 1990. The Plaintiff and the Defendant maintained an active social life, visiting and entertaining friends and acquaintances, attending restaurants, and patronising theatres and other forms of live entertainment. 17 Shortly after the commencement of the de facto relationship the Defendant on 9 August 1989 made a fresh will containing the following provision, On the condition that PATRICIA HELEN PRICE is living with me as my de facto wife at the time of my death to pay the sum of Two Hundred and Fifty Thousand Dollars ($250,000) to the said PATRICIA HELEN PRICE for her own use and benefit absolutely. 18 Shortly after executing that fresh will the Defendant gave to the Plaintiff a photocopy of the page containing the foregoing provision. 19 In August 1990 the Plaintiff, at the request of the Defendant, arranged for her employment at the State Library to be reduced from being full-time employment to being part-time employment, with a consequent reduction in her salary (which as a full-time employee was in an amount of about $29,000 a year plus expenses). The purpose of that request was to enable the Plaintiff to devote more of her time and attention to the Defendant, to provide him with more of her company, especially so that they could play golf together more frequently. 20 Both before and in the early part of the de facto relationship the Defendant had on a number of occasions holidayed on Norfolk Island (he being accompanied there by the Plaintiff on at least one occasion after they commenced to reside together). In mid-1991 the Defendant became aware (as a result of the Plaintiff noticing an advertisement in the Financial Review) of an investment opportunity on Norfolk Island. In consequence he swiftly decided to purchase a hire car business on Norfolk Island, which venture necessitated his residing there. 21 Although in the pleadings and at the outset of the hearing there was a suggestion on the part of the Defendant that the de facto relationship came to an end in early July 1991 when the Defendant removed to Norfolk Island, it was apparent as the evidence progressed that such a suggestion could not be maintained, and ultimately it was, as I understand it, abandoned by Counsel for the Defendant during the course of her final address. 22 The parties resided together on Norfolk Island from mid-1991 until the termination of the de facto relationship in October 1996. For a short period of about ten days in July 1991, after the parties had re-located from Mosman to Norfolk Island, the Plaintiff returned to Australia where she went on a skiing holiday. That holiday had been arranged some considerable time previously, but the Defendant (on account of his newly acquired business on Norfolk Island) was no longer able to accompany her, as had originally been intended. The Plaintiff was accompanied on that skiing holiday by a female friend. 23 Even had the suggestion of an interruption or termination of the de facto relationship in July 1991 been maintained on the part of the Defendant, I am satisfied that, in any event, there was no interruption to the relationship, and that the relationship continued uninterrupted from early August 1989 until late October 1996, a period of more than seven years and two months. 24 At the outset the parties lived in rented accommodation on Norfolk Island. Subsequently the Defendant purchased a house property there. After the parties had been residing on Norfolk Island for the required period they sought, and obtained, residency in that Territory. 25 It was necessary for the Plaintiff, on account of the re-location of the Defendant to Norfolk Island and his request that the Plaintiff accompany him, to give up her employment with the State Library. That she did in June 1991, shortly before their departure for Norfolk Island. 26 Throughout the entirety of the period whilst the parties were residing in Norfolk Island they each retained their assets in New South Wales. The Defendant sold the Moruben Road property for $1,165,000 on 30 October 1991. The Plaintiff retained her home unit at Kirribilli. 27 Unfortunately, the hire care business was not as successful as the Defendant had expected that it would be. In consequence, the assets of the Defendant at the date of separation were somewhat less than they had been at the commencement of the relationship. It was estimated that his assets at the termination of the relationship had a value totalling about $1,105,000. Those assets included the house property on Norfolk Island, known as The Oaks (having an agreed value of $200,000), and the home unit at Cremorne (having an agreed value of about $300,000). 28 The rental car business has now been sold, for a price of $130,000, payable over a period of five years. 29 The rental car business was conducted through the vehicle of a company, Clinton Pty Limited, which company subsequently changed its name to Aloha Pty Limited (to which I shall refer hereafter as "Aloha"). 30 I have already referred to the claim in respect to an alleged debt owing by the Defendant to the Plaintiff in an amount of $100,000, together with interest. 31 The circumstances in which, according to the Plaintiff, that amount became owing, are set forth in paragraph 24 of the Plaintiff's affidavit of 21 July 1999. In that paragraph the Plaintiff says, On 9th July, 1991 the Defendant said to me "Will you lend me $100,000? I'll pay you better than bank interest because I will get the money from you at less than what the bank will charge me". I agreed to lend him the money. The money I advanced to the Defendant was an investment trust which I cashed in. I arranged for the money to be transferred to the Trust Account of our solicitor on Norfolk Island. Annexed and marked with the letter "N" is a photocopy of an acknowledgment drafted by our solicitor, Mr Zande, written by me and signed by the Defendant at the time I loaned him the $100,000. 32 Not only was annexure N (a photocopy) in evidence, but there was also in evidence the original of that document, being Exhibit D. It is appropriate that I should here set forth the terms of that document, which is handwritten, and is as follows: Acknowledgment of Debt and Promise to Pay

To: Patricia Helen Price Norfolk Island

I, Andrew Gifford Clinton Hereby Acknowledge that I am indebted to you in the sum of One Hundred Thousand Dollars ($100,000) this day advanced by you to me (the receipt of which sum is hereby acknowledged) and Undertake and Agree to repay the said sum to you on or by the ninth of July 1992 or by such extended date as you shall nominate at your absolute discretion Dated this 9th day July 1991

33 The signature of the Defendant appears above his name on the foregoing document. There is a signature above the designation "Witness", which, according to the Plaintiff, was the signature of the clerk in the office of Mr Zande, Solicitor. It was the Plaintiff's evidence that she consulted with Mr Zande concerning the appropriate words for the foregoing document before she wrote it out. 34 The Defendant denied that the $100,000 advanced by the Plaintiff to him on 9 July 1991 constituted a loan. According to the Defendant that money was advanced as an investment by the Plaintiff in the hire car business, and that investment was reflected by an allotment to the Plaintiff of shares (ultimately totalling 10), in that company. 35 In his affidavit of 18 October 1999 the Defendant said that after he had returned from Norfolk Island, where he had discussed with the vendors his proposed purchase of the business, he spoke to the Plaintiff and told her what had happened. His evidence then continued (paragraph 22), In the course of this she said to me words to the effect, "Can I have a share in it?" I said, "Yes, you can have a $100,000 share. That's a bit over 10%." She said "All right". 36 In paragraph 23 of that affidavit the Defendant continued, In May 1991 I formed a property company "Clinton Pty Limited" in Norfolk Island for the purpose of purchasing the business. A copy of the Certificate of Incorporation and the initial allotment of shares dated 7 May 1991 is at pages 23 to 25 of Exhibit "AC1". The initial share distribution out of a total allotment of 77 shares was 67 shares (87%) to me and 10 shares (13%) to the Plaintiff. The name of the company was later changed to "Aloha Pty Ltd" referred to below as "Aloha". 37 Further affidavit evidence was given by each party concerning the foregoing allotment of shares. In her affidavit of 18 July 2000 the Plaintiff said (in paragraph 23), Clinton Pty Ltd was incorporated on the 13th May 1991. I note that I was allotted one share in Clinton Pty Limited at the time of its incorporation. A subsequent allotment increased my shares to 10 shares. I was unaware of that subsequent allotment. Although I did not request them I was allotted a further 99,990 shares on 11 March 1996 after I had requested on a number of occasions the return to me of the loan that I had made to the Defendant. I had been pressing the Defendant for the return of my money and interest for some time. In about March 1996 the Defendant said to me words to the effect "I am issuing more shares in the company and you will be getting a proportion of those shares". I said to him "I don't want any shares, I just want the return of my loan and interest". He replied with words to the effect "you are only asking that because of pressure from Gareth"….[Gareth is a son of the Plaintiff] 38 There is no doubt that upon its incorporation on 13 May 1991 the Plaintiff and the Defendant each took one share as a subscriber in Clinton Pty Ltd (Exhibit A, page 48). However, there is no evidence that any further allotment of shares, either to the Plaintiff or to the Defendant, was made with the knowledge or approval of the Plaintiff. The form of Return of Allotment of Shares dated 7 May 1991, which discloses a total allotment to the Plaintiff of 10 shares and to the Defendant of 67 shares, is signed by the Defendant alone (Exhibit 1, pages 24-25). Similarly, the Return of Allotment of Shares dated 11 March 1996, disclosing an allotment of 99,990 shares to the Plaintiff and 669,933 shares to the Defendant, is signed by the Defendant alone. Neither of those allotments of shares is reflected in the balance sheets of the company which are in evidence (Exhibit 1, pages 36-40, 48-53). 39 The Defendant was cross-examined concerning the events of 9 July 1991. He stated that he accepted that his recollection of those events was not good. He also agreed that he was a man of business and of commerce and of financial affairs, and that he would not sign a document without reading it. There was no dispute that he had signed the document of 9 July 1991 (Exhibit D). Indeed, during his cross-examination on this topic, the Defendant really did not dispute that the transaction of 9 July 1991 was a loan. 40 That document clearly evidences a loan by the Plaintiff to the Defendant. I am satisfied that that transaction was a loan and no more. I am not satisfied that the advance of $100,000 by the Plaintiff was for the purpose of investing in Aloha, or for the purpose of obtaining an interest in the business, or for the purpose of acquiring shares in Aloha. 41 It is relevant here to note that the advance of $100,000 characterised as a loan is consistent with two other documents which were in evidence. Firstly, a letter from Prudential-Bache Securities dated Monday 8 July 1991, sent to the Plaintiff by that entity by way of facsimile transmission. The Plaintiff had funds invested with that company, and she arranged for those funds to be transmitted to Norfolk Island for the purpose, so she said, of making the loan to the Defendant. That letter refers to the sender having "obtained a total recall of your deposits including interest"….totalling $190,533.81, and stating that a cheque in that sum in favour of Zande and Associates Trust Account would be deposited for credit of Zande's Norfolk Island account. (Annexure A to the affidavit of the Plaintiff sworn 18 July 2000). 42 On the same date, 9 July 1991, the Plaintiff sent a letter addressed to Zande & Associates, of Norfolk Island (Exhibit E), in the following terms, I, Patricia Helen Price, Hereby Authorise you to disburse the sum of $190,533.81 received into your trust a/c from me in the following manner:- A.G. Clinton - $ 100,000.00 Westpac Bank - 80,000.00 H. Price - 10,533.81 _________________________ $ 190,533.81 _________________________

Helen Price 9.7.91 43 The foregoing documents are totally consistent with the amount of $100,000 having been advanced as a loan. Indeed, if it had been intended by the parties that the amount of $100,000 was for the purpose of acquiring shares in the company, then the instructions to the solicitor that an amount of $100,000 be disbursed to "A.G. Clinton" would have been quite inappropriate. The disbursement of that amount, in the event that it was to be used for an investment in the company or for the acquisition of shares in the company, should have appropriately been made to Clinton Pty Ltd or to Aloha Pty Ltd. 44 Further, after the conclusion of the de facto relationship it would appear that the parties attempted to resolve their differences by means of an Early Neutral Case Evaluation before the Honourable Adrian Cook QC, A letter from the Defendant to the Plaintiff dated 11 September 1997, (Exhibit A, page 85) contains the following, I will repay you a minimum of $1,000 monthly by the 15th each month for a total of $100,000. The present value of your shares would probably be 50 cents, so that you appreciate this offer. 45 Some attempt was made on behalf of the Defendant to suggest that the evidence of the Plaintiff concerning this loan was somehow confused with evidence concerning another, but separate, loan made by the Plaintiff to the Defendant in an amount of $100,000. According to the Defendant the residence The Oaks on Norfolk Island was in need of renovation and updating. He did not have any moneys readily available, as the Moruben Road residence had not at that stage been sold. He requested a loan of $100,000 from the Plaintiff until the Moruben Road property was sold. The Plaintiff advanced him that sum, which was repaid after the sale of the Moruben Road property on 30 October 1991. The Plaintiff in her evidence agreed that the Defendant requested a loan of $100,000 and that she advanced such sum to him. It was the recollection of the Plaintiff that that occurred in September 1991. That loan was repaid with interest calculated at 13.5 per cent. According to the Plaintiff that loan was evidenced by an agreement in similar terms to Exhibit D. The Plaintiff said that upon the repayment of that loan by the Defendant she destroyed the written agreement. 46 I can see no inconsistency between the existence of a loan of the nature asserted by the Plaintiff to have been made by her in July 1991 and the subsequent loan for a short period in about September 1991 which was repaid shortly after the Defendant sold the Moruben Road residence at the end of October 1991. 47 I am satisfied that the advance made by the Plaintiff to the Defendant on 9 July 1991 was a loan. By its terms that loan was to be repaid by 9 July 1992 or by such later date as the Plaintiff might nominate. There is no suggestion that she nominated any later date. Indeed the evidence supports her present contention that she made numerous requests of the Defendant that he should repay that loan. The loan remains unpaid. 48 The document evidencing that loan makes no reference to interest. I have been taken to various authorities concerning interest and the entitlement to interest on a loan. 49 I have already referred to the responses given by the Defendant under cross-examination concerning the events of 9 July 1991, in particular, concerning the appropriate characterisation of the advance of $100,000 made to the Defendant by the Plaintiff. During the course of that cross-examination the Defendant expressly agreed that he had said to the Plaintiff words to the effect, "Can you lend me $100,000. I'll pay you better than bank interest because I will get the money from you at less than what the bank will charge me". I am satisfied, both from the evidence of the Plaintiff in that regard and from the foregoing response by the Defendant under cross-examination, that the agreement between the parties concerning the loan by the Plaintiff to the Defendant of the sum of $100,000 was that that loan should carry interest. Two questions then arise, being firstly the date upon which that interest should be payable, and secondly the rate at which that interest should be payable. 50 Under the terms of the written acknowledgment, the sum of $100,000 was to be repaid on or by 9 July 1992, or by such extended date as the Plaintiff might nominate at her absolute discretion. Since the Plaintiff did not nominate any such extended date, the principal sum was to be repaid no later than 9 July 1992. If it had been repaid on that date, then, in the terms of the agreement which I am satisfied has by the evidence been established, the Plaintiff would have been entitled to interest upon that sum from 9 July 1991. That is, interest accrued on the amount of the loan from the date of the advance of the principal sum, 9 July 1991, although, in my conclusion, the amount of such interest did not become payable to the Plaintiff until the principal sum became payable. 51 I am satisfied, therefore, that the Plaintiff has established an entitlement to be paid interest on the amount of $100,000 from 9 July 1991 until the date when the principal sum fell due, 9 July 1992. 52 The agreement between the parties made no provision for the situation which, in fact, has arisen - that is, the failure by the Defendant to pay the principal sum by the stipulated date (there having been no extended date nominated by the Plaintiff). The agreement did not make provision for the payment of interest upon the principal sum if it remained unpaid after the stipulated date. 53 It may be possible to imply an agreement between the parties that interest would accrue upon the principal sum until that principal sum was paid. 54 It was, however, submitted on behalf of the Plaintiff that in the circumstances of this case it was more appropriate that the claim for interest after 9 July 1992 should be grounded upon the provisions of section 94 of the Supreme Court Act 1970. I am in agreement with that submission. In the instant case it would seem entirely illogical if the Plaintiff were found to be entitled (as in my conclusion she is entitled) to receive payment of the principal sum of $100,000, together with interest thereon for the period from 9 July 1991 to 9 July 1992, but not to receive any interest on the amount of that principal sum after 9 July 1992. 55 Although no rate of interest was expressly agreed upon between the parties, the Defendant offered to pay to the Plaintiff "better than bank interest". In all the circumstances, it seems to me that the Plaintiff has established an entitlement to be repaid the principal sum of $100,000, together with interest thereon from 9 July 1991 to the date of the order which I propose to make in that regard, and that the rate of interest should be the rates prescribed in Schedule J to the Supreme Court Rules, pursuant to the provisions of Part 40 Rule 7 (2) of those Rules. The Plaintiff has calculated the amount of that interest to the conclusion of the hearing on 2 August 2000 as totalling $101,614. I propose to give to the Plaintiff an opportunity to provide a calculation of that interest from 2 August 2000 to the date hereof. 56 As I understand it (and in this regard I refer particularly to what was said by Counsel in response to queries by me on the first day of the hearing, 1 August 2000: T.27-28), in the event that the Court concludes that the Plaintiff has established an entitlement both to the repayment of the loan of $100,000, together with interest thereon, and to an order for payment of a monetary sum pursuant to section 20 of the De Facto Relationships Act, the Plaintiff seeks only the higher of those two amounts. The Plaintiff through her Counsel acknowledged that she cannot receive a duplication in the statutory claim of any entitlement which she might have established under the general law to repayment of the loan, together with interest thereon. 57 Therefore it is necessary for me to proceed to a consideration of the claim of the Plaintiff for relief under the De Facto Relationships Act.

58 I have already expressed my conclusion that there was no interruption to the de facto relationship in July 1991. That relationship obtained from early August 1989 until October 1996, a period of a little over seven years. 59 I am satisfied that the Plaintiff has established that at the express request of the Defendant she gave up full-time work in order to work part-time, so that she could provide companionship to the Defendant; then she gave up her part-time employment to remove to Norfolk Island as the Defendant's full-time companion, lover and de facto spouse. The Plaintiff made a direct financial contribution to the Defendant, by advancing him two separate loans of $100,000 each (the short-term loan, made until the Moruben Road property was sold, was repaid as agreed between the parties). 60 The fact that at the conclusion of the de facto relationship the Defendant's assets were somewhat less than they were at the commencement of the relationship was not in any way the fault or responsibility of the Plaintiff. The Defendant was a person with far greater financial experience and expertise than the Plaintiff. The business venture on Norfolk Island was the Defendant's business, not the Plaintiff's. It was in no way the fault of the Plaintiff that that business was not the financial success which the Defendant expected it to be. 61 It was virtually conceded by the Defendant that for a period of seven years the Plaintiff had made a significant contribution to his life as homemaker, companion, lover and de facto wife. It must, of course, be recognised that throughout that period the Defendant provided the Plaintiff with accommodation and unkeep, with holidays and money for those holidays, and with a motor vehicle, as well as also contributing to the Plaintiff's life as her companion, lover and de facto husband. 62 It was submitted on behalf of the Plaintiff that the loss of income suffered by her firstly in reducing her employment with the State Library from full-time to part-time, and subsequently in giving up that employment altogether, could be reflected by an amount of $15,000 a year over a period of seven years - that is, $105,000. 63 Such an arithmetical calculation, taken in isolation, disregards not only the circumstances in which the Plaintiff reduced and ultimately gave up her employment - the request of her de facto partner that they should be able to spend more time in each other's company - but also disregards the material and emotional contributions to the Plaintiff's welfare to which I have already referred. 64 In my conclusion the Plaintiff has established an entitlement to relief under the De Facto Relationships Act, by way of a payment to her of the amount of $100,000. 65 I have already recorded that the Plaintiff seeks relief by way of the higher of the two alternative claims for relief to which she might ultimately establish an entitlement, and that she recognises that she is not entitled to a duplication in respect to the loan of $100,000. 66 In my conclusion the Plaintiff has established firstly an entitlement under the De Facto Relationships Act to an order for payment to her by the Defendant of the sum of $100,000. That amount will bear interest from the date of such order until payment. Further, the Plaintiff has established an entitlement under the general law for judgment in respect of the loan of $100,000, together with interest thereon from 9 July 1991 to the date of the judgment, such interest being at the rates prescribed in Schedule J to the Supreme Court Rules. To 2 August 2000 that interest totals in excess of $101,000. That means that the relief to which the Plaintiff has established an entitlement under the general law will exceed $201,000. 67 In those circumstances, it is my understanding that the Plaintiff will be content to receive the foregoing relief under the general law and will not pursue her entitlement under the De Facto Relationships Act. 68 It should also here be recorded that the Defendant did not make any submission that the two years during which the parties resided together in New South Wales did not constitute a substantial period of the nature contemplated by section 15 of the De Facto Relationships Act. That is, the Defendant did not make any submission that the Court, in consequence of the provisions of section 15 of the Act, was deprived of its jurisdiction to make an order in favour of the Plaintiff. 69 Since the Plaintiff has succeeded in establishing both the alternative relief sought in the Amended Statement of Claim, and also substantial relief of the nature sought under the De Facto Relationships Act, I consider that the Defendant must pay the costs of the Plaintiff of the proceedings. 70 It has already been recorded that Justice Bergin on 27 July 2000, in referring the hearing and determination of the proceedings to a Master, made an order reserving to that Master the costs of the motion before Her Honour. 71 The parties at the conclusion of the hearing before me expressed agreement that this matter of the costs reserved by Her Honour should be dealt with in the light of my ultimate decision. Accordingly, I will give to the parties an opportunity to be heard concerning those costs. 72 I make the following orders:

I order that there be judgment for the Plaintiff against the Defendant for $100,000, together with interest thereon from 9 July 1991 until the date of judgment, such interest to be at the rates prescribed by Schedule J to the Supreme Court Rules.

I reserve to the Plaintiff liberty to apply for a variation of the aforesaid judgment in order to reflect the precise amount of the interest to which the Plaintiff is entitled.

I stand the matter over to a date to be fixed by arrangement with my Associate, for argument concerning costs.

Last Modified: 01/19/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (25 paragraphs)

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