Rogers v Rogers [2001] VSC 141

Rogers v Rogers [2001] VSC 141 - VSC 2001 case summary — Zoe

[37]

Gaylene gave evidence that was generally confirmatory of her husband's. She too was, in general terms, an impressive witness. Against her too, there were suggestions that she was inflating the detriment suffered. For instance, in cross-examination it seemed to be suggested that the family finances could not have been too bad if she and Bernard were able to produce a $10,000 deposit on the house they bought in Berriwillock in 1994; they would have had about $20,000 plus interest to live off up to that time. I do not think the suggestion fairly represents the situation. I conclude below at [ 67] that Bernard and Gaylene were having to dig into their savings to the extent of some $7,000 in the first two years they were in Berriwillock to fund their basic living expenses and make their house livable; I do not consider they were profligate in doing so. Without wishing to pre-empt my findings as to detriment, I can say this was a significant detriment and certainly not a point against the credit of Gaylene or her husband. Another point which defendant's counsel said went against Gaylene's credit was her inaccuracy in recollection of the date when the income received from Gerard allegedly increased from $20,000 to $25,000. Initially in examination-in-chief, based on her recollection of the conversation with Gerard that I recount in the next paragraph, she said it was 1994 or 1995; when in cross-examination she was shown her tax return for 1991/92 which showed joint share-farming receipts of $25,000, she accepted on the face of the documentary evidence that the conversation must have occurred in 1992. At this point the inference may have been open that she was trying to overstate by two years the time on which they had to live on the lower income. However, it is apparent from the facts as I find them below at [ 78] that the income from Gerard fluctuated for some years before settling on $25,000 per year from the 1995/96 financial year. Their income was in fact at a relatively constant level until at least mid-1995. It is perfectly consistent with Gaylene's version of events that the conversation occurred at the time she initially said, as a precursor to the permanent increase to $25,000 per year that followed soon after. Moreover, her evidence is consistent with the admission in the defence that the agreement to increase $25,000 was in 1994: see [18] above. I accept Gaylene's timing in this regard and find it to be the fact. My view of her as an honest witness remains unaltered.

[45]

The second problematic area of Gerard's evidence relates to his investments in ostriches. At first in cross-examination, he said that in the early 1990s he bought a half share in three ostriches for about $50,000, then another pair for about $30,000 (as an estimate) and then another adult bird for a price he could not recall. The impression given at this stage was that he spent $100,000 or less on six ostriches. Having been shown his tax return for the 1992/93 financial year, Gerard accepted that in that year he had spent $200,998 for seven birds, and that there had been a natural increase of seven birds. A bit later in the cross-examination, I asked Gerard about some figures in his 1996/97 tax return, which still referred to the ostriches, listing opening stock of 10 and natural increase of 14, with stock on hand valued at $104,466; his answer was that the ostrich venture ceased very soon after that tax year, when a disease wiped out much of the stock, and he was no longer sure whether he had any stock remaining. If this were all, I might be able to accept that Gerard merely had a lapse of recollection, even though his answers were substantially inaccurate or incomplete in relation to amount, number and timing, and thus quite misleading. However, this was a matter to which he had sworn in his answers to interrogatories on 18 May 2000. In response to an interrogatory about the costs, profits and losses of his business ventures and investments since 1987, he said in relation to ostriches: "I also paid $10,000 in 1992 for a share in a trio of ostriches. The cock bird has been infertile, the eggs have been minimal. One hen has died and I consider the share to be worthless." Not only does this substantially conflict with his position in oral evidence, but it exposes that he had been asked to make a considered answer on the topic relatively recently, less than five months before he gave his oral evidence, and he had either not undertaken the task with the attention appropriate to giving sworn answers in serious litigation or he had attempted to mislead the Court. I find that the latter is the true explanation. He gave false evidence. The purpose was to have the Court accept a description of his financial circumstances in the relevant period that was less than the fact, which I find was as stated in his tax return.

[60]

In later times, when the frequency of the discussions increased, Bernard would ask about his wage, the partnership and when he would take over running the farm. Gerard would reply: "Well, I think I'll go down to Melbourne and discuss it with [Clarke]". In one or two discussions, Gerard finished the conversation saying: "You've got no need to worry anyway, I've left all the farm and machinery and all my assets to you anyway". He said Carmel and Mary did not need the money or land, being Josephite nuns, and that Frances was well looked after: "there's no one else to leave it to, so I'll leave it to you". Bernard replied by saying: "It's a very, very nice offer and gesture, [Gerard], but I just can't survive on what I'm doing at the moment. I've got to get on with life now, with a young family and trying to bring them up and educate them. I've got to try and get something moving now." Gerard would respond: "I'll try and arrange a meeting with the accountant and we'll try and get something going" On a few occasions Gerard told Bernard that he'd been to Melbourne but there was no outcome. And so, in early 1998, Bernard organised a meeting himself. The meeting was in Berriwillock and was attended by Bernard, Gerard and Clarke. They discussed Bernard's pay and the partnership, and how Gerard's will was well and good but did not help Bernard at the time; Gerard spoke about putting the farm into a trust so that he could retire and go on the pension and Bernard could take it over. In cross-examination, Bernard added that they discussed the possibility of Bernard leasing or buying the farm from Gerard, but he said: "There's no need to do that because it's all left in the will anyway". Clarke's account of this meeting in general corroborated Bernard's evidence: he said it occurred in 1997 or thereabouts; Bernard convened the meeting, seeking more money and more control in running the farm; at the meeting, Clarke suggested that a family trust might achieve this and described its mechanism; the meeting ended after about two hours but no specific action was decided upon. No arrangement was in fact put in place as a result of the meeting.

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Judgment (173 paragraphs)

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Cases Cited (7)