Ross v Elderfield [2006] NSWCA 192 | Case summary

4 AUGUST 2006 LYNETTE ANN ROSS v JOHN JACQUES ELDERFIELD Judgment 1 HANDLEY JA: This is an appeal from the judgment of Sidis DCJ in a case under the Property (Relationships) Act 1984. The parties were in a de facto relationship between February 1995 and March 2002. The Judge found that at the date of trial the plaintiff John Elderfield had net assets of approximately $41,620 which included some superannuation. The defendant Lynette Ross did not provide details of her current assets and liabilities, but she owned a house at Terrigal (the house) where the parties had lived for the last four years of their relationship. At the date of trial this was subject to a mortgage for $370,000. She also had a motor vehicle but there was no evidence of its cost or current value. 2 When the relationship ended the mortgage on the house was only $170,000 but the defendant subsequently borrowed another $200,000, most of which she spent on improvements to the house, including a swimming pool. She did not account for some $90,000 of the amount borrowed and the Judge treated this as a distribution to her in advance of any adjustment of interests. 3 The Judge assessed the net equity in the house at $400,000 immediately before the increased borrowings and improvements. On this basis she adjusted the interests of the parties by awarding $133,000 to the plaintiff leaving the defendant with an equity of $267,000. 4 The defendant's notice of appeal challenged the Judge's fact finding, and her exercise of discretion under s 20 of the Act. In particular she challenged the Judge's findings that the plaintiff had made financial contributions to the acquisition, conservation or improvement of the house, and that his contributions outweighed hers to the extent of supporting a one-third adjustment in his favour. 5 The notice of appeal also asserted that the inheritance received by the defendant from her late husband's estate which she used in part to purchase the house was a "windfall" which was irrelevant to any adjustment of the parties' interests. The appellant claimed that the very substantial increase in the value of the house after its purchase in March 1998 was also irrelevant. 6 Three valuations of the house were in evidence. One, at the date of separation, of $350,000, another in October 2003 of $570,000 and the last in December 2004 of $620,000. The second valuation related to a date immediately before the defendant borrowed the $200,000 and undertook the improvements. The last valuation was of the property after the improvements costing about $90,000 had been completed. 7 Her Honour adopted the valuation as at October 2003. The earlier valuation was out of date and she considered that the later valuation was inappropriate because despite improvements costing $90,000 effected after October 2003 the value of the house had only increased by $50,000. The evidence did not enable her to determine how much of this was due to the improvements and how much to general market forces. 8 The Judge therefore ignored the later valuation, the cost of the improvements, and the increased borrowings. In October 2003 the mortgage debt was $160,000, $10,000 less than when the parties separated. The defendant had funded this reduction from her own resources and her Honour took the debt at the date of separation to calculate the equity as at October 2003 on which she based her orders. 9 Mr Flaherty, for the appellant, criticised her Honour's approach but I see no error. The Court must normally confine itself to the assets of the parties at the end of their relationship rather than at some later date but it is not required to ignore subsequent changes in the value of those assets. See Kardos v Sarbutt [2006] NSWCA 11 paras [30], [31]; Bilous v Mudaliar [2006] NSWCA 38 paras [17], [57]. 10 Her Honour said (para [49]) that counsel for the defendant in his final address abandoned the submission that the appropriate date to value the house was the date of separation. Mr Flaherty denied doing this but the notice of appeal did not contain a specific challenge to her Honour's statement and the transcript of counsel's final addresses was not before the Court. Since there was no consensus at the Bar table the appellant could not establish error. 11 In any event the point about valuation at the date of separation lacked substance. There is no rule of law which required the Judge to adopt the value at that date in deciding, under s 20, what was just and equitable as between these parties. There is also no rule of law which required the Judge to adopt the latest valuation if, on proper grounds, it was not just and equitable to do so: Kardos v Sarbutt (above). 12 There were no children of the relationship, the defendant had no children, and although the plaintiff had three from his earlier marriage he only had limited access. The Judge found that the non-financial contributions made by each of the parties were approximately equal, and this finding was not challenged. 13 The Judge summarised the evidence dealing with the assets of the parties at the end of the relationship and at the trial and the financial contributions which each made during the relationship. It was not suggested that her summary was inaccurate, or subject to one matter, incomplete. 14 She said that neither party had been entirely frank in their evidence and she had to read between the lines and accept some and reject some of the evidence of each party. She also made comments about some of the evidence or the lack of it. In May 1996 the defendant received the proceeds of the sale of the property at Niagara Park she owned with her former husband where the parties first lived together. She said that $9000 had been applied for the benefit of both parties but the plaintiff said it had been used to pay off her previous debts. 15 In July 1997 the defendant sold her motor vehicle for between $8000 and $10,000 and claimed that she applied the proceeds for the benefit of the parties. The plaintiff denied this. The defendant's former husband died that month and she was his sole beneficiary receiving about $150,000 from his estate. Most of this money was used to purchase the house but the Judge found that she had not accounted for $32,595. There was also a dispute about the payments made from these funds to the plaintiff's American Express account which she claimed were for his benefit. The plaintiff said that amounts had been charged to that account for the benefit of the defendant. The accounts were not in evidence but the Judge noted that they had been available to the defendant. 16 In March 1998 the plaintiff received $50,425 under a property settlement with his former wife. The plaintiff detailed expenses paid from this sum and said that he gave $8000 to the defendant for living expenses after they established their business. This left approximately $25,000 unaccounted for. The plaintiff's bank account records disclosed that a sum of $13,949 had been withdrawn to close the account but the plaintiff was not able to say what had happened to those funds. 17 The plaintiff's current assets at the date of trial included $25,809 in a State Minder Investment account the source of which was not explained. On the other hand the Judge noted that the defendant had not fully accounted for the proceeds of her inheritance or, to the extent of $90,000, for the increased borrowings on the house. She also noted that she had not seen a statement of her other assets and liabilities and had no information about them. The Judge said that she had set off the plaintiff's failure to explain the $25,000 held in the State Minder Investment account against the defendant's failure to disclose her other assets. 18 The Judge found (para [58]) that there was no evidence that either party was particularly profligate or that funds were disbursed other than for their mutual benefit. 19 The Judge found that until August 1997 the plaintiff provided the greater financial contribution to the relationship by virtue of his higher income and fringe benefits but that to some extent this greater contribution was offset by monies received by the defendant from the sale of Niagara Park. On the other hand between August 1997 and February 1998 the defendant provided a superior income although the plaintiff used his retrenchment pay and social security benefits for the benefit of both parties. 20 Early in 1998 the plaintiff received his property settlement and the defendant her inheritance. The Judge found that it was likely that most of these funds were applied to the benefit of the parties jointly, namely on their living expenses, the establishment of their business, and the purchase of the house. 21 In March 1998 the parties went into business in partnership trading as Riva Marketing. The business was later conducted by Riva Marketing (Australia) Pty Ltd, a company owned and controlled by the plaintiff. 22 Although both worked in the business the Judge found that the plaintiff did so to a greater extent and that both parties benefited by charging substantial amounts for personal expenses to the business. It operated from a room in the house for which rent was not paid but the Judge rejected an argument that the plaintiff benefited from this to a greater degree than the defendant. 23 The Judge found that the amounts paid by the partnership and the company to the defendant, as a result of their joint efforts in the business, enabled her to maintain payments under the mortgage. She said that it was therefore appropriate that the plaintiff should share in the increased value of the house. 24 The appellant attacked a number of the Judge's findings. These included her finding that the plaintiff provided the greater financial contribution in the period up to August 1997, that his property settlement was applied at all towards the acquisition of the house, and that he contributed to a greater extent to the work of the business. 25 Mr Flaherty referred us to the evidence that during the period up to August 1997 the plaintiff was paying child support at the rate of some $220 per week, evidence of the tax being paid by each of the parties, and the fact that until May 1996 they were living, rent free, in the Niagara Park property owned by the defendant and her husband. During this period the defendant was responsible for the mortgage payments and property expenses, but the amounts were not established. 26 The Judge did not overlook any of this evidence because she referred to it in her reasons. She also referred to the fringe benefits received by the plaintiff in the form of a free company car, and his entertainment and travel benefits, and noted that the plaintiff claimed to have contributed equally to the property expenses at Niagara Park, and the joint living expenses. 27 The Court was referred to evidence about the value of the plaintiff's substantial travel benefits but not to any evidence which quantified the value of his entertainment allowance and company car. It was not submitted that there was no evidence about these matters. In these circumstances the appellant was unable to establish that the finding that the plaintiff made the greater financial contribution during this first period was in error. 28 The appellant did not challenge her Honour's findings for the period from August 1997 until March 1998 while the plaintiff was unemployed. The major challenges were directed to the last period when the parties were living at Terrigal. Mr Flaherty challenged the Judge's finding that it was likely that most of the monies received from the property settlement and the inheritance were applied to the joint benefit of the parties "namely on their living expenses, the establishment of the business and the acquisition of the Terrigal property". 29 The plaintiff frankly conceded that he had made no direct contribution to the acquisition of the house, but this does not invalidate her Honour's composite finding. Evidence that the plaintiff's contribution was not applied for one of those purposes does not establish error. 30 A number of other findings for this period were also challenged. It was submitted that the Judge had overlooked, or not given sufficient weight to the benefits derived by the plaintiff and the company from their rent free occupation of the house. However the Judge referred to both these matters (paras [44], [54], [55], 60(f)). The decision of this Court in Bilous v Mudaliar [2006] NSWCA 38, given since this appeal was heard, establishes that the benefit of rent free occupation enjoyed by one partner in property owned by the other during the relationship should only be taken into account once. As Ipp JA, delivering the principal judgment said (para [122]): "The respondent's provision of the family home was a contribution by her to the partnership, and appropriate weight should be accorded to it. It would be wrong in principle, however, to accord it weight and then to require a notional rental in respect of the appellant's accommodation in the home to be deducted from the value of his contributions. That would be impermissible double counting." 31 Our attention was drawn to the disparity in the cash payments made by the company to the parties which greatly favoured the defendant, and the submission was made that the plaintiff had therefore made no contribution to the acquisition, conservation or improvement of the house for the purposes of s 20(1)(a). These submissions ignore the scheme of that section which permits indirect contributions to be taken into account, and her Honour's finding that the plaintiff made such contributions. 32 The relevant findings were (para [60]) that the plaintiff contributed to the business to a greater degree than the defendant, that the disparity in their remuneration had been agreed between them, that both parties benefited by charging personal expenses to the company (paras [42], [43], 60(d)), and that the benefits obtained by the defendant through the company enabled her to maintain payments on the mortgage between 1998 and 2002 and thus benefit from the increase in the value of the house. The relevance of such considerations was confirmed in Bilous Mudaliar [2006] NSWCA 38 paras [63], [65], [67]. 33 The appellant failed to establish that any of these findings were in error, and we were not taken to any evidence about the quantum of the personal expenses charged to the business. The Judge did not overlook, but referred to, the evidence that the salary earned by the defendant for working 2 or 3 days a week for Harvey World Travel was paid, by arrangement, to the company (para [35]). 34 Mr Flaherty criticised the Judge's finding (para [57]) that the parties pooled their income and drew attention to the fact that they retained separate bank accounts. There is no reason for thinking that her Honour overlooked this evidence, and I take it that she was referring to income pooling on an informal basis whereby joint expenses were met from the available resources of both parties. There was certainly an informal pooling of income from the business. 35 The final factual submission challenged the Judge's conclusion that overall the disparity in the financial contributions of the parties was such as to warrant an order under the Act. An appellant who fails to displace any of the subsidiary findings, and cannot establish legal error, faces a difficult task in challenging a finding such as this. Appellate courts have been reluctant to interfere with findings which apportion relative blame in collision cases and the reasons apply, by analogy, in cases under the Act where the court must weigh the relative financial and non-financial contributions of the parties. In The Macgregor [1943] AC 197, 201 Lord Wright said: "It would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment."

As McLelland CJ in Eq said in Davey v Lee (1990) 13 Fam LR 688, 689 "… the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind". 36 The principal legal challenge propounded by the appellant was based on the windfall nature of the defendant's inheritance from her former husband's estate, and it was submitted, relying on authority, that since the purchase of the house had been funded from this inheritance, the Court should not make any order affecting the defendant's interest in the house. The principle relied on is that established by the judgment of Mahoney JA in Wallace v Stanford (1995) 37 NSWLR 1, 15: "In my opinion, Ms Wallace is not entitled to have, or to have value from, that property merely because Mr Stanford acquired it. The matter may be tested by an example. Assume that a woman has, by a lottery win, acquired $1 million the day before or the day after separation from a de facto relationship: what, if any, account is to be taken of that fact? There is, in such a case, no contribution to that sum by the other party to the relationship … In my opinion, the fact that she has such moneys is not, as such, a ground for making an order which otherwise the Court would not have made. The winnings are a windfall which has no relationship to the exercise of the Court's discretion." 37 Mahoney JA applied these principles to the facts of that case (16): "… Mr Stanford owned the land for some two or three years at the end of the relationship. If there be contributions involved, his was greater than hers. Accordingly, she may have the benefit of the fact that he succeeded to the land only if, contributions apart, the Court may hold it just and equitable that she benefit from it. In my opinion, to transfer to her a substantial benefit from the land would be to benefit her by virtue of a consideration other than that which, under the legislation, has been accepted as relevant." 38 Both passages were quoted with approval by Sheller JA who wrote the principal judgment for this Court in Powell v Supresencia (2003) 30 Fam LR 463, 467, 468. In that case the male partner inherited $4 million three years before the end of a relationship which had lasted 20 years. Sheller JA said (480-1): "Some at least of the appellant's inheritance had been contributed by him to the acquisition of the property of the parties namely, the unit at Park Street, Sydney and the unit at Runaway Bay together valued at $1.2 million. In addition there is jewellery of $250,000 and contents of the two apartments valued at $20,000. Consistent with authority, the Court in approaching the question posed by s 20(1) should treat the appellant as having made a total financial contribution of at least $1.47 million. I exclude the balance of the inheritance …" 39 In that case the Court reduced the award in favour of the female partner from $900,000 to $750,000 which included $134,000 for the value of jewellery she had retained. This adjustment was based on the value of the two units, their contents and certain jewellery. The assets which the Court took into account had been acquired as a result of the inheritance and then committed to the relationship. 40 In Wallace v Stanford Mahoney JA said in the second passage quoted that the respondent was not entitled to an adjustment of interests with respect to the land because "If there be contributions his was greater than hers". In Powell v Supresencia the reduced award made by this Court was based on the woman's substantially greater non-financial contributions and she effectively received half the value of the two units. 41 Wallace v Stanford is distinguishable because of the finding in the present case that the plaintiff made indirect financial contributions to the house after it had been acquired which justified an adjustment. Powell v Supresencia supports the order made in this case because it demonstrates that assets acquired as the result of an inheritance are not necessarily quarantined from the Court's jurisdiction. 42 Two further matters remain for consideration. Mr Flaherty said that the Judge had not given sufficient reasons because she had not explained how she had arrived at one-third as the appropriate proportion of the equity which should be awarded to the plaintiff. The Judge did not explain how she came to derive the actual figure, but courts are not required to do this. In practice trial courts do not do so and when this Court reassesses as it did in Evans v Marmont (1997) 42 NSWLR 70 and Powell v Supresencia (above) it does not do so either. The approach has been that favoured by McLelland CJ in Eq in Davey v Lee (1990) 13 Fam LR 688, 689 approved in Bilous v Mudaliar [2006] NSWCA 38 (para [41]) "… the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind". 43 The remaining question is whether the order in favour of the plaintiff was too generous in any event. 44 The Judge said that the house had been purchased for $230,000 (para [26]) but the price was $235,000. This is the price referred to in the defendant's affidavit (blue 141) and it is confirmed by one of the valuers who sighted sales records (blue 177). The Judge's statement seems to have been a slip. 45 The defendant contributed $85,586 to the purchase (blue 141), which included $10,586 for transaction costs and adjustments on settlement. The balance of $160,000 was borrowed on mortgage. It would be appropriate for present purposes to treat the house as being worth what was paid to acquire it including the transaction costs, and to treat the defendant's initial equity as equal to her contributions. On this basis her equity was or 35%. 46 The Judge said that the defendant "claimed" to have spent $117,698 in all which included items purchased in respect of the house or work undertaken on it (para [26]). She made no findings about this and the items purchased in respect of the house may be left out of account because the defendant retained them. 47 On the findings the plaintiff contributed most of the $50,425 received from his divorce settlement to the relationship, though not to the acquisition of the house. However the defendant also contributed the rest of her inheritance, or most of it, to the relationship in other ways. These contributions more or less balance each other and there is no reason for finding that the plaintiff made an indirect contribution, such as 1:3, to the acquisition of the house. 48 The valuation at $570,000 in October 2003 meant that the equity was then worth $400,000, an increase of $314,414 over the purchase price plus transaction costs. 35% of that increase is $110,044 and this added to the defendant's initial equity of $85,586 valued her direct contribution at that date at $195,630. This calculation produces a residual capital gain of $204,370. 49 Although the evaluation of contributions under s 20 "is not a narrow or purely mathematical process" (Bilous v Mudaliar [2006] NSWCA 38 para [47]) there is no warrant for ignoring the rigour that mathematics can provide. The Judge held that the plaintiff should "share in the rise in value of the property", but this would not appear to support an order which would deprive the defendant of the share of that increase referable to her initial contribution. 50 The Judge found that the plaintiff's greater contributions after the house had been acquired enabled the defendant to benefit from its increased value. These contributions were limited to the mortgage payments, and it would not be just or equitable to deprive the defendant of the capital gain properly referable to her initial contribution. The Judge's conclusion that the plaintiff should receive $133,000 awarded him 65% of the residual capital gain of $204,370. Accepting fully the Judge's findings that the plaintiff made later contributions "to a greater degree" which enabled the defendant to maintain payments on the mortgage, I do not read that and her Honour's other findings as supporting a 65:35 preponderance in his favour. 51 It seems to me that the order below was unduly favourable to the plaintiff and failed to properly reflect the share of the capital gain referable to the defendant's initial contribution. This Court must therefore reassess. There is no reason in this case for ignoring the capital gain which accrued within the 18 months after the relationship came to an end. Although the plaintiff made contributions to a greater degree after the acquisition of the house the preponderance cannot have been great. In my judgment a more appropriate ratio on the findings and the evidence was 55:45. I would therefore substitute for the order made by the Judge an order that the plaintiff receive 55% of the residual capital gain that is $204,370 x namely $112,403. 52 The appellant has succeeded on one point but the appeal, which sought the dismissal of the plaintiff's claim and judgment for the defendant, has substantially failed. I would therefore order the appellant to pay half the respondent's costs of the appeal. 53 An offer of compromise was made by the plaintiff prior to the trial which led the Judge to make an order for indemnity costs in his favour for the period after 26 November 2004. The terms of this offer are not before the Court. If either of the parties wishes to make submissions in support of a different order, the parties will have liberty to do so in writing. The following orders should be made:

Ross v Elderfield

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Judgment (30 paragraphs)

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