Roy v Sturgeon [2007] NSWSC 872 | Case summary

3579 of 2005 SUSAN ELIZABETH SALISBURY -v- PHILIP EDWARD CULLEN WAUGH JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 By statement of claim filed on 21 June 2005 Susan Elizabeth Salisbury claims orders adjusting the interests of the parties in property, pursuant to section 20 of the foregoing Act. 3 The Defendant, Philip Edward Cullen Waugh, filed a defence on 29 August 2005, opposing the relief sought by the Plaintiff. 4 It was not in dispute that the parties had lived in a de facto relationship, although the parties were not in agreement as to the date of commencement of the relationship. The Plaintiff asserted that the relationship commenced in 1997, whilst the Defendant asserted that it commenced only in early 1998, at the time when the Plaintiff moved into residence with the Defendant upon his rural estate, Bibilah, at North Star, in the north-west of New South Wales. The relationship ended on 12 June 2004. 5 Two children were born of the relationship, being Wilby Skye Salisbury Waugh (who was born on 15 March 1999 and is presently aged eight) and Isobel Persephone-Jean Salisbury Waugh (who was born on 26 October 2000 and is presently aged six). Those two children resided with their parents until the termination of the relationship, and thereafter have resided with the Plaintiff. The Plaintiff had a daughter born of a former relationship, Sigrid Grace Walsh (who was born on 9 July 1994 and is presently aged 13), who resided with the parties throughout the relationship. 6 The Plaintiff was born on 2 May 1963, and is presently aged 44. She is a qualified nurse and has practised as such throughout various periods. The Plaintiff was married from 1993 until 1997, her daughter Sigrid being born of that union. She and her husband were divorced on 1 May 1997. However, throughout her relationship with the Defendant, the Plaintiff received from Sigrid's father by way of child support for Sigrid amounts of between $1000 and $1700 a month. 7 The Defendant was born on 20 April 1968, and is presently aged 39. The Plaintiff said that their respective parents were friends, and that she and the Defendant had known each other all their lives. 8 By 1997 the Plaintiff and her daughter Sigrid were residing at Goondiwindi, which was her home town, in a house property owned by the Plaintiff's mother, to whom the Plaintiff was paying rent. She was working on a full-time basis, having arranged child care for Sigrid. At that time the Defendant was residing on Bibilah, at North Star, that property being located about 40 kilometres from Goondiwindi. The Defendant conducted Bibilah, which he had inherited from his father, as a farming enterprise. 9 Although by her statement of claim the Plaintiff asserted that the de facto relationship commenced in 1997, it emerged from her evidence that she commenced living with the Defendant only in early 1998, when she moved into residence with him at Bibilah. According to the Plaintiff, before moving into residence with him, she and the Defendant had become engaged, and had even set a date for their wedding, to be held in September 1998. However, subsequently, in the words of the Plaintiff, she and the Defendant "decided to put the wedding on hold". I am satisfied that the de facto relationship between the parties commenced when the Plaintiff moved into residence with the Defendant at Bibilah in early 1998, and not before. 10 According to the Plaintiff, at the commencement of the relationship she owned the following property (to which the following estimations of value were ascribed): Ford Laser motor car $20,000 Shares $108,500 Cash investment in the Salisbury Family Trust $60,000 Term deposit, estimated value $5000 Quantity of household furniture and effects, estimated value $8000 11 According to the Plaintiff, she had received a gift of about $200,000 from her mother when the latter sold a rural property at Goondiwindi in 1989. The Plaintiff said that she used part of that gift for living expenses, and that she and her mother conjointly purchased a house property in Brisbane. She said that she sold that house in 1995 for $275,000, and that after the discharge of a mortgage thereon, she retained an amount of about $160,000. However, that amount is not entirely consistent with the letter from the Commonwealth Bank dated 11 May 1995. (which is annexure B1 to the Plaintiff's affidavit of 21 March 2006). That letter discloses that, after discharge of the mortgage on the house property, the Plaintiff received two sums of money, being an amount of almost $30,000 (which was credited to her account at the Clayfield branch of the Commonwealth Bank) and a further amount of $172,346 (which was credited to another account conducted by the Plaintiff with the Commonwealth Bank). Of the net proceeds of sale the Plaintiff paid $160,000 into the Salisbury Family Trust (an entity which she said was controlled by her mother). The portfolio of shares owned by the Plaintiff at the commencement of the relationship was funded by part of the foregoing amount of $160,000. The remaining balance of $60,000 was then placed as a cash investment in the Salisbury Family Trust. The Plaintiff said that the term deposit in an estimated amount of $5000 represented savings from her employment and savings of dividends and interest from her share portfolio and her cash investment in the Salisbury Family Trust. She said that she used that money (by which I understand her to mean the $5000 in the term deposit) in order to purchase shares in Woolworths in 1999. 12 There was no evidence of the Plaintiff having any liabilities at the commencement of the relationship. 13 During the course of the hearing it was noted that the Defendant did not dispute what was asserted by the Plaintiff in paragraph 40 of her affidavit of 21 March 2006. That paragraph contained a list of the foregoing items of property, and the respective estimations of value ascribed thereto, which were brought by the Plaintiff into the relationship at its commencement. 14 At the commencement of the de facto relationship the assets of the Defendant consisted of Bibilah (which, strictly, was owned by the Defendant's family company, Bibilah Pty Limited) and all plant, equipment, livestock, and other items associated with the grazing and farming business conducted on the property, as well as a listed share portfolio (which he had also inherited from his father and to which he ascribed a value of $241,360), shares in a family company (to which he ascribed a value of $60,000) and furniture and antiques (to which he ascribed a value of $40,000). It was agreed between the parties that at the commencement of the relationship Bibilah had a value of $1,680,000. There was no evidence of the Defendant having any liabilities at the commencement of the relationship. 15 During the course of the relationship between the parties the property Bibilah was sold in November 1999 for $1,680,000. At about that time the Defendant conducted a clearing sale of the property, selling excess farm machinery and equipment and livestock, from which he received a gross return of about $179,000. 16 During the course of the relationship the parties worked together both on Bibilah and, after its sale, on Hanging Rock (another rural estate which the Defendant purchased immediately thereafter). At the time when she moved onto Bibilah the plaintiff resigned from her employment in Goondiwindi and gave up her accommodation in the house owned by her mother in that town. She said that as soon as she moved onto Bibilah she became actively involved in the organic farming business operated by the Defendant on that property. That farming business involved the grazing of cattle, the breeding of pigs and some cropping. 17 According to the Plaintiff, the parties had agreed that during the period whilst they were conducting the farm business on Bibilah each would receive drawings from that business of $30,000 a year, for their respective personal use. 18 According to the Plaintiff, during the period whilst they were on Bibilah she acquired for the residence on that property an air conditioning unit, for the purchase and installation whereof she paid $4000. The Plaintiff said that also during that period she arranged for private health coverage with AXA (now HBA) for the entire family, and that she still makes all payments for that private health cover (for the Defendant, as well as for herself and the three children). The Plaintiff said that throughout the relationship she always paid for all the clothes for herself and the children. Those payments were made from moneys available to her from the Salisbury Family Trust. 19 In December 1999 the parties decided to purchase a rural estate known as Hanging Rock on the Mann River, about 75 kilometres to the west of Grafton, for a total purchase price of $1,560,000 (that price being funded entirely from the proceeds of sale of Bibilah). They removed to that property in February 2000. Hanging Rock was purchased partly in the name of the Defendant alone and partly in the name of Bibilah Pty Limited. 20 The parties were in agreement that at the time of the hearing the value of Hanging Rock was $2,500,000. However, there was no evidence as to the value of that property at the time of the termination of the relationship in June 2004 (some two years before the date of the joint valuation by Damien J. Burley, of Hoolihan Valuations). 21 After purchasing Hanging Rock the Defendant still retained a balance of about $265,000 from the proceeds of the sale of Bibilah and the clearing sale. That sum was used partly to meet the expenses associated with the sale of the one property and the purchase of the other, and the remainder was used mainly as working capital for Hanging Rock, and, in part, for the Defendant's personal use. Among the various items of farm equipment which the Defendant retained from Bibilah was a John Deer tractor, which was later sold for $36,500. 22 Shortly after removing to Hanging Rock in 2000 the parties entered into a farming partnership, under the designation P. E. C Waugh & S. E. Salisbury, in which enterprise they shared equally. They took out a partnership loan with Suncorp Metway for $300,000, in order to purchase livestock and to develop the new property. 23 In August 2001, the parties purchased in their joint names a house property situate at and known as 38-40 Dobie Street, Grafton, ("the Dobie Street property"). The purchase price of $90,000 was funded by $70,000 from the sale of shares owned by the Defendant (which he had previously inherited from his father), an amount of about $10,000 advanced by the Plaintiff, and a further amount of $10,000 from the partnership funds of the parties. According to the Plaintiff, she used her own moneys to purchase various items of furniture furnishings and appliances for the Dobie Street property, expending, upon her recollection, about $4000 for that purpose. 24 It was the intention of the parties that the Plaintiff and the three children should reside in the Dobie Street property during the week, in order to facilitate the schooling and education of the children in Grafton, and that at weekends the entire family should be together at Hanging Rock. 25 In 2002 the parties increased their borrowings from Suncorp Metway to an amount of $600,000. 26 The Plaintiff had contributed the sum of $72,000 to the partnership between the parties. On 10 February 2003 the Defendant transferred to the Plaintiff his interest in the Dobie Street property, it being agreed between the parties that the foregoing amount of $72,000 would be retained by the partnership. 27 It was Plaintiff's evidence that in July 2000 she received the $60,000 which had been held on her behalf in the Salisbury Family Trust, and that in consequence of discussions with the Defendant a joint share portfolio was acquired in the names of the two of them. That amount of $60,000 was used for the acquisition of shares upon that joint account. Subsequently, the Plaintiff's own individual share account was incorporated in the joint share account which the parties had established with Ord Minnett, a firm of stockbrokers. 28 According to the Plaintiff, the defendant subsequently purchased an F250 truck for about $60,000, that purchase being financed by the sale of shares in the joint share portfolio of the parties (some of which, according to the Plaintiff, had previously been owned by the Plaintiff alone). 29 After the Dobie Street property had been transferred to her absolutely, the Plaintiff caused to be performed various renovations and alterations to that property, costing in excess of $162,000. She financed those works by selling shares in her own share portfolio and by borrowing about $46,500 upon the security of the shares which she retained. 30 In October 2003, the parties purchased another rural property, Burrendah, located at 300 Seelands Hall Road, Seelands, on the Clarence River, about 17 kilometres from Grafton. The purchase price of $400,000 was funded by an increase in the partnership borrowings by an amount of $350,000. The balance of $50,000 was met by a further borrowing by the Defendant, who provided his shareholdings as security for that further loan. Burrendah was purchased in the name of the Defendant alone. 31 The parties removed from Hanging Rock to Burrendah in late 2003 or early 2004, and resided there until the termination of the relationship some six months later. When the relationship came to an end the Defendant departed Burrendah, whilst the Plaintiff remained there, with the three children. 32 The parties were in agreement that the present value of Burrendah was $425,000, in accordance with the joint valuation of that property by Mr Burley, of Hoolihan Valuation. However, there was no evidence as to the value of that property at the time of the termination of the relationship (some two years before the date of Mr Burley's valuation). 33 In July 2005, about a year after the de facto relationship between the parties came to an end, the Plaintiff purchased a property at Mylneford for $298,000 (funded by the proceeds of sale of the Dobie Street property, together with a borrowing of $90,000 from the Commonwealth Bank). She and the children then removed to Mylneford from Burrendah. The Plaintiff had sold the Dobie Street property in June-July 2004. From the net proceeds of sale of about $273,480, she paid an outstanding amount of $14,591, which she owed for building renovations to that house property. 34 The partnership P. E. C Waugh & S.E Salisbury terminated on 30 June 2004, shortly after the de facto relationship between the parties came to an end. At that time the partnership was in deficit to an amount of $97,801. The Defendant accepted and met the liabilities of the partnership. 35 Throughout the period of the relationship between the parties, and especially after they removed from Bibilah to Hanging Rock, the rural farming and grazing enterprise conducted conjointly by the parties was one in which each of the parties was personally involved. However, there was considerable dispute concerning the degree of participation by the Plaintiff in those rural and farming activities. According to the Plaintiff, her contributions to the conduct of the farming enterprise were substantial, whilst, according to the Defendant, the Plaintiff's contributions in that regard were minimal. Nevertheless, there was no dispute concerning the substantial and significant contributions made by the Defendant to the farming enterprises. Neither was there any dispute that the Plaintiff made very significant contributions as homemaker and as parent to the two children of the parties and to her own child Sigrid (who was accepted into the household of the parties).

42 In approaching a claim for adjustment of the interests of parties in property pursuant to section 20 (1) of the Property (Relationships) Act, the Court makes a wholistic judgment and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious of exercises). (See Davey v Lee (1990) 13 FamLR 688). In Bilous v Moudaliar [2006] NSWCA 38, Ipp JA said, at [43], that some situations do not lend themselves to either a pure global approach or a pure asset by asset approach in determining what orders should be made. In Kardos v Sarbutt (2006) DFC 95-332 Brereton J (with whom Basten JA and Hunt AJA agreed) said, at 78,544, The legislation does not dictate the employment of any particular method in the formulation of an appropriate order for the adjustment under section 20 of property interests, and it is not desirable to attempt to formulate principles or guidelines designed to constrain judicial discretion within a predetermined framework (cf. Norbis v Norbis (1986) 161 CLR 513 (Wilson and Dawson JJ). Although, in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law (Mason and Deane JJ). 43 It will be appreciated that in the instant case the parties (somewhat unusually in a de facto relationship) entered into a formal partnership arrangement for the conduct of their conjoint farming enterprise. When that partnership came to an end, only about two weeks after the termination of the de facto relationship between the parties, the partnership was in deficit to the extent of $97,801. 44 Under the Partnership Act 1892 the parties are jointly and severally liable for that responsibility (section 9 (1)). However, the Defendant has accepted the totality of the liabilities of the partnership, and has met those liabilities, without looking, or intending to look, to the Plaintiff for an appropriate contribution of one half of that amount. 45 I am in agreement with the submission on behalf of the Defendant that, regarding the joint enterprise of the Plaintiff and the Defendant, he and the Plaintiff "should take the good with the bad", and that, even though the Defendant does not seek contribution from the Plaintiff for the joint liabilities of the partnership, nevertheless, the fact that the Defendant has accepted sole responsibility for those liabilities is a factor which cannot be disregarded in a consideration of the present claim of the Plaintiff (see Browne v Green (1999) 25 FamLR 482 at 494-501). 46 I am satisfied that the contributions of the Plaintiff to the farming activities were considerably less than she asserted them to be. It will be appreciated that throughout the de facto relationship, which obtained for about six and a half years, the Plaintiff for a very considerable part of that time either was pregnant with one or other of the two children born of the relationship, or was carrying out her maternal responsibilities towards three young children, with the consequence that there were severe practical constraints upon the Plaintiff's ability to perform those farming activities. The Plaintiff's contributions to the farming activities were minimal compared to the contributions of the Defendant in that regard. The Defendant not only managed the farming and grazing enterprises, but he also physically performed a very considerable part of the work on the various properties during the course of the relationship. 47 I do not overlook the fact that throughout the periods on Hanging Rock and Burrendah the physical activities of the parties, were, to an extent, alleviated by the presence of what were described in the evidence as "backpackers". These were persons, frequently visitors from overseas, who, in return for accommodation and board upon the rural estate, contributed physical assistance and manual labour. However, at times these backpackers, whose selection and residence upon the property were the responsibility of the Plaintiff as much as of the Defendant and for whom the Plaintiff had to ensure that adequate facilities and meals were provided, had little experience or ability in the conduct of farming activities. In consequence, their presence would appear sometimes to have been more of a hindrance than of a help. 48 Neither do I overlook the fact that for several periods during the relationship the Plaintiff was suffering from physical debilitation (largely as a result of her two pregnancies during that time), as well as mental and emotional problems, which necessitated her spending a period of about one month in hospital in July-August 2002, where she was treated for depression. During that period it was necessary for the Defendant to care for the three children, and to maintain both Hanging Rock and Burrendah, as well as the Dobie Street property. I have already referred to the very significant and substantial contributions of the Plaintiff as homemaker and as mother to the two children of the relationship and to her child Sigrid, who was accepted as a member of the household of herself and the Defendant. 49 It should not be overlooked that at the commencement of the relationship the assets of the Defendant were far greater than those of the Plaintiff, the Defendant owning Bibilah, its furniture and contents and the plant and equipment thereon, as well as the livestock thereon, and also a substantial share portfolio, all of which property he had inherited from his father. (those assets having a value well in excess of $2,000,000). All those items not merely constituted what might be described as the original contribution of the Defendant to the pool of assets of the parties, but the size and value of those assets owned by the Defendant enabled the parties to obtain their very significant borrowings from Suncorp Metway by way of a partnership loan. 50 The Plaintiff, as a consequence of the relationship between herself and the Defendant and the arrangement made between the parties, became the owner of the unencumbered property at Dobie Street, Grafton, to the purchase whereof she had made a direct contribution of $10,000. She subsequently sold that property for $284,000 (receiving net proceeds of $273,480). It should, however, be recognised in this regard that the Plaintiff had expended $162,000 (of her own funds and of her personal borrowings) upon the alterations and renovations to the Dobie Street property. But even if the totality of that expenditure be deducted from the net proceeds of sale (and I query the legitimacy of so doing), the financial benefit to the Plaintiff as a result of her acquisition of the Dobie Street property can be no less than $111,000. (Even if her original direct contribution of $10,000 be taken into account, the financial benefit was still in excess of $100,000.) 51 Evidence was presented concerning the financial and material circumstances of the Plaintiff since the termination of the de facto relationship and until the date of hearing, and concerning her present, and likely future, needs. 52 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission, "Report on De Facto Relationships" quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSW LR 70 at 80-81; Jones v Grech [2001] NSWCA 208 per Ipp A-JA). The discretion vested in the Court by section 20(1) of the Act is to be exercised "having regard to" the contributions of the nature described in paragraphs (a) and (b) of that subsection. It is clearly necessary in this regard to exercise the caution counselled by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454, who said, at 464, The fact that it is not the policy of the Act to elevate the status of a "de facto partner" to that of a party to a marriage, would in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under s 79 of the Family Law Act 1975 (Cth). That caution is, however, reinforced by the fact that there are differences between the language of s 20 of the Act on the one hand, and of s 75(2) and s 79 (4) of the Family Law Act 1975 (Cth) on the other, which differences are, in my view, significant. 53 Powell JA, in Jones v Grech, at 12, quoted the foregoing passage from his earlier judgment in Roy v Sturgeon, and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Cth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 23 per Sheller JA; Evans v Marmont, supra per Gleeson CJ and McLelland CJ in Eq). 54 In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff, and in particular, her present or future needs, should not be taken into consideration. The Court should not be diverted from the clear words of the statute, in exercising its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable". The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. It is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Matheson [2002] NSWCA 350; see also Kardos v Sarbutt, supra, at 78,542 per Brereton J.) 55 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs. 56 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships) Act, to disregard evidence concerning her present, and likely future, needs. 57 The Plaintiff came into the relationship with considerably less in assets than did the Defendant. Similarly, she left the relationship with less in assets than did the Defendant. But she had the benefit of receiving the net proceeds of sale of the Dobie Street property (to the purchase price whereof she had made a contribution of $10,000). Further, the Defendant has chosen not to look to her for any contribution towards the partnership deficit of almost $98,000. Thus, she has achieved a significant financial benefit from the relationship. 58 The financial position of the Plaintiff significantly improved during the course of the relationship. At its commencement her assets had a total estimated value of $201,500. At the termination of the relationship she owned the house property at Dobie Street (having a value of $284,000); a motor vehicle, mower and various items of equine equipment, to which an estimated value of $25,000 was ascribed (although the Land Cruiser motor vehicle appears to have been owned by the partnership); and shares, having an estimated value of $67,000. Thus the assets of the Plaintiff at the termination of the relationship had an estimated value of $376,500 (possibly only $356,000 if the value of the Land Cruiser be deducted ). That was an improvement of $175,000 over the value of her assets six and a half years earlier. In addition, as I have already observed, the Plaintiff has been relieved of a liability of almost $50,000 in respect of the partnership deficit. Upon those calculations, the financial benefit to the Plaintiff as a result of the relationship was well in excess of $200,000. 59 I regard the very significant contributions of the Plaintiff in her capacity as homemaker and parent as being no less than the very significant contributions of the Defendant in his capacity as the primary manager of and labourer upon the farming enterprises conducted on the three rural estates which were owned during the course of the de facto relationship between the parties. Those respective non-financial contributions of the parties I consider to be more or less equal. 60 In my conclusion the respective contributions of the parties should be recognised by the Plaintiff retaining at the end of the relationship the ownership of the Dobie Street property (and subsequently the net proceeds of sale thereof), and the Defendant retaining the ownership of Hanging Rock and Burrendah, and no other orders being made for adjustment for the interests of the parties in property. I have already observed that from the ownership of the Dobie Street property (towards the acquisition whereof the Plaintiff made only a small direct financial contribution) the Plaintiff received a benefit of at least $101,000 (even when the net proceeds of sale of $273,480 are adjusted by a deduction of the totality of her expenditure thereon in an amount of $162,000). Further, the Plaintiff, by the conduct of and the approach adopted by the Defendant, has been relieved of a liability of almost $49,000 in respect to her share of the partnership deficit. It can be said, therefore, that at the termination of the relationship the Plaintiff had received a direct financial benefit of no less than $150,000. 61 When the foregoing direct financial benefits to the Plaintiff, in amounts totalling no less than $150,000 are taken into account, I consider that the contributions of the nature specified in section 20(1) made by the Plaintiff during the six and a half years of the de facto relationship between herself and the Defendant have already been adequately recognised. It follows that the claim of the Plaintiff for adjustment by way of the transfer to her of either additional real estate or the payment to her of money should be refused. In consequence, the claim of the Plaintiff should be dismissed. 62 Nevertheless, if it be desired by the parties that declarations be made to the effect set forth in paragraph 35.1 (i) and (ii) of the defence, that the Plaintiff retain the property currently in her possession and that the Defendant retain the property currently in his possession, I am prepared to make such declarations. It is appropriate, however, that those items of property be identified with some degree of particularity before any such declarations be made. 63 The Plaintiff being unsuccessful, and the Defendant being successful in the proceedings, it follows that the Plaintiff should pay the costs of the Defendant. 64 I make the following orders:

Roy v Sturgeon

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Judgment (14 paragraphs)

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Cases Cited (11)