12 It is relevant to set out the history of the proceedings before returning to the submissions that were made on 1 August and which resulted in the adjournment of the hearing.
13 The proceedings first came on for hearing before Simpson J on 29 May 2006. On that occasion Mr Bellamy informed her Honour that Mr Rupchev did not press the claim that Ms Callow held her interest in the Normanhurst property on trust for Mr Rupchev. He said this (T 18.37-42):
We are content to proceed upon the basis that Ms Callow's interest is subject to the extent that she must make good to us contributions which we say we have made in terms of mortgage payments, improvements to the property, acquisition expenses and the like.
14 The proceedings were stood over to the following day. Mr Quickenden submitted that the pleading of the second-claim was defective in a number of respects. Paragraphs 1 and 2 were those which asserted that Ms Callow held her interest on trust for Mr Rupchev. These had been abandoned on 29 May. Paragraph 3 of the cross-claim pleaded that Mr Rupchev was entitled to an equitable lien over the Normanhurst property to secure payment to him of an amount equivalent to such share or interest of Ms Callow in the property as was found by the Court to be just. It is to be noted that the particulars of Mr Rupchev's claim recited that since the acquisition of the property the loan repayments had been made solely by Mr Rupchev and that he claimed contribution from Ms Callow for each such payment (paragraph 7).
15 On 30 May Simpson J observed (T 32.20-27):
But isn't it simply this; that the issue between the parties is simply what each is entitled to out to any surplus? And it doesn't matter, equitable lien may very well be an inappropriate way to express what is sought, but if it's properly characterised as to what each is entitled to by reason of what each contributed, then that is a task for an associate judge or even the registrar to look at the detail of the evidence.
16 In the course of the submissions made before Simpson J on 30 May, Mr Quickenden stated (at T 36.33-41):
We concede he's made mortgage payments up until January 2004, we think that amount that he's alleged is correct, but if it is not, it's only a few dollars, the solicitors will work that out. Similarly, the acquisition costs. Our position is we say that means nothing with him having exclusive occupancy of the property and not getting our consent to do anything to it. They are simple issues that will be decided on the legal points, nothing else.
17 Her Honour made an order under s 26 of the Uniform Civil Procedure Act referring the proceedings for mediation.
18 By letter dated 15 November 2006 the solicitors acting for Mr Rupchev served an offer of compromise (exhibit B).
19 By the time the proceedings came on for hearing before me the Normanhurst property had been sold and the balance of the proceeds of sale were being held to the account of the parties by Goldrick Farrell Mullan, solicitors, in a controlled money account. This circumstance alone made it necessary for Mr Rupchev to amend his cross-claim. The amended second cross-claim was served late, however it is to be noted that it articulated Mr Rupchev's claim in the way that it had been squarely put in the oral submissions before Simpson J save that it was more confined. Mr Rupchev no longer made any claim for contribution in relation to the costs of renovations carried out by him on the Normanhurst property.