Saravinovski v Saravinovska

The Mortgage Proceedings

1. The primary judge observed that the way in which Chris ultimately put his case in the Mortgage Proceedings did not reflect the allegations made in his statement of claim filed on 5 April 2012. While senior counsel for George submitted on the first day of the hearing that Chris should be held to his pleading, the primary judge dealt with Chris' case on the basis of his outline of opening submissions. In the circumstances, it is desirable to say something about the pleading and the outline of submissions.
2. The relevant allegations in the statement of claim may be restated as follows:
3. George is the registered proprietor of the Property.
4. On 8 February 1984, Chris and Rada transferred to Bill and George as tenants-in-common in equal shares a property situated in Rockdale (No 22) for the expressed consideration of $110,000.
5. Neither Bill nor George paid any money to Chris and Rada for the consideration of the transfer of No 22.
6. On 12 February 1988, George transferred his moiety in No 22 to Bill for the expressed consideration of $57,500.
7. George did not receive the sum of $57,500.
8. On 5 April 1988, Chris and Rada transferred to George another property in Rockdale (No 14) for the expressed consideration of $120,000.
9. George did not pay any money to Chris and Rada as consideration for the transfer of No 14.
10. In January 1998, George and Bill purchased the Property for the sum of $470,000. 12&13. The consideration for the purchase of the Property was provided, as to the sum of $350,000, by a loan from ANZ and, as to the balance, by Chris.
11. Chris paid for repairs and restoration of the Property.
12. Chris assisted George and Bill in the repayment of the loan from ANZ.
13. In November 1998, George became the registered owner of 10% of the issued share capital of KR & Sons Pty Ltd (KR&S) in respect of which he paid no consideration.
14. In 2003 George and Bill agreed orally to grant to Chris a mortgage over the Property to secure payment to Chris of the sum of $1 million.
15. The consideration for the sum of $1 million included the transfer to George and Bill of No 22 and No 14, the monetary contribution made by Chris to George and Bill in respect of the Property and the transfer or allotment to George of the shares in KR&S.
16. The said sum of $1 million was calculated by Mr Gordon Bryant, solicitor, and disclosed to George and Bill at the time of the agreement referred in para 17.
17. Pursuant to the agreement referred in para 17, George and Bill executed the Mortgage.
18. There was an express term and condition of the Mortgage that the sum of $1 million and interest thereon would be paid to Chris on or before 7 July 2008.
19. It was a further express term and condition of the Mortgage that Bill and George would pay interest on the sum of $1 million at the rate of 8% per annum, reducible to 6% if paid within 14 days of the date due for payment.
20. In September 2009, Bill transferred his interest in the Property to George.
21. On 7 September 2009, George paid the sum of $150,000 to Chris in partial satisfaction of the indebtedness secured by the Mortgage.
22. On 7 September 2009, Bill paid the sum of $50,000 to Chris in partial satisfaction of the indebtedness secured under the Mortgage.
23. The balance of the principal sum secured by the Mortgage has not been repaid.
24. Significantly, there is no allegation in the statement of claim that the benefits alleged to have been provided by Chris to George represented loans or advances or that the sum of $1 million said to be secured by the Mortgage represented the value of the benefits alleged to have been provided by Chris to George. Chris sought to overcome that lack of connection by the way in which the case was opened to the primary judge.
25. The relevant assertions made in the outline of submissions may be restated as follows:
26. Each of the properties and financial benefits provided to Bill and George by Chris was provided on the following terms, as jointly understood and agreed by Chris, George and Bill: (a) the provision of each property and benefit constituted a loan by Chris to George and/or Bill in the amount of: the expressed consideration in the property transfers, the expenses paid on repairs, restoration and mortgage instalments and the value of the shares in KR&S; (b) each of George and Bill was under an obligation to Chris to repay the amounts lent and to pay interest in an amount equal to the interest that would have accumulated had George and Bill borrowed money from commercial sources to pay for the various properties and benefits; and (c) Chris would be entitled to call on the loans at any time and require payment of the full amounts outstanding, including interest.
27. Accordingly, prior to the execution of the Mortgage, each of George and Bill had a loan from Chris that was repayable at call and subject to a floating interest rate reflecting prevailing interest rates offered by commercial lenders from time to time.
28. The precise balance owing under each loan was not identified at any particular time prior to the execution of the Mortgage, although it was at all times ascertainable within a modest degree of tolerance.
29. Through the execution of the Mortgage, the parties clarified and crystallised the precise amount outstanding on the loans made by Chris to Bill and George.
30. George and Bill had outstanding loans from Chris totalling $1 million at the time of execution of the Mortgage.
31. Those contentions were reflected in the closing submissions made on behalf of Chris, which may be restated as follows:

• In February 1984, Chris and Rada transferred No 22 to George and Bill for the expressed consideration of $110,000;
• In February 1988, George transferred his interest in No 22 to Bill for an expressed consideration of $57,500 and in April 1988 Chris and Rada transferred No 14 to George for the expressed consideration of $120,000;
• Neither George nor Bill actually paid any part of the expressed consideration for those transfers.
• Chris provided the following additional financial advantages to George: (a) In 1986 Chris paid for George to travel to Macedonia; (b) In January 1988, Chris paid a sum of $137,000-$139,000 towards the purchase of the Property in the name of George and Bill; (c) Following the purchase of the Property, Chris paid for extensive repairs and restoration of the Property; (d) Following the purchase of the Property, Chris assisted in the payment of mortgage instalments to ANZ in respect of the balance of the purchase price lent by ANZ on the security of a mortgage for the Property; (e) In September 1995, Chris caused George to become the registered owner of 100 shares in KR&S without receiving any payment from George.
• Chris also provided a number of additional financial benefits to George, including repairs to No 22, mortgage repayments on No 22 as well as living, rent and board free, in Chris' homes.
• Each of the benefits referred to above was provided on the following terms, as jointly understood and agreed by Chris, George and Bill: (a) the provision of each benefit constituted a loan by Chris to George or Bill, as the case may be, in the amount of: (i) the expressed consideration in respect of the property transfers; (ii) the expenses paid in respect of travel, repairs, deposit paid on the Property and mortgage instalments; (iii) the value of the shares in KR&S. (b) George and Bill were under an obligation to Chris to: (i) repay the amounts lent to them; (ii) pay interest in an amount equal to the interest that would have accumulated had George and Bill borrowed money from commercial sources to pay for the various properties and benefits. (c) Chris was at all times entitled to call for and require repayment, including interest.

1. The primary judge considered that, notwithstanding the pleading point taken at the outset of the hearing, the hearing was conducted on the basis of the allegations made in the outline of submissions. His Honour considered that he was required to adjudicate upon the case that the parties argued and that, by acquiescing in the case in that fashion, the objection taken on the first day by counsel for George ultimately had no practical effect.
2. At the outset, the primary judge said that he would not accept the evidence of Chris, George or Bill unless it was corroborated by independent sources, inherently credible or otherwise against interest. Proceeding on that basis, his Honour concluded that the evidence had failed to satisfy him that the Mortgage gave Chris any rights against George or over the Property. His Honour accepted George's submission that the Mortgage, whether it be legally effective or ineffective, was conceived by Chris as a protective measure against the possibility of Bill's marriage to his wife, Valentina Josifova (Valentina), ending in divorce and was only intended to be deployed against a departing wife. Significantly, his Honour did not conclude that the Mortgage was a sham.
3. The primary judge considered that, in so far as the case advanced by Chris was an action on the Mortgage simpliciter, Chris had failed to prove payment of the secured sum of $1 million. Indeed, it was common ground that George and Bill had not in fact received a payment of $1 million in consideration for which they had granted the Mortgage. Rather, the way in which the case was ultimately argued on behalf of Chris depended upon a finding by the Court that there was some other agreement in relation to the Mortgage or of which the Mortgage was a part. His Honour held that Chris had failed to make good any such agreement.
4. The primary judge concluded that Chris had failed to prove that George and Bill agreed to grant a mortgage to secure payment of a sum of $1 million and had failed to prove the allegation that the consideration for that sum included the transfers of properties and other benefits referred to in the statement of claim. His Honour observed that Chris bore the onus of proving those allegations. His Honour concluded that there was no evidence from either Chris, George or Bill that the Court would accept to prove those allegations and that there was no admission against interest by George upon which the Court could rely. In addition, by reason of the failure by Chris to call Mr Bryant, who was closely involved in the relevant events, to give evidence, the primary judge drew the inference that Mr Bryant could not have said anything to assist Chris' case in relation to the Mortgage. [1] His Honour considered that there was no credible evidence on which the Court could be satisfied, on the balance of probabilities, that the various agreements and understandings in relation to the so called transfers and benefits existed.
5. The primary judge was further fortified in his conclusion by what he characterised as the inherent probabilities in the evidence given by Chris. His Honour considered that Chris' affidavit evidence relating to the transfers of No 22 and No 14, where he said that he was giving those properties to Bill and George to "give them a start", was inconsistent with the imposition of obligations or the existence of understandings of the kind alleged by Chris.

The Mortgage Appeal

1. The notice of appeal in the Mortgage Appeal identifies several grounds. Chris complains that the primary judge erred as follows:
2. in holding that no monies had in fact been lent by Chris to George and Bill in relation to which the Mortgage was executed.
3. in holding that Chris' evidence in relation to No 14 and No 22 was equally consistent with the proposition that the properties transferred to George were not gifts but gave rise to financial obligations owed to Chris in respect of the value of the properties transferred and that George could use the properties as a financial start in life.
4. in holding that the omissions from the Mortgage were inconsistent with the finding that the parties had an agreement to be bound by it.
5. in holding that the obvious inference from the fact that the Mortgage was not referred to in Mr Bryant's letter of 9 October 2007 was that everyone had forgotten about it or they understood it was not binding inter se but was only to be deployed against a departing spouse.
6. in holding that the supposed failure by Chris to mention the forgiveness of any outstanding debts in the conversation recorded while he was in hospital supported the conclusion that the Mortgage was not intended to be binding.
7. in holding that an inference [2] could be drawn against Chris by reason of his unexplained failure to call Mr Bryant in relation to the issues about the calculation of the amount secured by the Mortgage, consideration for the Mortgage and the transaction generally.
8. in accepting George's submission that the Mortgage was conceived by Chris as a protective measure against the possibility of Bill's marriage to Valentina ending in divorce and was only intended to be deployed against a departing wife. Chris contends that the primary judge should have held that the Mortgage was legally valid and enforceable and was intended to, and did, in fact, secure the sum of $1 million plus interest, such that, as at the date of judgment, the Mortgage secured the sum of $800,000 and George was indebted to Chris in the sum of $800,000.
9. The grounds stated in the notice of appeal included reasons in support of them. For the purposes of the Mortgage Appeal, senior counsel appearing for Chris identified five broad categories of matters in issue. That categorisation was accepted by counsel for George.
10. Those categories may be summarised as follows: (a) the property and money that Chris gave to George and Bill, which is said to give rise to the indebtedness secured by the Mortgage; (b) the evidence of Chris, George, Bill and Louie in relation to the circumstances in which such property and money was transferred to George and Bill by Chris; (c) additional evidence and matters proving the existence of indebtedness secured by the Mortgage; (d) the finding by the primary judge that the Mortgage was conceived by Chris as a protective measure against the possibility of Bill's marriage ending in divorce, with the Mortgage to be deployed only against an outgoing spouse; (e) the primary judge's reliance and findings in relation to the conversation with Chris in hospital in March in 2010 and the inference drawn by the primary judge against Chris for his failure to adduce evidence from Mr Bryant in relation to the calculation of the figure stated in the Mortgage of the principal sum and the circumstances in which the Mortgage was executed. The first three are interconnected in so far as they each relate to the question of whether George had any indebtedness to Chris that could have been secured by the Mortgage. For Chris to succeed in the appeal, it is necessary for him to demonstrate that the primary judge erred in concluding that no obligations were secured by the Mortgage.

The Property and Money Transferred by Chris to George and Bill

1. There were four transactions said to give rise to the indebtedness that was expressed to be secured by the Mortgage. There was no dispute about the transactions, each of which conferred benefits on George, and in some cases on Bill. Nevertheless, the primary judge concluded that the conferring of those benefits did not give rise to any liability on the part of George.
2. In 1984, Chris and Rada transferred No 22 to George and Bill for the stated consideration of $110,000. Both Chris and Bill denied that any money had been paid to Chris in respect of No 22. His Honour was unable to conclude that any consideration had in fact been paid to Chris. At the same time, George and Bill mortgaged No 22 to the Commonwealth Bank of Australia (the CBA) to secure an advance of $56,000. In February 1988, George transferred his interest in No 22 to Bill for a stated consideration of $57,500. George accepts that he was not paid that sum by Bill. In March 1988, Bill mortgaged No 22 to the Commonwealth Savings Bank of Australia to secure an advance of $70,000. It is not clear whether that was an additional advance or to replace the advance secured by the mortgage given to CBA in February 1984.
3. In April 1988, Chris and Rada transferred No 14 to George for a stated consideration of $120,000. The primary judge found that that sum had not been paid by George to Chris or Rada. That was the effect of Chris' evidence and George admitted that he did not pay that amount.
4. In September 1995, when KR&S was incorporated, 100 shares, being 10% of the issued capital, were issued to George. George provided no consideration for the issue of those shares, although it appears to have been accepted that KR&S received the monies on allotment of the shares, presumably from Chris. Bill and Louie also each received 100 shares in the capital of KR&S, for which they paid nothing, although each of them subsequently transferred their shares to Chris. In December 1995, KR&S purchased shop premises at Rockdale (No 509). The primary judge found that George contributed nothing towards the purchase price of No 509 or the repayment of loans secured by mortgage over No 509.
5. Finally, in January 1998, Chris paid $120,000 towards the purchase of the Property. The Property was registered in the names of George and Bill as tenants-in-common in equal shares.
6. Chris contends that as at 7 July 2003, when the Mortgage was executed, as a consequence of the transactions referred to above, George and Bill had each received property and money from Chris having a notional value in excess of $350,000. In addition, they had paid no interest on that sum from the time when the benefits were conferred up to the time of the execution of the Mortgage. Chris contends that the addition of notional interest to the value of the benefits conferred would support a conclusion that, as at 7 July 2003, Bill and George together had received benefits in excess of $1 million.
7. It was not contended on behalf of George that the benefits conferred by Chris were the subject of a presumption of advancement by Chris in favour of his sons, Bill and George. Critically, however, there was no express evidence accepted by the primary judge of any agreement on the part of George (or Bill) to pay to Chris at any time an amount equal to the value of the benefits conferred in relation to the four transactions outlined above. It was not suggested in the proceedings that the transactions gave rise to a resulting trust in favour of Chris or Chris and Rada. Such a contention would have been inconsistent with the assertion made by Chris in the Mortgage proceedings that George was under a liability to him to pay the sum of $1 million referred to as the principal sum in the Mortgage. The Evidence of Chris, Bill and George Concerning the Benefits Conferred by Chris Bill gave evidence that, in respect of the transfer to him of No 22, the allotment of a 10% shareholding in KR&S and the contribution of money towards the purchase price for the Property, Chris told him on each occasion that he and George would need to repay Chris the value of the benefit conferred. Bill's evidence was that Chris said to him, as well as to George and Louie, that each would need to pay Chris for the shares in KR&S or otherwise return them to him. That evidence was corroborated by Louie. Chris gave evidence that he told each of his sons that they would need to pay him within two years of receiving the shares or return them to him. Consistent with that evidence, both Louie and Bill transferred their shares in KR&S to Chris, Louie in December 1996 and Bill in November 1998.
8. Chris complains that the primary judge erred in holding that his evidence, that he was giving No 14 and No 22 to his sons to give them a start, was inconsistent with the imposition of obligations or the existence of the understandings of the kind alleged by Chris. He contends that his evidence was more consistent with the proposition that the benefits conferred were not gifts to Bill and George but gave rise to financial obligations in respect of the value of the benefits and that George and Bill could use the properties, and the rent derived from them, as a financial start in life. Thus, it was contended, Chris knew that Bill and George could not afford to buy No 22 but that he hoped they could earn some rent from it and hopefully go on to acquire other properties, which George admitted Chris said to him prior to the transfer of No 22.
9. Chris points to the evidence given by George that Chris repeatedly said to him, as well as to his brothers, that "anything that's concerning you, you have to pay for it". George gave evidence that Chris told him that there is "no such thing as a free anything. You have to pay for it." Chris contends that the primary judge erred in holding that that evidence was too vague and general to be used to conclude that there existed an obligation on behalf of George to repay to Chris the value of the benefits conferred upon him. Chris asserts that it was a crucial admission by George that the benefits conferred upon him by Chris were not gifts. The vagueness, generality and lack of formality, Chris says, could be explained by the familial nature of the relationship between Chris, on the one hand, and George and Bill on the other. The primary judge rejected George's contention that he had contributed financially to each of the benefits conferred by Chris by reason of Chris receiving all of his income, such that Chris had been paid for the benefit. By rejecting that contention, as to why he was not obliged to pay Chris for any of the benefits conferred upon him, Chris contends that his case was made out in circumstances where George admitted that the benefits provided to him by his father had to be paid for. Therefore, Chris contends, on each occasion when a benefit was conferred on George and Bill, it was conferred on condition that George and Bill would be liable to pay to Chris the value of the benefit. Accordingly, it was said, the inference should be drawn that Chris, on the one hand, and George and Bill on the other, had agreed, prior to signing the Mortgage, that the sum of $1 million represented a fair value of the benefits that had been conferred and, therefore, that amount of indebtedness was acknowledged in the Mortgage.
10. As I have said, the primary judge made unfavourable credit findings in relation to each of Chris and Bill, as well as George. His Honour declined to accept their evidence unless it was corroborated or against interest. However, Chris contended that Bill's evidence in respect of the circumstances in which Chris transferred benefits to George and Bill was against his own financial interests. He argued that Bill's evidence was to admit to a substantial liability to Chris for the benefits received. If that indebtedness was repaid entirely by George, Bill would be exposed to a potential action by George for contribution. Therefore, Chris asserted, his Honour should have accepted that such evidence fell within the exception made by his Honour that the evidence was "otherwise against interest".
11. However, when the primary judge said that he would only accept evidence given by certain witnesses when it was "against interest", his Honour must be understood as indicating that the witness in question was conscious of giving evidence against interest. I do not consider that the evidence supports a conclusion that Bill knowingly gave evidence that would have the consequence that he may be liable in an action for contribution brought by George if George paid the full amount of their joint indebtedness.

Other Evidence of George's Indebtedness

1. In support of the inference sought to be drawn that each of the benefits conferred upon his sons gave rise to financial obligations on their part, Chris relies upon the express terms of the Mortgage and correspondence from Mr Bryant in relation to the proposal for George to purchase Bill's interest in the Property. Putting aside the oral evidence of the witnesses, which the primary judge did not accept, the only explicit evidence of any indebtedness of George to Chris appears in the Mortgage itself. However, there is other documentary material that the parties rely on as being indicative of the existence or non-existence of indebtedness.
2. In May 2003, Mr Bryant wrote to Chris concerning mortgages over No 22 and over the Property. Mr Bryant said that he was then holding two mortgages, one for $1 million over the Property and the other for $600,000 over No 22 and that the stamp duty on the mortgage of the Property was $3,941 and the stamp duty on the mortgage of No 22 was $2,341. Mr Bryant asked for Chris' instructions as to whether he wanted him to arrange stamping of the mortgages. Mr Bryant said that, as he had indicated, the mortgages would need to be stamped "if they are to be used in any Court proceedings in the future". There was no objective evidence as to what specific "court proceedings", if any, might have been in mind as at May 2003. As indicated below, Chris contends that, even if court proceedings involving Valentina had been under consideration, that would not support the conclusion, without any other evidence, that it was only in relation to proceedings brought by Valentina that the mortgages would be "used".
3. The Mortgage was executed by Bill and George, as "Mortgagor". Chris was named as "Mortgagee" and the Mortgage contained a provision indicating that it was to be signed by Mr Bryant as Chris' solicitor. However, Mr Bryant did not sign it in that capacity and the Mortgage was not signed by Chris or on his behalf. However, Mr Bryant did sign the Mortgage in the capacity of witness to the signatures of each of Bill and George. In relation to the mortgage of No 22, Bill was named as "Mortgagor" and Chris was named as "Mortgagee". The document was signed by Bill and by Mr Bryant as witness. However, the document was not signed on behalf of Chris. Although the form provided for Mr Bryant to sign on behalf of Chris' as his solicitor, he did not sign in that capacity.
4. Both mortgages consisted of three pages. The first page is the prescribed form, whereby the Mortgagor mortgages to the Mortgagee the Mortgagor's interest in the relevant land and covenants with the Mortgagee that the provisions set out in annexure A and memorandum No Q860000 are incorporated in the mortgage. The typed form of annexure A to each mortgage was the same, except for the heading and the preamble. Curiously, the form of annexure A states that it is an annexure to a mortgage from Chris to Bill and George or from Chris to Bill, as the case may be, suggesting that Chris was the mortgagor. That appears to be no more than sloppy drafting.
5. The operative provision of annexure A to the Mortgage is of some significance. Annexure A, provides, in part, as follows: The Mortgagor hereby acknowledges receipt of the principal sum of One Million Dollars ($1,000,000,000) and in consideration thereof hereby: (a) irrevocably appoints the Mortgagee the attorney of the Mortgagor … (b) Covenants with the Mortgagee as follows:- Firstly - The Mortgagor will pay to the Mortgagee the principal sum, or so much thereof as shall remain unpaid, on the 7th day of July 2008 Secondly - The Mortgagor will pay interest on the principal sum … Thirdly - The Mortgagor will observe the provisions set forth in [Memorandum No Q860000], which provisions are deemed to be incorporated herein. Fourthly - The Mortgagor shall have the right to repay the whole of the principal sum on any quarter date for payment of interest with interest to that date conditional upon giving to the Mortgagee not less than three months' prior notice in writing of his intention to do so. The date was inserted in handwriting. The omitted parts of annexure A contained blank spaces that were not filled in.
6. On 11 September 2003, Mr Bryant wrote to Chris, Bill and George in relation to the mortgages over the Property and over No 22. Mr Bryant confirmed that he had completed the stamping procedures for the two mortgages. In relation to No 22, he said that duty was paid to secure a refinancing in the sum of $600,000 after allowing for the earlier mortgage of $250,000, which the mortgage superseded. He said that the mortgage over the Property was stamped at a value of $1 million. Copies of the stamped mortgages were enclosed with the letter. Mr Bryant said that the originals of the mortgages had been placed in a safe custody packet pending receipt of further instructions.
7. Mr Bryant then said in his letter that the mortgages could be registered on the title of both properties, if the parties wished. However, he said, that would require the consent of the current mortgagees and it would be necessary to give further instructions if the parties wished to take that step. However, Mr Bryant said, the mortgages were valid as far as "any court proceedings" are concerned and would be treated as evidence of the legitimacy "of the loan", should that ever become necessary. Whether any specific "court proceedings" were in mind is a matter for conjecture. As indicated below, George contends that the only proceedings that were in mind were possible proceedings by Bill's wife and that there was no intention that the mortgages would be relied upon for any purpose other than in resisting a claim by Bill's wife.
8. On 9 November 2007, Mr Bryant wrote to Bill concerning a proposed transfer of title to the Property. Mr Bryant said that he had been consulted by Chris regarding a proposal for a transfer of title to the Property and that he understood that there had been some discussions involving Bill, George and Chris regarding the transfer. Mr Bryant said that Chris had told him that the proposal was for George to buy Bill's half share in the Property, which was currently owned by both of them equally.
9. Mr Bryant said in the letter of 9 November 2007 that the proposal in detail was as follows: 1. There is a current valuation for the property which indicates a figure for stamp duty purposes in the sum of $650,000.00. 2. Mr Saravinovski believes that the market value of the property would be in the order of $750,000.00; 3. The suggestion is that George pay to your father the sum of $200,000.00 reduction of the various loans that he has made to both of you in respect of this property and other properties; 4. George would pay you a balance of $275,000.00 which represents your half share in the equity of the property once Mr Saravinovski's loan has been reduced by $200,000.00. Mr Bryant then went on to say that, if Bill agreed with the proposal, he would prepare the necessary transfer from Bill to George, with George arranging payment of stamp duty for the value of the share being transferred, which would be shown as $325,000. Mr Bryant said that he assumed that George would obtain bank finance to proceed with the purchase from Bill. Mr Bryant asked Bill to confirm his agreement with the above.
10. For reasons that are not entirely clear, the proposal outlined in Mr Bryant's letter of 9 November 2007 was not effected immediately. On 11 September 2009, Mr Bryant wrote again to George, Bill and Chris confirming that the transfer of title to the Property "was settled with your bank" on 25 August 2009. Mr Bryant said that he attended on settlement with ANZ, which advanced a total of $374,104 "by way of first mortgage" over the Property. Mr Bryant said that the balance of funds "was paid in by you to make the payments as instructed by you".
11. Mr Bryant said that the transfer would be registered by the bank, together with its mortgage documents. He noted also that the payments had now been made to Bill and Chris in accordance "with your instructions as to the sums payable pursuant to your arrangement". That appears to be a reference to the arrangements set out in the letter of 9 November 2007.

Conclusion as to the Mortgage Appeal

1. The basis upon which Chris puts his case in relation to the Mortgage is somewhat fluid. I have set out above the allegations made in the statement of claim in support of the case. The parties agreed on a list of issues to be determined at the trial. In relation to Chris' claim under the Mortgage, the issues were stated as follows:

• Were there any loans made by Chris to Bill and George secured by the Mortgage?
• In relation to the Mortgage, was there an intention to create a legal relationship, was there any consideration and is the Mortgage otherwise valid?
• If the answer to those questions is yes, what sum is secured by the Mortgage?

1. In support of his contentions, the closing written submissions made on behalf of Chris relied on evidence given by Chris, George, Bill and Louie. As indicated above, the primary judge rejected all of that evidence on the basis that he would not accept any evidence given by those witnesses unless corroborated by independent evidence. The evidence of conversations relied on was not corroborated.
2. In addition, Chris submitted that he relied on the following:

• The reference in Mr Bryant's letter of 9 November 2007 to the proposed payments being made "in reduction of the various loans that he has made [to George and Bill] in respect of [the Property] and other properties";
• The fact that, in August 2009, $200,000 of the principal sum secured by the Mortgage was in fact repaid by George and Bill;
• George's assertion in his defence that the payment made in August 2009 "extinguished any liability" of George to Chris;
• Chris' reference in the recorded conversation in hospital that he would not ask George for the money if George and Maria looked after him and he would not ask any interest of George, thereby indicating that monies had been lent by Chris to George in the past and that Chris had asked for George to pay interest in respect of the money lent.

1. In the course of oral argument, senior counsel for Chris accepted that it was necessary for the Court to draw an inference from the evidence, other than the oral evidence of the Saravinovski witnesses, that agreements were entered into between Chris, on the one hand, and, relevantly, George, on the other; that, in consideration of the relevant benefit being given, George would receive the value of that benefit as a loan by Chris, which would be repayable on demand; and that George would, on demand, pay interest on that sum at commercial rates. Chris relies on the documentary evidence summarised above as giving rise to that inference or those inferences.
2. As the primary judge held, George's amended defence put in issue the whole question of consideration for the grant of the Mortgage. That is to say, George denied that there was any liability on his part to pay the sum of $1 million referred to as the principal sum in annexure A to the Mortgage. His Honour observed that Chris' case depended upon the Court finding some agreement in relation to the Mortgage, or of which the Mortgage was part, and that Chris failed to make good any such agreement.
3. Clearly, in the circumstances, Chris had the onus of demonstrating, on the balance of probabilities, that an agreement of some sort, being either the agreement pleaded or the agreement relied upon in submissions, was made between Chris, on the one hand, and George, on the other. The primary judge was not persuaded to the relevant standard that such an agreement had been made. There was no error in reaching that conclusion. The objective evidence now relied upon by Chris is not capable of supporting a finding of an agreement in the terms relied upon or any other terms such as would constitute consideration for an acknowledgment that George and Bill had received the principal sum of $1 million referred to in Annexure A to the Mortgage in circumstances that would give rise to indebtedness at law. That is the primary conclusion reached by the primary judge. There was no error in doing so. It follows that the mortgage appeal must be dismissed with costs.

The Mortgage as a Defence against Marital Claims

1. In the light of the conclusion reached above it is not necessary to deal with the other grounds of appeal. Nevertheless, it is desirable to say something about one aspect of George's defence, which was accepted by his Honour, namely, that the Mortgage was no more than a device to resist any claim by Bill's wife against any property in which Bill had an interest.
2. In 1992, Bill married his first wife, Marina Simonovska (Marina), in Macedonia. In September 1992, after the marriage, Bill executed a mortgage over No 22 in favour of Chris, expressed to secure the sum of $250,000. It is unclear whether any advance of that sum was made by Chris to Bill at that time. In mid-1993, Bill separated from Marina.
3. KR&S was incorporated in September 1995 with Chris, George, Bill and Louie as its inaugural directors. As I have said, the 1000 issued shares in its capital were held as to 700 by Chris, and 100 by each of George, Bill and Louie. In December 1996 Louie ceased to be a shareholder and transferred his 100 shares to Chris. Louie ceased to be a director in April 1997. In November 1998, Bill ceased to be a shareholder and transferred his shares to Chris.
4. At some time prior to July 2002, Bill entered into a relationship with Valentina. On 24 June 2002, Mr Bryant wrote to Bill in relation to a "proposed pre-nuptial agreement". In the letter, Mr Bryant said that a title search in respect of No 22 indicated that a mortgage to Chris and Rada was still on the title. Mr Bryant said that he had thought that the CBA was to discharge the mortgage but it was still in place. Mr Bryant also said in the letter that the Property was held by Bill with George in equal shares as tenants in common and that there was a mortgage to ANZ on that title.
5. On 19 July 2002, Bill sent an email to Mr Bryant saying that he had spoken to Valentina who would be prepared to sign any documents to state that she has no interest in No 22, the property or any assets owned by KR&S. Bill said that Valentina acknowledged that she had not contributed to any of those properties and did not have any rights to them in the future.
6. On 24 July 2002, Valentina signed a single page document by which she accepted that she had not contributed to and had no claims over No 22 or the Property and that she had no claims against the assets or shares of KR&S. She said that Bill had those assets prior to their relationship and had paid all her living expenses.
7. On 26 July 2002, Mr Bryant wrote to Bill concerning instructions regarding an agreement with Valentina, describing her as Bill's "current partner". Mr Bryant prepared a document described as a "deed of acknowledgement", which recited that Bill and Valentina had commenced living together in June 2002 and were intending to marry, that Bill was the owner or had an interest in No 22, the Property and shares in KR&S and that Valentina acknowledged that she had made no contribution to the acquisition of or improvement to any of those items. The reference to shares in KR&S is curious, since Bill had transferred his shares to Chris in 1998. On the other hand, Bill continued to be a director of KR&S until November 2002. By the proposed deed, Valentina acknowledged that she had made no contribution to the acquisition of the items in question and had made no contribution to the improvement of any of those items. However, the parties acknowledged that the deed would not affect the rights of either party in respect of assets acquired by either of them following the execution of the deed.
8. In his letter, Mr Bryant confirmed his advice that the deed would not constitute a pre-nuptial agreement and that to obtain a complete waiver of Valentina's rights under the Family Law Act 1975 (Cth) (Family Law Act), the agreement would need to be certified by an independent solicitor regarding the future arrangements for any division of property. The letter said that, once Bill and Valentina were married and had children, it would be extremely difficult to rely on an agreement preventing Valentina from making a claim under the Family Law Act. The letter went on to say that it would be of some advantage to Bill to have Valentina sign the deed, although it would not operate as complete protection either in relation to the de facto relationship aspect of the situation or under the Family Law Act. Mr Bryant noted that Bill was to take the deed and have Valentina sign it with an independent witness, preferably a solicitor. It is unclear whether the deed was actually executed by Bill or Valentina.
9. In any event, Bill and Valentina were married in the second half of 2002, apparently at around the time when Bill ceased to be a director of KR&S. Whether there was any connection between Bill's marriage to Valentina and his resignation from KR&S is not entirely clear.
10. George contended, and the primary judge accepted, that an inference could be drawn from the materials outlined above that the only purpose of the Mortgage and the other documents was to frustrate a claim by Bill's wife in proceedings under the Family Law Act to be entitled to an interest in any of the properties in which Bill appeared to have an interest. However, even if the motivation for the documentation, including the Mortgage, was to frustrate a claim by Bill's spouse, it does not follow that there was any agreement or understanding that the Mortgage and other documents would not be relied on for any purpose other than defending a claim by a spouse of Bill's. There was no finding that the Mortgage was a sham. Were it relevant, I do not consider that the evidence supports a finding that there was an agreement or understanding such as was alleged by George. He failed to discharge the onus of establishing such an agreement or understanding.

The Property Proceedings

1. Section 20(1) of the Property Act relevantly provides that on an application by a party to a domestic relationship for an order under Pt 3 of the Property Act, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable, having regard to: 1. the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties, or either of them, or to the financial resources of the parties or either of them, and 2. the contributions made by either of the parties to the relationship, including any contributions in the capacity of homemaker, to the welfare of the other party or to the welfare of the family constituted by the parties.
2. Under s 5 of the Property Act, a domestic relationship includes a close personal relationship, other than a marriage or a de facto relationship, between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. However, under s 5(2)(a), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care for fee or reward. Under s 3, property, in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest in real or personal property, and money, and any debt, and any cause of action for damages and any other chose of action and any right with respect of property.
3. Section 14 of the Property Act provides that a party to a domestic relationship may apply to, relevantly, the Supreme Court for an order under Pt 3 for the adjustment of interests with respect to the property of the parties to the relationship. Under s 15, the Court must not make an order under Pt 3 unless it is satisfied that the parties to the application were, or either of them was, resident within New South Wales on the day on which the application was made and that both parties were resident within New South Wales for a substantial period of their domestic relationship. Section 17 relevantly provides that the Court must not make an order under Pt 3 unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than two years. Under s 18, if a domestic relationship has ceased, an application for an order under Pt 3 can only be made within the period of two years after the date on which the relationship ceased. It was common ground that the prerequisites of ss 15, 17 and 18 were satisfied in relation to Maria's claim under s 20 of the Property Act.
4. In her further amended statement of claim, filed on 17 April 2015, Maria claimed orders under the Property Act and, in the alternative, a declaration that Chris is estopped from denying that Maria has an interest in his house and a declaration that she has an interest in such proportion or in such monetary sum as is just and equitable. The estoppel claim was based on alleged representations made by Chris on a number of occasions prior to Maria's marriage to George in 1986. The primary judge concluded that Maria's estoppel case failed because she had not made out the fundamental representation upon which she claimed to have relied. His Honour also concluded that the representation was not sufficiently clear and unequivocal to support an estoppel claim. Maria has not filed a notice of contention seeking to support the judgment of the primary judge on the basis that those conclusions were erroneous. Thus, the only question in the Property Appeal is the correctness of his Honour's conclusion in relation to Maria's claim under the Property Act.
5. The allegations made in Maria's statement of claim in support of the claim under the Property Act may be restated as follows:
6. In 1986, Maria married George in Macedonia and migrated to Australia.
7. At that time, Maria did not speak or understand English and had no substantial assets.
8. From the time of Maria's arrival in Australia, she resided in houses registered in the name of Chris, initially at a property in Rockdale (No 45), and from 1997 at No 5 . 9&10. From 1986 to 2 December 2009, Maria and Chris were in a domestic relationship for the purposes of s 20 of the Property Act and Maria was the principal homemaker at Chris' homes and attended to all domestic chores for Chris, Rada until her death, George and other members of Chris' household.
9. On many occasions, Chris denied Maria the opportunity to engage in any paid work or study, demanded that she remain at home and stay in the role of homemaker in the family homes.
10. Chris stopped Maria from studying outside the home including from studying English.
11. From the time of Maria's arrival and until Rada's death in 1993, Maria was the unpaid, full time carer for Rada.
12. After 1986, Rada's health required procedures that Maria performed for her at home after she was shown the procedure by a qualified nurse.
13. In January 1993, Bill married Marina and they lived in the family home until Marina left in June 1993; Maria continued to look after Bill in the family home until he left the family home in 2005.
14. Louie left the family home in 1997.
15. By 1997, Chris had constructed No 5 as a new family home and, throughout the construction, Maria assisted in such tasks as carrying bags of cement and sand, moving boxes of tiles and cleaning the premises and also participated in a selection of finishes and furnishings and colour schemes for No 5.
16. In 2005, Chris told Maria that she and George were looking after him really well, that No 5 was theirs and that George had a big share in various shops that he was helping to pay off.
17. In mid-2009 Chris told Maria that, because she and George pay all the bills and they look after No 5 by cleaning and maintaining it, they should get No 5.
18. From time to time after 1993, Chris thanked Maria for looking after his wife and looking after his "stupid sons".
19. Maria cared for Chris when he attended hospital in 2002 for a hip replacement and in 2009 for a hernia operation and fluid in the lungs and cared for him after each discharge from hospital.
20. Maria accompanied Chris to Chris' business, "Chris Realty", and undertook work there at the direction of Chris but received no payment for her work.
21. Maria has never been paid for any of her contributions described above but relied on Chris' promise that he would recognise her contribution over the period the parties co-habited.
22. On 2 December 2009, Chris evicted Maria and her husband and children from No 5.
23. At 2 December 2009, the only property owned by Maria was her personal effects, including jewellery, which remained at No 5, together with furniture and some household effects owned with George.
24. The primary judge observed that domestic support concerns matters relating to the household and encompasses matters such as free accommodation and meals, shopping, washing of clothes and the like. However, it is not necessary for there to be a sharing of food or eating arrangements together. Personal care may be satisfied through matters including physical support, such as assistance with mobility, personal hygiene, physical comfort and emotional support. His Honour found that, at all material times, Maria and Chris, who were adult persons, were living together and that the real question, therefore, was whether one or each of them provided the other with domestic support and personal care. His Honour was satisfied that Maria and Chris had a close personal relationship for the purposes of the Property Act, which began sometime after George married Maria in Macedonia in May 1986 and no later than upon their return from Macedonia to Australia late in 1986. The relationship ended when Maria, George and their family left No 5 on 2 December 2009. His Honour found that Maria was the chief homemaker for the Saravinovski family, of which Chris was the head and that she provided Chris, relevantly, with domestic and personal support during that period and that support was not insignificant or intermittent.
25. The primary judge regarded as significant statements made by Chris in discussions with George and Maria while he was in hospital in March 2010. The discussions were recorded on a tape and his Honour was satisfied that Chris did not know that the discussions were being recorded. In those circumstances, his Honour accepted that what Chris said was a reliable reflection of his state of mind at the time.
26. The first statement relied on by his Honour was follows: Chris: Maria don't tell me these things now I don't want to listen to them. If you can look after me, the way we lived before. I'll pay your house how much it costs you I'll pay it I was telling Maria before, I'll give something to the crow …indistinctive… If you can look after me, understand?, I'll pay for your house, we'll go to Gordon…indistinctive…you'll sign and I'll sign, I will not ask you for the money if you look after me [emphasis of primary judge]. His Honour inferred from that statement that Maria looked after Chris and that, given the nature of the offer that he was recorded as having made to her, "looking after" was "looking after him completely". His Honour observed that Maria had done so before because that was "the way we lived before". His Honour considered that Chris was trying to restore the status quo ante. His Honour considered that that conclusion was supported by the following statement: Chris: … I was upset when Maria said she wasn't going to take me, I won't make a wedding, I was wondering why, what was the matter, …indistinctive……indistinctive…I didn't put chains, you stayed because you wanted to stay, because you were good, nobody would stay if he doesn't want to, Ljube would leave if he doesn't want to stay, he would leave like Valentina did. [emphasis of primary judge]. His Honour considered the importance of what Maria did for Chris was demonstrated by his strong desire for reconciliation and his genuine remorse, as evidenced in those statements.
27. The primary judge accepted evidence adduced from witnesses called on behalf of Maria, who are not members of the Saravinovski family. The witnesses were Rade, Pavlina, Nikola, Slavko and Cveta. Each of them regularly visited the Saravinovski home, both at No 45 and at No 5. His Honour found that Maria did washing and cleaning at both homes as well as ironing, cooking and working from time to time in the garden. No other women did such work around the homes. When No 5 was being built, Maria performed chores on the site, including doing physical work such as moving bags of cement and moving bricks. Maria had a role in choosing materials for the house. Maria changed Chris' dressings when he was in hospital for a hip replacement and helped Chris by giving him medication. Maria cut Chris' toe nails and, when she was with him at the real estate agency, Chris would send her to get his medications. When Bill married his first wife, Marina, Maria was the main person who prepared food and cleaned the house for the celebration. Maria looked after all members of the household, including Chris, Rada, Bill and Louie. Maria kept the house at No 45 and the new house at No 5 immaculately clean. Whenever people visited the home, Maria served the food and drinks and did most of the work looking after guests. Maria gave the impression to visitors of being the woman of the house.
28. Chris regularly told people that Maria was very good and that she cooked and cleaned and looked after him. He said that George was very lucky, that one "cannot find a woman like Maria very often" and that Maria was very capable. Chris said that he left Maria to deal with choosing materials for the new home at No 5. He also said that, if he forgot to take his pills, Maria always reminded him and that she was like his daughter. He said that none of his sons would have taken care of him and that he had a very good daughter-in-law, who "does everything" and that no one treats him like that and that Maria is "one in a million". He told Pavlina that Maria is like his daughter and that she puts on his shoes and socks and cuts his toenails. He told Nikola that he was lucky to have Maria to look after him and that Maria was very good at looking after the house. He told Slavko that he was very lucky to have a daughter-in-law like Maria, who worked very hard and kept the house really clean. Chris told Cveta that he treated Maria like his daughter and that she did everything, cooked and cleaned and looked after him and the family. He told Cveta that Maria cooked for him, washed for him, did the dishwashing, ironing, cleaning, went to the real estate agency, cleaned the agency and that she did everything he needed.
29. The primary judge also relied on "the inherent likelihood of the situation", supported by evidence that Chris told Rada that he wanted a housewife for George. His Honour accepted that Rada had suffered a stroke although she was not incapable, suffering only some difficulty with her right hand and a slight drooping on the right side of her mouth, which may have affected her speech. His Honour considered that it was entirely natural that Chris, as a concerned husband wanting to reduce the workload of his wife, and as a man who expected to be waited upon, would have wanted his son to marry someone who was, in effect, going to become the main homemaker for the Saravinovski household. His Honour also formed the impression that Chris, Bill and Louie were not men who expected to contribute to the domestic tasks of a household. His Honour considered that, even if Chris could look after himself, he thought of himself as the provider and head of the household who, in return, would expect to be cared for by the woman of the house.
30. The primary judge also considered that Maria's young age, her lack of regular employment and her position in the household supported the inference that she did most, if not all, of the domestic work during the time that she lived under Chris' roof. His Honour did not consider that Maria's brief periods of employment impeded her role as principal homemaker. His Honour considered that, in so far as she helped out at the real estate agency, Maria's participation was as much part of the "hobby" operation of the agency as was the involvement of Chris and other members of the family.
31. The primary judge drew an inference, from the failure of Chris to call Valentina, Bill's second wife, who lived in the Saravinovski household from 2002 to 2005 or 2006, that her evidence would not have assisted Chris to traverse Maria's evidence about the extent of the domestic support and personal care that she provided. His Honour was fortified in drawing the inference that Maria looked after Chris completely during the time when Valentina lived in the household.
32. The primary judge considered that all of the above matters provided independent corroboration of the essential features of the evidence given by Maria, George, Bobby and Belinda about the nature and extent of the domestic support and personal care that Maria provided to Chris while Maria and George's family lived in Chris' homes. On the other hand, his Honour discounted their evidence by reason of the likelihood of exaggeration and interest or partiality in the outcome, particularly in the case of Maria.
33. The primary judge accepted that Maria began doing domestic tasks for Chris from the time when the family was living in Macedonia after Maria and George were married. His Honour also accepted that, while Maria did not necessarily do virtually every piece of cooking, cleaning, washing, going shopping with Chris, taking out the garbage and every other domestic chore, as she claimed, she did most of it. His Honour considered that, given the varying ages and occupants of the household over time, Maria's evidence that she prepared breakfast three times a week was inherently credible. His Honour was satisfied that Maria cooked most, if not necessarily all, of the lunches and dinners when Chris had a cooked lunch or dinner. His Honour accepted that Maria provided some meals and otherwise assisted with other family members with lighter tasks related to the construction of No 5.
34. The primary judge accepted that, on most Saturdays, Maria undertook a thorough, general clean of the new home at No 5, which is very large. While his Honour considered that Maria's evidence that her tasks took her from 6am until 9pm was an exaggeration, his Honour was satisfied that it would have occupied the greater part of the day.
35. While the primary judge was not satisfied that Maria's personal care of Chris was as often or as extensive as Maria claimed, his Honour accepted that, between 1986 and 2009, Maria assisted Chris with his personal care as and when required. His Honour considered that that would have increased at times of illness, once Rada had died and generally as Chris grew older. His Honour found that Maria rendered personal care, including measuring his blood pressure and blood sugar, cutting his toe nails, helping him with his socks and shoes, laying out his clothes, going shopping with him for clothes, preparing his bag for swimming, looking after him after his hip replacement and hernia surgery, taking him to the doctor, rehabilitation and other medical appointments, changing bandages, reminding him to take tablets and giving him medication and eye drops.

Divisible Property

1. The primary judge observed that the parties accepted that it was necessary to identify the divisible property both at the start of the relationship, when Maria married George in 1986, and as at the date of hearing, in 2014 and 2015. His Honour observed that that approach enabled an evaluation of whether there had been contributions made to specific assets and not others and, what, if any, the fruits of the relationship may have been. The parties accepted that, because George and Maria were married, George's assets should be treated as Maria's marital property.
2. The primary judge observed that the parties had conducted the proceedings on the basis that there would be no evidence as to the current value of the various components of "divisible pool of property". His Honour said that the parties agreed that the precise values could be the subject of further evidence at a later stage of the proceedings, if necessary. His Honour said that the parties accepted that the Court could award Maria an adjustment of interest in the nature of a percentage of either the pool of property or specific property that Chris holds, without knowing the precise value of the pool.
3. That approach may be problematic. The function of the Court is to determine what adjustment to the interests of the parties in their property seems just and equitable, having regard to the respective financial and non-financial contributions made by the parties to the acquisition, conservation or improvement of the property and to the welfare of the other party or of the family constituted by the parties. It is difficult to see how a determination could be made of what adjustment to the interests of the parties in property is just and equitable without some idea as to the respective value of those interests. That is significant in circumstances where his Honour did not attribute value to contributions alleged to have been made by Chris.
4. There was no dispute about the property of Chris and Maria at the commencement of their relationship in 1986. Maria held no real property in her own name. George, jointly with Bill, owned No 22, subject to a mortgage to secure a loan of $56,000.
5. As at 1986, Chris owned No 45, purchased in 1966 for $12,000, subject to a mortgage to secure a loan of $7,750, which his Honour inferred had been repaid by 1986. Chris also owned No 14, purchased in 1981 for $73,000, subject to a mortgage to secure an unknown amount, which the Court inferred had been discharged no later than 1988, when Chris and Rada transferred it to George for $120,000. Finally, Chris owned another property in Rockdale (No 428), purchased in 1984 for $230,000, subject to a mortgage to secure a loan of $75,000, which was discharged in 1988.
6. As at the date of the hearing, for the purposes of the Property Act, Maria's property, through George, consisted of, the Property, No 14, subject to a mortgage to ANZ for an unknown amount, and a 10% shareholding in KR&S, which owned shop premises at Rockdale (No 509). As at the date of the hearing, Chris owned a real estate office at Rockdale (No 414), No 428, No 5, No 11 and 90% of the issued capital of KR&S, which owned No 509.
7. There were also assertions made by the parties concerning cash at bank, income earned by Chris Realty and rents received in respect of No 428 and No 11. There was no evidence as to what those amounts might be and the primary judge did not take them into account.
8. Having regard to the conclusion that the primary judge reached in relation to the rights of Maria under the Property Act, his Honour considered that it was unnecessary to determine two matters that were in issue. The first was the validity of the other mortgage that Bill gave to Chris in 2003, purportedly to secure an amount of $600,000. If that mortgage was valid, the assets of Chris at the date of the hearing would include his interest under the Mortgage. The second was a dispute between the parties in relation to the ownership of Chris Realty.
9. Against the background, the primary judge embarked on a consideration of the respective contributions made by Chris and Maria. First, his Honour observed that the exercise of assessing contributions is "holistic" and not strictly mathematical or in the nature of taking partnership accounts although, his Honour observed, the potential usefulness of a mathematical analysis was not to be ignored. Secondly, his Honour observed, that he was not satisfied that George, and therefore, for present purposes Maria, had made any financial contributions to the acquisition of any property by Chris.
10. There was some question as to whether, some months before December 2009, George and Maria took over the payment of outgoings in relation to 5 Wharf Road, Kogarah Bay. Since these payments related to no more than a four month period, his Honour ignored any such payments as being de minimis. There was also a question of the extent, if any, to which Maria contributed to the business of Chris Realty. His Honour considered that, having been satisfied that Maria was the principal homemaker in the Saravinovski family homes, it was inherently likely that she would have performed similar tasks at Chris Realty, such as cleaning and, perhaps, occasionally basic reception or administrative tasks. His Honour was unable to conclude that Maria did any more because there was no independent evidence to corroborate the extent of the work that Maria claimed she did. His Honour concluded that, even if Maria provided unpaid services to Chris Realty, such work, at least after 1997, was for the economic benefit of George rather than Chris and so could not be a contribution to Chris' financial resources for the purpose of s 20 of the Property Act. His Honour also inferred that the economic benefit of the business would have been accounted to Louie prior to 1997.
11. The primary judge accepted that Maria cared for Rada but concluded that that care was irrelevant for the purposes of assessing her contribution under the Property Act for two reasons. First, it was care directed to Rada and not Chris. Secondly, it could not be said that, by caring for Rada, Maria put Chris in a position that he would not otherwise have been in to undertake income generating activities based on his personal exertion.
12. The primary judge was also satisfied that Maria did some physical work in the context of the building of No 5 and that that work constituted a direct, non-financial contribution to the improvement of Chris' property. However, while his Honour did not consider that the contribution was de minimis, his Honour considered that it was more likely to have been incidental to her attendance there for the purpose of providing meals.
13. The primary judge summarised his findings in relation to Maria's financial and non-financial contribution for the purposes of s 20 of the Property Act. First, Maria did not make any financial contribution to the acquisition of property by Chris. Secondly, she made some non-financial contribution to the improvement of No 5 during its construction phase, by providing meals on site and doing some incidental light labouring work. Thirdly, in her role as principal homemaker, Maria made a direct, non-financial contribution to the conservation of No 45 and then No 5, through her cleaning and similar activities, which related to the physical maintenance of those properties. However, his Honour found that cooking meals, while part of homemaking, did not fall within s 20(1)(a).
14. The last conclusion is significant as to the contribution made by Maria. It appears that his Honour concluded that Maria's regular housekeeping and cleaning in some way contributed to the physical maintenance of No 45 and No 5. His Honour did not make any attempt to value that contribution or make any finding as to the consequences that might have flowed had she not provided that service. Specifically, his Honour made no finding as to the cost that would have been incurred by Chris in having cleaning services provided for the properties.
15. The primary judge then considered the financial and non-financial contributions made by Chris to Maria's and George's property for the purpose of s 20(1)(a). His Honour referred to three properties.
16. George admitted that, while Chris and Rada had transferred No 14 to him for a stated consideration of $120,000, George in fact did not pay that sum. George also accepted that he had not paid for his 10% shareholding in KR&S. The primary judge did not consider that the evidence permitted him to go beyond acknowledging that George had the shareholding and did not attribute any specific value to the shareholding. His Honour found that Chris paid the deposit of $120,000 in connection with the purchase by George and Bill of the Property in January 1998. The purchase price for the Property was $470,000, of which $350,000 was lent by ANZ on the security of a mortgage of the Property. While Chris alleged that he paid for improvements to the roof, bathroom, kitchen and landscaping at the Property, his Honour made no finding in relation to that claim, in the absence of independent, corroborating evidence. His Honour also rejected Chris' assertion that he helped Bill and George repay the money lent by ANZ. When Bill's half interest in the property was transferred to George, Chris received $200,000 and Bill received $275,000. Of that total sum of $475,000, $375,000 was borrowed on the security of a further mortgage of the Property. The source of the additional $100,000 was not established. His Honour considered that it was not necessary to determine the question of whether $50,000 of $200,000 paid by George to Chris was referrable to Bill. Having dismissed the claim by Chris to enforce the Mortgage, his Honour concluded that Chris had no interest in the Property.
17. It was accepted that George and his family did not pay any rent for living at either No 45 or No 5. George asserted that he paid the equivalent of rent by providing to Chris all of his wages, but his Honour rejected that assertion. His Honour accepted that, at a high level of generality, Chris made an indirect non-financial contribution, over and above not requiring payment for No 14, to George's interest in No 14 and the Property. His Honour held that that contribution consisted of making available to George funds that would have been payable in rent, had he not lived in one of the properties. However, his Honour held that there was no evidence about the value of such notional rent foregone and that the lack of independent, verifiable evidence concerning how the parties spent their money had the result that his Honour could not put a value on the notional rent. His Honour observed that no submission had been made to support a particular value for that benefit.
18. The primary judge then considered the respective contributions of Chris and Maria to the welfare of the other party, for the purpose of s 20(1)(b). Maria's contributions to Chris as homemaker, provider of personal care and public consort, which his Honour characterised as "a form of emotional support" were as set out above.
19. In relation to contributions by Chris to the welfare of Maria, the primary judge accepted Maria's evidence that, for around three months in around 2003 her father stayed rent and board free at No 5 and that Maria's mother and father stayed there rent and board free for a period of around three or four months in around 2008. His Honour accepted that, in allowing Maria's relatives to stay, Chris contributed to her welfare and that of her children, although "somewhat remotely". His Honour also found that it was inherently likely that Chris paid for Maria's wedding receptions in Macedonia and Australia and that he paid for the celebrations surrounding the christening of Bobby and Belinda. His Honour found, however, that Chris would have insisted on paying for such things to demonstrate his economic success in Australia and his role as "family patriarch". His Honour also accepted that Chris paid for himself, Maria, George, Belinda and Bobby to go on a trip to Macedonia in about 1994 or 1995. His Honour also accepted that Chris paid for Belinda's travel as part of a family holiday to Macedonia in 2006.

The s 20 Discretion

1. Having concluded that Chris and Maria were parties to a domestic relationship within the meaning of the Property Act, the primary judge proceeded to exercise the discretion conferred by s 20. His Honour observed that there was no dispute about the applicable legal principles and cited extensively from other decisions. His Honour applied four statements of principle. First, where there was no practical union of lives and property and it could not be said that Maria's contribution somehow freed up Chris to undertake his property producing activities, the usual nexus between economic contributions by one party and non-economical contributions by the other was not "so readily apparent". Secondly, the case was one "of a close personal relationship" from which features of the marriage, such as union of lives and property, were absent. Third, the case was more akin to one between a parent and a daughter housekeeper, in which the approach typically adopted in a de facto relationship case might not be appropriate. In such a case, the approach to the assessment of the respective contributions of the parties depends on the facts and, in particular, the specific contributions. Fourth, the fundamental inquiry was to determine what order was required to recognise sufficiently and compensate Maria's contributions having regard to, and only to, the respective contributions of Maria and Chris. There was no complaint by Chris in relation to those principles.
2. The primary judge considered that, when considering the facts, the starting point was to recognise three matters. First, there was no practical union of lives and property. Secondly, Maria's role did not free up Chris to undertake his property generating activities. Thirdly, no funds of Maria and George were used by Chris or otherwise enabled him to purchase the properties that he now owns. Having regard to those matters, and having regard to the respective contributions of the parties as outlined above, his Honour did not consider that it would be just and equitable to adjust Maria's and Chris' interests in a way that gave Maria an interest in any of the properties acquired by Chris other than the Saravinovski family home, being No 5.
3. The primary judge observed that Maria's contribution had a connection with the family home, which, for 23 years, was either No 45 or No 5. The family home was the focal point of Maria's contribution as homemaker, carer and public consort to Chris. His Honour observed that Maria cared for Chris in the ways identified and maintained those homes. His Honour considered that, having regard to the various contributions of the parties, which have been identified above, the real question was whether there should be any adjustment so as to give Maria an interest in No 5. His Honour concluded that it was just and equitable, having regard to the contributions identified above, that there be such an adjustment, such that Maria be given a 30% interest as tenant-in-common with Chris in No 5.
4. The primary judge characterised the question as being whether, as at the hearing date, Maria's contributions had been sufficiently recognised and compensated in the circumstances in which she then found herself, after allowance was made for Chris' contributions to her. His Honour held that those circumstances, viewed globally, were that she had no interest in the family home in which she lived and played a significant role for 23 years but had received from Chris, via George, the benefit of No 14. In making that comparison, his Honour observed that the other contributions that had been identified had not been overlooked. Nevertheless, his Honour considered that comparison to be the determinative one.
5. In particular, the primary judge observed, in so far as Chris also gave, relevantly, George the deposit for the Property of $60,000, any credit to which Chris may have been entitled for that benefit was cancelled out by George paying Chris $200,000 (or $150,000) as part of the arrangements made when George acquired Bill's share in the Property. His Honour's conclusion was that having only No 14 as a benefit was not a sufficient recognition and compensation for Maria's contributions over 23 years, even when Chris' other proven contributions were taken into account. His Honour concluded that a just and equitable recognition and compensation could be achieved by giving Maria an interest in No 5, as the current family home. Nevertheless, his Honour considered that, in the circumstances of the case, Maria's interest should be something less than 50%.
6. The primary judge identified two matters that his Honour considered required an adjustment to less than 50% to bring about a just and equitable result. First, his Honour was not satisfied that, for the entirety of the 23 years, Maria was completely responsible for all tasks as homemaker, carer and consort. Second, his Honour considered that a further discount was required to take into account all of the contributions that had been identified that Chris made to the benefit of Maria and George, in particular, the significant benefit of No 14 and occupation of the family homes without charge. For those reasons, his Honour concluded that it was just and equitable that Maria receive an interest in No 5, but less than 50%, namely, 30%.

The Property Appeal

1. Two broad categories of grounds were relied on in relation to the appeal from the orders made under the Property Act. The first concerned s 5(2)(a) of the Property Act. It was common ground that Chris and Maria lived together in the family homes for 23 years, that there was a close personal relationship between them and that Maria provided Chris with domestic support and personal care, such that the prerequisites of s 5(1)(b) were otherwise satisfied. However, Chris contends that any domestic support and personal care that Maria provided to him was provided for fee or reward, within the meaning of s 5(2)(a). Therefore, he says, a close personal relationship must be taken not to have existed between Maria and him, for the purpose of the Property Act.
2. The second category of grounds concerned the assessment by the primary judge of the financial and non-financial contributions made by Chris and Maria to Chris' property and the contributions made by each of them to the welfare of the other, and the ultimate determination made by his Honour. The grounds of appeal were that the primary judge erred:

• By failing to identify and evaluate properly Chris' contributions of the types referred to in s 20(1)(a) and s 20(1)(b) of the Property Act;
• By failing to identify and evaluate properly Maria's contributions of the types referred to in s 20(1)(a) and s 20(1)(b) of the Property Act;
• By failing to exercise the discretion vested in him under s 20 properly, in determining that it was just and equitable to adjust Chris' interest in No 5, when it was not just and equitable to do so;
• By failing to exercise the discretion vested in him under s 20 properly, in determining that granting Maria a 30% interest as tenants-in-common in No 5 was just and equitable.

1. In relation to each of those grounds, Chris asserts that the primary judge:

• allowed extraneous or irrelevant matters to guide or effect his determination;
• mistook the facts;
• did not take into account relevant material; and
• made an entirely erroneous estimate of Chris' contributions, Maria's contributions and by way of adjustment of financial interests. He asserts that the primary judge should have determined that it was just and equitable that there be no adjustment in property interests or, alternatively, that Maria was entitled to an adjustment for a substantially lesser interest in No 5 than 30%.

Fee or Reward

1. The exclusion in s 5(2) is enlivened where domestic support and personal care is provided "for fee or reward". Both parties accept that the use of the word "for" requires that there be a causal connection between the provision of domestic support and personal care, on the one hand, and that which is to be characterised as "fee or reward", on the other. Chris contends that Maria provided domestic support and personal care to Chris in consideration of the promises made by him in Macedonia before she married George.
2. Thus, Maria's evidence was that she was induced by Chris' statements in Macedonia to marry George and thereafter to look after Chris and Rada in Australia. She said that she accepted and relied on the statements made by Chris when she decided to marry George, come to Australia and provide support and care to Chris and Rada. Therefore, Chris says, whatever Maria did for Chris was in expectation of, and in return for, Chris extending to Maria and to her immediate family board, lodgings and support, such as paying for christenings, parties, social gatherings, overseas trips and the like.
3. The primary judge accepted that the use of the word "for" signified that the relevant domestic support and personal care must be provided in consideration of, or in return for, the fee or reward and that there must be a direct relation between the fee or reward, on the one hand, and the provision of support and care, on the other. The relationship must be causative, such that the fee or reward must be a quid pro quo for the provision of the domestic support and personal care. His Honour considered that before s 5(2)(a) is enlivened, there must be a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care for the purpose of eliciting the identified fee or reward. Accordingly, his Honour held, the arrangement might be seen as the origin of, or motive for, what would otherwise be a close personal relationship under the Property Act. It is to be contrasted, his Honour said, with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship.
4. The primary judge considered that a close personal relationship involves an expectation of mutual benefit and support on the part of each person in the relationship. For example, one person to the relationship may provide domestic support and personal care while the other person provides free accommodation. While the free accommodation is, in a sense, a reward, his Honour considered that, where it and the provision of domestic support and personal care are manifestations of the close personal relationship rather than the motivation for it, s 5(2)(a) will not be enlivened. His Honour accepted that, while a legally enforceable arrangement would satisfy the provision, a legally enforceable arrangement was not required. While the commercial provision of domestic support and personal care would almost invariably involve a contractual arrangement, and would be sufficient to satisfy the provision, it is not necessary.
5. Ultimately, the primary judge concluded that there was no direct relation of the kind just identified between Maria providing domestic support and personal care to Chris, on the one hand, and the various advantages identified by Chris as having been conferred by him on Maria and her family, on the other. Rather, his Honour held, those advantages were manifestations or indicia of the close personal relationship between Maria and Chris. They were not the consideration, in the sense of a quid pro quo, for the provision of the relevant domestic support and personal care by Maria to Chris.
6. The primary judge found that, in the course of the conversations between Maria and Chris in Macedonia, before Maria married George, Chris told Maria that, if she married George and came to Australia and looked after Chris, and especially Rada, Maria would not have to work and Chris would ensure that Maria had everything she needed. Maria's evidence was that Chris told her that he had a couple of shops and that, if Maria looked after him and his wife, who was very sick, and his other two sons and George, he would give Maria everything she wanted and she would not have to work. Chris told her that George was a good man and was working hard.
7. In examination-in-chief, Maria gave evidence that George told her that he was the richest Macedonian man in Australia and that if she looked after his family, she would not have to work and would not have to have any concerns about her future. George told her that, if she came to Australia her work would be looking after them, including looking after Chris' wife. She said that Chris told her that the family came to Australia because his wife is sick. He said that they came to Macedonia to marry George off.
8. Maria said that her life in Macedonia was good and there were boys who were interested in her, but the promise made by Chris convinced her to marry George. Maria said that Chris' promises painted a picture where her life would be even more enhanced. According to Maria, Chris told her that she did not have to go to work, did not have to study English and all she needed to do was to look after Rada and Chris and his sons. Maria said that, after George and Chris had said things to her, she felt more empowered to make the decision to marry George following the propositions that he had made. She said that she made her decision to marry George after a second meeting when Chris told her that she would need to look after them at home and did not have to work.
9. Later in examination-in-chief, Maria said that, when she made the decision to marry George and come to Australia, she thought that her life in Macedonia was good and that George was a good kid. She said that she liked George but what Chris told her caused her to make the decision to come to Australia, because she thought her life would be even better than the life she had in Macedonia and that was what made her come to Australia.
10. In cross-examination, Maria confirmed that at no time while she and her family lived with Chris were they required to pay to Chris and Rada or, after Rada's death, to Chris any board for accommodation in Chris' homes. She said that he held all the money and she did not pay him for any rent or groceries. Subsequently, Maria asserted that she married George because she liked him but that she would not have come to Australia if his father had not promised her that she was going to be wealthy, that she would not be going to work and that she was going to have a house and shops. Maria was asked whether, in marrying George, she had hoped that she would not have to work and that she would get some of Chris' property but that it was not anything that Chris had said that caused her to marry George. Maria responded that when she met George she liked him, but if not for the promises that she would not make a mistake if she married George, that Chris had houses and a shop and that she would not have to work, she would not have decided to come to Australia.
11. Maria was also asked whether, to the extent that she expected to receive anything from Chris and Rada, she only expected to receive it in so far as it was given to George rather than to her. Her response was that she did not know how it was given to George but she did her duty in the house, her job. She said that she did not go to school to learn English or to continue and finish her training as a nurse. She said her job was at home and "that's what he supposed to pay".
12. Chris contends that the evidence just described demonstrates that the statements made by Chris to Maria in Macedonia were causative of Maria's entering into a close personal relationship with him, Maria's provision of domestic support and personal care to him and his provision of the various rewards to Maria on which he relies. He contends that, but for his statements in Macedonia, Maria would not have provided domestic support and personal care to him. Thus, he says, there was a direct relation between his statements and her provision of that support and care. The benefits provided by him, he contends, were the quid pro quo for the provision by Maria of the support and care to him.
13. On the other hand, Maria relies on the finding made by the primary judge that she had a close personal relationship with Chris that began sometime after she married George in Macedonia in May 1986 and no later than their return from Macedonia to Australia later in 1986. Maria points to the finding that, until she, George and their family left No 5 in December 2009, she was the chief homemaker for the Saravinovski family, of which Chris was the head. During that time, she provided Chris with relevant support and care. She also points to the findings made by his Honour concerning the evidence of Rade, Pavlina, Nikola, Slavko and Cveta supporting those conclusions.
14. Where Maria, as a prospective daughter-in-law, was assured in 1986 that she would have everything she needed and from 1986 to 2009 provided relevant support and care to her father-in-law and his family, one would not be a fee or reward for the other so as to enliven s 5(2)(a) unless some specific connection between the assurance and the provision were demonstrated. While the first might act as an inducement to, or an offer of, marriage or perhaps create some expectation of what family life would be like in Australia with the Saravinovskis, it does not, of itself, demonstrate that the subsequent provision of relevant support and care was a quid pro quo, or the assurance was the consideration for the provision of the support and care.
15. The primary judge rejected Maria's claim that Chris offered specific property to her and held that Chris had done no more than simply make a promise of a better life. Sweeping statements of the kind attributed to Chris in Macedonia are hardly sufficient to justify the conclusion that providing support and care for 23 years was causally connected to the statements, such that it could be said that the provision of support and care was directly, immediately and intentionally in exchange for the promise of a better life.
16. The findings made by the primary judge cannot support a conclusion that Maria provided support and care to Chris in consideration of the statements made by him in Macedonia and in anticipation of, and in exchange for, the benefits that Chris subsequently conferred. Thus, the board, lodging and accommodation that Maria enjoyed with her family was not provided in consideration for domestic support and personal care but constituted an incident of the ongoing close personal relationship between her and Chris. Board, lodging and accommodation were necessary for the continuation of the relationship and for Maria to undertake the tasks that she performed, such cooking, cleaning, washing, shopping and the like.
17. The primary judge did not err in concluding that the domestic support and person care provided by Maria was not provided for fee or reward. It follows that s 5(2)(a) of the Property Act is not enlivened.

Exercise of Discretion

1. In relation to the second group of questions, it is necessary to say something about the basis upon which the primary judge was invited to decide the case. The parties proceeded on the basis that, once the pre-requisites to the exercise of jurisdiction under s 20 of the Property Act are established, three stages are involved in the exercise of that jurisdiction. The first is the identification and valuation of the property of the parties to the relevant relationship to determine the "divisible pool of property". The second is the identification, evaluation and weighing of the parties' respective contributions of the various types referred to in s 20 of the Property Act. The third is the determination of any order required to recognise and compensate the applicant's contributions. The third stage typically results in an order giving the applicant the proportion identified in the second stage of the divisible property identified in the first stage. As I have said, the proceedings were conducted on the basis that there would be no evidence as to the current value of the various components of the divisible pool of property. Rather, the parties agreed that the precise value of the pool could be the subject of further evidence at a later stage of the proceedings, if necessary. They accepted that the Court could award Maria an adjustment of interests in the nature of a proportion of either the pool of property or of specific property held by Chris, without knowing the precise value of the pool or specific property.
2. The task of determining what adjustment of the parties' interests in property is just and equitable, having regard to the contributions of the nature referred to in s 20(1), without agreement or evidence as to the value of the interests of the parties in the relevant property must be fraught with difficulties. However, having regard to the agreement made by the parties, it is not open to either of them, in particular Chris, to complain in the appeal because the primary judge embarked on that exercise. Clearly enough, the parties sensibly sought to avoid unnecessary expense in obtaining valuations of the properties that formed the "pool of property" held by Chris. However, as I have already said, it is difficult to see what a just and equitable adjustment of interests in property might be without knowing the value of the property and the value of the respective contributions made by the parties.
3. The second category of grounds concerned the exercise of the discretion under s 20 of the Property Act, in the light of the conclusion that that jurisdiction had been enlivened. Chris identified two issues. The first was whether the primary judge made correct findings of fact. The second was whether his Honour erred when carrying out the evaluative task of deciding what, in all the circumstances, seemed just and equitable, having regard to the matters referred to in s 20.
4. The primary judge found that Chris had made certain financial, non-financial and welfare contributions to Maria within s 20(1)(a) and s 20(1)(b). However, Chris contended that his Honour made findings in respect of some of those contributions that prevented them from being taken into account in determining what is just and equitable. They concerned the value of three of the contributions made by Chris and whether Maria made a particular welfare contribution at all. Chris contended that there was no probative evidence at the trial to support the findings made by his Honour. He contended that, while his Honour found that he had made four contributions, his Honour disregarded three of them in the final analysis, leaving only the transfer of No 14 to George as the sole contribution that was considered to be for the benefit of Maria under s 20(1)(a). Chris complains that the other contributions should also have been valued and taken into account.
5. In his submissions, Chris identified the following contributions by him under s 20(1)(a):

• 10% shareholding in KR&S;
• Balance of the purchase price of $120,000 for the Property;
• Provision of No 14; and
• Making funds available to George that would have been payable in rent, had he and Maria not lived in No 45 and No 5, to be applied to No 14 and the Property.

1. The primary judge concluded that the evidence did not permit him to go beyond acknowledging that George had the shareholding in KR&S, without attributing any specific value to it. The primary judge observed that there was no evidence about the value of the notional rent foregone and that the lack of independent, verifiable evidence concerning how the parties spent their money meant that his Honour could not put a value on the rent. His Honour observed that no submission was made to support a particular value for that benefit. His Honour put no specific value on the contribution to the purchase price for the Property, having regard to the evidence concerning the transfer to Bill and the payments that were made in 2009.
2. In his submissions to this Court, Chris contended that the value of the contribution of the balance of purchase price for the Property was "substantial", but did not assert a value. He also asserted that the value of the provision of No 14 was also "substantial" but, again, did not seek to ascribe any specific value to the provision of No 14. He sought to attribute a value of $25,000 to the shareholding in KR&S and a notional value of rent foregone in respect of No 14 and the Property of between $119,600 and $239,200.
3. On the other hand, Chris contended that the contributions by Maria within s 20(1)(a) were:

• Nothing in relation to the acquisition of property by Chris.
• Construction of No 5 by cooking meals and doing some incidental light labouring work.
• Cleaning and similar activities as chief homemaker. Chris contended that the value of Maria's contributions in those respects was minimal.

1. In relation to contributions under s 20(1)(b), Chris contended that the value of his "welfare contributions", consisting of the provision of free lodging, board and accommodation and the like, was unknown but "significant". He contended that Maria's contribution as homemaker, provider of personal care and public consort was unknown but "minimal".
2. In the light of the agreement made by the parties, it was not open to Chris to seek to put values on the parties' respective contributions. A fortiori, it was not open to him to complain about the failure of the primary judge to do so.
3. More particularly, however, the exercise briefly summarised above highlights the difficulty of the task set by the parties for the primary judge. It may be that a preferable course would have been to invite the primary judge to reach conclusions as to what constituted the divisible property and the nature of the contributions made by the parties, with a view to determining the integers that his Honour considered appropriate for the purposes of a determination under s 20. Once his Honour indicated his conclusions in that regard, the parties would be in a position to know what property required valuation. As it was, the primary judge determined that it was appropriate to arrive at a proportion of No 5, being the family home, having regard to the fact that Maria had been provided with accommodation for 23 years and she, through George, had been provided with No 14, but without any regard as to the respective values of No 5 or No 14.
4. Ultimately, the complaint by Chris appears to be that the primary judge improperly fettered the exercise of his discretion by making a comparison between the various contributions that Maria made to Chris over 23 years, while being accommodated in No 45 or No 5, with the interest that she has in No 5. His Honour considered that that comparison was "determinative" and that No 14, being effectively the only benefit that Maria had received, was not a sufficient recognition and compensation for her contributions as homemaker, carer and public consort over 23 years.
5. On a fair reading of the reasons of the primary judge, his Honour was not, by treating that comparison as "determinative", imposing a fetter upon himself. He was doing no more than stating his reason for concluding that it was just and equitable, having regard to the contribution made by Maria over 23 years and the benefit she received in having No 14, that she should have an interest in the family home, No 5, of 30%. That may have been an undesirable approach to adopt, in so far as the extent to which his Honour made an allowance for No 14 is unclear, in circumstances where the value of No 14 in relation to a 30% interest in No 5 was unknown. Nevertheless, it was a permissible approach, in the light of the agreement of the parties referred to above.
6. The primary judge found that Chris had made various welfare contributions to Maria, Belinda and Bobby. However, Chris contended, his Honour fell into error in declining to find that he had made a contribution by paying for the upkeep, utilities and outgoings associated with the family residences at No 45 and No 5 and in disregarding that contribution. He contended that the evidence provided a sufficient basis for the Court to find that Chris had paid for the upkeep, utilities and outgoings associated with the family residences and that it was inherently credible that, as Chris was the registered owner of the properties concerned and had an income throughout the period, Chris had in fact done so.

Orders

1. It follows from the above that this Court should make orders that both the Mortgage Appeal and the Property Appeal be dismissed. Chris should be ordered to pay Maria's costs of both appeals.
2. In the light of delay occasioned by the Property Appeal, the orders made for the working out of the order made by the primary judge under s 20 may require variation. The parties agree that that is a matter that should be the subject of a further application in the Equity Division.

Endnotes

1. See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
2. See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
3. See House v The King (1936) 55 CLR 499; [1936] HCA 40. 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. Decision last updated: 04 May 2017