6 October 1992 $5,000.00*
13 October 1992 $2,000.00*
15 October 1992 $1,780.00*
20 October 1992 $5,000.00*
21 October 1992 $954.00
21 October 1992 $1,500.00*
23 October 1992 $657.00
27 October 1992 $3,000.00*
4 December 1992 $350.00
14 December 1992 $350.00
14 December 1992 $1,335.40
15 December 1992 $454.90
16 December 1992 $1,680.79
Total $23,172.09
69 The asterisked sums total $18,280. Ms Mulherin deposed that these were moneys which she withdrew and gave to Mr Walsh. I accept that evidence. I infer that the balance of the withdrawals were used to meet joint expenses, although, for the reasons to which I will come to in due course, it matters not to the outcome of these proceedings whether the balance of the withdrawals were applied to joint expenses or were for Ms Mulherin's personal use.
70 For the 1993 financial year, up to 15 July 1993, there were further withdrawals of $5,021.89. Ms Mulherin deposes that she withdrew $5,885 in 1993 which she gave to Mr Walsh. That evidence was given in summary form by reference to the 1993 calendar year. Neither party tendered any Citibank bank statements from 15 July 1993. It is impossible to say what, if any, of those instalments Ms Mulherin contends were paid to Mr Walsh.
71 During the period from 15 September 1992 to 15 July 1993, there were deposits to the Citibank account against the reference 92034 totalling $12,176.17. During the same period, Ms Mulherin made payments of interest, fees and taxes totalling $1,238.56.
72 As at 15 July 1993, the mortgage debt was $17,398.08. As I have said, no later bank statements were tendered. Ms Mulherin deposed that by April 2000, the mortgage debt was about $100,000. She was not challenged on this evidence. I find that from July 1993 she drew down moneys on the line of credit account which she used for her own purposes (in which description I include her making loans to others including Mr Walsh), and that she serviced the interest on the debt. Her borrowing moneys under the line of credit on security of the Paddington property after July 1993 should not alter the parties' beneficial interest in the property, or, the adjustments which should be made to the parties' property interests to reflect Mr Walsh's contributions to the acquisition, conservation and improvement of the Paddington property.
73 Between 16 September 1992 and 15 July 1993, Mr Walsh was repaid $6,104 more than he contributed to the account. That sum should be deducted from the contribution of $51,458 which he made towards renovations during this period, giving a net additional contribution by him to the capital value of the property of $45,354.
74 Up to 15 July 1993, Ms Mulherin paid further interest and charges of $1,239 and there was a mortgage debt as at that date of $17,398 which she eventually discharged. That debt arose because of the withdrawals from the account. As those withdrawals go to reduce the credit to be given to Mr Walsh for his contributions, they should not also be taken into account to enhance the value of Ms Mulherin's contributions on the basis that she later discharged the debt.
75 The jointly shared expenses of renovation should also be taken into account in reflecting the parties' contributions to the acquisition of the property in its improved state, but they are not substantial and do not materially affect the proportions of the parties' respective contributions.
76 The fact that Mr Walsh was meeting some of these expenses and sharing others, as well as paying off the principal of the mortgage, together with his contribution of a reasonably substantial sum towards the purchase of the property, strongly suggests that it was the common intention of the parties that he should have some beneficial interest in the property. In his amended statement of claim Mr Walsh claimed relief by way of the imposition of constructive trust of a 50% beneficial interest in the Paddington property in his favour. He pleaded no facts in support of that claim and, in opening, counsel said that the only claim being pursued was a claim for an adjustment of property interests pursuant to Pt 3 of the Property (Relationships) Act. On the face of things, Mr Walsh would have a strong claim to a beneficial interest in the property on the basis of Bloch v Bloch, or on the basis that it was the common intention of the parties that he have an interest in the property and that he acted to his detriment on the basis of that common intention (Green v Green (1989) 17 NSWLR 343; Grant v Edwards [1986] Ch 638), or on the basis that there was a joint endeavour between the parties which failed in which expenditure on the Paddington property was shared for their common benefit, where it was not specifically intended, or specially provided, that the other party should enjoy the benefit of the contribution if the substratum of the joint relationship or endeavour was removed without attributable blame, to the extent that it would be unconscionable for the party enjoying the benefit of the contribution to retain it (Baumgartner v Baumgartner (1987) 164 CLR 137).
77 Rather than seek to explain by reference to equitable principle what beneficial interest in the property Mr Walsh had, counsel was content to rely upon an exercise of the more general discretion under s 20 of the Act to adjust the parties' property interests without first identifying what those interests were. There is powerful support for that approach. In Evans v Marmont (1992) 42 NSWLR 70, Gleeson CJ and McLelland CJ in Eq said (at 84) that the Court was not obliged to ascertain in full detail the property rights and interests of the parties by reference to the general law, in particular the law of constructive trusts, before applying the statute to the interests as found (cf Jones v Grech (2001) 27 Fam LR 711 per Davies AJA at 722-723).
78 Whether or not the Court makes a finding as to the beneficial interests in property, it must, so far as possible, make a reasoned conclusion as to whether, and if so, why, a financial contribution by one party to another, or to the acquisition, conservation or improvement of property, should result in an adjustment of property interests. Where the contributions are financial and therefore commensurate, merely to identify all contributions on each side of the ledger and then make an "holistic value judgment" as to how the property of the parties to the relationship should be shared runs the danger of expressing a bare conclusion without reasons as to why any adjustment of the parties' property interests is thought to be just and equitable having regard to the contributions (see also Manns v Kennedy [2007] NSWCA 217 at [65]-[67]).
79 Although there was little evidence as to Ms Mulherin's subjective intentions, it can be inferred from the matters referred to above, and also from the further evidence referred to below as to Mr Walsh's payments for renovations in 1992 and early 1993, that it was the common intention of the parties that he should have some beneficial interest in the Paddington property. Whether or not it was the parties' common intention that that interest should be measured not at the time the property was acquired but by reference to their subsequent contributions (Gissing v Gissing [1971] AC 886 at 909; Burns v Burns [1984] Ch 317 at 327), it is just and equitable that Mr Walsh's entitlement to an order under s 20 be assessed on that basis. That of course is subject to any further adjustment either in his favour or against him in respect of other financial contributions not referable to the acquisition, conservation or improvement of the Paddington property, or to the non-financial contributions of either party.
80 If the payments for improvements made by Mr Walsh in 1992 and early 1993 were not treated as expenses for which he was entitled to a 70% reimbursement (reflecting his 30% beneficial interest in the property or an order under s 20 which would treat him as so entitled), but as contributions to the capital of the property, his beneficial interest in the property, or entitlement to an order under s 20, would increase to approximately 37% ($119,477 (para [64]) + $45,354 (para [73])) ($119,477 + $283,532 (para [64]) + $45,354 (Para [73]) = 36.7%) .
Adjustment for the Provision of Accommodation
81 It was submitted for Ms Mulherin that the contributions made by Mr Walsh were substantially matched by his having rent-free accommodation in the Paddington property from 1989 to 2005. This submission raises the issue as to how far, if at all, under claims for an adjustment of property interests under s 20 of the Act, the provision by one partner of rent-free accommodation to the other can be taken into account as a contribution by the partner supplying the accommodation. Assuming, as a matter of principle, that such a claim can be advanced, the next question is how it should be dealt with if the partners are equitable co-owners of the property in different shares. In the absence of a contrary agreement, co-owners are both entitled to occupy the whole of the property. Where one co-owner has been in occupation of the property and claims reimbursement for the cost of improvements and lasting repairs, he or she may be charged with an occupation fee to be set off against the claim for improvements and repairs.
82 Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 (at [116]-[118]) does not lay down a principle of law that a party who provides his or her house as accommodation for his or her partner does not make a contribution which can be taken into account under s 20 (Ross v Elderfield [2006] NSWCA 192 at [30]). Indeed, in Bilous v Mudaliar itself, Ipp JA recognised (at [122]) that the provision of the family home was a contribution of the defendant to be accorded appropriate weight, although so far as appears, no weight was accorded to it (at [183], [184], [190]-[194]).
83 It would be an error to double count the benefit of provision of accommodation. However, there is no double counting in recognising that a contribution by A provides a reciprocal benefit to B. To recognise that dual character is not to double count.
84 Were Ms Mulherin the legal and beneficial owner of the Paddington property, I would have no hesitation in accepting the submission of her counsel that the provision of accommodation in the Paddington property should be treated as a contribution by her to be weighed when considering an adjusting order under s 20, or, to put it another way (but not to count it twice), Mr Walsh would have received a benefit or advantage of rent-free accommodation to be weighed against his contributions.
85 However, the position is not so simple. Although counsel for Mr Walsh did not put or argue a case that he was a beneficial owner of the Paddington property, the evidence suggests that he was. As a co-owner, he was entitled to occupy the property. That is not to say he did not receive a benefit from his occupancy. He did, in that he enjoyed the occupancy of the Paddington property for sixteen years equally with Ms Mulherin, although he did not make equal contributions to the purchase of the property. That should be weighed under s 20 by recognising that her greater contributions to the purchase price were of benefit to him in providing him with a residence for which he did not make equal contribution.
86 One approach would be to treat Mr Walsh as entitled to a charge over the property to recover the moneys spent on improvements to the extent they exceeded his 30% beneficial interest, and to adjust the value of his contribution to improvements by notionally charging an occupation rent of half the rental value of the property (effectively crediting Ms Mulherin with twenty percent of the rental value of the property to be off-set against his claim in respect of improvements and for work done about the property).
87 The evidence does not allow a precise calculation. The only evidence as to the rental value of the property was as to its rental value in 1999. The property was then valued at $600,000 and the rental value was $600 per week. There is no evidence as to its rental value at other times, and it cannot be assumed that its rental value would always have been about five percent of its capital value. Nor was there evidence of its capital value save as at 1989, 1999, and its agreed value at the hearing. If its rental value were about 5% of its market value at 1989, that is, about $350 per week, the setting off of a notional 20% of rental value against the cost of improvements would reduce the net further contribution made by Mr Walsh to $33,104.
88 Mr Walsh's expenditure on improvements in 1992 and early 1993 would have increased the market value of the property. In my view, that expenditure should be treated not as giving rise to a debt for reimbursement, but as increasing his beneficial interest in the property - or at least as justifying an order under s 20 which put him in the position as if he were a beneficial owner for an increased proportion. The appropriate adjustment at the end of 1992 to reflect his contribution to the purchase price, the mortgage, and the improvements in 1992, and also to recognise the benefit he obtained from living in the property although he had not contributed equally to its purchase, would be to adjust Ms Mulherin's interest in the property by treating him as a 35% beneficial owner (($119,477 + $33,104) ($403,009 + $33,104)).
89 There remained a further twelve years of benefit enjoyed by Mr Walsh from Ms Mulherin's greater contribution to the purchase and improvement of the Paddington property in his occupying the property without having made an equal contribution to its purchase and improvement. If the 1999 rental valuation represented the average over the next twelve years, the value of that benefit would be about $54,000. However, the evidence as to the rental value of the property is meagre. Moreover, notwithstanding that Ms Mulherin was the registered proprietor of the Paddington property and Mr Walsh did not assert a beneficial interest, no claim was made for him to pay rent. At the time, Ms Mulherin must not have regarded his sharing the occupancy of the house (although he did not contribute equally to the purchase and improvement of the property), as giving rise to any disproportionate benefit which warranted making a request or demand for rent.
Later Contributions to the Paddington Property
90 Following the hailstorm of 1999, Mr Walsh made various payments totalling $8,260 towards repairs. These moneys were recouped from an insurance policy. He deposed that he gave the cheques from the insurer to Ms Mulherin to be credited against the mortgage for the Woolloomooloo property. She denied that. I do not accept Mr Walsh's evidence that he paid the insurance proceeds to Ms Mulherin with a direction or request that they be applied to any mortgage. Ms Mulherin said, and I accept, that from about January 1999 she received no moneys from Mr Walsh towards mortgage or interest payments or household expenses.
Non-Financial Contributions
91 Mr Walsh gave evidence of doing various pieces of handiwork around the home. Although his claims were exaggerated, there was no dispute that he did do some such work. He also deposed that he carried out household chores of vacuuming, cleaning, cooking and washing. From 1993 when he was unemployed, and up to 1997, Ms Mulherin accepted that he did most of the cooking. Otherwise, his description of his homemaking contributions was exaggerated.
92 Ms Mulherin also contributed to household repairs. She kept copies of invoices and receipts totalling $24,579.96 for payments she made for repairs and the purchase of household items. I accept that she also met some other expenses for which she does not have records. She acknowledges that between 1994 and 1997 Mr Walsh did the majority of the grocery shopping and cooking. However she also attended to household duties. She employed a cleaner until 1993 and otherwise did most of the cleaning.
93 I do not accept that either party's homemaking contributions was so disproportionate to that of the other that it warrants any adjustment under s 20. Nor do I consider that any such adjustment is warranted in respect of the handiwork carried out by Mr Walsh. In determining what adjustments should be made under s 20, it is not sufficient simply to identify what contributions falling within the terms of the section were made. It is necessary to identify why it is just and equitable, having regard to such contributions, for there to be an adjustment to the parties' interests in property. No doubt it seemed appropriate to Mr Walsh at the time to do the work he did about the house. It is impossible to know what was happening day to day throughout the course of the relationship. It is likely there were reciprocal benefits, such that the doing of work about the house and the carrying out of repairs, even lasting repairs, did not give rise to any disproportionate burden which makes it just and equitable to effect any further adjustment of the parties' property interests (Evans v Marmont at 76).
Purchase of Furniture
94 Mr Walsh purchased some of the furniture that was used in the property. Where Ms Mulherin has identified the purchase as being made by Mr Walsh, she has agreed to his taking the item of furniture in question. I do not think that any further adjustment to the parties' property interests is required from the fact that the furniture was used by them both during their relationship.
95 There were various items in respect of which there was a simple assertion on the part of Mr Walsh and denial by Ms Mulherin that he had bought furniture or paid cash to Ms Mulherin in order for her to buy furniture. Having regard to my adverse views as to the credibility of Mr Walsh, I am not persuaded that he bought the furniture which he claims to have bought except where Ms Mulherin has admitted the purchase. The items which Mr Walsh is not to take are de minimis.
96 Mr Walsh claimed to have purchased five or six Lladro figurines for amounts varying between $300 and $1,200 each. Ms Mulherin denied that he purchased these pieces. It is her evidence that they were purchased by her before the relationship commenced. Whilst I do not accept Ms Mulherin as being an entirely reliable witness, where her evidence conflicts with that of Mr Walsh and there is no corroborating evidence or objective circumstances making one account more probable than the other, I prefer her evidence. In reaching that conclusion I have had particular regard to the fact that she made admissions about Mr Walsh's cash contributions where, in the absence of such admissions, Mr Walsh would have been unable to establish those contributions. Whilst there are parts of her evidence which I have not accepted, in particular her claim to have received $276,500 from her sale of shares in SP Secretarial Pty Ltd, I consider she was endeavouring to give honest evidence. She kept some records, whereas Mr Walsh kept none. For the reasons given elsewhere in the judgment dealing with his evidence in relation to the period of their de facto relationship and his source of cash, I do not accept Mr Walsh's evidence as being reliable.
97 My conclusion with respect to the furniture is that, except in respect of those pieces of furniture which Ms Mulherin acknowledges were paid for by Mr Walsh and should be taken by him, and except insofar as the parties have agreed upon the division of particular items, the furniture should either be divided between them by lot, or sold and the proceeds divided equally.
Motor Vehicles
98 Mr Walsh made substantial contributions to the purchase of BMW motor vehicles. Ms Mulherin owned a 1986 BMW vehicle at the commencement of their relationship. It was subsequently traded in for a 1991 BMW. The total price of the new vehicle was $51,301. The trade-in allowance for Ms Mulherin's existing vehicle was $27,510. Mr Walsh paid $22,791 towards the purchase of the new vehicle and Ms Mulherin contributed a further $1,000.
99 That vehicle in turn was traded in in 1995. The next vehicle cost $67,474. There was a trade-in allowance of the 1991 vehicle of $38,500. The balance of the purchase price was drawn against Ms Mulherin's line of credit account with Citibank. Mr Walsh deposed that he paid about $39,000 on the purchase of this vehicle, but I do not accept that evidence. Nonetheless, he paid Ms Mulherin about $21,000 over the following six to twelve months in repayment of the moneys she had withdrawn from the Citibank mortgage.
100 It is common ground that in September 2004, that is, after the termination of their relationship, the parties agreed on a value of $20,000 for the BMW and that Ms Mulherin purchased Mr Walsh's share of that vehicle and paid him $10,000 for that share. It is unclear what use both parties made of the BMW when they were living together. No separate submissions were made in respect of Mr Walsh's contribution to the motor vehicle. I take it that the reason for that was that is was common ground that those matters were dealt with by the post-separation agreement under which Ms Mulherin paid Mr Walsh to acquire his interest in the vehicle.
Contributions to Living Expenses and Gifts
101 Mr Walsh claimed that from 1989 to 1995, he gave Ms Mulherin about $200 per week over and above the moneys that he paid her weekly for mortgage and living expenses. This was disputed. Ms Mulherin deposed that between May 1989 and 2004, Mr Walsh periodically gave her lump sums for household and living expenses which were paid against the Citibank line of credit account. She acknowledged some specific payments from Mr Walsh, in particular a payment of just over $5,000 for the cost of dental work in July 1994, and $2,000 as reimbursement for costs of a holiday paid in April 1994. This was at a time when Ms Mulherin was out of work and Mr Walsh was meeting various expenses. On the other hand, Ms Mulherin also contributed to living expenses both from her employment either as a prostitute or as a travel agent, from loans she received from her brother-in-law and her sister, from payments made to her by clients which she claimed were gifts, and, after September 1993, by drawing down on the Citibank line of credit. She also surrendered insurance policies between 1993 and 1997 which were a source of cash and which were applied towards, amongst other things, household and living expenses.
102 It is impossible to quantify what sums were paid towards living expenses by each of the parties. I do not consider that any adjustment to the parties' property is warranted in respect of those contributions. Even if there is an imbalance in favour of one or other of the parties, it is not an imbalance which would warrant an adjustment of the parties' property interests. To the extent there may have been such an imbalance, it would represent, in effect, gifts made by one of the partners in favour of the other at the time. I see no reason why justice or equity would require that payments which the parties then treated as a gift should be subsequently treated as giving one of the parties an entitlement to property of the other.
The Woolloomooloo Property
103 I do not accept Mr Walsh's evidence that he had any involvement in the purchase of the Woolloomooloo property, or that he made any financial contribution to it. Mr Walsh deposed that he was told by Ms Mulherin that she had bought the unit off the plan and that she agreed that the unit would be put in both their names. According to Mr Walsh, she told him in 1995 or 1996 that they would need to make regular payments towards the purchase price. As noted above, he claimed to have made cash payments of about $5,000 towards the purchase price and weekly payments of about $500. In his oral evidence, he acknowledged that his reference to 1995 or 1996 was a mistake and said that the conversation occurred in 1997, which was the year Ms Mulherin entered into the contract to buy the unit. He deposed that he inspected the property. I reject this evidence. There is no corroboration of it and it is contradicted by the evidence of other witnesses. According to Mr Walsh, he made no inquiries as to the terms of the contract, or how much had to be paid, but trusted Ms Mulherin. According to Mr Walsh, he believed that he was a purchaser under the contract, even though he had not seen the contract and had not signed any contract. This evidence was not credible. There was no corroboration of the general evidence Mr Walsh gave of making payments towards the purchase of the Woolloomooloo property.
104 I accept Ms Mulherin's evidence that Mr Walsh was not involved in the purchase of the Woolloomooloo property and did not make any payment towards it. Sharon Mulherin corroborated her evidence that Mr Walsh was not involved in any of the discussions about the planning or purchase of units in The Wharf development. The investment was discussed by Ms Mulherin with a Mr Peter Dick who also gave evidence. He also deposed that to his perception Mr Walsh had no involvement. My conclusion that Mr Walsh was not involved and made no payments towards the purchase or to meet mortgage payments does not depend upon that corroborative evidence, but it nonetheless supports the conclusion to which I have otherwise come.
105 Although the point was not emphasised in the submissions for Mr Walsh, and although his counsel did not seek to establish at the hearing that he had a beneficial interest in the Paddington property, if, as I think was probably the case, he was beneficially a part-owner of the Paddington property, the mortgaging of the entirety of the property by Ms Mulherin to secure the loan raised (in part) to buy the Woolloomooloo property may be regarded as an indirect contribution by Mr Walsh to the acquisition of that property. The contribution would have taken the form of his not asserting a beneficial interest in the Paddington property; thereby allowing Ms Mulherin to mortgage it.
106 The difficulties with this are that Mr Walsh did not seek to establish that he had a beneficial interest in the Paddington property and there was no evidence as to whether Ms Mulherin could still have raised the loan had Mr Walsh asserted a beneficial interest in the Paddington property at that time.
Payments in 1997 to 1999
107 Mr Walsh deposed that he gave Ms Mulherin $11,000 in cash in 1997 including two payments of $5,000 made for the purpose of being applied towards the mortgage over the Paddington property. Ms Mulherin denied that Mr Walsh paid such moneys to her. There is no corroborative evidence that he did. I do not accept his evidence that he made such payments.
108 It is common ground that in 1998 Mr Walsh paid moneys which he received when he cashed in his life insurance policy with MLC to Ms Mulherin. She acknowledged receipt of $19,352.92. Ms Mulherin deposed that the payment was made by way of repayment of a loan of $20,000 made by her to Mr Walsh in October 1997. Although the bank statements of the account for the relevant period were not tendered, Ms Mulherin conceded in cross-examination that there was no withdrawal shown on the bank statement consistent with her making an advance of $20,000 to Mr Walsh in October 1997. Ms Mulherin gave oral evidence that Mr Walsh had asked for a drawdown of his funds from the line of credit account. She said in oral evidence that she had always considered that the moneys he paid into the line of credit accounts were his, and that he would request them from time to time. Of course, if this evidence were correct, it would not be correct to say that a payment of $20,000 from the line of credit account was a loan, as distinct from a repayment. In her affidavit, Ms Mulherin described the October 1997 payment as a loan.
109 Although Ms Mulherin did not identify any withdrawal from the Citibank account in October 1997, a cheque butt was tendered showing a $20,000 cash withdrawal from the account on 7 August 1997. I accept Ms Mulherin's evidence that that withdrawal represented funds requested by Mr Walsh. Although the evidence is confused, and although there were no words of loan, I conclude that the payment of $19,352.92 in February 1998 was in substance a repayment of funds provided to Mr Walsh by Ms Mulherin from the line of credit account in August 1997.
110 Mr Walsh deposed that he paid $1,500 to Ms Mulherin to be put towards the mortgage at an unspecified time from reimbursement he received from a third party for repairs to the BMW. I do not accept that evidence. I accept Ms Mulherin's evidence that he did not pay for the repairs, that the repairs were paid for by insurance, and that she paid the excess.
111 Mr Walsh paid Ms Mulherin $1,000 in September 1988 and $4,000 in January 1999. She described the latter as being a contribution to car insurance premiums and household expenses. I infer that the payment of $1,000 was also towards household expenses. Those payments are in the same category as the payments to household expenses dealt with in paras [101] and [102] above.
112 Mr Walsh made a deposit of $18,000 to Ms Mulherin's account on 4 June 1999. There had been a cheque drawn for cash on 22 May 1999 of $15,000. I accept Ms Mulherin's evidence, which is supported by the cheque butt (which noted that the cheque was drawn for "T" (i.e. Tony)), that the $15,000 withdrawal was provided to Mr Walsh. Mr Walsh denied receiving $15,000 in April 1999. The payment was made in May 1999, but I took him as having denied having received such moneys in either April or May 1999. However, I prefer Ms Mulherin's evidence. Given that the parties' de facto relationship had come to an end by this time, I think it more likely that the payment of $18,000 was in repayment of funds previously advanced than that it was a further gift to Ms Mulherin or payment towards a mortgage.
113 Ms Mulherin explained the difference between the advance of $15,000 and the repayment of $18,000 as being attributable to interest. That is a possible explanation although the rate of interest would be extortionate. On the other hand, there had not been a full repayment of the 1997 advance of $20,000. I do not consider that the discrepancy between the advance of $15,000 in May 1999 and the payment of $18,000 on 4 June 1999 should lead me to reject Ms Mulherin's evidence that the latter was a repayment of the former. In any event, whether or not there were individual loans and repayments, there were mutual debits and credits to be set off.
114 Accordingly, these payments do not warrant any further adjustment under s 20.
115 If I am wrong in my conclusion that the payments made by Mr Walsh were in substance a repayment of moneys advanced to him, the question would be: what was the nature of those payments? The payments were not made for the purpose of purchasing property or discharging a mortgage debt incurred in order to purchase property. There is no evidence that they were paid by way of loan. There is no evidence of any agreement for repayment. There is no presumption that the moneys were paid by way of loan. The presumption is rather that the moneys were a gift (Haydon v Perpetual Executors Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111 at 113; Schmierer v Taouk [2004] NSWSC 345; (2004) 207 ALR 301 at 312-313 [59]; Gray v Gray [2004] NSWCA 408; 12 BPR 22,755 at 22,757 [15], [16]). While such gifts would be financial contributions by Mr Walsh to the property of Ms Mulherin under s 20(a), some reason would need to be shown why it is just and equitable to adjust the interests of the parties in property by reason of such gifts. If money is paid as a gift, prima facie, it is not just or equitable that it should be treated in any other way. The position might be different if the gifts were made in the expectation of the parties' relationship as de facto partners continuing, but there was no evidence to that effect. It is not necessary to decide this question, but, were it necessary to do so, I do not consider that any further adjustment to the parties' property interests would be warranted by reason of such gifts, if gifts they were.
Conclusion
116 For the reasons given earlier, the parties' financial contributions to the acquisition and improvement of the Paddington property up to the completion of renovations in late 1992 and early 1993 warrant an order under s 20 which treats Mr Walsh as if he were then entitled to a 35% beneficial interest in the property. I do not consider that any further adjustment to the parties' interests in property is warranted having regard to their other contributions. The benefit derived by Mr Walsh from being able to live in the Paddington property without making a contribution to rent, even though he was not a 50% beneficial owner, did not give Ms Mulherin any legal or equitable rights at the time, and there is no reason in justice or equity to create such rights now. As with the case of possible unequal contributions to joint living expenses referred to in para [102] the fact that one party made a contribution to the welfare of the other is not itself a reason for adjusting the parties' interests in property.
117 The position may be different after the relationship terminated, and particularly after Ms Mulherin asked Mr Walsh to leave the property, which was "a couple of years" before April 2003. But against Ms Mulherin's claim for rent or an occupation fee which reflected her greater contribution to the acquisition and improvement of the Paddington property, there is to be balanced the fact that Mr Walsh did not press a claim, when he could have done so, to a beneficial interest in the Paddington property, and Ms Mulherin was able to mortgage that property to borrow the funds to complete the purchase of the Woolloomooloo property. The value of that contribution was not quantifiable.
118 I have earlier explained why I do not consider the other claimed financial and non-financial contributions warrant an order under s 20 adjusting the interests of the parties with respect to the property of either of them.
119 For these reasons I am of the view that there should be an order adjusting the interests of the parties in their property which has the effect of recognising that Mr Walsh should receive 35% of the value of the Paddington property. Considering the matter in the round, and making an holistic value judgment, or impressionistic assessment, of their respective contributions under s 20(a) and (b), that appears to me to be a just and equitable adjustment. The property had an agreed value of $950,000. The appropriate order is for payment of a lump sum of $332,500 to be secured by a charge over the property. The furniture should be dealt with as indicated in para [97] above.
120 I direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. The orders should provide for leave to be given nunc pro tunc to Mr Walsh to bring the application. I will hear the parties on costs.
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