NSWNSWSC

Wendt v Wood

[2011] NSWSC 781

Supreme Court of NSW|2011-03-17|Before: Slattery J

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Source facts

Court

Supreme Court of NSW

Decision date

2011-03-17

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment 1In July 1998 Carol Wendt and Terrence Wood commenced to live in a de facto relationship at the rural property "Tallawarra", near Tooraweenah New South Wales. They stayed together for 9 years until March 2008. Their relationship has now ended. But they are unable to agree upon the just and equitable division of their joint property. Ms Wendt seeks orders under s 20 of the Property (Relationships) Act 1984 (NSW) adjusting the interests in the property they each hold. She claims as plaintiff an entitlement to the whole of Tallawarra, a property that Mr Wood holds in his own name. Mr Wood as defendant resists her claim to the whole of this property. He says that her rights would be appropriately recognised by an award of a 25 per cent interest in Tallawarra. The principal issue for determination in these reasons is the fixing between them of an appropriate adjusting percentage of their respective interest in this property or in their other joint property. 2Ms Wendt's statement of claim invokes jurisdiction conferred on this Court by the Property (Relationships) Act 1984 (NSW), s 20 which allows the Court to adjust the interests in property of parties to a domestic relationship. Section 20(1) relevantly provides: "20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, 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: (a) 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 (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property." 3Neither Ms Wendt nor Mr Wood contest that there was a domestic relationship between them during the period July 1998 to March 2008. There is no issue as to the prerequisites to the Court's jurisdiction. The parties "have lived together in a domestic relationship for a period of not less than 2 years": Property (Relationships) Act 1984 (NSW), s 17. Ms Wendt brought her application within two years after the relationship ceased in August 2007: Property (Relationships) Act, s 18. Once a domestic relationship is proven, or conceded as it is here, and there is no other impediment to the Court's exercise of jurisdiction, the decided cases establish three distinct stages in the exercise of jurisdiction under the Property (Relationships) Act , s 20. (a) The first stage is the identification and the valuation of the property of the parties to determine their "divisible pool of property". The property so identified is "the property of the parties to the relationship or either of them". Section 20 gives authority to the Court to adjust the parties' interests in this property. (b) The second stage is to identify, evaluate and weigh the parties' respective contributions of the various types referred to in the Property (Relationships) Act, s 20. This typically but not always results in the Court apportioning as a percentage the overall s 20 contributions each party made up to the date of the hearing. (c) In the third stage the Court determines what order is required sufficiently to recognise and compensate an applicant's contributions in the context of the contributions as a whole of both partners. This stage typically results in an order leaving the applicant with the percentage identified in the second stage of the divisible property identified in the first stage. 4The courts have repeatedly affirmed this three stage methodology: Evans v Marmont (1997) 42 NSWLR 70; Jones v Grech (2001) 27 Fam LR 711; [2001] NSWCA 208; and Kardos v Sarbutt (2006) 34 Fam LR 550. 5In the absence of a contest as to whether there was any domestic relationship between Ms Wendt and Mr Wood, the stages identified in these authorities present for judgment the following three main questions: (1) what is Ms Wendt's and Mr Wood's divisible pool of property? (2) what were their respective contributions that may be recognised under s 20? And (3) what order as "seems just and equitable" should the Court make to adjust Ms Wendt's and Mr Wood's respective interests in their divisible pool of property to reflect and recognise their contributions? Those questions form the structure of this judgment. 6The Court has a policy of reducing the risk of identity theft through its published judgments. This judgment does not publish the addresses of any of the properties owned by the parties or any other person. Nor are any bank account details published. If required this information is obtainable from the Court's file. 7To understand the issues for determination more background is needed. This background is set out in the form of a chronological survey of the course of their relationship and covers the respective s 20(1)(a) financial and non-financial contributions they made to their properties and financial resources. It also covers their respective s 20(1)(b) contributions to one another's welfare. These matters are the "focal points by reference to which the discretionary judgement as to what seems just and equitable [under s 20] must be made": Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland CJ in Eq at 79 G - 80A. The parties were at issue about the extent of their relative contributions in each of these areas. In this background survey the Court makes findings as to their disputed relative contributions. This judgment then deals with the reasoning of the three stages necessary to make a s 20 order. 8The parties took issue with a great number of detailed matters in the competing accounts they each gave of the course of their relationship. For example, there was much disputation in the affidavits about whether or not particular items of moveable property were taken by one party or the other from Tallawarra or not. These chattels included scarifiers, individual horses and pieces of farm equipment of indeterminable value. Many of these incidents were not the subject of any cross-examination by either party. Most of the items did not have any identifiable value. It is not necessary for me to determine what happened in these incidents in order for the Court to assess the three stages of the exercise of jurisdiction under Property (Relationships) Act , s 20. Accordingly, the account of the course of the parties' relationship set out below makes relevant findings on many of the principal areas of dispute between the parties. But it does not make findings in relation to these incidents of less material importance. 9Mr Wood's final submissions asked for findings to be made about some of these assets but in my view they are of such little value (some less than $500) that they cannot make a material difference to the Court's conclusions. If supplementary orders are to be sought about the disposal or audit of such items, then they may be addressed at the time that short minutes of order are dealt with by the Court.

[3]

Initial Assets 12The respective assets of the parties at the commencement of the relationship are part of the relevant background to be taken into account. Here is a general description of them. A more detailed account of the value of these assets appears later in these reasons. 13At the time the relationship commenced the parties' asset positions were quite different. Ms Wendt had an equitable interest in real estate with her husband. She surrendered this interest to her husband after she commenced her relationship with Mr Wood. There was never any formal property settlement between Ms Wendt and her husband. All she retained from her marriage was her motor vehicle and some personal effects. She sold the motor vehicle for the sum of $1,000 and used the proceeds of sale to pay a personal debt. 14Mr Wood in contrast had substantial assets. Mr Wood had worked full time as a solicitor until 1998 when he sold his practice "Wood Roberts" at Mayfield and retired to lead a life which he found more compatible with the pursuit of his leisure interests. He had prospered from his professional practice and had accumulated capital. Since retirement he has lived on his investments. His leisure interest have not provided him with the same level of stable income as his professional practice did. As a result he has run down his capital since 1998. 15Mr Wood's and his wife's assets were varied. They owned their former matrimonial home at Kilaben Bay, some vacant land at Kilaben Bay, other vacant land at Toronto near Lake Macquarie, factory bays at Belmont, a block of six units at Newcastle, and an Isuzu truck, a Toyota Hi-Lux utility, a Subaru station wagon and savings with the Commonwealth Bank of Australia. In addition Mr Wood had purchased Tallawarra in 1995 for $240,000.00. 16At the time that Ms Wendt and Mr Wood commenced their relationship Mr Wood had not completed his property settlement with his wife. The settlement was achieved shortly afterwards. Mrs Wood retained the former matrimonial home at Kilaben Bay, under that settlement together with their Subaru motor vehicle and she received a cash payment. Mr Wood retained the balance of their matrimonial assets.

[4]

Financial Arrangements for the Household during the Relationship 17During their relationship Ms Wendt and Mr Wood did not mix their respective incomes in a joint bank account. Rather, they made an informal arrangement as to how they would share household expenditure from their respective earnings. It is useful to look at their evidence about earnings and then about expenditure. 18It is easier to verify Ms Wendt's earnings during their relationship than Mr Woods' earnings. Ms Wendt was in receipt of a disability pension of approximately $490 per fortnight for the entire period of the relationship. She disclosed to Centrelink the circumstances of her relationship with Mr Wood. I accept her evidence that she observed Mr Wood study the relevant Centrelink form and information sheets and that he directed her as to how the form should be completed. She trusted his professional expertise as a former solicitor in advising her as to how she should fill out the form. I accept her evidence that this is what happened. The result of the information she gave Centrelink was that she remained eligible for the pension notwithstanding her relationship with him. 19How Ms Wendt's income was applied was an important issue in the proceedings. Ms Wendt said that she spent her entire income from the pension in the purchase of fuel, groceries and household goods, for the payment of utility bills, for materials used in the maintenance and improvement of Tallawarra, for veterinary accounts and for the purchase of her clothing and personal items, including her own medicines and medical expenses. There was evidence of her spending $80 per fortnight on pharmaceutical expenses later in the relationship but I do not think such expenditure was this high earlier than 2005. She purchased clothes for less than $500 per year in total. She says that after this expenditure at the end of each fortnight her Centrelink benefit was exhausted and I accept this. She did not have money left over after buying soft furnishings, food, clothes for Mr Wood and occasionally, linen, cutlery and towels. There were no bank statements in evidence to verify the correctness or otherwise of her evidence but in my view she lived quite frugally. 20In contrast, Mr Wood was not in regular paid employment at any stage during their domestic relationship. He earned his fluctuating income from his pre-existing investments, from the sale of crops, cattle and horses and from the farm stay business that they conducted jointly at Tarrawarra. Mr Wood also drew upon the equity he had at various properties and lived on credit cards. It seems that he preferred to live by running down his capital rather than by returning to work full time as a solicitor.

[6]

The Relationship Declines 24One indicator of trouble in the relationship was Mr Wood's desire to change his 2001 Will and to be less generous in his testamentary intentions towards Ms Wendt than the 2001 Will provided. In 2004 he changed his 2001 will to one which did not make any provision for Ms Wendt. I infer from this that by some time in 2004 the relationship had become far less close from his point of view. 25About a year later in December 2005 and shortly before Ms Wendt and Mr Wood left for Bahrain Ms Wendt overheard a conversation between Mr Wood and his son. It became clear for her from this conversation that Mr Wood had appointed his son as executor. When Ms Wendt enquired of Mr Wood whether he had made a new Will Mr Wood simply said "It's none of your business". He persisted in this attitude right until the end of the relationship. 26It is difficult to determine when Mr Wood and Ms Wendt's relationship went into serious decline. The commencement of the decline is of some importance. From that time the degree of financial and non-financial contributions and homemaker contributions altered for reasons associated with her health and the decline of the relationship. In about 2004 the symptoms of an underlying autoimmune condition from which the plaintiff suffered became more evident. Her medical condition was that of primary scleroderma, progressing to lupus together with fibromyagila and asthma. The severity of these medical disorders caused Ms Wendt periodic depression and has meant that she has been unable to pursue her interest in endurance horse riding, which is a physically demanding sport. This condition is also a reason she receives a disability pension. She has received treatment for her condition involving a continuous regime of medications and chemotherapy. The condition also resulted in the need for regular visits to hospital immunology clinics. The closest hospital immunology clinic for the plaintiff is at the John Hunter Hospital in Newcastle. From time to time the plaintiff has also been required to visit immunologists and other specialists at St Vincent's Hospital in Sydney, the Kurrajong Centre, the Gosford Medical Centre and Gilgandra Hospital. 27The worsening of Ms Wendt's autoimmune disease changed the couple's relationship in ways that impact upon the assessment the Court must make. It increased the level of contribution expected of Mr Wood and reduced the degree of financial and non-financial contribution by Ms Wendt. Because she was not as well as she had been Ms Wendt was less active in improving and maintaining the couple's property but she still contributed to the extent that she could. She also needed to spend her disability pension income on medications to a larger extent than she had before. Finally, she could only give less assistance to the welfare of Mr Wood and he was required to give more assistance than was the case prior to 2004. The disputed evidence in the case should be analysed with this in mind. In my view much of Mr Wood's perspective on her contributions is based only in this last period when Ms Wendt's capacities reduced and the demands on Mr Wood correspondingly increased. 28The first clearly objective signs of serious trouble in the relationship occurred in early March 2005. Mr Wood wrote a long email to Ms Wendt on 23 March 2005 listing the symptoms that she had suffered in recent months, listing the medical appointments to which they had been travelling and listing the difficulties he had in managing the farming operations at Tallawarrra. He seemed to connect their financial problems with her illness in the following paragraphs:- "Notwithstanding this we have had increasing arguments over the care, training & possible future sale of some of the 30 or so horses which I am having difficulty in properly managing! Just by way of example in a single year, I think 2002, my loss in managing this farming business including travel expenses incurred in getting to Spain & returning Biscuit to Australia was $154,000.00. I also installed a swim pool which I believed was essential to your wellbeing." 29The email is something of a plea, as he described it, to "come to a better understanding of our relationship". It seems implicit in the reasoning of the letter that he perceived the withdrawal of her support from running the business and the distractions generated by the trips to the Hunter Region for her medical attention were causing him financial loss. There was in fact no clear financial relationship between the on-set of her illness and the prosperity of his businesses. On his own evidence, as appears below, the businesses had made losses throughout the relationship. 30By mid 2005 the relationship had deteriorated to the point that Dr Thrift, Ms Wendt's general practitioner, commented in a note of a consultation with her, "marital stress - at the point of separation". 31But separation did not occur at that point, although there was a short separation between January and March 2006. Rather what happened was that Ms Wendt began living on a mobile home on Tallawarra. Ms Wendt's mother paid the deposit for the purchase of the mobile home. Ms Wendt denied that the installation of the mobile home was her idea. But on this I am more inclined to accept Mr Wood's version which was that she wanted to purchase the mobile home and move into it so that they could both "continue to live together without friction". His version is supported in my view by the fact that Ms Wendt selected the mobile home and her mother paid the deposit for it. 32In late 2006 early 2007 the parties negotiated a transfer to Ms Wendt of 25 per cent of Tallawarra for a consideration of $50,000, which she paid to him. He was in need of capital and used the funds to capitalise his businesses and to improve Tallawarra. 33In early January 2007 an incident occurred between Mr Wood and Ms Wendt. She says that he assaulted her. He says that she was aggressive towards him. The police were certainly called to Tallawarra. The incident was certainly an angry one. He denies assaulting her. It is not necessary for me to determine the issue of whether or not there was an assault on this occasion. But Mr Wood's evidence is that they lived separately apart in the house at Tallawarra and ceased having a sexual relationship after this incident. This seems to me to be correct and consistent with a number of other events which occurred about the same time. Among other things Ms Wendt consulted a solicitor in relation to their relationship problems and there was correspondence between that solicitor and Mr Wood in February of that year. 34In early 2007 they travelled together to Newcastle. Mr Wood returned to Tallawarra without Ms Wendt. She seemed surprised at this. I accept her evidence that, quite strangely, he did not tell her before leaving that he was about to go back. When they spoke by telephone Mr Wood invited her to stay in Newcastle for a while so that her health could improve. About two weeks later she asked him to pick her up from Newcastle and take her back with him to Tallawarra. He said " I don't want you to come back". She did return to Tallawarra in about March 2007 and after some discussion in that month they agreed to resume their relationship. But it only lasted for another twelve months until 24 March 2008, when Mr Wood moved out of Tallawarra and to his Toronto property to live.

[7]

The 2007 Draft Agreement 35Before he left Mr Wood had prepared a draft agreement to regulate the financial consequences of their relationship. Ms Wendt did not sign this agreement. The draft agreement is significant in showing the shift in his attitude to Ms Wendt from the 2001 Will. Mr Wood presented his draft agreement to Ms Wendt in the first half of 2007. Reproduced below are clauses 1 to 8 of the draft agreement as presented to Ms Wendt. "1. Terry & Carol intend to live together in a bona fide relationship. 2. Terry & Carol wish to set out the property interests of each at the present time and their intention in relation to such property in the future. 3. Terry & Carol have resided at Tallawarra from early 1998 to present date, with the intention of mutual cooperation to maintain their common interest in the sport of endurance riding, including the breeding & training of endurance horses. 4. Tallawarra was purchased by Terry in 1995 for $240k. Substantial improvements have been effected by him to facilitate the involvement of both Terry & Carol in endurance sport, including horse stable, tack room, yards, fencing, horse walker, additional watering points, bore line & piping, dams & pasture improvement. 5. During 2006 further additions have been made to enable a business of farm stay, and Bed & Breakfast guests to extend a previous activity in catering for mainly overseas guests wishing to experience endurance sport in Australia. 6. Carol has offered to contribute $50k to complete those additions and in exchange Terry has agreed to transfer a one quarter share in the beneficial ownership of the Tallawarra property to Carol, with the title to be vested in them as tenants in common. 7. The income to flow from the farm stay & guest accommodation to be shares in the same shares viz one quarter to carol, & three quarters to Terry. 8. The cattle, farming plant, vehicles and an approx 16ha parcel of farming land known as [address not published] Toronto remain the sole property of Terry." 36Clause 9 acknowledged Mr Wood and Ms Wendt as the owners of a number of named horses. Another clause provided that the cost of transfer of the title to Tallawarra, including stamp duty and registration, to be borne by Ms Wendt. A further clause provided that the agreement was intended to bind both parties but not to bind a court of law, under either the Family Law Act or the Property (Relationships) Act , but was advanced as a factor that could be "considered in the exercise of judicial discretion under any relevant legislation". 37The effect of the agreement was to lock Ms Wendt into her 25 per cent interest in Tallawarra, to quarantine Mr Wood's Toronto property from any claim from her and indirectly to confirm Mr Wood's 75 per cent interest in Tallawarra. Ms Wendt refused to sign it. In her view it reflected too mean a view of her entitlements. Mr Wood did not insist upon it being signed. He had little persuasive power to do so, as by mid 2007 their relationship was already badly fracturing.

[8]

Ms Wendt and Mr Wood 38Ms Wendt and Mr Wood were bitter about each other's conduct and about the failure of their relationship. This markedly coloured the quality of each of her and his evidence. Ms Wendt seemed profoundly affected by Mr Wood's coldness towards her after about 2003 - 2004, when she became unwell. She seemed to harbour bitter resentment that the man who had promised her so much including his love earlier in the relationship was now taking, as she perceived it, every possible step to diminish her just financial entitlements. Despite these problems in her evidence, I found Ms Wendt on the whole to be a better witness than Mr Wood. Her account of events seem to me to be closer to reality. Also it was largely corroborated by a witness whose evidence I accept, Suzanne McCready, and it was more consistent with the objective probabilities. 39Whatever might be the decline in his affection for Ms Wendt by 2003 - 2004, Mr Wood on the other hand seemed to be acutely conscious that Ms Wendt was not assisting him to earn any income and was costing him money. Given the lifestyle calculation he had made, to retire as a solicitor, and live from his small investment income, the product of his earnings from the horse industry and his own capital, the financial drain that Ms Wendt represented on his resources seemed to be upper most in his mind. He seemed to blame Ms Wendt for his financial failures and to diminish the value of anything and everything that she claimed to have done for him. He seemed quite incapable of acknowledging that she did contribute anything of value to his emotional or financial prosperity. His account of the course of their relationship was different from Ms Wendt's and different from that of Suzanne McCready's, the witness that I accept. It was not difficult for the Court generally to accept Ms Wendt's version over his. 40There are some places where I preferred Mr Wood's version of events over Ms Wendt's. These are identified throughout these reasons. Because Ms McCready played an important role in assisting the Court in deciding between Ms Wendt and Mr Wood's evidence, a brief survey here of her evidence on the main issues in contention is of assistance.

[9]

Suzanne McCready 41Ms McCready first met Ms Wendt in 1988 and Mr Wood later in 1997, when they moved to Mandalong on the Central Coast and joined the Watagan Mountains Endurance Riding Club in 1997. Both Ms Wendt and Mr Wood were members of that club when Mrs McCready and her husband joined it. She gives a clear picture of their blossoming romantic relationship in 1997. She observed their close attention to one another and the fact that they appeared to be in love. Then Mrs McCready recalls that after Ms Wendt took a trip to Western Australia to spend time with her daughter she returned to the East Coast and then spent more time with Mr Wood, when in about mid March 1998 they decided to live together at Tallawarra. Mrs McCready was a regular observer of the relationship throughout its course. After Ms Wendt and Mr Wood settled at Tallawarra they regularly returned to the Coast, about once a month during their early years, often staying together at Ms McCready and her husband's home. She observed them to do almost everything together, to be emotionally close, to have spoken to one another about marriage and always to sleep together in the same bed when they stayed with Ms McCready at Mandalong. Moreover, Ms McCready observed that Ms Wendt was accepted by Mr Wood's sister and her husband as Mr Wood's partner and that she was treated as part of their family. Ms McCready heard Mr Wood introduce Ms Wendt when they met new people as "my partner, Caz" and that Mr Wood referred to Ms Wendt as his "wife". I accept all Ms McCready's evidence set out here. 42Ms McCready also observed Ms Wendt at Tallawarra. Ms McCready visited Tallawarra many times for horse rides and other celebrations on festive occasions such as Christmas and New Year, when family members and other acquaintances were present. I accept Ms McCready's observations that when she was at Tallawarra she saw Ms Wendt preparing meals and cooking for all present, cleaning the house and doing the laundry for Mr Wood, herself, and the guests. Not only that, I accept her evidence that she observed Ms Wendt strapping the horses, assisting the guests to get ready for horse rides and allowing her own horse to be used by guests on the rides. Associated with her time at Tallawarra Mrs McCready observed Ms Wendt packing the truck in preparation for horse riding events and preparing and strapping the horses for those events. Her observations were of Ms Wendt closely involved in supporting the training of horses, the feeding of them and generally helping Mr Wood around Tallawarra. Her observations support Ms Wendt's case that she did materially assist Mr Wood with each of his various businesses. Indeed Ms McCready was not really cross-examined about these observations. I accept them as correct. 43Ms McCready's evidence also extended to the early part of the breakdown of the relationship. There are some differences between the evidence of Mr Wood and that of Ms Wendt about whether he began to abandon her in early 2007. Ms Wendt paints a rather uncaring picture of her abandonment, which in her case is consistent with the picture she paints of Mr Wood as generally unwilling to fulfil the practical day to day obligations of his relationship with Ms Wendt. Ms McCready describes in terms that I accept, that in early 2007 Ms Wendt was staying with her at Mandalong when Ms Wendt was repeatedly speaking to Mr Wood on the telephone saying "I want to come home. Why don't you come down and get me?" and "Terry, I have been here for weeks. I want to come home. Come and get me". These conversations support Ms Wendt's case that Mr Wood did just go back to Tallawarra and abandon her at Mandalong in early 2007. Eventually Mr Wood did come and collect Ms Wendt and take her back to Tallawarra. 44To the external observer Ms McCready, Ms Wendt and Mr Wood's relationship seemed to falter towards the end of 2007. I accept Ms McCready's evidence that from then on he distanced himself from Ms Wendt, discussed with Mrs McCready his money problems and was pre-occupied with his finances. This is exactly the way that he came across in the courtroom. 45Ms McCready confirms Ms Wendt's story that Mr Wood did not take her to medical appointments very often. Counsel suggested to Mrs McCready that when Ms Wendt and Mr Wood stayed with her at Mandalong, so that Ms Wendt could attend a medical appointment the next day, that Mr Wood would usually drive Ms Wendt to the appointment. Mrs McCready's response to this question was memorable "No. I took Caz to a lot of - an awful lot of medical appointments myself. I wasn't working at that point". I accept this evidence. I reject Mr Wood's inconsistent evidence. 46In conclusion, Ms McCready confirms that in March 2008 Ms Wendt telephoned her very upset, complaining that Mr Wood had left and abandoned her and said "he has gone back to the Coast. I don't know what I am going to do. I don't know how I'm going to be able to get on here by myself". I accept this evidence. There was certainly nothing consensual on her side about the ending of Mr Wood and Ms Wendt's relationship.

[12]

The Parties' Current Asset Position 50The parties' asset position at the present date may be shortly stated. Ms Wendt owns a one-quarter share in Tallawarra. The parties are agreed that Tallawarra is valued at $505,000 at the date of trial. And it secures by mortgage a loan of $51,000 on overdraft to the Commonwealth Bank. Thus the net value of Tallawarra is $454,000 (being $505,000 minus $51,000). Ms Wendt's 25 per cent of Tallawarra is worth $113,500. Ms Wendt's other assets are of inconsequential value. 51Subject to one matter concerning Mr Wood's improvements to the Toronto property his asset position is reasonably straight forward. He owns the remaining 75 per cent share in Tallawarra which is $340,500 (being 75 percent multiplied by $505,000 minus $51,000). Mr Wood has a loan from the Kiriwina Investment Company in an amount of $450,000 secured by a mortgage over the Toronto property and additional debts of $200,000. These debts have been mounting due to unpaid interest on the Kiriwina Investments Pty loan since January this year. There are unpaid legal costs of $55,500. But these can be ignored for the purposes of the present calculation. 52Ms Wendt's case was that Mr Wood has been profligate with his assets after the separation but I cannot conclude that against him on the materials before me. The Court asked about Mr Wood's eligibility for pension but the result of this further evidence was indeterminate. Despite invitations by the Court neither party established that any moveable property of the parties was of such special value that it should be identified as a major component of the Court's calculation of the pool of divisible assets. 53The parties agreed that the unimproved value of the Toronto property at the date of trial was $1 million. In addition the value of improvements on the land in May 2010 was $200,000. But a question for the Court to decide is taking into account the additional building work by Mr Wood since May 2010 whether any other value should be added to the improvements on the land. Much of the $450,000 borrowings on the Toronto property were used in improving it. About $230,000 was spent on constructing the house on the Toronto property between February 2009 and June 2010. The amount of $100,000 was originally borrowed in January 2006 to capitalise Mr Wood's businesses. The remaining $120,000 has been used for living expenses, to pay lawyer's fees and to keep funding his businesses. Between February 2009 and June 2010 Mr Wood lived on a site shed on the Toronto property. I accept that he did live frugally with modest living expenses as he said. There are photographs of the site shed in evidence and from that and from his evidence I accept that he has lived frugally. But very little seems to have had been spent on the house after the improvements that were valued in May 2010 at $200,000. I have no basis to infer that they had any greater value than that at the time of trial. 54In my view the parties' divisible pool of assets is in respect of Tallawarra in an amount of $454,000 and in respect of Toronto an amount of $600,000 (being $1.2 million minus $450,000 minus $150,000). 55This represents a total asset pool of $1,054,000 of which Ms Wendt has $113,500 or 10.76 per cent. In my view some adjustments are required to this asset pool which will be explained below.

[14]

58These losses are unsustainable over time. The parties have really lived on cash of about $525,000 contributed to the relationship by Mr Wood, from the sale of the properties jointly owned with his former wife ($328,014), the $97,454.78 received in July 2004 and $100,000 borrowed on security over Toronto in early 2006. I accept Mr Wood's evidence that he more often paid for groceries and household items than Ms Wendt and that he paid most of their trips overseas and financed most of the construction of improvements of Tallawarra, such as a swimming pool, a tack room and a stable. Generally his contributions went into improvements into Tallwarra, the operation of the business on Tallawarra and the living expenses of the couple. 59The parties' differences about Ms Wendt's expenditure are a useful example of their respective attitudes to issues of financial and non financial contribution in the proceedings. Ms Wendt's version of how she spent the money is that it was contributed to the household. In contrast Mr Wood said that Ms Wendt spent her disability pension on her own medications, her own horses, food and alcohol for herself and that she contributed nothing to household expenditure. He denied that she had contributed to the joint household expenditure and that her claims that she had applied her income to this end were incorrect. Mr Wood's evidence reflected a begrudging refusal to accept that Ms Wendt had contributed financially to the household at all. I do not accept his evidence first because I prefer Ms Wendt's evidence on this issue to his. But also, it is inherently improbable that she would have made as little financial contribution to household expenditure as he says she did. It is likely in my view that had she made as little contribution as he says that she did, that it would have been the source of some friction between them. There is no evidence of any such friction. This is surprising, if his version were true, as Mr Wood was someone who was careful about money matters.

[16]

Improving Tallawarra 61Ms Wendt's non-financial contributions to the Tarrawarra property were a source of disagreement in the proceedings between them. Ms Wendt said that she and Mr Wood improved Tarrawarra together by constructing a stable, tack rooms, quarantine yards, dams and additional watering points. She says that they also installed bore lines and piping, a horse walker, and that they cleared and fenced much of the property and undertook pasture improvement. 62Mr Wood was quite dismissive of Ms Wendt's contribution to improving Tarrawarra. He said that she made tea a few times when he and other paid employees were doing the labouring work but basically that she did little or nothing to assist him in these improvement works. His evidence about her contribution to Tarrawarra's improvement was given so begrudgingly and his denial of any contributions from her was so comprehensive that it was difficult to credit the accuracy of what he said. And it conflicted with Ms Wendt's credible evidence on this subject which I accept. 63Mr Wood refused to concede in cross-examination that Ms Wendt had done anything of value to improve Tallawarra. His attitude to her either indicated an accurate picture of their respective contributions or, was demonstrative of a set attitude on his part that he would refuse to recognise work that she had actually done. In my view the latter is the correct explanation of his evidence on this subject. It is difficult to credit that she would have done so little throughout the whole of their relationship, especially in its more harmonious early years, without any apparent friction developing between them about her lack of contribution. There is no evidence of friction between them on this account before 2005 when he sent the 23 March 2005 email to her. Whilst Mr Wood seems to me to have been a person who undervalued the nature of her labour because it was less physical than was his, what she describes as happening, in my view, fits into a probable account of how these improvement works were done. She says that she helped make choices, she carried things and she assisted Mr Wood and others in the performance of their work. I accept her account about the contribution she made to the improvement of Tarrawarra.

[17]

The Farm Stay Business 64Ms Wendt also said that she contributed to the operation of the couple's "farm stay" business. This became more formalised in 2006 when some of the money which Ms Wendt paid to Mr Wood for a share in Tallawarra was used to fund the building of better accommodation at the property for the conduct of this business. But even before then the property was used for farm stay, one of the three businesses which the couple conducted. Mr Wood argued that the farm stay business made little money and therefore Ms Wendt's contribution should be discounted. The business was not profitable. Mr Wood's tax returns show this. The factual basis for Mr Wood's argument is made out to this extent. 65However Ms Wendt's labour within the business cannot merely be discounted because the business was unprofitable. It can be expected that if she did not commit her labour to this business the way that she did, that either its earnings would have been less because fewer customers would have been attracted or he would have had to employ and pay staff to replace the services she was providing. Either way the business would have been financially even worse off than it actually was. In other words she saved him from greater losses. The kind of labour that Ms Wendt contributed can be classified in my view as a s 20(1)(a) non-financial contribution to the conservation of their property. The labour that she contributed can also be classified as a s 20(1)(b) contribution to their mutual welfare in that the labour indicates a commitment on her part to a business that interested him as well as her and was a way that she showed support in their relationship. Of course the labour cannot be counted twice and I assess it under s 20(1)(a). Ms Wendt was not obliged to work to contribute to this farm stay business but she did. There were some capital improvements to Tallawarra as a result of the operation of the farm stay business there. Although it must be acknowledged that the contribution of these improvements to the overall value of the property could only be assessed as marginal at best. The real value of Ms Wendt's labour was in minimising the losses of the farm stay business. 66I make the following more detailed findings about her contribution to the farm stay business. Ms Wendt's contribution to the farm stay business began as a business extension of her and Mr Wood's shared domestic relationship at Tallawarra. She says that approximately 10 or 15 times during their relationship that people with an interest in horse riding came to stay at Tallawarra and paid for their stay. They paid Mr Wood in cash for the farm stays and horse riding. 67Ms Wendt says that she organised everything for these guests by expending her own money and purchasing food and wine for them. She says that Mr Wood had paid for their own basic requirements but that she met the extra things such as food for these guests. Ms Wendt said that she had an expectation that she and Mr Wood would be married and it was natural for her to contribute to their joint lifestyle at the farm in that way. I accept Ms Wendt's evidence as to this. She genuinely expected to marry Mr Wood. She had a basis for this expectation in the declarations of affection which he had given her earlier in their relationship. I accept her evidence that her commitment to the business was based on such expectations. Ms Wendt did contribute to the business operations in a way that was essential to any opportunity for success that they had. She wanted the business to be successful to promote the couple's future prosperity. 68Ms Wendt said that she shopped for food and other groceries for the farm stay guests at Tallawarra, cleaned their rooms, undertook the laundry and prepared all meals. I accept her evidence as to this. Having seen Mr Wood in the witness box he strikes me as the kind of person who is unlikely to do any of this domestic work on a regular basis. Ms Wendt also says that she entertained the farm stay guests and escorted them on their trail runs. Although by the time she gave evidence Ms Wendt was clearly suffering the effects of her ill health, she showed signs of someone who at an earlier time in her life was capable of being quite personable and engaging. It is not difficult to infer, as I do, that she did entertain the farm stay guests as she said she did. She also says, and I accept, that she did some of the administration for the farm stay business, including fixing the farm stay charges, some basic book keeping, paying bills, taking some of the bookings, writing correspondence and making sure that everything was just right for the guests. It is not in contest that she received no payment for any of this work. 69In my view it is not readily possible to quantify its value because this work was intermittent. However the Court can, nevertheless infer that she made a substantial non-financial contribution to the farm stay business through her regular periodic work described here.

[19]

Training and Selling of Endurance Horses 73Mr Wood also trained horses for endurance competitions. Ms Wendt was an accomplished horsewoman. That is how she and Mr Wood met. Endurance riding is not a sport for the faint hearted. The evidence demonstrated endurance rides go for many kilometres. Ms Wendt says that she was involved in training the horses for their competitions. I accept her evidence as to this too. Although Mr Wood had the greater experience and expertise in the area. I accept her evidence that many of the horses that Mr Wood sold at a considerable value, particularly those to Arab buyers, were horses that Ms Wendt had been involved in training, preparing for endurance competitions, grooming and readying for their sale. As there were quite a number of these horses being prepared at Tallawarra at any one time it is logical that she would participate in this activity in the way that she says she did. Apart from employing other labour for the purpose there were few other ways for Mr Wood to prepare those horses for competition and sale. 74I conclude therefore in relation to the training and selling of endurance horses that Ms Wendt's contribution to the business was equal to that of Mr Wood. But Mr Wood rightly points out that this business too was loss making between 1998 and 2008 and had no or little value at the end of the de facto relationship. Certainly neither party put on evidence of value of the business. All that remains of the business is a number of horses on the property, most of whom have long since ceased to be trained and prepared for endurance racing. But the loss making nature of this business is no more an answer to Ms Wendt's claim than it was in relation to the farm stay business. Her active work in training and preparing horses for sale saved Mr Wood money and made these businesses less unprofitable than they would have otherwise have been. These are businesses that because of his interest in horses Mr Wood would have conducted in any event. Her participation in them benefited him. Even on the overseas trips although he paid for her airfares he received the service of Ms Wendt acting as a groom. 75Of all their business ventures this one, for the breeding and selling of endurance horses, was the most profitable. This is probably not surprising. It is the business in which they had the most interest and the most experience. They also had the most valuable international contacts in this area, although they were mostly Mr Wood's. The contribution of Ms Wendt to Mr Wood's earnings from the operation of this business was considerable. It is not possible to quantify that contribution with great precision given the lack of precise evidence about the percentage of Ms Wendt's contribution or the precise earnings from this business.

[21]

Ms Wendt's Role as Homemaker 79The parties had different perspectives on who did the homemaking in the relationship. In respect of those differences I accept Ms Wendt's evidence in preference to Mr Wood's and conclude that throughout the relationship until about 2005 she did considerably more work within the household than he did. 80Her case was that Mr Wood "purchased the food and I did the meal preparation and cooking. We more or less shared the other domestic duties". She said that "Terry almost never cooked a meal" and "I undertook the vacuuming of the home. I cannot recall a single occasion when Terry vacuumed our home". Although she shared the non-cooking domestic duties within the house with Mr Wood I had the strong impression from the evidence that there was not an equal sharing but that these duties were more discharged by Ms Wendt. They both seem to agree that Mr Wood did much of the shopping for groceries and household items, although he was often accompanied by Ms Wendt. But in the regular work within the house Ms Wendt undertook in my view a much greater proportion of the home making duties. 81There is tension within Mr Wood's case. He claims his contribution as homemaker was about the same as that of Ms Wendt but that she contributed little to the operation of his businesses. He claims that much of her participation in trips associated with endurance horse riding including overseas trips, was a matter of her choosing her own pleasure and that he was the chief operator of these businesses back at their home base in Tallawarra. It is not easy in my view to accept Mr Wood's case about Ms Wendt's limited role in the businesses and yet to deny her predominant role as homemaker. Despite her illness Ms Wendt did not strike me as a wasteful, idle person. Even if Mr Wood were right about her limited role in the businesses, a view that I do not accept, as has been seen elsewhere in these reasons, in my view she is the kind of person who would have spent her time improving the house for the benefit of both of them. She did believe that she was going to spend the rest of her life with Mr Wood. On her side this relationship was perceived as no mere partnership of financial convenience. She was in my view the main homemaker, because she thought that she was building their future together and contributing to their present and future relationship in the way that she felt best able to do.

[22]

Other Welfare Issues 82But Mr Wood mounted a counter attack in relation to s 20(1)(b) contributions. He identified a number of factors for which he claimed that she gained far more a welfare benefit from the relationship than he did and that therefore both his non financial contributions under s 20(1)(b) and his s 20(1)(b) for her welfare should be assessed as very significant. This contest took place in three main areas: the opportunity to participate in endurance horse riding; the opportunity to go on overseas trips associated with endurance horse riding; and, driving to medical appointments. Each of these topics represented an area of conflict in the evidence of the parties. I will deal with each in turn. 83But before analysing these three areas of dispute, it is important to emphasize an aspect of the relationship between Mr Wood and Ms Wendt for which he now gives little credit but which was very important to her and which in my view is objectively important to my assessment and on which her evidence is supported by the evidence of Suzanne McCready, as well as by other objective evidence. 84Although there was little evidence of it by the time the parties came into the courtroom, there can be no doubt that the relationship between these two parties in the period 1997 - 2003 was a strongly loving one which contributed greatly to Mr Wood's welfare; indeed as it did to Ms Wendt's. During this period he wanted to have Ms Wendt with him as much as possible. 85The strength of the relationship in this period is to be inferred from many things. A few deserve special mention. The 2001 Will which gave Tallawarra to Ms Wendt showed Mr Wood keen to treat Ms Wendt appropriately to keep buoyant the prospects of the relationship which he perceived to at least be for his benefit. I also accept Ms Wendt's evidence that she was accepted by Mr Wood's sister and her husband and that Mr Wood did seem to be very happy in Ms Wendt's company. 86But looking back at the good times in this relationship it is not possible to judge from the distance of the courtroom whether Mr Wood or Ms Wendt gained more from the relationship in terms of welfare. But rather this analysis the factors mentioned in the two preceding paragraphs are important in showing that what Mr Wood now submits as net benefits to the relationship to Ms Wendt, were counter balanced by other factors. In my view he derived an equal benefit from her presence with him. He gained happiness and satisfaction in many parts of his life by having a companion, who he could proclaim to his friends and acquaintances as his wife, who passionately shared his interest in horses and who was prepared to travel with him wherever he went in pursuit of this interest. Against this are to be judged the so-called welfare benefits that Ms Wendt received from the relationship. 87Endurance Horse Riding. Mr Wood first submitted that Ms Wendt was passionate about endurance horse riding and experienced great happiness simply by engaging in the activity with Mr Wood and that between 1998 and early 2008 Mr Wood permitted and encouraged Ms Wendt to engage in endurance horse riding events and associated activities to a greater degree than she would have if she had not been in a relationship with him. It was submitted therefore that this was an important non-financial contribution that Mr Wood made to her. 88This submission seems to me to ignore much of the ethos of the relationship between Ms Wendt and Mr Wood. It is quite true that Ms Wendt was passionate about endurance horse riding. She gave evidence about that passion. When cross-examined Ms McCready agreed that Ms Wendt was passionate about endurance horse riding. But I disagree that this was a net non-financial contribution by Mr Wood to Ms Wendt. Mr Wood wanted a companion at these endurance horse riding events who shared his passion for the sport. He seemed to me to derive more pleasure from the sport simply by the fact that he was supported in it by Ms Wendt and had her companionship and understanding of its customs, its events and its excitement. In my view Mr Wood's submission wrongly ignores the benefits he obtained from her participation in the sport with him. 89Overseas Trips. Ms Wendt did accompany Mr Wood on overseas trips on endurance horse riding events. There were at least half a dozen of these, the World Endurance Cup in France in 2000, the World Endurance Cup in Dubai in 2001, the President's Cup in Abu Dhabi in early 2002, the World Equestrian Games in Spain in 2002, the World Endurance Championship in Dubai in late 2004 - early 2005, and the World Youth Championship in Bahrain in 2005. Indeed in the first of these, the World Endurance Cup in France in 2000, Mr Wood was a member of the Australian team that won the international gold medal for endurance racing. Ms Wendt acted as Mr Wood's groom on this trip. One of the few things upon which this estranged couple could agree on in unqualified way was that the winning of this gold medal event was a high point in their lives. Mr Wood's case was that Ms Wendt would not have gone in any of these trips nor had the enjoyable or memorable experiences that she had but for her relationship with Mr Wood. Therefore it was submitted that these were non-financial contributions by Mr Wood to Ms Wendt. 90Again this submission seems to me to discount entirely the less tangible welfare aspects of the relationship between these two parties, an approach to the case that was quite common in the submissions on Mr Wood's behalf to the Court. In my view these trips were not a net benefit to Ms Wendt at all. It seems to me that Mr Wood was quite happy to pay for Ms Wendt to accompany him because he thought her companionship was important for his welfare. It was a companionship that gave him assistance in his own passionate interest in the sport of endurance horse riding. Indeed it would be difficult to describe on these trips a companion who was more likely to promote Mr Wood's welfare than Ms Wendt: she had an equal passion with this sport of endurance horse riding; she understood its intricacies; she was prepared to act as his groom and she was his de facto wife. In my view the opportunity to go on overseas trips was not a net financial and non-financial contribution by Mr Wood to Ms Wendt. Rather, it is a matter which is entirely neutral, with the net financial benefits she received being counter balanced by the non-financial benefits that he received. 91Driving to Medical Appointments. As Ms Wendt's medical condition deteriorated it was necessary for her to see her preferred general practitioner Dr Thrift at Cooranbong more often and to attend specialist treatment at the John Hunter Hospital in Newcastle. It is not contested that Mr Wood drove her to these medical appointments. He claims a net contribution to her welfare from accompanying her on these trips and in doing most of the driving of her. Ms Wendt discounts the value of this contribution by arguing that they were trips that Mr Wood had to take in any event. 92There is no doubt that the trips were lengthy. Ms Wendt's health began to deteriorate in 2002 and worsened in 2004. The Hunter region is approximately 400 kilometres (and about 6 hours drive) east of Tallawarra. It was necessary for Ms Wendt to attend on her immunologist, Dr Reeves, at the John Hunter Hospital and to undertake other procedures there on a regular basis. Mr Wood and Ms Wendt shared the driving on these trips. 93The frequency of the trips is ascertainable from Dr Thrift's notes. He saw her in 2002 (nine consultations), 2003 (seven consultations), 2004 (eight consultations), 2005 (nineteen consultations), 2006 (fifteen consultations) and 2007 (sixteen consultations). I accept that Ms Wendt saw Dr Reeves on about fifteen occasions between July - August 2002 and August 2004 and that from about 2005 onwards she was required to attend John Hunter Hospital every month for a procedure known as an integral infusion. Indeed it seems to me that Ms Wendt's monthly attendances at John Hunter Hospital for this procedure also account for the jump in her consultations with Dr Thrift from 2005 onwards. Ms Wendt seems to have seen Dr Thrift at the same time as she drove through to the John Hunter Hospital. 94Ms Wendt's initial case was that she organised the medical appointments around Mr Wood's business appointments in the Newcastle region. Ms Wendt said that Mr Wood regularly saw his accountant and solicitor in the Toronto area. Mr Wood said that he only saw an accountant once a year up until 2003 and saw his solicitor less frequently. In my view the truth lies somewhere between the two positions taken by the parties on this issue. In my view Mr Wood was quite happy to come on these trips to Newcastle for several reasons. He had the opportunity to visit the Toronto property which was a very valuable part of his assets. He agrees that he occasionally visited the Toronto property on these trips. In my view he visited it more often than he admits. Ms Wendt and Mr Wood stayed with Ms McCready and her husband who were friends of the couple and who were also interested in endurance horse racing. 95There was a degree of pleasure and convenience in these trips for Mr Wood in any event. I accept the correctness of Ms Wendt's evidence that Mr Wood attempted to arrange as many business appointments as he could around these trips. Although I do accept his evidence that he was not always able to arrange business appointments around the trips. Mr Wood claimed petrol for these trips as a business expense in his tax returns, which supports the inference that I draw that he was able to make business appointments to fit around these trips, in any event. Whilst it is true that medical reasons probably explain the greater frequency of these trips from 2005 onwards, in my view Mr Wood was still able to largely accommodate them around his business engagements. Particularly in the trips between 2002 and 2004 when their relationship was better, it also seems to me that these trips were another part of the couple's mutual companionship and Mr Wood was quite happy to undertake them. 96But I do accept Mr Wood's evidence that the frequency of these trips did begin to interfere with his capacity to qualify his horse for World Championship Endurance Riding events. I am not prepared to find that it interfered with his participation in the World Endurance Championship in 2004, because of the relatively small number of these trips that seem to have been taken to the Hunter Region in that year. But such interference is the probable result of the larger number of trips taken from 2005 onwards. I also accept Mr Wood's evidence that particularly in the later years he did more of the driving on these trips than Ms Wendt. In my view all of this evidence amounts to a small net benefit to Ms Wendt from his driving and a benefit really based upon events in the later years, 2005 to 2007. But I am not prepared to find that "Mr Wood made a significant non financial contribution to Ms Wendt in accompanying her and sharing driving with her to the Newcastle region for each medical appointment" as Mr Wood submits. There was a mild benefit to her from these trips but one in my view which was significantly less than the approximate ten years of her substantial and regular home making contribution for his welfare and benefit.

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Approach to Assessing the Parties' Respective Contributions 97The Court is not required in proceedings under s 20 to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each in order to reach an accounting balance, upon which the balance is then to be eliminated by the requisite financial adjustment in the s 20 order. Rather the Court is required to make a holistic value judgment in the exercise of a discretion of a very general kind. Mathematical calculations, however, are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision making: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [36] and [49] and Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149. 98In the course of final submissions, counsel for Mr Wood referred me to the so-called "erosion principle". Indeed, it is not a principle of law at all but really a short hand description of the approach to the evaluation of contributions which recognises that initial contributions do not carry forward full weight but diminish in significance by reason of the other subsequent contributions made by both parties during the relationship: Sharpless v McKibbin [2007] NSWSC 1498 at [78] per Brereton J. It is not really a question of erosion but of what weight is to be attached in all the circumstances to the initial contributions, in the context of all the contributions. This does not involve casting any particular onus on a party to prove that an initial contribution "eroded" - save for the extent that any party contending that it has made a contribution bears the onus of proving that contribution: Sharpless v McKibbin [2007] NSWSC 1498; Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [66]-[67]. Counsel for Mr Wood is quite correct that such considerations are of particular importance in this case because of the imbalance of assets between the parties at the beginning of the relationship. 99Under s 20, the sole consideration of the Court in adjusting the interest of the parties in their property is the justice and equity of the case, having regard to the contributions that fall into the category of those described in ss 20 (1)(a) & (b). The problem with the "erosion principle" is that the enquiry commences as with any determination as to whether an initial contribution by one party has been made and this is followed by consideration as to whether that contribution was eroded by later contributions of the other party. This approach appears to throw up an onus on the other party to prove that the initial contribution should be eroded. This approach is contrary to s 20: Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38 at [55] per Ipp JA.

[24]

Conclusions in relation to Financial and Non-Financial Contributions 100In relation to the parties s 20(1)(a) financial contributions I find that Mr Wood's contributions were considerably greater than Ms Wendt's. This was a product of his superior capital and income position on entry into the relationship. But Ms Wendt did apply her disability pension to their mutual benefit to assist in defraying their joint household expenses. I disagree with Mr Wood's contention she merely spent the pension on herself. She did financially contribute to the household through her pension in a way that saved him some expenditure on household items beyond expenditure on herself. 101I conclude on the basis of my consideration of all the evidence above in relation to non-financial contributions that: first, the s 20(1)(a) non financial contributions made by Ms Wendt and Mr Wood throughout their relationship were approximately equal. Although Mr Wood brought significantly more assets to the relationship, factors discussed in my earlier chronological survey and analysis, which compel me to the view that ultimately their s 20(1)(a) non-financial contributions were about equal. 102In relation to the parties' s 20(1)(b) contributions to the welfare of the other party to the relationship, overall I find that Ms Wendt's contribution on this account as homemaker in particular was greater than Mr Wood's. 103But both Ms Wendt's s 20(1)(b) contributions and her non-financial s 20(1)(a) contributions either all took place at Tallawarra or were in relation to businesses conducted from Tallawarra. She did not make any particular identifiable contribution to the conservation or improvement of Mr Wood's Toronto property. She showed very little interest in that property. The evidence does not support an inference that Mr Wood and Ms Wendt were planning to use this Toronto property together in the future. Indeed, Toronto was almost ignored by the parties for long periods in their relationship. It is appropriate in these circumstances for any adjusting order to be made in Ms Wendt's favour to be made primarily in respect of Tallawarra rather than Toronto.

[26]

Notional Rent 107Mr Wood asks for an adjustment in his favour in respect of notional rent for Ms Wendt's occupation of the Tallawarra property during the period between the parties' separation and the date of trial. The relationship ended in March 2008 and the trial took place in March 2011. Ms Wendt has resided at Tallawarra rent-free for those three years. The evidence is that the market rent at Tallawarra is $150 per week which totals $23,400 over three years. Ms Wendt of course has a 25 per cent interest in Tallawarra. Therefore it is submitted that Mr Wood has contributed about $17,550 (75 per cent of $23,400) to Ms Wendt over that period. Mr Wood makes a further submission that Ms Wendt received a benefit from a person living for a period in the mobile home on the premises. The consideration for this person's occupancy was that the person would drive Ms Wendt to her medical appointments from time to time after the separation when Mr Wood was not performing this service. This benefit is extremely difficult to quantify. Especially as both Mr Wood and Ms Wendt derive rental income from parts of Tallawarra. They have leased it for rent of $25,000 per annum to a Mr Zell and share the rental proceeds in the proportions of their ownership 75 per cent and 25 per cent. 108The authorities suggest that caution should be exercised in acceding to a submission to adjust specifically in respect of notional rent after separation. Undertaking an adjustment for "notional rent" for post separation occupation can result in the giving of undue weight and significance to a single contribution. Notional rent is obviously to be taken into account and I do. But the proper way to do this is as part of the overall evaluation of the parties' contributions during the relationship and not as a final single additional adjustment: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [78]. That is the course I have taken in my overall assessment. 109In considering the third stage of the exercise of discretion under Property (Relationships) Act , s 20, the Court is concerned with what is just and equitable having regard only to the respective contributions of the parties of the type referred to in s 20; and, there is no warrant for having regard to other factors such as the respective means and needs of the parties: Wallace v Stanford (1995) 37 NSWLR 1 and Evans v Marmont (1997) 42 NSWLR 70 at [81]. 110The Court has a discretion as to whether to adopt an "asset by asset" approach or a "global" approach in deciding what is an appropriate order; the Court has very wide discretion as to which approach may be adopted; but there can be cases where one approach is more clearly appropriate than the other: Kardos v Sarbutt (2006) 34 Fam LR 550 at [52] - [53]. In many cases the global approach is likely to be more convenient than an asset by asset approach but that is not always so. 111In this case there is much to be said in my view for the Court making orders in respect of the Tallawarra property not the Toronto property but considering all the parties' divisible pool of property. As Mr Wood submits there are good reasons for this. Mr Wood owned the property at the commencement of the de facto relationship. Ms Wendt made no direct financial contributions to the improvement or maintenance of the Toronto property. Indeed, as I have found, the parties did not devote much of the energy of their relationship to the Toronto property at all. Indeed, in Ms Wendt's mind the Toronto property was too close to and too associated with Mr Wood's former wife. This couple's relationship was devoted to building a home and a business on Tallawarra. 112It is difficult in my view to connect any of Ms Wendt's active s 20(1)(a) contributions to the Toronto property except some indirect non-financial contributions. For example the fact that Ms Wendt was at Tallawarra freed up Mr Wood to visit Toronto from time to time and he took that opportunity on their trips to and from the Hunter Valley. But this minor matter is not sufficient in my view to focus the Court's orders upon Toronto. The appropriate course is for the Court to make an adjustment order in respect of Tallawarra. But the adjusting increase in Ms Wendt's interest in Tallawarra should really be seen as a percentage adjustment of their joint divisible pool of property. 113Ms Wendt already owns 25 per cent of Tallawarra. In final submissions Mr Wood conceded that if the Court thought that some adjusting order should be made in respect of Tallawarra in Ms Wendt's favour then an appropriate order is about 40 per cent. In my view that understates her contribution to their divisible pool of property. It does not take into account the contribution which she has made as I have defined them in stage two. In my view a higher adjustment is warranted. In my view the appropriate adjustment is that she be declared to have an interest in 85 per cent of Tallawarra, that is an adjustment upwards of a further 60 per cent in Tallawarra. This is not a case where the Court can engage in a reductive process of trying to quantify Ms Wendt's contribution in hours and dollar terms. But in my view the findings made above justify an adjustment in respect of Tallawarra of this order to reflect what is just and equitable. 114My reasoning to this conclusion from the divisible pool of property is as follows. I have found the parties' divisible pool of property to be $1,054,000 of which Ms Wendt has $113,500 (or 10.76 per cent), on account of her 25 per cent interest in Tallawarra. In my view an appropriate adjustment in her favour is to increase this by 25 per cent to 35 per cent of this total divisible pool. This is an amount of $368,900. But an order in her favour should be given effect to by adjusting and increasing her interest in Tallawarra. If her interest in Tallawarra is increased to 85 per cent she would have $385,900 of Tallawarra and rounded up to 36.61 per cent of the joint pool. This seems to me to be the just and equitable result between these parties. 115Appropriate orders must be formulated. I will direct that the parties bring in short minutes of order. If the parties cannot agree upon short minutes of order then the Court will make orders and directions. An appropriate structure for the orders is the one suggested in Mr Wood's final submissions: the parties do all such things and sign all such documents as may be required to sell Tallawarra; Ms Wendt vacate Tallawarra one week prior to completion of the sale; the proceeds of sale (after paying out the mortgage over the property and all costs and expenses associated with the sale) be divided 85 per cent as to Ms Wendt and 15 per cent as to Mr Wood. I have not made specific findings about the ownership of the moveable property of minimal value on Tallawarra. It is expected that in light of the orders made in respect of the property itself that such issues should be able to be agreed.

Wendt v Wood - [2011] NSWSC 781 - NSWSC 2011 case summary — Zoe

Wendt v Wood

At a glance

Court

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Before

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Judgment (27 paragraphs)

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Legislation Cited (2)

Cases Cited (13)

Cited By (3)