Yvonne Joan Cooper v Carol Anne Bunter

LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Civil Liability Act 2003 (Qld)

Bilous v Mudaliar (2006) 65 NSWLR 615 CASES CITED : Kardos v Sarbutt [2006] NSWCA 11 D v J (1996) DFC 95-175 Baker v Towle [2008] NSWCA 73

PARTIES : Yvonne Joan Cooper - plaintiff Carol Anne Bunter - defendant

COUNSEL : R D Wilson for the Plaintiff P Batey for the Defendant

SOLICITORS : Mullane & Lindsay (Plaintiff) Kim Monnox & Associates (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

280601/2008 YVONNE JOAN COOPER v CAROL ANNE BUNTER JUDGMENT 1 HIS HONOUR: This is an application for orders pursuant to Section 20 of the Property (Relationships) Act 1984 (NSW) (the Act). There is also an associated claim for damages for assault. 2 The plaintiff and the defendant lived together in a relationship which was mutually supportive from 1984 to 2006. During the course of that relationship they acquired three parcels of real property in their joint names and also conducted a partnership business together. Each also owned personal property in her own name. The primary issue on which my judgment is required is the appropriate adjustment to their property interests which should be made having regard to the criteria stipulated in Section 20 of the Act. 3 Despite the termination of their relationship, both the plaintiff and the defendant gave their evidence in a calm and measured manner. They avoided any rancour although each tended to overstate her own contribution and diminish the contribution of the other. In general terms, I found the evidence of the defendant more helpful. That is not to say however, that I accept the adjustment proposed in the defendant's cross claim. I regard that as an extreme position which does not fairly reflect the reality of the evidence as to the respective direct and indirect contributions of the parties and an appropriate valuation of those contributions. Nor does it reflect the length of the relationship. On the other hand, I do not think that the evidence justifies an adjustment as great as that sought by the plaintiff. 4 For the reasons which I have explained below, I propose to make orders that adjust the interests of the parties with respect to their property which reflect approximately 75% of the amount of the plaintiff's claim. I will deal separately with the claim for damages for assault which, I have concluded, has been established.

Property Relationship Act 5 Section 20 of the Act provides as follows: (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. 6 There is a well established three stage methodology involved in the application of Section 20 to the facts of any given case[1]. Those three stages are as follows: (a) The first stage is to identify and value the property of the parties. The property so identified is "the property of the parties to the relationship or either of them".

(b) The second stage is to identify, evaluate and weigh the parties' respective contributions of the various types referred to in Section 20.

(c) The third stage is to determine 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.

7 I should make a number of general observations about Section 20. First, that it is solely concerned with the adjustment of the interests of the parties with respect to their property. Except insofar as it may possibly be relevant to the determination and evaluation of their respective contributions, the section is not concerned with any analysis of the breakdown in the relationship. The task is one of assessing and evaluating contributions made by each of them to their property. 8 Second, a feature of Section 20 is that the adjustment at which the Court is required to arrive must be an adjustment which "seems just and equitable". However, the factors which determine what an appropriate adjustment should be, and which must guide the exercise of that discretion, are constrained. They are relevantly in this case, financial and non-financial contributions made directly or indirectly by each party to the acquisition, conservation or improvement of any of the property of the parties or to their financial resources and any contributions made in the capacity of homemaker to the welfare of the other party to the relationship. 9 Third, a feature of Section 20 is that it is neither expressly, nor by necessary implication, concerned with the current means and needs of either party. It so happens that the current circumstances of the plaintiff are less financially secure than those of the defendant. At 57 she is 10 years older; she is no longer in regular employment; she has been in receipt of workers' compensation payments since 2001; she has been excluded from the former residence of the parties at Cooranbong; and she is less able, by reason of age and occasional incapacity, to earn a living. This was the foundation for a submission on her behalf that her "means and needs" should be taken into account so as to ensure that there was some additional adjustment of the property interests in her favour to reflect her diminished state of affairs. It was submitted that those matters are relevant as subsidiary matters to what should be a just and equitable adjustment under Section 20 of the Act. 10 As a matter of logic, having regard to the language of Section 20, I have difficulty in accepting why this should be so. Section 20 prescribes the matters by reference to which a just and equitable adjustment should be determined. Those matters are relevantly the respective contributions of the parties of the particular type described in Section 20(a) and (b). I cannot see how the assessment of what seems just and equitable having regard to my evaluation of the parties' respective contributions can be influenced logically by the current needs and means of the plaintiff. 11 This approach is supported by the decision of the Court of Appeal in Kardos v Sarbutt[2] Brereton J, in a judgment with which Basten JA and Hunt AJA agreed, stated as follows: 38. As to the third step - the determination of what order was required in order sufficiently to recognise and compensate the applicant's contributions - is concerned with what is just and equitable having regard to, and only to, the respective contributions of the parties of the type referred to in Section 20, and there was no warrant for regard to other factors such as the respective means and needs of the parties, which are made relevant to equivalent applications under the Family Law Act by Section 79(4)(e) of that Act, an equivalent of which is conspicuously absent from the Property (Relationships) Act , and the omission of which was deliberate, as appears from the Law Reform Commission's report of June 1983: Report on De Facto Relationships, No 36 of 1983" , to which the draft bill was an appendix, and from which the policy underlying the legislation appears. 12 I should note that 10 years before Kardos v Sarbutt [2006] NSWCA 11 at [38], Nicholson CJ in a decision of the Family Court of Australia concerning that court's cross vested jurisdiction under the Property Law Act 1958 (Vic), stated that the equivalent scheme under the Property Law Act had significant differences compared to the scheme under Section 79 of the Family Law Act (1975). One of those differences, his Honour the Chief Justice observed, was the inability to take into account the needs and maintenance factors contained in Section 75(2) of the Family Law Act[3].

13 The fourth feature of Section 20 is that the Court is not necessarily required to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each contribution in order to reach an accounting balance. An approach which involves a detailed accounting of individual items runs the risk that, by focusing on the valuation of individual contributions item by item, not only will the overall picture be lost, but serious injustice may be done, particularly by devaluing those contributions which are not readily capable of evaluation in monetary terms. The appropriateness of this approach may vary from case to case. But, in this particular case, I think that it is preferable to make a holistic judgment. However, any holistic judgment must necessarily be informed by the available evidence as to the origin and identification of all of the property of the parties and the nature, extent and value of the contributions made by each party[4]. Factual Overview 14 I will deal with some specific aspects of the evidence in due course. But at a general level, it is obvious from the evidence that the defendant is an energetic and industrious person, whose strength, drive and hard work were significant contributing factors to both the success of the partnership business of the parties and the construction of the improvements on their jointly owned property at Cooranbong. 15 On the other hand, the plaintiff, although she did not possess the defendant's technical expertise in relation to the use and operation of plant and equipment, the handling of construction materials or the manufacture of steel and aluminium frames, made contributions to the joint property in her own way. Her ability to do so was however limited by her full time work as a radiographer for most, but not all, of the period of the relationship, and by bouts of physical incapacity or impairment which she suffered. She did however provide the initial home, known as Brightwaters, where the parties lived together between 1984 and 1991. The partnership business was initially conducted from that property between 1988 and 1991 and in a practical sense, the provision by the plaintiff of the Brightwaters property, was a platform which facilitated the setting up and conduct of the partnership business. 16 A brief summary of the work history of the plaintiff is as follows: - From 1984 to 1998 the plaintiff was employed full time as a radiographer with the South Lakes Medical Centre. In 1996 she commenced some additional work as a radiographer with the Hunter Area Health Service. - In 1998 the plaintiff reduced her working hours and for a limited period, devoted some of her time to the pursuit of her interest as a writer. - From about 2001 the plaintiff ceased to be employed and commenced to receive workers' compensation payments on a full time basis. 17 The defendant's work history may be summarised as follows: - Before 1984 she was employed as an aluminium fabricator by Port Stephens Steel at Hexham. - In 1984 she was employed as a truck driver with Robert Sirish Timbers. - In early 1985 she commenced as a spray painter and tow truck operator with Solo Smash Repairs. - In late 1986 she was employed as a plant operator, grader and driver with the Lake Macquarie City Council. - In 1998 she commenced to work full time in the partnership business. - Between 1991 and 2002 she reduced her working hours in the partnership business and became much more heavily committed and involved in the construction and building of improvements on the property at Cooranbong. - In 2002 the defendant returned to working full time in the partnership business.

18 The position in relation to the property of the parties is as follows:

Brightwaters (a) When the parties commenced to live together, the plaintiff owned the property known as Buttaba Road, Brightwaters. She purchased it in July 1982 for $58,600 with a loan of $19,000 from the then Bank of NSW. Between 1984 and November 1991 the plaintiff and the defendant lived together in the Brightwaters home. The plaintiff paid for the majority of the household expenses including food and groceries. During that period some moderate improvements were made to the property. The defendant enthusiastically and willingly engaged in much of the maintenance and the improvements that were carried out to Brightwaters. In November 1991 the plaintiff sold the Brightwaters property. The sale price was $107,000.

Cooranbong (b) In May 1991, the plaintiff and the defendant purchased the property known as 234 Mount Nellinda Road, Cooranbong. The purchase price was $175,000 and the property was purchased in their joint names. I accept that they each made contributions of approximately $60,000. The evidence as to the ultimate equality of their contributions was clear although the extent to which the plaintiff's contribution came partly from her net proceeds on the sale of Brightwaters and partly from compensation for a slip and fall accident, was a little less clear. A joint loan of $60,000 was also obtained from the Commonwealth Bank of Australia. The agreed current value of the Cooranbong property is $615,000. It is unencumbered. The development of the property and the construction of the numerous improvements on it were financed by a subsequent further joint loan of $40,000; by approximately $94,000 drawn from the partnership business; and from other funds contributed from time to time in smaller amounts by each of the plaintiff and the defendant. The evidence concerning those smaller payments is not clear. Most of the construction work, certainly the work relating to the main house on the property, was completed before 2001. Cessnock - 4 Wangi Avenue (c) On 4 September 1992 the plaintiff and the defendant purchased an investment property in their joint names at 4 Wangi Avenue, Cessnock. The purchase price was $42,000. I am satisfied that the contributions of each party were substantially equal. The purchase price was funded in part by a loan in their joint names secured by a mortgage to the ANZ Bank over the property. The agreed current value is $112,000. It is unencumbered.

Cessnock - 12 Macquarie Avenue (d) On 31 March 1993 the plaintiff and the defendant purchased a further investment property in their joint names at 12 Macquarie Avenue, Cessnock. The purchase price was $47,500 and I am satisfied that the contributions of each of the plaintiff and the defendant were substantially equal. The balance of the purchase price was financed by a further loan from the ANZ Bank secured by a mortgage over the property. The agreed current value is $115,000. It is unencumbered. Partnership Business (e) In 1988 the plaintiff and the defendant established a partnership business, the principal registered business name of which was "Buzz Off". The business of the partnership was the manufacture of security screens. The business was in fact operated using three separate registered business names, namely, Buzz Off, Combat Security Products and Fortress Home Security Products. Each business name was used in connection with a different geographic area. The business appears to have been successful. Substantial revenue was generated although in some years an accounting profit was recorded and in other years an accounting loss was recorded. By 2009, at which time the defendant was conducting the business alone, the gross revenue from the business exceeded $500,000. I was provided with a selection of partnership tax returns going back to 1992 and all of them indicate a healthy gross income invariably substantially more than the remuneration that the plaintiff earned through her employment as a radiographer. The parties agreed that the current net equity of the partnership business is ($34,676).

19 The parties had other property that I have taken into account in my overall assessment of the appropriate adjustment that should be made. The other property is however of less significance. Each of the plaintiff and the defendant had at one stage a modest holding of IAG shares. Each of the plaintiff and the defendant has a motor vehicle. The agreed value of the plaintiff's motor vehicle is $16,000 and the agreed value of the defendant's motor vehicle is $4,700. The plaintiff and the defendant both have furniture although the evidence about the amount and the value of the furniture is unclear. Nor did the evidence establish to any reliable degree whether either party had funds in any bank or building society account other than in small amounts. The plaintiff has an interest in an Asguard Superannuation Fund the agreed value of which is $32,721. The defendant does not appear to have any superannuation. 20 There is a contingent liability for capital gains tax which will arise on the sale of the Cessnock investment properties, and there may be a liability for capital gains tax on the sale of the plaintiff's half interest in the Cooranbong property, but the amounts were not established. The evidence did not establish satisfactorily the extent of any other actual or contingent liabilities that each party may or may not currently have. Contributions 21 The parties contributed equally to the acquisition of the three properties that they owned jointly. But as I have made clear, central to their financial success during their period of cohabitation were the building up of the partnership business and the development of the property at Cooranbong. I have concluded that the defendant's contribution to the business and the Cooranbong property was greater than that of the plaintiff. The question really is - by how much? 22 The partnership business generated revenue from which the parties were able to fund, not only the outgoings of the business itself, but also the construction of most of the improvements on the Cooranbong property. It was the major factor contributing to their prosperity and lifestyle. It allowed them to own and maintain a substantial residence and a number of additional buildings on a property which served the dual purpose of providing a home and a place of work. It is quite apparent to me that the defendant was a more dominant force than the plaintiff in both the business and the construction of the improvements at Cooranbong. 23 In relation to the partnership business, I am satisfied that before 2001, the plaintiff rarely, if ever, conducted property inspections to quote for the supply of flyscreens. Nor did the plaintiff directly engage in the manufacture or the installation of flyscreens. These were matters which were within the regular work undertaken by the defendant. Until 2001, the plaintiff was employed with South Lakes Medical Centre from Monday to Friday. Her usual working hours were 9am to 5pm from Monday to Thursday and 9am to noon on Friday. She returned home after noon each Friday but I am not satisfied that any significant contribution was made by her to the day to day running of the business on Friday afternoons. The defendant supervised employees working under her in relation to the manufacture and installation of screens. Although the plaintiff tended to overstate her physical involvement in the conduct of the operations of the business, I accept that she made contributions in a supportive, secondary, clerical and bookkeeping role. This was especially the case after 2001 when she ceased to work as a radiographer. These functions assisted the defendant to devote her energies to the conduct of the business. I accept that, after 2001 the plaintiff attended to the banking, the accounts, the wages and other administrative tasks. She did not undertake this work exclusively. But she was referred to by the defendant, in the presence of employees, as "the manager" or "the supervisor".

24 There is no evidence to suggest that during the relationship, there was any dispute between the plaintiff and the defendant about the absence of any significant contribution by the plaintiff to the partnership business. They operated, in my view, on the basis that the defendant had certain skills and energy which were necessary for the successful operation of the business. The plaintiff took the benefit of the defendant's skills and energy and endeavoured to assist in the respects which I have explained. I have no doubt also that the plaintiff provided some services to the defendant in the nature of a homemaker which facilitated the defendant being able to devote her energies more fully to the business. But the provision of those services was subsidiary. The defendant also provided services in this capacity, especially as the plaintiff suffered from ongoing complaints relating to her back, wrist and neck and was unable to attend her work on quite a number of occasions.

25 In relation to the construction of the improvements at the Cooranbong property, the picture revealed by the evidence is also clear. In 1991, when the plaintiff and the defendant first went to the property, the defendant fitted out a machinery shed as a temporary dwelling. From at least 1995, if not earlier, she carried out, or caused to be carried out with the assistance of contractors, most of the physical excavation, construction, building, plumbing and roofing works which were required. She obtained an owner/builder's licence in her own name. She was primarily involved in the design of the first set of house plans and their submission to Council for development approval. I am satisfied that she was heavily engaged in her own right in the erection of roof trusses and that she acted as a bricklayer's labourer. I am also satisfied that she installed the windows and doors in the main home, with the assistance of friends. She organised, hired and supervised the electrician and the plumber. She obtained building materials and electrical and plumbing fittings. She supplied insulation batts and engaged herself in the lining of the internal and external walls. She engaged a gyprocker and acted as the gyprocker's labourer in the installation of the gyprock in the ceilings and walls. She supplied the steel beams and delivered the steel beams to the galvanisers. She also supplied and laid the brush box timber floorings throughout the main home as well as supplying and tiling the kitchen walls, bathroom walls and laundry walls. 26 In relation to all of these matters, the defendant was the driving force. I do not suggest that she did all of this work entirely on her own but she was an indispensable and significant part of the process. Nor do I suggest that, when she was present, the plaintiff did not provide some assistance. As did the plaintiff's mother. But I do not believe that the plaintiff had the skills or the strength to contribute in a manner that was physically equivalent. Nor did she have the time prior to 2001 when she was employed full time as a radiographer. 27 No doubt, during the period of her full time employment before 2001, the plaintiff's wages contributed, in some measure, to the living expenses of the parties but the plaintiff's wages were minor compared to the costs and expense of the building materials and contractors engaged to undertake the construction work. They were also much less than the revenue generated from the business. As I have observed, over $94,000 alone was paid from the partnership business towards the construction work. 28 The evidence in relation to the contributions by each party to other assets is less clear. It does not permit me to make any reliable findings as to the value of each parties' contributions in relation to those other assets. Nor do I think it is necessary as the other assets are modest and there was no good evidence indicating that either party contributed significantly to the value of the other party's personal property. Those assets consist primarily of two motor vehicles, some IAG shares (in the case of the defendant) and the proceeds of the sale of IAG shares (in the case of the plaintiff), some furniture and some funds said to have been retained by the plaintiff in her building society account. The evidence of the amount was not clear but I do not regard it, in any event, as significant. The only other major asset is the plaintiff's superannuation fund. I infer that this was built up over many years by the plaintiff through regular contributions deducted from her salary as a radiographer. In a general and indirect sense, the apportionment of responsibilities between the plaintiff and the defendant, which allowed the plaintiff to continue in her full time job as a radiographer until 2001, was of some assistance in enabling the plaintiff to build up that fund. However, I place no significant value on the defendant's indirect contribution in that regard.

Just & Equitable Adjustment 29 In arriving at what I consider to be an appropriate adjustment, I have had regard to all of the property of the parties which has been established by the evidence and have not excluded from my consideration any item of property. In particular, I have not excluded from my assessment the value of the plaintiff's superannuation fund or the agreed negative value of the partnership business. Some of the evidence as to the existence and value of certain other items of personal property was however opaque. The real area of difference between the parties, and the issue which occupied most of the evidence, was the nature, extent and value of the respective contributions of the plaintiff and defendant to the business and to the construction of the improvements on the Cooranbong property. 30 Having regard to her contributions which I have already explained, it seems obvious to me that the defendant should be rewarded for her hard work in developing the Cooranbong property, and building up the partnership business. An order should be made whose effect should be that the defendant have ownership of the Cooranbong property. She resides there and has already become the sole proprietor of what was the former partnership business, which continues to be conducted from that property. Although the agreed current value of the business is ($34,676), I regard it as a substantial asset from which the defendant will continue to derive a healthy gross income which will be available to fund the maintenance of the Cooranbong property and, to a considerable indirect extent, her living expenses. 31 The plaintiff's claim is for $400,000. She accepts that she should transfer her interest in the Cooranbong property to the defendant. My assessment, having regard to the evidence of the respective contributions of the parties, is that her entitlement should be limited to approximately 75% of the amount that she claims. This involves an exercise of discretion on my part in relation to which there can never be a bright line indicating only one possible correct answer. In the exercise of that discretion I have had regard, and only had regard, to the criteria specified in Section 20(a) and (b) of the Act. I have adopted an holistic approach which has included some modest allowance for the fact that the defendant has had sole use and occupation of the Cooranbong property since about December 2006 and has paid the majority, if not all, of the expenses in relation to it since that date. 32 In arriving at my assessment of what is just and equitable having regard to their respective financial and non-financial contributions, I have taken into account the factors that I have already mentioned as well as the following particular matters: (a) The plaintiff's claim of $400,000 represents less than 50% of the agreed value of the jointly owned real estate, let alone other property. Her claim effectively acknowledges the greater contribution by the defendant to the development of the Cooranbong property and the business;

(b) In the day to day running of the business, and in the construction of the improvements on the Cooranbong property, the plaintiff's contribution was far less significant in a material sense. The defendant was the driving force and was considerably more motivated and energetic;

(c) On the other hand, this was a long relationship over 22 years and the plaintiff's property known as Brightwaters constituted the initial platform, not just for the partnership business which commenced there, but also as the first house in which the parties lived together;

(d) The defendant has had exclusive use and occupation of the Cooranbong property for over three years since separation and retains a valuable resource in the form of the business which, although the current net value is ($34,676), pays her a wage as well as outgoings associated with the Cooranbong property. 33 For those reasons, I have reached the view that it is just and equitable that the defendant have a greater share of the property of the parties than the plaintiff's claim recognises. My evaluation of the defendant's contribution to the property of the parties is that it was more valuable than that of the plaintiff, but not as valuable as the defendant contends. 34 As I have already stated, I regard the apportionment for which the defendant contends in her cross claim as extreme. The defendant contended that the property of the parties should be adjusted so that the defendant retains 75% of the net asset and superannuation pool. On her calculations, the plaintiff would be entitled to net assets including her superannuation totalling only $200,447 and the defendant should have $647,548. I do not regard that apportionment as reflecting the evidence. Nor is it just and equitable. 35 I propose to order that the plaintiff have $300,000 rather than the $400,000 she claims. This can be satisfied by the transfer of the unencumbered Cessnock investment properties to the plaintiff at their agreed values (totalling $227,000) and the payment by the defendant to the plaintiff of the sum of $73,000. I do not think any other order should be made in relation to any other property of the plaintiff and the defendant other than that the plaintiff should transfer her interest in the Cooranbong property to the defendant.

Assault 36 The assault claim is a separate cause of action. The evidence is quite clear that there was a physical altercation, including, at the lowest, a scuffle, on 11 November 2006. The plaintiff became upset when she saw a text message on the defendant's mobile telephone which indicated that the defendant probably ceased to have the same degree of affection towards the plaintiff as had once existed. The plaintiff pulled the defendant backwards by the shirt and the two tumbled onto a sofa. The inference is clear that, in those circumstances, each party felt hostile towards the other and each spoke and acted with aggression. I am satisfied that the defendant reacted by punching the plaintiff in and about the face causing injury to her eye. Whether she did so with deliberate intention to harm, or whether, as is more likely, she did so instinctively, lashing out in anger in response to the plaintiff's conduct, does not matter. In either case, the injury to the plaintiff was foreseeable. My assessment of the defendant is that she is strong and vigorous and that, in the events that occurred, she was likely to have reacted in the manner that she did. Although it is a serious allegation, I am quite satisfied that the events occurred in the manner that I have explained. 37 I do not accept the alternative explanation of the defendant that the injury to the plaintiff occurred when she knocked her head on the side of a boat, in circumstances of panic, while emerging from the water during a scuba diving expedition. Although I found most of her evidence helpful and credible, the defendant's evidence on this issue was unconvincing and her explanation was objectively implausible. 38 I accept the evidence of the ophthalmic surgeon Dr Michael Delaney, that the injuries in and around the plaintiff's right eye on 11 November 2006 either caused or exacerbated the development of the macula off retinal detachment for which the plaintiff underwent treatment by Dr Downie. I also accept that the plaintiff had pre-existing undiagnosed glaucoma at that time which became more symptomatic and has required treatment since the time of the retinal detachment surgery. Dr Delaney submitted that there was a 30% impairment of vision of the right eye due to reduced visual acuity which is an 8% impairment of the visual system. He said that this was an 8% whole person impairment. He did however say that the plaintiff is fit to carry out virtually all forms of clerical duties and work as a radiographer. 39 I will make an award of damages for the assault consisting of general damages calculated in accordance with Section 62 of the Civil Liability Act 2003 (Qld). I have assessed the scale value of the injury as 8 and have therefore applied the method of calculation specified in Section 62(b). This involves the conclusion that the injury is moderate rather than serious in accordance with the descriptions which appear in the Regulations. On that basis, the amount of general damages which should be awarded to the plaintiff for the assault is, in my view, $8,600. The pleaded claim for past medical expenses was abandoned and there was no factual basis in the evidence for a claim for lost earning capacity.

Conclusion 40 I propose to order that the plaintiff transfer her interest in the Cooranbong property to the defendant; that the defendant transfer her interest in the two Cessnock properties to the plaintiff; and that the defendant pay the sum of $73,000 to the plaintiff by way of further adjustment pursuant to Section 20 of the Act. On the claim for damages for assault, I propose to order that the defendant pay the sum of $8,600 to the plaintiff. There will need to be a number of ancillary orders to complement the primary orders under Section 20 of the Act that I have foreshadowed. For that purpose, the parties should bring in agreed short minutes of order on or before 7 May 2010 to reflect these reasons including, if possible, an agreed costs order which accords with the result at which I have arrived. Prima facie, and unless there is further relevant evidence on costs, I would propose to order that the defendant pay 75% of the plaintiff's costs[5]. The cross claim should be dismissed.

Endnotes

[1] Bilous v Mudaliar (2006) 65 NSWLR 615 at 620 [24] [2] Kardos v Sarbutt [2006] NSWCA 11 at [38] [3] D v J (1996) DFC 95-175 at 77,505; cf Powell v Supresencia [2003] NSWCA 195 at [20] [4] Bilous v Mudaliar (supra) at [40]-[43] [5] See Baker v Towle[2008] NSWCA 73

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