Beattie v Reid
[2002] NSWSC 1088
•19 November 2002
Reported Decision:
(2003) DFC 95-264
New South Wales
Supreme Court
CITATION: Beattie v Reid [2002] NSWSC 1088 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 1266/99 HEARING DATE(S): 9, 10, 13, 14 May 2002
(Written submissions to 9 July 2002)JUDGMENT DATE: 19 November 2002 PARTIES :
Janet Patricia Beattie (Plaintiff)
John Robert Reid (Defendant)JUDGMENT OF: Master McLaughlin
COUNSEL : R. Druitt (for Plaintiff)
G. Watkins (for Defendant)SOLICITORS: Kacir & Associates (Plaintiff)
David Trodden & Associates (Defendant)CATCHWORDS: Family law - De facto relationship - Adjustment of interests in property - House property puchased originally in sole name of Defendant and subsequently transferred by him into joint names of Plaintiff and Defendant - Respective contributions of parties - Parties conjointly conducted an illegal gambling enterprise - Court will not lend its aid to make an order adjusting the interests of the parties in the proceeds of that criminal activity - To do so would be highly offensive to public policy - Those proceeds will be disregarded in considering the respective contributions of the parties - Any consequent loss must lie where it falls - Evidence concerning present and likely future needs of parties should be disregarded - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Cth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Real Property - Held in co-ownership - Application by one party for appointment of statutory trustees for sale. LEGISLATION CITED: Family Law Act 1975 (Commonwealth)
Conveyancing Act 1919
Property (Relationships) Act 1984CASES CITED: Beresford v Royal Insurance Company Limited [1938] AC 586
Black v Black (1991) 15 FamLR 109
Burrows v Rhodes [1899] 1 QB 816
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Evans v Marmont (1997) 42 NSWLR 70
Everet v Williams (1725) (1893) LQR 197
Fitzgerald v F.J. Leonhardt Pty Limited (1997) 189 CLR 215
Hollman v Johnson (1775) 1 Cowp 341; 98 ER 1120
Jones v Grech [2001] NSWCA 208
Matheson v Wallis [2001] NSWSC 931
Nelson v Nelson (1995) 184 CLR 538
Roy v Sturgeon (1986) 11 NSWLR 454
St. John Shipping Corporation v Joseph Rank Limited [1957] 1 QB 215
Wallace v Stanford (1995) 37 NSWLR 1
Wallis v Matheson [2002] NSWCA 350
Wetherell v Jones (1832) 3 B&Ad 221; 110 ER 82
Yango Pastoral Company Pty Limited v First Chicago Australia Limited (1978) 139 CLR 410
Zelino Pty Limited v Budai [2001] NSWSC 501DECISION: See paragraph 72.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Tuesday, 19 November 2002
1266/99 JANET PATRICIA BEATTIE -v- JOHN ROBERT REID
JUDGMENT
1 MASTER: These proceedings were instituted by summons filed by the Plaintiff, Janet Patricia Beattie, on 3 February 1999.
2 By that summons the Plaintiff claims relief pursuant to Division 6 of Part IV of the Conveyancing Act 1919 (in particular, pursuant to section 66G of that Act), for the appointment of statutory trustees for the sale of the house property situate at and known as 60 Harrabrook Avenue, Five Dock, being the whole of the land comprised in Folio Identifier C/307148. (I shall refer to that land as, variously, “the subject property” and “the Harrabrook Avenue property”.)
3 The Defendant named in that summons is John Robert Reid. The Plaintiff and the Defendant are the registered proprietors of the subject property as joint tenants.
4 The Defendant on 6 October 1999 filed an amended cross-claim (superseding a cross-claim filed by him on 9 September 1999), by which he sought that leave be granted to him “to apply for orders for financial adjustment under Part III of [the De Facto Relationships Act 1984, now the Property (Relationships) Act 1984] notwithstanding the time for institution of proceedings specified in s. 18(1) thereof may have elapsed”.
5 That application was heard on 17 February 2000 by Master Macready, who on 29 February 2000 after a contested hearing granted the leave sought by the Defendant.
6 In consequence of that leave the Defendant on 22 May 2000 filed a further document, also entitled “cross-claim” (although it had apparently originally been entitled “statement of claim”).
7 By that document (which is in the form of a pleading) the Defendant sought relief by way of orders for property adjustment under Part III of the Property (Relationships) Act 1984 (that being the short title by which the De Facto Relationships Act 1984 is now known). That pleading sought an order that the Plaintiff transfer to the Defendant the entirety of her interest in the Harrabrook Avenue property and pay to the Defendant the sum of $40,000, and also pay the costs of the Defendant.
8 The Plaintiff on 4 July 2000 filed a notice of grounds of defence to the cross-claim. That document concludes with the somewhat curious statement, “The Plaintiff/Cross-Defendant hereby gives Notice that it [sic] is proceeding by way of Cross-Claim”.
9 Despite the intention foreshadowed by that statement, the Plaintiff did not file any further pleading in the proceedings. Nevertheless, at the commencement of the hearing on 9 May 2002 the Plaintiff, in the face of opposition by the Defendant, sought, and was granted, leave to file in Court certain additional affidavits. Those included an affidavit of the Plaintiff sworn on 2 May 2000. By paragraph 6 of that affidavit the Plaintiff states,
- I seek orders for adjustment pursuant to Part III of the Property (Relationships) Act in accordance with the Minute of Order annexed hereto and marked with the Letter “A”.
10 Annexure A to that affidavit is entitled “Minute of Order”, and provides, substantively, that the subject property be sold and the net proceeds of sale to be distributed as to 60 percent to the Plaintiff and as to the balance to the Defendant, and that the Defendant pay the costs of the Plaintiff.
11 The hearing (which occupied four days and after which substantial written submissions were lodged on behalf of each party) proceeded essentially in respect to the relief sought under the Property (Relationships) Act.
12 The parties were in a de facto relationship for about twenty years, although there was dispute as to the precise date when the relationship commenced (the Plaintiff said that is was in about 1969, whilst the Defendant said that it was in about 1970). The parties separated and the relationship came to an end in 1990.
13 At the time of the commencement of the relationship the Plaintiff (who was born on 27 September 1942 and was then aged either about 27 or about 28) was married, although separated from her husband. (The Plaintiff is, in fact, still married to her husband, Robert Beattie.) The Defendant was born on 11 October 1942. No children were born to the parties of the relationship, although the Plaintiff had two children by her husband, being Craig (who was born on 7 April 1963) and Deanne (who was born on 29 July 1966). The Defendant did not have any children, although, whilst he was with their mother, there appears to have developed a close and affectionate relationship between the Defendant and Craig and Dianne (who respectively were aged seven and four when the parties commenced to live together).
14 At the commencement of the de facto relationship between the parties, neither the Plaintiff nor the Defendant had any significant assets (although the Defendant said that at that time he owned a motor vehicle). The Plaintiff at that time was residing in rented accommodation at West Street, Five Dock with her three children. The Defendant moved into residence with them in those premises.
15 At the time of the commencement of the de facto relationship both the Plaintiff and the Defendant were in employment. The Plaintiff was employed throughout most of the relationship, usually in clerical positions. The Defendant had since about 1962 or 1963 been employed as a waterside worker. In that occupation he was paid in cash each Thursday. According to the Plaintiff, the Defendant’s earnings were usually about $100-$150 a week more than hers. At the commencement of the relationship the Plaintiff was working as a customer service officer with Cyclops at Leichhardt, earning about $200-$230 a week.
16 In 1979 the Defendant suffered an accident at work, resulting in serious injury to his right leg. He was not in employment for about ten years thereafter. Throughout that period the Defendant was in receipt of compensation payments. He subsequently received, in consequence of his injuries, a lump sum payment of almost $232,000 in 1984, and he ultimately returned to work in 1989.
17 In March 1972 the house property at 60 Harrabrook Avenue, Five Dock, was purchased, in the sole name of the Defendant, for $17,700. The purchase was funded by savings of $2,000 of the Defendant, a home loan from the Commonwealth Bank (in an amount of $9,000), and the balance being met by an advance from the Defendant’s parents in the amount of $6,700. The legal fees and stamp duty were also paid by the Defendant’s parents. (The character of the advance made by the Defendant’s parents became at the trial a matter of dispute, the Defendant, and his mother, asserting that that advance was in the nature of a loan, whilst the Plaintiff asserted that the advance was in the nature of a gift. The Defendant’s father died in 1999.)
18 By memorandum of transfer dated 26 May 1977 that property was transferred by the Defendant into the joint names of himself and the Plaintiff as joint tenants. According to the Defendant, he effected that change to the title to the Harrabrook Avenue property out of the goodness of his heart, in order to make the Plaintiff feel secure, because, according to him, the Plaintiff at that time said that she was going to get a divorce and that she and the Defendant were going to have children. Although the Plaintiff made no payment to the Defendant for that transfer, the memorandum of transfer refers to a consideration of $19,000 (which the Defendant’s evidence suggests was the value of the property at that time). Apparently, stamp duty in an amount of $257.50 was payable on that transaction, and that amount was paid by the Defendant. Various improvements and renovations were effected to that property whilst it was the residence of the parties. The Defendant’s parents made some contributions towards those renovations.
19 During the period of about ten years whilst the Defendant was not in employment he undertook to a large extent the role of homemaker and parent in respect to the family unit constituted by himself, the Plaintiff and the Plaintiff’s two children. Throughout most of that period the Plaintiff was in employment, although that employment was interrupted on a number of occasions when, on account of problems with her physical or mental health, the Plaintiff underwent periods in hospital.
20 The parties did not during the relationship conduct a joint bank account. However, they conducted a joint account with the Waterside Workers Credit Union (in addition to an account with that entity which was conducted by the Defendant in his sole name). It was the evidence of the Plaintiff that after the purchase of the Harrabrook Avenue property they pooled their wages, which they used to meet household expenses. Despite the assertion of the Defendant in paragraph 8 of his affidavit of 17 September 1999 that the Plaintiff made no contribution to the expenses of the household (an assertion which the Defendant, under cross-examination, acknowledged was wrong), I am satisfied that the earnings of the Plaintiff throughout the relationship were used to meet household expenses and were used for the maintenance of the Plaintiff, and (whilst they were living with the parties) the Plaintiff’s children. Moreover, it was not seriously in dispute that the furniture and contents in the Harrabrook Avenue property (which appear to have been acquired by the parties during the course of the relationship) were owned by the parties conjointly.
21 According to the Defendant, it was necessary for him to borrow various amounts during the period whilst he was unemployed. Those borrowings, asserted by him to total about $200,000, were said by him to have been necessary for the unkeep of the family. The Plaintiff, however, asserted that essentially those borrowings were made necessary in order to meet gambling losses incurred by the Defendant. It emerged that the gambling losses of the Defendant to which the Plaintiff was referring were essentially losses incurred by an SP bookmaking enterprise to which I shall make further reference shortly.
22 As the hearing proceeded, especially during the course of the cross-examination of the Defendant, a very different picture emerged of the Defendant’s business and financial activities during the period of the relationship. Far from the Defendant merely working on the wharves as a waterside worker for a wage, and then being off work as a result of his injury for about ten years, his evidence referred not only to his involvement in the SP bookmaking business, but also to ownership of greyhounds (conjointly with the Plaintiff), involvement in a company Charmelu Pty Limited (the business activities of which did not emerge with clarity from the evidence), a commercial relationship with one Bobby Ghring (a director of Charmelu) – the Defendant and this Mr Ghring (according to the Defendant) lent money to each other, if required – and some form of business activity (again of a nature unspecified) with one Jimmy Austin.
23 The Defendant’s claim in respect of his work injury to his leg was resolved in 1989, when he received an amount of about $230,000. According to the Defendant, a large part of those settlement moneys were used to repay debts which he had incurred during the preceding ten years.
24 Throughout the period of the de facto relationship (and, indeed, for some years after it terminated in about 1990), the Plaintiff retained a beneficial interest (conjointly with her estranged husband, Robert Beattie, with whom she appears to have remained on good terms) in what had been their former matrimonial home, situate at 58 Beatty Street, Balmain. It would appear that that property was registered in the sole name of Mr Beattie, but that upon her separation from him the Plaintiff lodged a caveat to protect her interest therein. When that property was ultimately sold (after the termination of the relationship between the Plaintiff and the Defendant) the Plaintiff received half the proceeds of sale.
25 When the de facto relationship came to an end in about 1990 the Plaintiff departed the Harrabrook Avenue property, leaving the Defendant remaining in residence therein. The Plaintiff also left the entirety of the contents in that house property (although, as I have already observed, it does not appear to be disputed by the Defendant that such contents were owned by the parties conjointly).
26 At the termination of the relationship between the Plaintiff and the Defendant the assets of the Plaintiff essentially consisted of:
· Half interest as joint tenant with the Defendant in the Harrabrook Avenue property, together with a one half share of the furniture and contents therein.
· One half share in a Viscount caravan, located at Forster caravan site.
· One half share in a boat, located at the Harrabrook Avenue property.
· Interest in house property at 58 Beatty Street, Balmain.
27 At the termination of the relationship the assets of the Defendant consisted of:
· Half interest as joint tenant with the Plaintiff in the Harrabrook Avenue property, together with a one half share of the furniture and contents therein.
· One half share in a Viscount caravan, located at Forster caravan site.
· One half share in a boat, located at the Harrabrook Avenue property.
· Mazda 929 motor car (purchased new for more than $20,000).
· Superannuation entitlement.
· Moneys held in Waterside Workers Credit Union account.
· Cash amount (of at least $20,000) secreted at the Harrabrook Avenue property.
28 In addition, it was asserted on behalf of the Plaintiff that at the termination of the relationship the Defendant held savings, investments and superannuation entitlements, having a total value in excess of $250,000. The Defendant denied holding those assets, or any assets to such a value. It will be necessary, in due course, for me to express findings in regard to whether or not at the termination of the relationship the Defendant held such assets.
29 According to the Plaintiff, throughout the relationship, and especially throughout the period of about ten years whilst the Defendant, in consequence of his injury, was not in employment, the Defendant conducted an illegal gambling enterprise of the nature known as an SP bookmaking business, in which he was aided and assisted by the Plaintiff. It was asserted by the Plaintiff that a considerable quantity of the additional assets which, according to the Plaintiff, were owned by the Defendant at the termination of the relationship had their source in that illegal gambling activity.
30 No reference to such bookmaking business was made by the Plaintiff in her pleadings. It was first referred to (albeit only somewhat tangentially) in her affidavit of 2 May 2002. Neither was it referred to in any affidavit or other document filed on behalf of the Defendant. Evidence concerning this illegal enterprise mainly emerged during the cross-examination of the Defendant. The Plaintiff also gave oral evidence on this topic.
31 During the course of his responses to questions on this topic put to him during cross-examination, the Defendant said that throughout the relationship, or at least from about 1971-1972 (while the parties were still residing in West Street, Five Dock), he was involved with the Plaintiff and her son Craig as SP bookmakers, and that that business required them to work on Saturdays, Wednesdays and public holidays; Friday was settling day. Moreover, that the Plaintiff still continued to run that business after the separation of the parties. According to the Defendant, the Plaintiff and Craig were involved equally with the Defendant in that illegal enterprise. It was the evidence of the Defendant that, whilst he was hospitalised, for a protracted period, as a result of his injury, the Plaintiff carried on the SP business.
32 The Plaintiff said that the enterprise commenced somewhat later, about four years after they moved into the Harrabrook Avenue property; which would put it in the first half of 1976. As will later appear, the date of commencement does not in my conclusion have any bearing upon the relevance of this enterprise to the present proceedings.
33 The Defendant gave considerable and detailed evidence concerning the manner in which that illegal activity was conducted. Originally he was taking bets at the Leichhardt Hotel and at the Orange Grove Hotel. As the business grew, it expanded into other premises where bets were taken, including coffee shops in Fairfield and Leichhardt. Craig was employed as a penciller for the Orange Grove Hotel. Other persons were stationed at various other locations. Bets were laid by a form of code. The Defendant described how, whilst the Plaintiff was working from a suite of rooms in a city hotel, those premises were raided in about 1990. He said that on a good day the business might take between $80,000 and $100,000, but that that was only on rare occasions. On other occasions the business might lose on the day. The Defendant said that it rarely took more than $50,000 on a single day, but that he could not precisely recall.
34 Evidence was given concerning a police raid which took place in about 1990, in a city hotel. According to the Defendant, a number of persons, including the Plaintiff and Craig were charged, and the Defendant was arrested. The Defendant said that the police asserted that the amount which was taken by the business on that day was $116,176.
35 I gather, although the recollection of the Defendant as to the date was not precise, that that police raid took place before the termination of the de facto relationship. The Defendant said that when the relationship came to an end the Plaintiff stopped working in the SP business, as also did Craig.
36 The Defendant also said that the charge laid against him as a result of the police raid was dismissed, whilst the Plaintiff and Craig were each fined. Further, that those fines were paid out of what the Defendant referred to as “our money”.
37 The Defendant also asserted that after the police raid the conduct of the SP bookmaking business ceased. That statement is not entirely consistent with the statement made somewhat earlier in the evidence of the Defendant on this topic, that it was at the time of separation that the Plaintiff and Craig stopped working in the SP business.
38 As I understand it, the Plaintiff places significance upon the SP bookmaking business in two ways. Firstly, it is the contention of the Plaintiff that the assets of the Defendant at the termination of the relationship were considerably greater than those which he admits. She asserts that he had at that time cash funds representing the proceeds of the SP business, which he has not disclosed to the Court. Secondly, the Plaintiff asserts that her involvement in the SP business enabled the Defendant to acquire those additional funds.
39 By its very nature the SP business kept little in the way of records of its earnings, let alone its profits. (This was especially so since, according to the Plaintiff, the enterprise made use of dissolving paper.) There is little doubt that, whatever funds may have been generated by that business, the Plaintiff was a participant in the business and in the acquisition of those funds. It is well nigh impossible, especially some twelve years after the termination of the de facto relationship, to arrive at any conclusions concerning cash funds held by the Defendant which he may have acquired as a result of the business. The most that can be said is that the Defendant admitted to a cash amount of $20,000 which was secreted under a drawer of the wardrobe of the bedroom in the Harrabrook Avenue property. Those funds were probably the result of the SP business (although it is also possible that they may have had their source in the Defendant’s compensation payment). The Plaintiff herself was aware of those funds. She also gave evidence concerning other amounts of cash which she said it was the practice of the Defendant to secrete in two other locations on the property. Upon the available evidence it is not possible for the Court to be satisfied that the Defendant at the termination of the relationship held funds in cash greater than that amount of $20,000.
40 But there is a further, and in my view far more important, aspect to this matter of the SP bookmaking business and any funds acquired by either of the parties from that business. It was accepted by both parties that at the time when the SP bookmaking business was conducted that activity was illegal. The Plaintiff is, in essence, asking the Court to lend its aid to a claim by her to part of the proceeds of crime.
41 The well known litigation of Everet v Williams (the Highwayman’s Case) ((1725), set forth in (1893) LQR 197, cited in Burrows v Rhodes [1899] 1 QB 816 at 826 (a case arising out of the Jameson Raid); see R.E. Megarry, Miscellany-at-Law (London, 1955)) reveals the unwisdom of such an approach. That was a case in the Court of Exchequer by which Everet sought against Williams an account of partnership profits. That plaintiff alleged that the partnership between himself and that defendant dealt in commodities such as plate, rings, watches and other valuables, that the plaintiff and the defendant had dealt successfully in these commodities in the course of the partnership, but that the defendant had failed to come to a fair account with the plaintiff concerning the partnership profits. In the course of the trial it was revealed that the business in which the partners were engaged was actually highway robbery, and that the plaintiff was aggrieved that the defendant had not handed over a fair share of the spoils. The case was thrown out of Court, both parties were hanged, the plaintiff’s solicitors were attached for contempt and the plaintiff’s Counsel was made to pay the costs of the proceedings (see Burrows v Rhodes [1899] 1 QB 816 at 826; see, also, Zelino Pty Limited v Budai [2001] NSWSC 501 (Palmer J, 24 July 2001, unreported).
42 People who deliberately set out to breach the law cannot expect to be aided by a Court. The rule permitting a Court to refuse its assistance to enforce a contract where to do so would be contrary to public policy is an ancient one. It was given expression by Lord Mansfield in Hollman v Johnson (1775) 1 Cowp 341 at 343; 98 ER 1120 at 1121 in these terms,
- The principle of public policy is this… no Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
43 The foregoing dictum of Lord Mansfield was considered by McHugh J in Nelson v Nelson (1995) 184 CLR 538 at 604-605. See Yango Pastoral Company Pty Limited v First Chicago Australia Limited (1978) 139 CLR 410; see, also, Wetherell v Jones (1832) 3 B&Ad 221 at 225-226; 110 ER 82 at 84; St. John Shipping Corporation v Joseph Rank Limited [1957] 1 QB 267; Fitzgerald v F.J. Leonhardt Pty Limited (1997) 189 CLR 215.) The principle is most succinctly stated by Lord Atkin in Beresford v Royal Insurance Company Limited [1938] AC 586, where His Lordship, after citing with approval the judgment of Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156, continued, at 598-599,
- [T]he principle is that a man is not to be allowed to have recourse to a Court of Justice to claim a benefit from his crime whether under a contract or a gift. No doubt the rule pays regard to the fact that to hold otherwise would in some cases offer an inducement to crime or remove a restraint to crime, and that its effect is to act as a deterrent to crime. But apart from these considerations the absolute rule is that the courts will not recognise a benefit accruing to a criminal from his crime.
44 The foregoing passage was cited with approval by Mason J (as he then was) in Yango Pastoral Company Pty Limited v First Chicago Australia Limited, at 428.
45 I consider it to be highly offensive to public policy if I were to make an order the effect of which would be to award to the Plaintiff some share of the spoils of a criminal enterprise conducted by herself and the Defendant. I propose, therefore, totally to disregard the SP bookmaking activities, and the contribution and participation in those activities by each of the parties, firstly, when approaching the assets of the parties during the course of and at the conclusion of the de facto relationship, and, secondly, in considering the respective contributions of a direct and indirect nature, both financial and non-financial, of the parties to the acquisition of the assets of the relationship.
46 I do, however, propose to treat the cash amount of $20,000 secreted by the Defendant under the drawer of the wardrobe as being an asset of the Defendant held by him at the termination of the relationship, which may be regarded as property of the Defendant for the purposes of the present proceedings. It is possible that that sum may have had its source in the lump sum payment which the Defendant received as a result of his injury. The evidence does not enable me to be satisfied that that sum of necessity had its source in the illegal SP bookmaking activities.
47 Since the evidence of the Plaintiff was often in direct conflict with that of the Defendant, it is appropriate that I should express my views concerning the reliance to be placed upon the evidence of the each of the parties.
48 Neither party emerged as a witness whose credit remained untarnished. Neither party could be regarded as an essentially reliable witness, although my impression was that the unreliability of the testimony of the Plaintiff was in a large part due to her poor recollection, rather than as a result of a deliberate intention to mislead.
49 The Plaintiff presented as a more frank witness than the Defendant. Interestingly, the Plaintiff appeared to be in no way vindictive towards the Defendant. She acknowledged that he was extremely generous during the period of the relationship and that he was a very good father to her children. The Defendant, on the other hand, was at times vague in his evidence, and at other times deliberately evasive in responses. I regarded him as an unsatisfactory witness, whose unsupported evidence, when in conflict with that of the Plaintiff, on any matter of significance should not be accepted. Nevertheless, the false information given by the Plaintiff to the Department of Social Security when in 1995 after the termination of the relationship she applied for unemployment benefits, without disclosing that she was receiving $500 a week from the Defendant, reflected very poorly upon the credit of the Plaintiff. By the same token, various loan applications which were signed by both parties and which contain false statements of fact reflect equally badly upon each of the parties. Where the evidence of the Plaintiff and the Defendant was in dispute, and the version of neither was supported by any independent evidence (such as documentary material or the evidence of a corroborative witness), I would not be prepared to prefer the evidence of one party to that of the other.
50 It was put to the Defendant, but denied by him, that at the time of separation he was holding cash reserves of $200,000 at the Harrabrook Avenue property. He did, however, agree that he had about $20,000 in his bedroom secreted underneath a drawer of the wardrobe, saying that that cash was kept for his personal usage.
51 It is appropriate here to record that for a period of about five years after the termination of the de facto relationship between them, the Plaintiff and the Defendant appear to have maintained a harmonious personal relationship, and indeed to have maintained, to an extent, a financial relationship.
52 By her summons the Plaintiff sought not only the appointment of statutory trustees for sale of the Harrabrook Avenue property, but also an order that, after payment of commission and other expenses in respect of the sale, and legal expenses and the costs of those proceedings from the net proceeds of sale, “the portions of the balance payable to the parties be determined by the Trustees” (prayer 5) and an order “[t]hat the Trustees be at liberty to seek the advice of the Court as to the distribution” (prayer 6). By the cross-claim the Defendant seeks, substantively, orders that the Plaintiff transfer to him all her right, title and interest in the Harrabrook Avenue property, together with payment by the Plaintiff to the Defendant of $40,000 “by way of property adjustment”.
53 At the outset of the hearing it was noted that it was agreed between the parties that the present value of the Harrabrook Avenue is $600,000.
54 I have had the benefit of receiving written submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.
55 Section 20(1) of the Property (Relationships) Act provides,
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
(i) a child of the parties,(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:
- (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.
(The phrase “domestic relationship” in the Act encompasses a de facto relationship: section 5(1).)
56 Contributions made by a party in the capacity of homemaker or parent should not necessarily be treated as being of less significance or less value than financial and non-financial contributions made to the acquisition, conservation or improvement of any of the property of the parties.
57 In the instant case, the contributions made by each of the parties in their respective capacities of homemaker or parent were significant, especially where it is recognised that for a period of about ten years the Defendant was not in employment and, apart from conducting the illegal gambling activity, was essentially fulfilling the role of homemaker and parent. The Plaintiff, also, throughout the entirety of the relationship, was fulfilling the role of homemaker and parent, although, as I have already observed, throughout the relationship the Plaintiff was largely in employment, although her employment was for periods interrupted on account of problems with her physical and mental health.
58 Evidence was placed before the Court concerning the financial and material circumstances of each party since the termination of the de facto relationship, especially concerning financial contributions which the Defendant made to the Plaintiff, and to her family welfare, after the termination of the de facto relationship, and also concerning various financial advances made by the Plaintiff to the Defendant after the termination of that relationship, those advances being made possible as a result of the Plaintiff raising money on the security of her interest in the house property at 58 Beattie Street, Balmain, of which she was co-owner with her estranged husband.
59 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission, Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 80-81; Jones v Grech [2001] NSWCA 208, per Ipp AJA at 76). The discretion vested in the Court by section 20(1) of the Act is to be exercised “having regard to” the contributions of the nature described in paragraphs (a) and (b) of that subsection.
60 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J (as he then was), said, at 464,
- The fact that it is not the policy of the Act to elevate the status of a “de facto partner” to that of a party to a marriage, would, in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under section 79 of the Family Law Act 1975 (Commonwealth). That caution is, however, reinforced by the fact that there are differences between the language of section 20 of the Act on the one hand, and of section 75(2) and section 79(4) of the Family Law Act 1975 (Commonwealth) on the other, which differences are, in my view, significant.
61 Powell JA in Jones v Grech, at 12, quoted the foregoing passage from his judgment in Roy v Sturgeon, and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Commonwealth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 23 per Sheller JA; Evans v Marmont at 79-80 per Gleeson CJ and McLelland CJ in Eq.)
62 In exercising the discretion under section 20(1) of the Property (Relationships) Act, it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the parties, and, in particular, the present needs of either party, should not be taken into consideration. The Court should not be diverted from the clear words of the statute. In exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable” the Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties, or to financial transactions between the parties which have taken place between the termination of the de facto relationship and the hearing of the proceedings under the Act. The Court should have regard only to contributions of the nature set forth in the subsection (see Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine Wallis v Matheson [2002] NSWCA 350).
63 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.
64 I propose, therefore, in considering the claim of the Defendant for adjustment of interests in property under section 20(1), to disregard evidence concerning the present and likely future needs of the parties.
65 I have already expressed the view that the contributions of each party as homemaker and parent may be treated as being more or less equal. Further, the Plaintiff was in employment throughout most of the relationship (subject to her various periods in hospital to which I have already made reference), whilst for long periods the Defendant was unemployed. Despite the attempts by the Defendant to diminish the extent of the help and assistance which the Plaintiff gave to him during his months, even years, of physical incapacity, I am satisfied that those contributions by the Plaintiff were of significance. Moreover, I am satisfied that the Plaintiff expended the totality of her income upon household expenses and the maintenance of herself and her children (and, at times when the Defendant did not have any money of his own, upon the maintenance of the Defendant). When the Defendant did have money he appears to have been generous towards the Plaintiff and her children.
66 Despite the evidence of the Defendant’s mother that the advance made by herself and the Defendant’s now deceased father towards the acquisition of the Harrabrook Avenue property was a loan rather than a gift, there appears to have been no suggestion at the time when that advance was made that the Defendant’s parents required repayment of that amount of $6,700 (together with an amount to cover legal fees and stamp duty). The subsequent transfer by the Defendant of the Harrabrook Avenue property from his sole name into the joint names of himself and the Plaintiff was justified by the permanency of the de facto relationship between the parties and as a recognition of the contributions, both financial and non-financial, made by the Plaintiff to the relationship.
67 I am not persuaded that the Defendant has established an entitlement to have the Harrabrook Avenue property transferred to the Defendant absolutely, or to be paid the sum of $40,000 (or, indeed, any sum) by the Plaintiff.
68 In my conclusion, and consonant with the principles to which I have earlier referred concerning the application of section 20(1) of the Property (Relationships) Act, it is appropriate that the Harrabrook Avenue property should be sold, and that each party should receive one half of the net proceeds of sale, and, further, that there should be no other order in respect to the adjustment of the interests of the parties in property. It should, however, be noted that the furniture and contents of the Harrabrook property are owned by the parties conjointly.
69 Accordingly, I propose to make an order in the nature of an order under section 66G of the Conveyancing Act, which will reflect the equal entitlement of the parties to the net proceeds of sale of the Harrabrook Avenue property, and I propose to dismiss the cross-claim of the Defendant for an order for adjustment of the interests of the parties in that property.
70 As to any proceeds of the illegal SP bookmaking enterprise (which proceeds, as I have indicated, cannot, upon the present evidence, now be identified or quantified), I consider that any loss should lie where it falls, and that neither party should be entitled to call in aid the exercise of the discretion of the Court in respect to the proceeds of that illegal activity.
71 Neither party has substantially succeeded in obtaining the relief which she or he sought. I consider therefore that it is appropriate that there should be no order as to costs, to the intent that each party should bear her or his own costs of the proceedings.
72 I make the following orders:
(1). I make orders as in prayers 1 and 2 in the summons.
(2). I reserve to the trustees liberty to apply to the Court in respect to any matter relating to the sale of the aforesaid land.
(3). I order that the net proceeds of sale of the said land (after payment of commission and other expenses in respect to the sale, and the costs and remuneration of the trustees) be divided equally between the Plaintiff and the Defendant.
(5). I make no order as to costs, to the intent that each party shall bear her or his own costs of the proceedings.(4). I order that the cross-claim of the Defendant be dismissed.
(6). The exhibits may be returned.
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