Berg v Mullins

[1999] NSWSC 451

CITATION:	Berg v Mullins [1999] NSWSC 451
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2678/96
HEARING DATE(S):	29 and 30 March 1999
JUDGMENT DATE:	17 May 1999
PARTIES :	Valerie Berg v Vincent Aloysius Mullins
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Ms R. Druitt for the plaintiff Defendant in person
SOLICITORS:	Harman & Co, Penrith, for the plaintiff
CATCHWORDS:	Family Law. Application under Defacto Relationships Act 1984 for adjustment of parties' property interests. Order for adjustment made. No matter of principle.
DECISION:	Para 57

4

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Monday 17 May 1999

2678/96 VALERIE BERG v VINCENT ALOYSIUS MULLINS

JUDGMENT

1 MASTER MACREADY: These proceedings under the Defacto Relationships Act were commenced in the Local Court at Penrith on or about 11 June 1996. On 20 June 1996 the proceedings were transferred to the Supreme Court. The plaintiff has filed an amended Statement of Claim in the proceedings which in addition to a claim under the Defacto Relationships Act brings a claim against the defendant based upon a constructive trust in respect of a property registered in the defendant’s name, known as 5 Rodova Street, Katoomba. A Judge of this Court has referred all matters in the proceedings to a Master for his determination.
2 The parties in this matter are at issue as to whether there was a defacto relationship and indeed give quite different accounts of most of the matters in issue. There was no child born of the relationship between the plaintiff and the defendant.
3 It is useful to note a little of the history before coming to the matter in more detail. The plaintiff is 69 years having been born on 23 July 1929. She is a retired Nursing Sister. In 1968 she first met the defendant. The plaintiff was divorced in 1964 and was residing with her two children, Andrew and Juliet, at Etham Avenue, Darling Point. The defendant was then residing with his mother and two spinster sisters in Double Bay. According to the plaintiff a sexual relationship commenced about three months after they met and this does not seem to be disputed by defendant. The defendant was then employed by the New South Wales Sheriff’s Office at Waverley Court House. In 1970 the plaintiff became pregnant and miscarried at about 14 weeks. According to the plaintiff the defendant was the father. In 1971 the plaintiff moved to New South Head Road, Rose Bay and rented a unit in her name.
4 In due course between 1971 and 1973 the defendant’s mother died and the unit at Double Bay was sold. The plaintiff’s children went to live with their father and in due course the plaintiff resigned from her employment with the Red Cross Sydney Blood Bank. The parties then travelled by ship on a number of trips including to North America and Japan. On return in 1974 the plaintiff rented another property at 22 Cooper Street, Double Bay and resumed her employment with the Red Cross. The defendant resumed his employment with the Sheriff’s Office. The parties apparently maintained separate residences and in 1978 the defendant went to live in a boarding house in Rose Bay. In 1984 the parties either took leave or resigned their employment and travelled again to Europe for about five months. In 1985 the defendant returned to Sydney for an operation on his foot and the plaintiff remained in London for a period of about three months. However, when the plaintiff returned in April/May 1985 she took accommodation in a private hotel and the parties resumed their relationship but not sharing accommodation together. On her return the plaintiff did not return to employment but obtained a Widow’s Pension. Between 1985 and 1987 the plaintiff received $26,000 from the estate of her mother and in 1988 the defendant retired from his employment by first taking a year of his long service leave on half pay.
5 In 1989 or 1990 a property was located which was for sale at 5 Rodova Street, Katoomba. The property was purchased in the name of the defendant in the sum of $110,000. It was furnished and the purchase price was paid by the defendant out of his superannuation monies. Both parties moved into Katoomba in February 1990. In late 1992 there was a further trip by the plaintiff and the defendant when they travelled to Europe for some months. Prior to this, during the winter of 1991, there had been a falling out between the parties and the plaintiff moved out from Katoomba for a period she says was about three months. In September 1992 the defendant made a will in which he left the whole of his property to the plaintiff. In May 1996 the defendant put in hand steps to arrange for the sale of the Katoomba property. Relations between the parties had deteriorated substantially and on 11 June 1996 the Local Court at Penrith made the following orders:-
“5. That pending further order, the applicant be declared to have a right of occupancy in the property situate at and known as 5 Rodova Street, Katoomba.

6. That pending further order, the respondent be restrained from selling, transferring or disposing of the property situate at and known as 5 Rodova Street, Katoomba.
7. That pending further order, the respondent be restrained from selling, transferring or disposing of any furniture or chattels contained within the property situate at and known as 5 Rodova Street, Katoomba.
8. That pending further order, the respondent be restrained from encumbering in any way whatsoever the property situate at and known as 5 Rodova Street, Katoomba.
9. That pending further order, the respondent be restrained from assaulting, molesting, harassing, threatening or otherwise interfering with the applicant.
10 That pending further order, the respondent be restrained from disposing of funds held in the name of Vincent Aloysius Mullins with Westpac, Sydney Office, 341 George Street, Sydney, BSB 732-000 Account number 51-3125.”

6 Immediately after the making of these orders the defendant vacated the property and has since lived in the Goulburn area. The plaintiff has remained in the property.
7 As at June 1986 the only assets of the parties appear to be the property at Katoomba which the plaintiff estimates has a value of $180,000 and the defendant estimates has a value of about $150,000 to $160,000. There is no sworn evidence as to value. There are items of furniture and personal effects and a Chrysler motor vehicle which is at present parked in a railway yard at Moss Vale. Each of the parties are on a pension.
8 In the proceedings before me the plaintiff was represented by counsel and the defendant appeared in person. The plaintiff’s material included information that suggested that the defendant had a severe drinking problems and had on occasions, during the time the parties were at Katoomba, consulted a psychiatrist for some treatment for which he was prescribed an anti-depressant, Zoloft. There was also evidence from the plaintiff suggesting that in the latter part of the period when the parties lived at Katoomba the defendant held out to others that he was a Secret Service operative and appeared to be deluded. Certainly in the witness box before me the defendant maintained that he had signed the Official Secrets Act and was not able to answer any questions about that matter.
9 The plaintiff’s position was that the defendant had appropriate capacity to act for himself and it appeared to me that this was so. In particular the following became clear to me as the trial proceeded
10 1. The defendant adequately understood the concept of a defacto relationship and was able to articulate and cross examine on the differences between that and a relationship of a lesser nature.
11 2. The defendant was quite capable of cross examining witnesses, insisting on correct answers and noting immediately when a witness was avoiding, for example, the purport of a question.
12 3. The defendant was able to make submissions on the appropriate inferences to be drawn from documents and put appropriate matters in support of these arguments.
13 4. When matters were explained to him the defendant could appreciate the need sometimes to change from the stance he had taken given that a change might benefit his case.
14 5. The defendant suffered from a hearing defect which at times made the evidence difficult in that he would not hear an answer from the plaintiff when cross examining her. However, this was not a sufficient disability to cause concern.
15 In summary it appears to me that the defendant was quite capable of understanding the nature of the case, issues involved and was able to conduct his defence.
16 The principal dispute is of course the question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis. That question must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v Anderson & Ors (1992) DFC 95120. They referred with approval to the decision of Mr Justice Kearney in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour in dealing with the similar expression in the Family Provision Act 1982 after reviewing the authorities said at page 685 the following:-
"I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459)):

"1. The duration of the relationship.
2. The nature and extent of the common residence.
3. Whether or not a sexual relationship existed.
4. The degree of financial interdependence and any arrangements for support, between or by the parties.
5. The ownership, use and acquisition of property.
6. The procreation of children.
7. The care and support of children.
8. The performance of household duties.
9. The degree of mutual commitment and mutual support.
10. Reputation and 'public' aspects of the relationship.”

His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459):
The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance.
As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case."

17 Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the deceased under the headings set out above.
18 Before doing so it is, however, necessary to consider questions of credit in respect of the plaintiff and the defendant. The plaintiff on occasions would add to her answers to questions in order to advocate her case. Even when warned not to do this she persisted in this behaviour. Apart from this she gave her evidence in a fairly straight forward manner. She had a tendency to make generalised statements which on scrutiny turned out to be inaccurate. Apart from this there is no reason to advance as to why I should not treat her as a witness of truth. The defendant I found not very satisfactory as a witness. He also endeavoured to not answer the questions and advocated his case. He appeared to me to be well aware that he was doing so and would stop every time I directed him to answer the question. In a number of respects the defendant’s evidence was substantially contradicted by his own documents. For example, he insisted during evidence that he had used up the last of his capital between 1992 and 1993 when the parties went on their last trip to Europe. His own bank statements showed that in 1995 and 1996 he still had in the order of $16,000 in the bank and he could not satisfactorily explain this fact. He initially retreated into refusing to answer questions when this pointed out. Another example was his claim that he was employed by the Federal Police. Documentary evidence was tendered to show that his application to join had been refused. At times his response to the plaintiff’s allegations was to counter with wild allegations or raise matters that suggested an inherent improbability in some of his problem areas. One of these was his drinking. He freely admitted drinking up to several litres of wine a day and he gave evidence that he had been barred from 16 different service clubs in the last few years. He claimed that this was without explanation or reason. This would seem to strongly support the suggestion that the defendant did have a drinking problem.
19 Overall I have real reservations about the evidence of the defendant and ordinarily would prefer that of the plaintiff.
20 I turn to the different headings to which I have referred above in order to further discuss the question as to whether or not a defacto relationship existed.
1. The duration of the relationship
21 The parties had a relationship from 1968 to 1996. However, as will appear from what I subsequently refer to, the nature of the relationship varied at different times and the way the parties lived also varied over the years. Notwithstanding comments of the defendant to the contrary it seems to me that the relationship was one where the parties, apart from some periods of breaks in the relationship had what might be described as a single relationship between themselves. In other words they did not have relationships with other parties during the relevant periods.
2. The nature and extent of the common residence.
The period from 1968 to 1973.
22 In 1968, according to the plaintiff, she began associating with the defendant and this is agreed by the defendant. At that stage the plaintiff who had been divorced in the 1964 was residing with her two children, Andrew then aged 13 and Julian aged 11, at rented premises in Etham Avenue, Darling Point. The defendant was residing with his mother and two spinster sisters in a property at Double Bay. The plaintiff suggests that the defendant stayed overnight with her most nights of the week. She concedes his belongings remained elsewhere at his mother’s home. In 1971 plaintiff moved to a 3-bedroom duplex at New South Head Road, Rose Bay. The plaintiff suggests that at some stage after moving to Rose Bay the defendant used her son, Andrew’s room, on occasions for his belongings when Andrew was attending King’s School and was not at home. At some stage which is not clear on the evidence and certainly not dealt with by the plaintiff the defendant moved to a flat at Double Bay as apparently his mother died and the unit which he and his sisters occupied at Double Bay was sold. By the end of this period the plaintiff’s children had gone to reside with their father. The plaintiff at some stage give up the premises at New South Head Road, Rose Bay, probably before she and the defendant went on a trip overseas in 1974.
Period 1974 to 1984
23 At some time either at the end of 1973 or early 1974 the parties travelled to Canada by ship and subsequently toured around North America returning by ship via Japan to Australia. In paragraph 15 of her statement the plaintiff said that “we” returned to Australia in 1974 and moved to 22 Cooper Street, Double Bay, renting in her name. It appears from cross examination that at this address they each may have had separate flats in the same building. It is this type of inaccuracy which causes me concern with the plaintiff’s evidence. In any event it is clear that the plaintiff resumed her employment with the Red Cross after her return from the trip overseas. The defendant also resumed his employment with the Sheriff’s Office at Waverley Court House. In 1978 the defendant went to live at a boarding house at Rose Bay. The plaintiff’s evidence in respect of precisely how much time the parties spent together in this period from 1973 to 1984 is quite vague. She tends to use statements such as “being inseparable” without giving the detail to enable me to determine precisely where people resided during the period.
24 In 1984 the plaintiff resigned her then job at Royal North Short Hospital and the defendant took leave from the Sheriff’s Office. They travelled together to Europe for five months. On this occasion, as with previous trips overseas, they each had their own separate passports in their own names and tickets booked in their own names. However, it is clear that on these trips both parties shared accommodation together.
Period 1985 to February 1990
25 At the conclusion of the European trip the defendant returned to Sydney for an operation on his foot and the plaintiff remained in London for a further three months. At that stage she worked as a companion to Lady Rothschild. She returned in April or May 1985 and at this stage the plaintiff says that the defendant was drinking substantially and she did not want to live with him. She says that they resided at different addresses but would see each other during the day and have meals together. The plaintiff did not return to work but received a pension. In December 1986 the plaintiff received $26,125.32 from the estate of her late mother. In 1987 or maybe 1988 the defendant ceased work. He had a year of long service leave on half pay and then retired at the age of 60. The plaintiff spoke of travelling around Australia after the defendant ceased work visiting country towns, looking at properties with a view to purchase. I have no doubt that they shared accommodation and were together while travelling but over the whole of this period it seems that each maintained a separate residence. In 1989 according to the plaintiff, the defendant started to exhibit signs of being suicidal and he was admitted to St Vincent’s hospital for treatment for some time. Precisely how long he was there is a matter of dispute but it was clear he was being treated for some weeks.
Period February 1990 to 11 June 1996
26 At the end of 1989 the parties had located a property at Katoomba and it was purchased for $110,000 by the defendant. His funds were used for this purchase the funds coming from the amount he received on his retirement of $138,590.52. It seems clear that in February 1990 the parties moved into this residence although occupying separate bedrooms. Thereafter they shared a common residence until the defendant left in June 1996 apart from one period of separation. This period of separation arose because of a problem which was becoming very common of the defendant drinking to excess. In the winter of 1991 the parties had visited Lithgow by train and the plaintiff had to go home by herself at 11 pm on the last train leaving the defendant behind who was in no condition to travel. As she had no key she broke into the house and went to bed. This prompted the defendant the next day to cause proceedings to be brought against the plaintiff for breaking and entering but the proceedings were dismissed. As a result of this incident, according to the plaintiff, she separated from the defendant for about three months. The defendant says that the separation was longer, namely, 27 months. He could not point to precise times and there are a number of matters which incline me to the view that the plaintiff’s evidence ought to be accepted. These are that by September 1991 the defendant was writing notes to the plaintiff suggesting that they have a talk. In addition in September 1992 the defendant made a will in which he appointed the plaintiff his sole beneficiary. That is quite inconsistent with the defendant’s claim of the period of separation of 27 months. Accordingly, I am prepared to accept the plaintiff’s evidence that there was a separation for three months commencing in the middle of 1991.
3. Whether or not a sexual relationship existed.
27 According to the plaintiff a sexual relationship commenced about three months after they first met in 1986. This does not seem to be denied by the defendant and it appears that the relationship continued, according to the plaintiff, up until 1989. Apparently, according to the plaintiff, a combination of medication that the defendant was on when he was at St Vincents and the consumption of alcohol made the defendant impotent. The defendant himself in the evidence says that there was a cessation of sexual relations he says because of the violent abuse he received from the plaintiff. The plaintiff’s version, I think, is more likely, and given the lack of any other evidence about the type of abuse spoken of by the defendant, I would not accept his version. However, sexual relations stopped prior to the parties moving to Katoomba. The defendant concedes that the plaintiff was pregnant in 1970 and that the pregnancy was terminated. The manner of termination is not relevant but I do note that the defendant does not concede that he was the father. I am prepared to accept the plaintiff on this aspect.
4. The degree of financial interdependence and any arrangements for support, between or by the parties.
28 Clearly the parties seem able to accept from the other use of the other’s funds. For example, the parties used the $26,000 that she received on travelling, entertainment and gambling at various clubs which she and the defendant would attend. The defendant, for his part, also used his funds or some of them on retirement for the purposes of their trip to Europe in 1992.
29 One of the allegations made by the defendant was that the plaintiff was merely a boarder at Katoomba. This was strongly denied by plaintiff. No documentary evidence was tendered on this issue and I am prepared to accept the plaintiff’s version that this was just a fabrication by the defendant.
5. The ownership, use and acquisition of property.
30 There was no jointly owned property. The only asset of any note, the house at Katoomba, was purchased in the name of the defendant using his funds. The parties maintained separate bank accounts.
6. The procreation of children.
7. The care and support of children.
31 These are not relevant to this matter. The time when the plaintiff had her children with her was very early in the relationship and the evidence did not address any care that was undertaken by the defendant in regard to those children.
8. The performance of household duties.
32 The parties concede that they would share the expenses of meals when they ate out. The plaintiff seemed to make the payments for household expenses for the time when they were at Katoomba. The defendant denied this and suggested that he contributed. However, his bank statement during the period 1995 to 1996 showed withdrawals almost exclusively coming from RSL Clubs, Workers’ Clubs and hotels. The frequency and amount of these withdrawals at hotels suggest he spent the money there rather than on food for the household.
9. The degree of mutual commitment and mutual support.
33 The plaintiff suggested in her affidavit evidence that the defendant made promises to marry which did not come to fruition. When the matter was dealt with in cross examination a slightly different story emerged. The plaintiff said that the defendant did ask her to marry him but it always seemed to be at times when she was a bit nervous about getting re-married. She said there were other times when she did agree to get married and that she did want to marry him. They had made arrangements on two occasions to be married, once to be at Honolulu and one at Cooma. However, the weddings did not eventuate. Clearly this indicates some attachment and consideration of a proposed commitment.
34 More important matters to consider on this area are the extent of the support which the plaintiff gave to the defendant. I have mentioned the problems with the defendant’s drinking and it is clear, and I accept the plaintiff on her evidence, that the drinking to excess caused problems on many occasions. She spoke of it interrupting their trip to England in 1992 and it seemed to become worse after their return. The plaintiff spoke of having to go to hotels at the request of staff to retrieve the defendant from time to time as well as finding him unconscious in the garden. She would clean him up and look after him when this occurred.
35 Another matter which started to arise at Katoomba was the fact that the defendant appeared to be deluded to the extent that he suggested that he was a Secret Service agent. The plaintiff managed to live with it without difficulty but there was embarrassment caused from time to time.
10. Reputation and 'public' aspects of the relationship.
36 There are a number of cards and enveloped which have been tendered where the parties are referred to as Mr and Mrs Mullins. There is no doubt the plaintiff and the defendant spent time out in public together and were frequently seen by friends together. This is not unnatural in that there was, in any event, a long standing relationship between them. There was some evidence from friends one of whom spoke of the parties living together in Double Bay as partners. Others spoke of them appearing to be partners and a couple.
Conclusion on whether there was a bona fide defacto relationship.
37 It can be seen from looking at the earlier periods prior to the move to Katoomba that the relationship between the parties was such that they did maintain separate residences although in the early years there seems to have been a fairly detailed association between them when the defendant would stay at the plaintiff’s flat many days a week. There is no doubt that there was a sexual relationship in the early years. The parties when they travelled would travel together and share the same accommodation. However, whenever they did travel away together when they came home they returned to their separate residences. Setting up house together is an important indication of the required relationship and this did not happen. The failure to ever agree on marriage is perhaps a pointer to the extent of the depth of the relationship. It was not as though they were like many other couples nowadays who make a commitment to live together in a defacto relationship leaving aside as irrelevant the bonds of marriage.
38 The plaintiff bears the onus of establishing the existence of the relationship and in respect of the period up until February 1990 I am not satisfied that the parties lived together on a bona fide domestic basis as man and wife. From 1990 onwards it is clear that the parties shared the same residence and household. Accordingly, the situation is quite different. Although the sexual relationship had ceased by this stage it does not detract from the fact that they lived together as a couple for the whole of the period apart from the one admitted period of separation in 1991. The support and assistance given by the plaintiff to the defendant during this period with his troubles with drinking and delusions also strengthens the conclusion that there was the appropriate relationship. Accordingly, I am satisfied that the parties lived together in a bona fide domestic relationship as man and wife from February 1990. There was a separation for a period of three months in mid 1991 and they lived together again thereafter until June 1996 when the defendant left the Katoomba property.
39 So far as the separation is concerned it was a decision by the plaintiff to live apart and this means there was a termination of the relationship. There are thus two discreet periods of the relationship one for 16 months and the other for 4 years and 9 months.
40 Before turning to the property of the parties it is important to consider whether or not I can have regard to contributions made prior to the last of these periods. Certainly in respect of the period before February 1990 I cannot have regard to contributions made at that stage. In relation to the period from April 1990 until June 1991 a real problem arises because the plaintiff has made no application for leave under s 18 of the Act. Section 18 is in the following terms:-
"(1) Except as provided by subsections (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of two years after the day on which they ceased, or last ceased, as the case may require, to so live together.

(2) A court may, at any time after the expiration of the period referred to in subs (1), grant leave to a de facto partner to apply to the court for an order under this Part (other than an order under s 27 (1) made where the court is satisfied as to the matters specified in s 27 (1) (b) ). Where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.
(3) Where, under subs (2), a court grants a de facto partner leave to apply to the court for an order under this Part, the de facto partner may apply accordingly."

41 In Fotheringham v Fotheringham (unreported 19 November 1996) I had at first instance concluded that in a case where there are two discreet defacto relationships, provided the application was within two years of the termination of the last period it was possible, without making application under s 18, to take into account the contributions made in the earlier of the two defacto relationships. In particular I noted that s 18(1) concluded with the words, “2 years after the day on which they ceased, or last ceased, as the case may require, to so live together”. On appeal His Honour Mr Justice Powell ( Court of Appeal 28 August 1998 unreported) held that this approach was wrong. At pages 20 and 21 of his judgment his Honour held that the applicant for an order bears the onus of establishing that the condition precedent in s 18 has been fulfilled or alternatively bears the onus of obtaining an order of court granting leave to commence proceedings.
42 Because no application has been made it seems to me that I can not take account of any contributions made during the earlier period of the defacto relationship. Recently in McKone v Maretta, 12 May 1999, I considered whether an application for leave in those circumstances can be successful if the earlier period is less than two years. However, that does not arise as no application under the section has been made.
Property of the parties
43 If one turns to look at the property of the parties in mid 1991 it is clear that the defendant had property at Katoomba. He also had a car the precise value of which does not appear in the evidence. Precisely how much cash he had at this stage after the purchase of the property does not appear. It certainly was in excess of $16,000.
44 The plaintiff does not deal with her assets at that time but it would seem that there was little that she had she probably having expended her only inheritance of $26,000 some years earlier. She was living on the pension as was the defendant.
45 At the conclusion of the relationship the defendant still had the home the value of which was put in evidence by the parties at between $150,000 and $180,000. There were items of furniture and personal effects and the Chrysler motor vehicle which was in the defendant’s name. The defendant had an account with Westpac. In October 1995 that account stood at $16,893.56. It slowly decreased until by 13 February 1996 it was down to $12,769. The defendant had a Bankcard and a Mastercard accounts and by August 1996 the amounts owed on these were respectively $4,594.05 and $4,494.44.
46 The defendant has conceded in evidence that the amounts owing to the banks have increased substantially and he seems to concede that there is an amount of approximately $30,000 owing to the bank at the present time. This is important because the bank has registered a writ on the title of the property following upon proceedings in the Local Court.
Contributions
47 The plaintiff’s case contained a number of aspects of contributions which because of the period of the relationship I have found can not be taken into account. There was first a suggestion that she was supporting the defendant in the years from 1986 to 1988 when he was building up substantially the amount of his superannuation. Clearly he was contributing a great amount to it at that stage and there may well have been some basis for this claim but, given the time frame, it is not relevant. Another one which is not relevant is the arrangement for the purchase of Katoomba. It turned out that the plaintiff knew the vendors and was able to negotiate a reduction in price from $120,000 to $110,000. If it was relevant to consider that as a contribution I would have accepted the plaintiff’s evidence on this aspect but it is not relevant.
48 The real contribution in the present case on the plaintiff’s part is the way in which she managed the household of the defendant for the period of the relationship. I am happy to accept the plaintiff’s version in which she said she cooked and cleaned for the household. I also accept that she paid for the food consumed and gave the defendant $55 per week towards the household bills. Her story is consistent with what records are available of the defendant spending his pension and savings.
49 Apart from these financial contributions to the running of the household a more important contribution has been the care which the plaintiff has given to the defendant in his difficult years. These difficulties were caused by the delusions and the drinking of the defendant. It imposed more than the ordinary obligations on a partner. The plaintiff spoke of the parties keeping to themselves. Apart from a few friends who gave evidence of seeing them at this time this may well have been the case. In my view the difficulties which the plaintiff had with the defendant require substantial recognition of her efforts over the four years and nine months that the parties lived together.
50 Before finally determining this matter I will mention one other matter that arises on the pleadings. That is that the plaintiff has claimed that the defendant held his interest in the Katoomba property on trust for the plaintiff. As was made clear in submissions that claim was based upon the evidence given in paragraph 26 of the plaintiff’s second statement which paragraph is in the following terms:-
“In about 1989 - 1990, Vincent and I found the property at 5 Rodova Street, Katoomba. At the time of the sale of the property was in good condition and was for sale for $120,000.

The vendor was known to me. I negotiated the purchase at $110,000 and the furniture was purchased for an extra $2,500 and the purchase was completed in February 1990 using funds from Vincent’s superannuation fund. Annexed hereto and marked with the letter “D” is a true copy of a letter from William J. Player, Solicitor, dated 31 January 1990 in relation to settlement of the purchase.
When we went to the solicitors office to sign the paperwork, we shared some champagne in anticipation.
On arrival at the solicitor’s office, I found myself being a witness to Vincent’s signature and not a purchaser.
After leaving the solicitors office I recall that I said to Vincent, ‘Why is the property not in both of our names?’ to which he replied, ‘It is better for taxation purposes to have it in my name. You know I will always look after you, Peach’. Peach was the nickname used by Vincent in relation to me. I relied on this assertion by Vincent from early in our relationship.”

51 It was submitted that there was a common intention that the property would be a shelter for them both . The defendant denies the conversation but even assuming for the moment that I might find in favour of the plaintiff on this particular conversation, it would not support the existence of a constructive trust. First there is no mention in the discussion about ownership. The expression used is “You know I will always look after you, Peach”. This is no more than the equivalent of the acceptance of an obligation on the part of a husband to house his wife. See comments of Gleeson CJ in Green v Green (1989) 17 NSWLR 343 at 353. The other matter which is abundantly clear is that the whole of the funds for the purchase came from defendant. There has been no acting by the plaintiff to her detriment in respect of the matter.
52 Accordingly it seems to me that there is no basis for any claim for a constructive trust.
53 In conclusion the only remedy which the plaintiff can achieve in the present action is in respect of the claim under the Defacto Relationships Act. It is clear that the defendant provided the whole of the funds for the purchase of the property which is now the only remaining property which can be considered. The car, given it is impounded, is probably of little value.
54 I have to balance of course the contributions the plaintiff has made which I have identified above and the defendant’s provision of the funds for the purchase of this property. Another area of financial contributions by the defendant was the provision of funds for the parties trip to England in 1992. His extravagant claims cannot be accepted. Using references to the particular funds identified it seems likely that the defendant paid for airfares of $3,200 and accommodation and other expenses of $9,000. On return to Australia the plaintiff reimbursed him to the extent of $3,000. This contribution also has to be taken into account.
55 Another matter to be taken into account in the appropriate orders is the payment out of the debts of the defendant which seem to have been accrued towards the end of the relationship and after the relationship finished. It seems inevitable that the property will have to be sold. Accordingly, I propose to make orders to give effect to a sale at this stage. There is an interlocutory regime in place which is no longer relevant. The evidence before me does not suggest a need for restraining orders once a sale of the property is completed and the parties are now living well apart.
56 The orders that I make are as follows:-
57 1. Order that the property 5 Rodova Street, Katoomba be sold and that the proceeds be applied as follows:-
(a) A payment of the expenses of sale.

(b) A payment of any outstanding rates on the property.
(c) That the remaining proceeds be divided in the following way:-
(i) As to 40% for the plaintiff.
(ii) As to the balance to be applied to meet any payment due by the defendant to Westpac Banking Corporation and thereafter the balance to the defendant.
2. Order that in the event the parties do not within three months from the date hereof agree upon a distribution of the furniture and effects in the property at Katoomba that they be sold and the proceeds divided equally between the parties after the payment of expenses of sale.
3. I discharge the orders made by the Local Court at Penrith on 11 June 1986 in this matter.
4. I order that, pending the sale in paragraph 1, the plaintiff have possession of 5 Rodova Street, Katoomba and that she vacate the premises upon its sale.
5. I restrain the defendant from entering the premises 5 Rodova Street, Katoomba except for the purpose of inspecting the furniture and effects therein or collecting such furniture and effects as the parties have agreed he shall retain provided that two clear days’ notice of his desire to enter the premises shall be given to the plaintiff by the defendant.
6. I reserve liberty to either party to apply:-
(a) for any further ancillary orders to effectuate the sale referred to in orders 1 and 2 above;
(b) for any injunction under s 53 pending the sale in order 1 above;
(c) for further enforcement of these orders.
7. Order the defendant to pay the plaintiff’s costs.
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