Berrell & Tily (No 3)
[2023] FedCFamC1F 14
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berrell & Tily (No 3) [2023] FedCFamC1F 14
File number(s): SYC 3428 of 2018 Judgment of: CHRISTIE J Date of judgment: 24 January 2023 Catchwords: FAMILY LAW – THRESHOLD HEARING – Where the applicant asserts the parties were in a same-sex de facto relationship – where the parties had a commercial relationship – where the parties had a long standing friendship – where the applicant asserts the parties had a secret de facto relationship – where the respondent denies any domestic relationship with the applicant – where the criteria in s 4AA of the Family Law Act 1975 (Cth) is not met – a declaration of no de facto relationship is made under s 90RD – application dismissed.
PRACTICE AND PROCEDURE – Where the respondent filed proceedings in the Supreme Court dealing with a commercial dispute involving the parties – where the applicant asserts the parties were in a de facto relationship – where a judge of the Supreme Court transferred proceedings to the Family Court of Australia – no jurisdiction is established where no de facto relationship existed – matter is transferred back to the Supreme Court of New South Wales.
Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD;
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s.5(1)(b)
Cases cited: Nord & Van (2018) FLC 93-833 Division: Division 1 First Instance Number of paragraphs: 116 Date of hearing: 28 November – 1 December 2022 Place: Sydney Solicitor for the Applicant: Mr Hall, Trevor Hall Partners Counsel for the Respondent: Mr Kearney, SC Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 3428 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BERRELL
Applicant
AND: MR TILY
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
24 January 2023
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Mr Berrell (“the applicant”) and Mr Tily (“the respondent”).
2.The whole of these proceedings be transferred to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(1)(b).
3.The Initiating Application filed by the applicant on 10 September 2018 is otherwise hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Tily has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
Before this Court can consider an application to alter property interests it must first be satisfied that the jurisdiction exists to hear the application. In this case the respondent contends this Court lacks jurisdiction.
The applicant commenced proceedings on 10 September 2018 seeking a declaration that he and the respondent were in a de facto relationship between mid-2007 and August 2014. The respondent submitted that the relationship between them was a friendship and, for a time, a business relationship and accordingly sought a declaration that there was no de facto relationship between applicant and respondent.
On the final day of the hearing before me the applicant withdrew his application for a declaration that the parties were in a de facto relationship. The respondent continued to prosecute his response.
For clarity in these reasons I will use the parties’ names to refer to the applicant, Mr Berrell and the respondent, Mr Tily.
RELEVANT PROCEDURAL MATTERS
In late 2014 Mr Tily commenced proceedings in the Supreme Court of New South Wales (“the Supreme Court”) seeking relief against Mr Berrell and Mr Berrell’s parents, Mr B Berrell and Ms C Berrell (“the Supreme Court proceedings”).
The litigation in the Supreme Court concerns a company, M Pty Ltd (“M Pty Ltd”) which was used as a corporate vehicle to undertake what Mr Tily describes as a partnership between himself (through M Pty Ltd) and Mr Berrell. The partnership was engaged in property developments in P Town and E Region. The sole director of M Pty Ltd at the relevant time was Mr Tily. In 2010, 100 shares in M Pty Ltd were issued to Mr B Berrell (father of Mr Berrell) as trustee for the R Family Trust.
In 2010 Mr Tily says Mr Berrell contributed funds to the partnership that was to be undertaken between them by depositing those funds into the bank account of M Pty Ltd.
The Amended Statement of Claim filed by Mr Tily in mid-2016 in the Supreme Court proceedings sought:
Order for the Taking of Accounts
1.The Court directs that the First Defendant, within 21 days, file and serve on the First Plaintiff his detailed account (Account):
(a)Setting out the dealings and transactions for the
joint venturepartnership carried on by the First Plaintiff and the First Defendant from [late] 2009, in respect of the [business] undertaken at [E Region] and [P Town] and the [other] business to the date of this Order;(b)Specifying, in respect of each payment or receipt, the date and amount of the payment, to whom the amount was paid and the purpose for which the amount was paid or received;
(c)Stating what he claims to be the assets and liabilities of the partnership as at the date of this Order; and
(d)Vouching each expenditure item by attaching the original receipt or other document supporting the transaction.
2.That the First Defendant file and serve with the Account, an affidavit verifying the Account by affidavit exhibiting the Account.
3.That the items of the Account be numbered consecutively.
4.Directs that each of the books of account be taken to be evidence in the taking of the Account.
5.That the First Plaintiff be at liberty, within 30 days after the service upon him of the Account, to apply to an Associate Justice of the Equity Division to examine the First Defendant viva voce in respect of the account.
6.The First Plaintiff is directed to file and serve notice of the areas on which the First Defendant is to be examined (if any) within 7 days of exercising the liberty in the above order.
7.The First Plaintiff within 30 days of the conclusion of the examination of the First Defendant (or within 30 days of the service of the Account if no examination takes place), the First Plaintiff have liberty to file and serve upon the First Defendant a notice of charges and errors to the Account.
8.In the alternative to orders 5 to 7 sought above that the matter be referred to a referee, namely a forensic accountant, for the purpose of a taking of accounts.
9.The First Plaintiff be at liberty to amend the Amended Statement of Claim within 28 days after the taking of accounts.
10.The Second and Third Defendants provide statements for their mortgage account being NAB Flexiplus Mortgage […] Account Number […]25.
11.The parties be given leave to apply to an Associate Judge on 7 days notice to have the matter relisted.
12.Such Orders as the Court deems fit.
13. Orders the costs of the Account to be reserved to the Associate Judge.
Final Orders Sought
1.A declaration that the First Plaintiff and the First Defendant were in a partnership
/joint venturefrom on or about [late] 2009.2.A declaration that the partnership
/joint ventureagreement between the First Plaintiff and the First Defendant is terminated.3.An order that the First Defendant and the Second Defendant do all acts, things and sign all necessary documents required to transfer to the First Plaintiff the shares in [M Pty Ltd] held by the second Defendant as trustee for the [R Family Trust].
4.That the First Defendant pay the First Plaintiff a sum of money to be determined following the Account.
5.That the Second and Third Defendants pay the First Plaintiff the sum of $599,000
$285,500.00, or such other amount as determined following the Account.6.A declaration that the Second and Third Defendant hold the land (or part thereof) known as [S Street, T Town], New South Wales, which is Lot […] (in whole or in part) on trust for the First Plaintiff and/or the Second Plaintiff.
6A.A declaration that the sum of $599,000 together with interest thereon is held in a National Australia Bank mortgage account being NAB Flexiplus Mortgage Account Number […] 25 (referred to herein as the “NAB Mortgage account”) on trust for the first plaintiff and/or the second plaintiff.
6B.A declaration that the land (or part thereof) known as [S Street, T Town], New South Wales, which is Lot […] (in whole or in part) stands charged or mortgaged by way of an equitable charge or mortgage in favour of the first and/or second plaintiffs and secures repayments of the sum of $599,000 or such other amount as is found to be owing by the Court to the plaintiffs.
7.Alternatively, a declaration that the second and third Defendants have been unjustly enriched by the second and third Defendants retaining the sum of $599,000
$285,500.00being the balance of the First and/or Second Plaintiff’s funds deposited into their mortgage account by the First DefendantPlaintiff.8. Interest up to the date of judgment.
9. Any other order the Court deems fit.
10. Damages
11. Interest.
12. Costs.
13. Interest on costs pursuant to s.101(4) of the Civil Procedure Act 2005 (NSW).
(As per original)
Mr Berrell filed a Statement of Cross Claim in mid-2015. In the Cross Claim Mr Berrell asserted that the parties had been in a de facto relationship.
In late 2017 Justice Slattery made orders in the Supreme Court transferring the proceedings to the then Family Court of Australia.
Those orders were:
(2)Order that the whole of these proceedings be transferred to the Family Court of Australia under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(1)(b).
As set out above Mr Berrell abandoned his application for a declaration that he and Mr Tily were in a de facto relationship on the final day of hearing. A new minute of order was tendered by the applicant. It sought:
1.That [Mr Berrell] be given leave to withdraw his initiating application filed 10 Sep 2018 and that in lieu thereof, the following orders be made:
(a)All questions of costs be reserved and that directions be made for the determination of all issues as to costs in these proceedings;
(b)That the partnership to which the Applicant and the Respondent carried on the business known at [M Pty Ltd] be wound up for the purposes of section 38 and 39 of the Partnership Act 1895 (NSW) and that for the said purpose that [Mr U] be appointed as liquidator of the corporation [M Pty Ltd] (ACN […]);
(c)That the liquidator is directed to take the accounts of the partnership, to determine the creditors of the partnership and the company and to pay those creditors ratably in accordance with the provision contained within Part 5.6 of the Corporations Act 2001 (Cth), and in all other respects to administer the winding up of the company according to law;
(d)That the Respondent’s Response/Application in which they seek a Declaration for the purposes of the Family Law Act 1975 (Cth) be dismissed;
(e)Such other order(s) as the Court thinks fit.
(As per original)
The respondent’s senior counsel indicated that no issue was taken with Mr Berrell’s amendment to the extent that it abandoned the application for a declaration. The respondent confirmed he intended to seek the declaration in his Response to the effect:
1.A declaration pursuant to Section 90RD of the Family Law Act (Cth) that no de facto relationship existed between the Applicant and the Respondent at any time.
I specifically inquired of Mr Berrell’s solicitor whether his client having abandoned his application for a declaration was a concession that the parties had not been in a de facto relationship or whether he was merely abandoning the application for a declaration. He confirmed it was the latter.
The only issue before this Court on a final basis was whether the parties were in a de facto relationship since it would flow from that determination that either:
(a)If they were in a de facto relationship the Court would have jurisdiction to consider both the Supreme Court matter and what property adjustment orders (if any should be made); or
(b)If they were not in a de facto relationship the Court would have no jurisdiction to determine property adjustment and accordingly the issue of accrued jurisdiction to determine the Supreme Court matter would not arise.
CONSIDERATION
Section 4AA(1) of the Family Law Act 1975 (Cth) (“the Act”) states that a person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family; and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The Court may declare that a de facto relationship existed, or never existed, between two persons: s 90RD(1) of the Act.
When making this declaration, the Court may also declare the period, or periods, of the de facto relationship and when the de facto relationship ended: s 90RD(2) of the Act.
To determine whether two people are, or were, in a de facto relationship, the Court may take into account the following under s 4AA(2) of the Act:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
In addition, subsections 3 and 4 should also be considered in this context:
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In Nord & Van (2018) FLC 93-833 the Full Court of the Family Court of Australia (as it was then known) cited Lynam v Director-General of Social Security (1983) 52 ALR 128 at [24]:
131. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error… it will be a question of fact and degree… whether a relationship between two unrelated persons … meets the statutory test.
It is important therefore to approach the existence of a de facto relationship with an appreciation of the entirety of the facts and circumstances relevant to the relationship (the subject of the litigation).
Relationship as a couple living together on a genuine domestic basis
Section 4AA(1)(c) has three elements: the relationship between the adults is as a “couple”, they are living together or cohabiting and that cohabitation is on a genuine domestic basis (as opposed to as friends or flatmates).
In this case, for reasons discussed in detail below, it would appear that the parties did not live together. To the extent they spent any time in the same premises it did not have the character of a couple living together on a genuine domestic basis.
Duration
In the context of this case Mr Berrell asserted that the de facto relationship commenced in mid‑2007 and concluded in August 2014. Mr Tily says there was no relationship.
Mr Berrell’s evidence about commencement of the de facto relationship was highly inconsistent. The application itself asserted that the de facto relationship commenced in 2007. The oral evidence of Mr Berrell said variously 2008, 2009 and 2010.
Mr Berrell’s evidence about the conclusion of the de facto relationship was also inconsistent. He primarily asserted August 2014 as the conclusion of the de facto relationship but had sworn an affidavit where he suggested the de facto relationship had ended before Mr Tily commenced his relationships with Ms V and Ms W. Mr Tily’s relationship with Ms V commenced in Country L in early 2012 and his relationship with Ms W commenced in early 2014.
The fact that Mr Berrell is unable to provide cogent and consistent evidence about the duration of the supposed de facto relationship cannot be explained away as a product of poor memory. His failure to be able to give consistent evidence on this topic is supportive of the respondent’s position that the de facto relationship did not occur.
Nature and extent of common residence
The question of where and for what period the parties cohabitated is central to the assessment of whether or not two persons were “living together on a genuine domestic basis” (emphasis added).
The residential address of Mr Tily during the entirety of the relevant period was an agreed fact in the proceedings:
(a)In mid-2007 Mr Tily was living at the home of a friend at X Street, City Y (“the City Y property”);
(b)In early 2012 he left the City Y property and in early 2012 he commenced living with his sister at Z Street, Suburb CC (“the Suburb CC property”) (moving into a self‑contained home on the same site towards the end of 2012);
(c)In early 2013 Mr Tily left Australia for Country L. In or about mid-2013 he entered into a lease to rent BB Street, DD District, Country L;
(d)Mr Tily and Mr Berrell travelled in the course of the work they each undertook and from time to time they stayed at the same place (e.g. EE Town for about three months in 2011) for the purpose of that work. I was not taken to any evidence that demonstrated that, while they may have shared the same accommodation, I should regard them during that period as living together as a couple on a genuine domestic basis. Mr FF’s evidence was supportive of that finding.
In addition it was uncontested that:
(e)Mr Tily never lived at GG Street, Suburb HH (a property owned by Mr Berrell and his wife Ms LL);
(f)Mr Tily never lived at S Street, T Town (a property owned by Mr Berrell’s parents).
It was less clear where precisely Mr Berrell was living during the relevant period.
Certainly in 2007, Mr Berrell was living with his wife in Suburb HH. On neither party’s case did the parties have a common residence at this time notwithstanding the terms of the declaration sought by Mr Berrell.
Mr Berrell deposed that he commenced to live with Mr Tily sometime in 2008 – while continuing to spend time at the home he shared with his wife. During cross-examination he said variously 2008 and 2009 marked the beginning of the cohabitation.
The evidence of Mr JJ, the owner of the City Y property, and the respondent’s girlfriend Ms KK is relevant to this issue. Both those people filed affidavits in Mr Tily’s case.
Ms KK says from the time that she and Mr Tily commenced dating she stayed at the City Y property three to four nights each week. Ms KK says Mr Berrell did not live there. In early 2009 she moved into that property. She said that while Mr Berrell was a visitor he did not live there. Her evidence was not undermined by cross-examination.
Mr JJ attended the City Y property from time to time both in his capacity as a friend and as the landlord. He confirmed that he saw no sign of any person other than Ms KK or Mr Tily living in the home. In cross-examination he accepted that he was not there all of the time but indicated he would sometimes attend without notice.
Mr Berrell did not call evidence from his former wife Ms LL about the period from 2007 to the sale of the Berrell family home in 2015 – which, on his case, coincides with the commencement of the de facto relationship with Mr Tily. Mr Tily’s case is that Mr Berrell lived in those premises. Mr Berrell gives no evidence of having sought evidence from his former wife. I can conclude that her evidence would not have assisted his case.
The evidence about the period where Mr Tily was living with his sister at the Suburb CC property is probative. Mr Tily’s sister and her husband owned a property in Suburb CC. On the same title there were two homes, referred to in the proceedings as the big house and the small house. In early 2012 Mr Tily moved into the big house being the home in which Mr Tily’s sister, brother in law and children all resided. When he formed a relationship with Ms V he moved into the small house (with her).
Mr Berrell’s evidence about this period is difficult to accept on its face. He does not talk about living in the Suburb CC property in his affidavit filed 10 September 2018. In cross-examination he seemed to assert that he was living at the Suburb CC property at the same time as Ms V.
Senior Counsel: So what I want to suggest to you is this and you’ve already agreed, as I understand it, that [Mr Tily] and [Ms V] were living together from [mid] 2012?
Witness: We were living together at [Suburb CC]. Yes.
(Transcript of 28 November 2022, p. 57, lines 33 – 35.)
Mr Tily was living in the small house when he left for Country L. Both Mr Tily’s sister and brother in law knew and liked Mr Berrell. They saw him visit from time to time. In order to find that Mr Tily and Mr Berrell were living together at this time I would need to accept that this was occurring without the knowledge of any of the members of Mr Tily’s family and later without the knowledge of, or with the approval of, Ms V.
There are other problems with the suggestion that the parties were living together at that time. In evidence before me were the bank records of M Pty Ltd. Transactions on those bank statements support Mr Tily’s case namely, during the period he lived in Suburb CC, if Mr Berrell visited he would stay at a nearby hotel as indicated by the Commonwealth Bank records which became exhibit 19. During cross-examination Mr Berrell confirmed he had stayed in motels in Suburb CC on various occasions and offered as reasons variously that: Mr Tily’s brother in law may not have approved of his staying in the home with a partner, Ms MM, he had had a medical procedure and he had just returned from overseas or was just about to depart Australia. All of these reasons are inconsistent with Mr Tily and Mr Berrell living together in a genuine domestic relationship characterised by cohabitation at this time.
Mr Berrell points to Country L as a place where the parties lived together. The evidence demonstrates some periods of time when the parties were in the same country but, taken cumulatively, does not support the conclusion that they lived together.
Firstly, Mr Berrell points to the move to Country L as supportive of the conclusion that the parties should be regarded as a de facto couple. Mr Tily gave evidence that he intended to semi retire in Country L and made plans, after his arrival, to obtain a visa. Both parties gave evidence that the particular visa (a retirement visa) permitted longer stays and more ease in entering, exiting and remaining in the country. Both parties obtained such a visa.
The parties travelled to Country L. The trip itself was said by Mr Berrell to be indicative of the parties’ de facto relationship. The invoice attached to Mr Berrell’s affidavit details that the parties shared a twin bed room. This is, at best, neutral as regards what it says about the nature of the relationship. If anything this is more indicative of the arrangements as between best friends than an arrangement made between two men in a sexual relationship about to embark on a new life together in Country L as a couple.
The parties’ movements are such that there was not significant overlap in terms of time in Country L. Mr Tily and Mr Berrell arrived on the same day, in early 2013, in City NN. Mr Berrell returned to Australia a short time later, in 2013 and did not return to Country L until mid-2013, leaving again for Australia in mid-2013. Mr Berrell was again in Country L from about mid-2013 until late 2013 and did not return to Country L until early 2014, leaving and returning a number of times in early 2014. When Mr Berrell was not in Country L, Passenger Movement records suggest he spent time in Country OO, Australia and Country TT. His case is that the parties were living together but separated by his work. I accept that he may have had work commitments in Australia but that fact alone is not sufficient to explain why he did not reside with Mr Tily when he was in Country L. His financial records and email correspondence between the two men support Mr Tily’s contention that Mr Berrell stayed in hotels.
I am comfortably satisfied that Mr Berrell and Mr Tily did not have a common residence except for periods relating to work or holidays. In reaching that conclusion I have paid particular regard to the evidence of each of the other occupants of the City Y property, the Suburb CC property and the apartment in Country L. Conversely I have had regard to the lack of evidence from Ms LL about her former husband’s occupation of the Suburb HH property.
Whether a sexual relationship exists
Mr Berrell says that he and Mr Tily commenced a sexual relationship in mid-2007. The respondent says the parties did not have a sexual relationship of any kind.
Mr Berrell’s evidence was contained in an affidavit filed 10 September 2018 where he says the parties commenced a sexual relationship in mid-2007, but was instructed to keep it secret from Mr Tily’s girlfriend.
In cross-examination Mr Berrell was taken to an affidavit sworn by him on 1 May 2019 in which he had deposed “I joined [Ms KK] and [Mr Tily] on occasion when they were having sexual relations. [Ms KK], [Mr Tily] and I had a very open sex life” and further “…[Ms KK] was present at the Wednesday movie nights and …[Ms KK], [Mr Tily] and I would have sexual relations on those nights”.
When asked about this evidence Mr Berrell said, contradicting his affidavit evidence, “I didn’t join them”.
When challenged about the evidence Mr Berrell said that it turned on the definition of sex and offered: “Watching somebody having sex, is that part of having sex?” In context, Mr Berrell appeared to be suggesting that he had watched Ms KK having sex with Mr Tily but later his evidence appeared to be to the effect that both he and Mr Tily would each have sex with a woman in the same room or, later in his oral evidence, that Mr Tily and Ms KK would have sex in the same room while he, Mr Berrell, was having sex with someone else.
Ms KK denied that she had engaged in any sexual activity with Mr Berrell in the same room during cross-examination.
Mr Berrell gave oral evidence on the topic of the parties’ alleged sexual relationship which was inconsistent with his affidavit evidence and, when challenged about the topic, was evasive and claimed not to remember what he had written. I do not accept he was truthful.
There is some objective evidence about sexual relationships but not between Mr Tily and Mr Berrell. In early 2012 Mr Berrell wrote to Mr Tily by email (exhibit 22):
Good morning [Mr Tily]
I hope you sleep well with or [your?] new girlfriend last night
The gods love [Mr Tily] don’t they
One business partner is working to clean up the mess that the storm made all night
The other partner is working in the rain to pull trees down that have bats living in them NOT
other partner is trying to get [an approval] through council
5 partners and workers are run […] shops and banking the money into your accounts
Why [while?] you are have sex with two girls at a time
The Gods love [Mr Tily]
The reasons to buy the unit in [City P]
1.If we buy it in [M Pty Ltd] it will be a tax wright off for the business (Aussie Tax payers help us fuck [Country L people])
2.The Australian dollar is high at the moment and the government are going to bring it down soon to help the Australian people good time to buy os
3.This is the only place in the world we get this type of SEX i need to live a good life
4.I am going to be living there anyway for the rest of my life it would be good if we are both there together in a place that we own
5.We will have a place to call home as we both don’t not have one
6.What a place to live
7.Three bed rooms mean one for you one for me and one for business/friends/ jenn more girls
what do you think??????
(As per original)
This email is consistent with Mr Berrell and Mr Tily sharing information about their sexual relations with women. This email is also consistent with Mr Berrell and Mr Tily not living together but contemplating acquisition of a property in the name of a company, being a property where they each had separate rooms (and there was room for “girls”). The email does not support the contention that the parties had a sexual relationship with one another.
In a similar vein Mr Berrell wrote to Mr Tily by email in mid-2013:
Good morning [Mr Tily]
I hope you well there
With a beautiful [Country L woman]???
Where I’m [Country L] are you now??
(Affidavit of Mr Tily sworn 24 October 2018, Annexure 5.)
And again in early 2014 Mr Berrell wrote to Mr Tily by email (exhibit 26):
At airport getting on plane
i will land at 4am in the morning in [City NN]
i will catch a taxi to a hotel near you
bang my [Country L] girl and come over to your place at 10am when you wake up
Look forward to a catch up.
(As per original)
The email supports a number of different findings. Mr Berrell upon arriving in City NN was going to a hotel and not a residence he shared with Mr Tily. Mr Berrell intended to have sex with a Country L woman known to him at the hotel before visiting his friend Mr Tily at his home, described in the email not as “our place” but as “your place”. He hoped to catch up with his friend.
The remainder of the correspondence in exhibit 26 supports the same conclusions and findings, including the email from Mr Berrell to Mr Tily dated mid-2013 which is headed “This is what I wake up to” and depicts a naked female lying on a bed.
Having considered the evidence I am unable to find, on the balance of probabilities that Mr Berrell and Mr Tily had a sexual relationship. The only evidence about this topic is Mr Berrell’s affidavit evidence and Mr Tily’s denial on oath. In rejecting Mr Berrell’s evidence I have considered the communication between Mr Berrell and Mr Tily which is in evidence. In that correspondence they refer to sexual relations fairly candidly. At all times these references are references by the two men about having sex with women. It is inherently unbelievable that, if they were having a sexual relationship with one another, their communications would be so overtly and consistently dealing with each man’s heterosexual relationship or encounter with an unrelated female third party.
Degree of financial dependence, interdependence & any arrangements for financial support
It is an agreed fact that Mr Tily paid for gifts and holidays for Mr Berrell.
Mr Berrell’s evidence produced a reference to his having been referred to in Mr Tily’s will. If Mr Tily had named Mr Berrell as a beneficiary in his will this may have been relevant to demonstrate financial planning for a de facto spouse in the event of death and hence would have been relevant to determination of the issue before the Court. Mr Tily produced his will in evidence. In that document, dated late 2010, he does not name Mr Berrell as a beneficiary and leaves his estate to his sister’s children. Mr Berrell is named as an alternate executor of the will in the event Mr Tily’s sister is unavailable.
While a failure to name someone in a will is not determinative of the nature of the relationship, it is also not supportive of Mr Berrell’s case.
Mr Berrell points to Mr Tily’s payment of the rent in Country L and wages for staff but this is only relevant if I found that the parties actually lived together at that time. The remainder of the items which Mr Berrell identifies as being paid for by Mr Tily fall into the category of generous gifts from a good friend (examples provided in evidence were dinner, an expensive necklace, scuba diving lessons, holiday travel etc.).
It cannot be ignored that the bank account of M Pty Ltd funded the expenses of both Mr Berrell and Mr Tily. This fact is at the heart of the dispute between them in the Supreme Court proceedings. In the context which, each party agrees they were engaged in a business venture using the company as the entity to undertake the development, the use of those funds to meet personal expenses is not evidence of financial dependence or financial support. I accept that the transactions do suggest some level of interdependence between Mr Berrell and Mr Tily. It is not plain that Mr Tily knew the extent to which the Company funds were being applied to Mr Berrell’s personal expenses at the time these transactions occurred. It is not improper for the funds of the company to be used to meet personal expenses provided that they are recorded appropriately having regard to considerations of corporate governance. I cannot find, by reason only of the fact that funds from M Pty Ltd were applied to meet Mr Berrell’s expenses, that the parties were in a de facto relationship.
Mr Berrell pointed to a Power of Attorney granted by Mr Tily to Mr Berrell in early 2013 as supportive of the existence of a de facto relationship (exhibit 4). In early 2013 Mr Tily signed a Letter of Authority on M Pty Ltd stationery, permitting Mr Berrell to execute documents on behalf of M Pty Ltd. These documents by themselves do little more than support the conclusion that there was a business relationship and, at this stage, a relationship of trust between the parties.
Ownership, use and acquisition of property
The parties were involved in commercial activities. They did not purchase any real property together in their joint names.
The parties were the two shareholders in a company namely, QQ Pty Ltd incorporated in or about mid-2010. That company was deregistered in late 2012.
I have otherwise discussed the activities of M Pty Ltd above.
I am not satisfied that engaging in commercial activities together supports a conclusion that the parties were in a de facto relationship.
Degree of mutual commitment to a shared life
One measure of whether or not there is a mutual commitment to a shared life – in the context of assessing whether or not people are living together as a couple on a genuine domestic basis – is the extent to which their actions demonstrate the mutual commitment to their shared life.
Mr Berrell’s case was explicitly (if his evidence were to be accepted) that both he and Mr Tily were in relationships with other women during the period of their asserted relationship and that this was not inconsistent with the two of them being in a de facto relationship. In a theoretical sense I accept that a person may be in two (or indeed more) relationships at the same time. However, turning to the facts of this case, I cannot reconcile the following uncontested facts with these parties having a mutual commitment to shared life together, such that I would regard them as a couple living together on a genuine domestic basis:
(a)Mr Berrell was married to and living with his wife in mid-2007 when he said the de facto relationship commenced (exhibit 35). In early 2008 when he returned from a trip to Country RR he completed his incoming passenger card with his intended address: GG Street, Suburb HH (his matrimonial home) and nominated his wife as his emergency contact. In late 2008 when returning from Country SS he nominated the GG Street property as his intended address and left the emergency contact blank. In mid‑2011 Mr Tily emailed Mr Berrell suggesting (inferentially) that she was sleeping with someone other than her husband. This does not sit well with Mr Berrell’s insistence that his relationship with his wife had ended. In mid-2011 when returning from Country TT he completed his incoming passenger card with his intended address: GG Street, Suburb HH and nominated his wife as his emergency contact. Mr Berrell represented to the ATO that he remained in a relationship with his wife in the tax year ended 30 June 2012;
(b)Mr Tily was dating Ms KK at the time Mr Berrell suggests the de facto relationship commenced and she subsequently moved into and shared a home and a bedroom with Mr Tily from early 2009 to early 2012;
(c)After separation from Ms KK, Mr Tily formed another relationship with Ms V in 2012 and she subsequently resided with him in the home of his sister in Suburb CC. Mr Berrell acknowledged, in cross-examination, Ms V was Mr Tily’s girlfriend. Following the conclusion of his relationship with Ms V, Mr Tily formed a relationship with Ms W who moved into his unit in Country L in 2014; and
(d)Mr Berrell was in a relationship with Ms MM in the first half of 2012. Mr Berrell arranged a visa which permitted Ms MM to travel to Australia from Country L to spend time with him in Australia. While Mr Berrell tried to minimise the significance of this relationship as being primarily a sexual relationship, his evidence was that he had arranged her visa, they had had a sexual relationship, they had travelled within Australia and he intended that she was to assist with unpaid care of his elderly parents.
Mr Berrell’s evidence
It was difficult to accept Mr Berrell’s evidence in respect of any contested issues of fact for the following reasons:
(a)Mr Berrell was repeatedly taken to his previous sworn evidence and asked whether or not it was true. On multiple occasions he said he did not remember having given the evidence. An example concerned Mr Tily’s girlfriend, Ms V. Mr Berrell agreed in cross-examination that she had been Mr Tily’s girlfriend but was then taken to his affidavit where he had stated that they were not in a relationship and Mr Tily had paid Ms V for her services. Mr Berrell said he did not recall giving that evidence.
(b)Mr Berrell accepted he had exaggerated some aspects of his evidence such as the suggestion that he and Mr Tily had opened a business together in UU Town Mr Berrell told the Court on oath that his relationship with Mr Tily was over before Mr Tily started dating Ms V and Ms W. In cross-examination he said that evidence was wrong.
The statutory declaration
Mr Berrell annexed a statutory declaration to his affidavit of September 2018. It purports to be signed before a Justice of the Peace on 6 December 2010. The JP did not give evidence. It says:
I, [Mr Tily] [X Street, City Y] occupation […] I hereby confirm that [Mr Berrell] and [Ms VV] board with me at [X Street, City Y] and have done so for the past 6 months.
Mr Berrell accepted that the content of the document was not accurate. He accepted that it was prepared to obtain a place in a local out of area school for his daughter. He agreed neither he nor his daughter boarded at the property.
Mr Tily denied signing the statutory declaration. The evidence relied on by him suggests that it is unlikely he was in City Y in late 2010.
Mr Tily relied on an affidavit of an expert document examiner, Mr WW. Mr WW concluded that the signature on the statutory declaration was not a genuine signature of Mr Tily. Mr WW was not required for cross-examination. I accept Mr WW’s unchallenged evidence.
The effect of the inconsistencies in Mr Berrell’s evidence (as outlined above) is that I have to exercise caution in accepting his uncorroborated evidence. In contrast, the evidence of Mr Tily appears to accord with all the available more objective documentary evidence.
Care and support of children
It is not suggested that there were children of the relationship. Mr Tily does not have children. Mr Berrell has five adult children from his former marriage with Ms LL. In 2007, when Mr Berrell alleges the de facto relationship between he and Mr Tily commenced, Mr Berrell had at least three children under the age of 18 with Ms LL.
After Mr Berrell separated from his wife she was for a time living in Country TT with some of their children. Mr Berrell took no less than 11 trips to Country TT during the period he asserts he was in a de facto relationship with Mr Tily. It is not suggested that Mr Tily accompanied him on any of those trips.
The evidence does not support that Mr Tily was in anyway involved in the care or support of the children of Mr Berrell and this factor does not assist in finding that there was a relationship as Mr Berrell contends.
Reputation and public aspects
When Mr Berrell opened his case, his evidence, and that of his lay witnesses, was to the effect that in the period mid-2007 to August 2014 the parties hid their de facto relationship from the world at large, except perhaps from Mr Berrell’s parents. Following the cross-examination of Mr Berrell’s parents, the evidence does not support the conclusion that any person was aware of a relationship between Mr Berrell and Mr Tily while it is said to have been on foot. It was argued, by Mr Berrell, that this was a consequence of Mr Tily’s need to keep it a secret from his family.
The evidence of Mr Berrell’s family must be understood in the context that each of them confirmed in cross-examination that the litigation has been the subject of family conversation for some time and not surprisingly the evidence of the witnesses was thematically similar even if internally inconsistent from time to time.
For reasons detailed elsewhere I am unable to conclude that the nature of the relationship between Mr Berrell and Mr Tily was other than that of very close friends and business partners. Accordingly, it is unsurprising that there is no evidence that they were known as a couple to the world at large or to their social circle or even to their respective families.
It is however necessary to set out the evidence of Mr Berrell and Mr Berrell’s parents and their cross-examination to demonstrate that, whatever may have been the case before the hearing commenced, at the conclusion of the hearing it had been undermined by the oral evidence.
Mr Berrell’s affidavit of 10 September 2018 at [26], details a conversation he says he had with his parents in about 2008:
I said: "Look, [Mr Tily] and I are in a relationship together. As you probably know by now we are together. Please keep this to yourselves as I don't want [Ms LL] to find out. She doesn't like [Mr Tily] and if she finds out about my homosexual relationship with [Mr Tily], she would use this against me to prevent me from having [my daughter] [Ms VV] stay with me at our house (with [Mr Tily])."
My mother, [Ms C Berrell] said to me: "We already knew. We will keep this to ourselves."
My father, [Mr B Berrell] said to me: "As long as you are happy."
The suggestion that Mr Berrell was endeavouring to hide the relationship from his wife is inconsistent with the following uncontroversial facts:
(a)Mr Tily’s 30th birthday party was held at the home of Mr Berrell and his wife, Ms LL;
(b)Mr Tily had some of his mail directed to the residential address of Mr Berrell and his wife Ms LL; and
(c)Mr Berrell’s children were visitors at Mr Tily’s home.
All of the above are easily explicable in a context were the men were close friends and business partners but highly unlikely if they were engaged in a deliberately clandestine de facto relationship.
In Mr B Berrell’s affidavit at [19] he sets out an undated conversation said to have occurred between himself and Mr Tily:
I knew that [Mr Berrell] and [Mr Tily] had progressed beyond friends as it was confirmed to me when [Mr Tily] was at our house and said to me, words to the following effect:
[Mr Tily] said: [Mr B Berrell] - You know [Mr Berrell] and I are together as a couple, you have known that for ages.
Mr Tily says that conversation did not take place.
In a subsequent affidavit Mr B Berrell said there had been a conversation over 10 years ago where Mr Tily said to him “[Mr Berrell] and I are a couple. We are together”. Based on the date of the affidavit this places the conversation before early 2011. It is not plain if it is the same alleged conversation as set out above or a separate conversation.
The cross-examination of Mr B Berrell obtained the following concessions:
Senior counsel: …I want to suggest that [Mr Tily] never said anything to you about [Mr Berrell] and he being a couple?
Witness: But he didn’t have to. It was obvious.
Senior counsel: Okay. So that means, does it, that he never said anything to you about it, but you thought, from the way that they carried on, it was obvious they were a couple? I’m just trying to understand, sir, just -
Witness: …it wasn’t made explicit, but it was implicit all over the place.
Senior Counsel: Okay. So by “not made explicit” – and again, I’m just making sure we understand this – no one ever said to you, “We are a couple,” but you say it was obvious from what was going on; is that right?
Witness: [Mr Berrell] said it to me, and I’m sure [Mr Tily] mentioned it at times, but I can’t – I can’t – I can’t swear to that.
(Transcript of 30 November 2022, p. 300, lines 7 – 18.)
The effect was a disavowal of the evidence in his own affidavits and that of his son.
I formed the view that the evidence of Mr B Berrell and Ms C Berrell was genuine and perhaps even candid but coloured by what they had been told by their son after the business relationship soured; by that I mean it appeared as though they now believed the men had been in a relationship based on their conversations with their son.
Ms C Berrell included in her evidence the fact that she had made a quilt for Mr Tily as supportive of the existence of a de facto relationship. It is equally if not more consistent with Mr Berrell and Mr Tily being close friends and Mr Tily having been generous to the Berrell family. Had the men been in a cohabiting de facto relationship I would have expected it more likely that Mr Berrell’s mother would have made the couple a quilt for their bed not a quilt specifically for Mr Tily.
I am not critical of the manner in which Ms C Berrell gave her evidence. She was candid about her age and her memory and the potential impact of those on her evidence. She did not have a recollection of what she was doing in the mid-2000s.
Ms C Berrell had written in her affidavit at [24]:
[Mr Tily] and I were in the kitchen at our house in [XX Town]. [Mr Tily] and [Mr Berrell] had an argument over something, possibly [Ms LL]. I asked [Mr Tily] to tell me what was happening as I had not seen [Mr Berrell] that upset for a long time and certainly not at [Mr Tily].
We had a conversation to the following effect:
[Mr Tily] said: [Ms LL] was flirting with [Mr Berrell], I think she either wants to get back with him or she is trying to get back at me, now that she knows about [Mr Berrell] and I
I said: Don’t worry about it, [Mr Berrell] and [Ms LL] had a rocky marriage, it wasn’t helped when you two got together whilst he was still living with her… that hurt it her [sic] and it makes sense she is upset
[Mr Tily] looked directly at me and said: The heart wants what it wants, I love him and I can’t go back and change what happened or how it happened. [Ms LL] was a bitch anyway, she was pretty horrible, its [sic] no wonder he chose me.
Had Ms C Berrell not been cross-examined, this evidence may have supported the conclusion that the relationship between Mr Berrell and Mr Tily was known to Mr Berrell’s family, that is, by reputation and public aspects the parties were seen to be in a de facto relationship. However, the cross-examination of Ms C Berrell cast sufficient doubt on that evidence such that I could not conclude on the balance of probabilities that the conversation occurred as she had set out.
In cross-examination she was asked:
Senior counsel: But you would remember, wouldn’t you, that it would stick in your memory if [Mr Berrell] had ever told you that he and [Mr Tily] were in a personal relationship?
Witness: You could see it.
Senior counsel: No, no. Just – if you could just listen to what I’m saying?---Yes. Okay. You would remember if [Mr Berrell] had ever said something like that to you?
Witness: Yes. It – it wasn’t [those] exact words when he said I’m in a personal relationship with [Mr Tily] but it was more or less shown that sort of stuff.
(Transcript of 30 November 2022, p. 284, lines 38-46.)
And later:
Senior counsel: And [Mr Berrell] never said to you that he was in a homosexual relationship with [Mr Tily], did he?
Witness: I don’t remember that [those?] words, no.
Senior counsel: And you would remember those words if that had been said to you. That directly, wouldn’t you?
Witness:---I could – I don’t know. Maybe. I don’t know. I can’t remember.
Senior counsel: [Mr Tily], ma’am, never said to you that he loved [Mr Berrell], did he?
Witness: He said he would care for [Mr Berrell]. Look after him.
(Transcript of 30 November 2022, p.285, lines 30 – 37.)
The effect of the witness’s oral evidence was that she remembered they were always together and she presumed (it would seem likely in retrospect) that Mr Berrell and Mr Tily were a couple. Her lack of concrete recollection, coupled with the extensive conversations which have occurred in the family since late 2014, mean I could attach so little weight to the evidence Ms C Berrell gave in paragraph 24 of her affidavit so as to disregard it as part of the material supportive of Mr Berrell’s case.
In Ms YY’s (Mr Berrell’s daughter) affidavit she says that in 2010 her father told her “[Mr Tily] and I are in a relationship”. Ms YY’s capacity to recollect when events had occurred was undermined by cross-examination which established that while she believed she had an accurate memory she had failed to place events in time – sometimes out by three years in respect of events which were not controversial as between the parties to the litigation.
I formed the view that the memories of Ms YY, Mr B Berrell and Ms C Berrell had been highly influenced by what they had been told by Mr Berrell after the fact. I formed the view that particularly Mr B Berrell and Ms C Berrell had revisited their memories with the overlay that their son had told them he and Mr Tily had been in a relationship and so now, not only did they believe that was true, they had come to believe that they had been aware of the relationship at the time.
It was curious, bordering on incredible, that Mr Berrell would honour (according to his case) Mr Tily’s desire to keep the relationship secret but would tell his 12 or 13 year old daughter about their relationship. It is also inconsistent with the evidence that he told his parents not to say anything in case it jeopardised his contact with Ms YY’s younger sister, Ms VV.
The evidence of Ms ZZ, Mr Berrell’s sister, made plain how the subject matter of the litigation between Mr Berrell and Mr Tily had been the topic of family discussion over the last eight years. Ms ZZ says that in 2015 (after Mr Berrell says the relationship had ended) she was told by her brother that Mr Berrell and Mr Tily had been in a relationship.
It is more significant to assess the evidence she gave about the period of the asserted relationship. In early 2013 when Mr Berrell says the parties were in a de facto relationship, Ms ZZ said in cross-examination she did not know where her brother was living.
The Berrell family interpreted kindness, generosity and friendship by Mr Tily as consistent with a relationship between the men. Those events are equally consistent with the close friendship which had uncontroversially developed between the men during this period.
Ultimately it was Mr Berrell’s position that this relationship was clandestine, a secret de facto relationship. It follows that, were I satisfied that there was a relationship, I would not be satisfied that the parties’ relationship was one where they were known as a couple. This factor is very much against any finding that there was a relationship between the parties.
I have not ignored Mr Berrell’s contention that the relationship was covert so as not to attract the condemnation of Mr Tily’s family. I accept that a couple may not wish to be known as a couple for fear of rejection or approbation or the like. This would not explain why Mr Berrell and Mr Tily did not appear to have the reputation and public aspects of a de facto relationship in Country L (where Mr Berrell said they had moved because “our homosexual lifestyle was more acceptable there”).
CONCLUSION
All the evidence is consistent with the assertion of a de facto relationship being a construct of Mr Berrell after the parties’ friendship and financial relationship had ended. I am satisfied that it is appropriate to make the declaration sought by Mr Tily that the parties were not in a de facto relationship and return the proceedings to the Supreme Court for want of accrued jurisdiction.
In closing submissions Mr Hall, solicitor for Mr Berrell, said:
We simply say that the orders that we ask for are the natural consequence of the respondent’s evidence and it will either happen or it will happen before the Supreme Court of New South Wales and that’s where it is destined.
(Transcript of 1 December 2022, p. 428 lines 44 – 47.)
…
We say that there is no ongoing issue raised by us of relationship between the parties because even if there was one, it’s not a matter that we press in terms of the relief that we would claim in opposition to my friend’s amended statement of claim in the Supreme Court of New South Wales and that this application was defensive in nature.
…
What we say here is that the allegation of a de facto relationship is raised as part of a defence to proceedings that were initiated not at my client’s choosing. He wasn’t the instigator. That’s what we mean by defensive in nature.
(Transcript of 1 December 2022, p. 429, lines 1-5 and lines 29 – 31.)
This submission seems to support the conclusion that Mr Berrell’s application to this Court was a cynical attempt to assist him in collateral proceedings. That is supported by his late withdrawal of his own application for a declaration.
That raises the question of the additional relief contained in Mr Berrell’s Amended Minute of Order filed in court on the final day of the trial. Mr Berrell asked this Court for orders including winding up the partnership in respect of M Pty Ltd, appointing a liquidator and taking accounts of the company. As a consequence of hearing and determining the threshold jurisdictional issue and determining it, by the making of a declaration that there was no de facto relationship, I no longer have jurisdiction to hear and determine the partnership dispute. I accept that if I had made a declaration that the parties were in a relationship then I may have had accrued jurisdiction to hear and determine both a property adjustment claim and the Supreme Court proceedings provided I accepted there was a common substratum of facts. Given the declaration which I have made I do not have jurisdiction to hear the matter further.
The result is that the matter will be returned to the Supreme Court and, to the extent that there may be any outstanding interlocutory matters, I consider that they are finalised by these reasons for judgment.
When the order was made transferring the proceedings to this Court it was opposed by Mr Tily but his counsel accepted that this Court did have jurisdiction to hear the whole of the proceedings. I am not sure the extent to which the limits of this Court’s accrued jurisdiction were the subject of submissions before his Honour Justice Slattery but it is necessary to say, in the context of the transfer, that having determined that this Court does not have jurisdiction to hear and determine a claim for adjustment of property interests arising out of the breakdown of a de facto relationship, there having been no de facto relationship, it follows that this Court has no original jurisdiction to which it might accrue the jurisdiction to determine the Supreme Court matter.
COSTS
Mr Berrell sought that I reserve costs. Mr Tily sought to be heard on costs after the reasons for judgment and orders were available. I will hear from both parties once they have had time to read and consider these reasons and orders and they will have liberty to bring their respective applications.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 January 2023
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