Bourke v Logue

[2008] NSWSC 15

CITATION:	Bourke v Logue [2008] NSWSC 15
HEARING DATE(S):	16, 17 and 18 July 2007
JUDGMENT DATE :	29 January 2008
JUDGMENT OF:	McLaughlin AsJ
DECISION:	1. I order that the claim of the Plaintiff be dismissed. 2. I order that the Plaintiff on or before 29 March 2008 pay to the Defendant the sum of $157,034.34. 3. I order that on or before 12 February 2008 the Plaintiff transfer to the Defendant her interest in the BMW motor vehicle which is in the Defendant’s possession. 4. I order that on or before 12 February 2008 the Plaintiff deliver up to the Defendant the diamond ring given by the Defendant to the Plaintiff in December 1995, or pay to the Defendant its value of $18,250. 5. Subject to the orders herein, I declare each party otherwise to be solely entitled, to the exclusion of the other party, to all property and chattels of whatsoever nature or kind in the possession of such party at the date of these orders. 6. I order that the Plaintiff pay the costs of the Defendant of the Plaintiff’s claim and of the Defendant’s cross-claim. 7. I reserve liberty to apply. 8. The exhibits may be returned.
CATCHWORDS:	Family Law - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - assets held by Plaintiff were acquired entirely from direct and indirect financial contributions of Defendant - significant contributions of Plaintiff as homemaker and mother - the Court should not be diverted from the clear wording of the statute, which looks to past contributions actually made by the parties - the Court cannot proceed upon some conjectural basis grounded upon the assumption that contributions which were not made by a party might, or should, have been made.
LEGISLATION CITED:	Property (Relationships) Act 1984
CATEGORY:	Principal judgment
CASES CITED:	Davey v Lee (1990) 13 FamLR 688 Bilous v Mudaliar [2006] NSW CA 38
PARTIES:	Renee Bourke (Plaintiff) Darren Logue (Defendant)
FILE NUMBER(S):	SC 3976 of 2005
COUNSEL:	Mr T. Reeve (Solicitor) (Plaintiff) Mr C. Simpson SC (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) Stuart Fowler and Partners (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 29 January 2008

3976 of 2005 RENEE BOURKE –v- DARREN LOGUE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984.

2 The proceedings were instituted by statement of claim (described as “Ordinary Statement of Claim”) filed by the Plaintiff Renee Bourke on 15 July 2005. By that statement of claim the Plaintiff seeks orders for the adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act.

3 The Defendant Darren Logue filed a defence and a cross-claim on 16 August 2005. On 29 August 2005 the Plaintiff filed a defence to the Defendant’s cross-claim. Subsequently, at the outset of the hearing on 16 July 2007, the Defendant filed an amended defence and cross-claim. There were no changes to the form of the defence which had originally been filed. The amended cross-claim differed from that originally filed essentially in the form of the relief claimed therein, which also sough orders for the adjustment of the interests of the parties in property pursuant to section 20 of the Property (Relationships) Act.

4 It was not in dispute that the parties had lived in a de facto relationship from some time in 1994 (the Plaintiff said in late 1994 whilst the Defendant said in March – April 1994) until 27 December 2002. Of that relationship were born two children, Joshua (who was born on 3 July 1995, and who is presently aged twelve) and Nicholas (who was born on 24 March 1999 and who is presently aged eight).

5 Throughout the period of eight years during which the de facto relationship obtained the parties at various times resided in New South Wales, and at other times, on account of the work commitments of the Defendant, the parties resided together overseas (in Asia and in Europe) and at yet other times the Plaintiff (together with their children, after the respective births thereof) remained in Australia, whilst the Defendant was working in Asia, in Latin America, and in Europe. Nevertheless, it was admitted upon the pleadings, and was not disputed in either the affidavit evidence or the oral evidence, that from the commencement of the de facto relationship in 1994 the parties remained in that relationship until their final separation on 27 December 2002.

6 It was not in dispute that the de facto relationship commenced when the Defendant moved into residence with the Plaintiff in a two bedroom apartment which she was renting at Reynolds Street, Cremorne. The Plaintiff said that that occurred in late 1994 (apparently in November – December of that year), whilst it was the evidence of the Defendant that he commenced to reside with the Plaintiff in March – April 1994. For reasons which emerge later in this judgment I prefer the evidence of the Defendant to that of the Plaintiff. I am satisfied that the Defendant commenced to reside with the Plaintiff in the Reynolds Street apartment in March – April 1994, and that the de facto relationship between the parties commenced at that time.

7 The Plaintiff (who was born on 5 April 1968, and who is presently aged 39) had been working as a receptionist at the time when she met the Defendant. However, she gave up that employment at about the time when the parties commenced to live together, and she then obtained employment as a receptionist with a real estate company at Parramatta. She also at that time performed some casual work as a cleaner.

8 At the time of the commencement of the relationship the Plaintiff’s assets consisted of a Ford Laser motor vehicle, which was then about two years old, and the furnishings and contents of her apartment, as well as personal possessions.

9 The Defendant (who was born on 5 March 1961 and who is presently aged 46) had been employed by Telstra for more than twelve years until he received a voluntary redundancy package on 31 March 1993. At about that time the Defendant set up his own business, which provided telecommunications consultant services to the telecommunications industry. That business was conducted through the vehicle of a company, Sultans of Software (Australia) Pty Limited (“SOS”), of which the Defendant and his mother, Heather Smith, were the directors and the shareholders. The Defendant was employed by SOS as a consultant.

10 At the time of the commencement of the relationship the Defendant’s assets consisted of two shares in SOS, a residential property at 24 Neptune Street, Umina, a vacant block of land at lot 35, The Sanctuary, Umina, an amount of $9303 in a St George Bank account, a superannuation entitlement (in an amount of at least $21,172), a 1993 Mazda Eunos 30X motor vehicle (leased by SOS for $693.70 a month), together with furniture, computer equipment and personal belongings and effects. At that time the Defendant’s only liability was a home loan in an amount of $68,400 from the National Australia Bank, secured by mortgage over the Neptune Street property.

11 According to the Defendant, from the time when he moved into the Reynolds Street apartment, he paid the rent thereon of $1302 a month, and he also purchased additional furniture for that apartment. It was the Defendant’s evidence that at the outset of the relationship he not only spent nights at the Reynolds street apartment, but also spent nights at his mother’s residence on the Central Coast of New South Wales.

12 From the outset the Defendant’s business activities expanded and prospered. Shortly after the commencement of the de facto relationship the Plaintiff became an employee of SOS, being paid an annual salary of $10,000. It was the Defendant’s evidence that the Plaintiff performed minimal duties in return for that remuneration. The Plaintiff asserted that her activities as an employee were, however, more substantial.

13 From early 1996 the Plaintiff’s work took him overseas for protracted periods, first to Malaysia, from 1996 to 1998 (where the Plaintiff and Joshua joined him for some months), then to Hong Kong (where the Plaintiff and Joshua again joined him for a period).

14 In the meantime, the Plaintiff and the Defendant, having become aware of the Plaintiff’s pregnancy, had in about March 1995 removed from the Reynolds Street apartment to a rented apartment at 2/6 Silex Road, Mosman. The rent of almost $2400 a month was paid by the Defendant, who also paid the bond of $2200. The Defendant purchased white goods and additional furniture and furnishings for that apartment from Harvey Norman for $3240. The Silex Road apartment was the residence of the parties in Australia for the next 18 months. The Plaintiff (and, after his birth, Joshua) resided there except for the periods whilst they were living with the Defendant in Malaysia, and the Defendant also resided there when he was not overseas.

15 In December 1995 the Defendant proposed marriage to the Plaintiff and gave her a ring valued at $18,250, which she still retains.

16 In August 1996 the parties removed from the Silex Road apartment into a rented apartment at 7/11 Shellcove Road, Neutral Bay, for which either the Defendant personally or SOS paid the rent of $550 a week. That apartment remained the home of the parties until August 1997, when they took a nine months lease of a house property at Kurraba Road, Neutral Bay. SOS paid the rent of $2173 a month, as well as the bond of $2000. In February 1997 the Defendant sold his property at Neptune Street, Umina for $108,000. At settlement the mortgage of $76,500 secured over that property was discharged from the net proceeds of sale. The Defendant also discharged a personal loan which he and the Plaintiff had obtained in May 1995 to purchase additional furniture for the Reynolds Street apartment, the balance of that loan being almost $7000, and also discharged a personal loan which he had obtained in December 1995 to purchase additional furniture for the Silex Road apartment, the balance of that loan being almost $15,000. The Defendant then retained the balance of the proceeds of sale (after the discharge of the foregoing personal loans), in an amount $3,232.

17 It is not necessary for me to set forth details of the various periods during which the Defendant’s business activities took him away from Australia. Suffice it to say, however, that they involved the Defendant in a great deal of travelling. The Plaintiff, especially after the birth of Joshua, was increasingly reluctant to reside away from Australia.

18 Throughout the period of the relationship, the Defendant regularly transferred to the Plaintiff very significant amounts of money, for the maintenance of the Plaintiff and of the children born to the relationship, and, after their acquisition, for the outgoings, improvements and furnishings for the various residential properties purchased by the parties during the relationship.

19 The first of those properties was situate at and known as 23 Sickles Drive, Camden. It was purchased by the parties as joint tenants for $470,000 in early 1999. The Defendant provided the deposit of $47,000, and at settlement provided the stamp duty of $16,650, and an additional amount of $49,673 towards the purchase price. The balance of the purchase price was provided by a mortgage advance by the National Australia Bank in the sum of $376,000. The Defendant thereafter made the mortgage repayments of $695 a week.

20 The foregoing funds provided by the Defendant towards the purchase of the Sickles Drive property largely represented the proceeds of sale of the Defendant’s vacant land at The Sanctuary, Umina, which he had sold in September 1997. He had received almost $109,000 from that sale, which was placed in a term deposit and was then used towards the purchase of the Sickles Drive property some 18 months later. The Defendant also paid the costs of the remove from the Kurraba Road house to the Sickles Road property, and also paid for a bedroom suite and furniture, whitegoods, and outdoor play equipment for the children (those items totalling in excess of $20,200).

21 Since the Defendant was often overseas, and since he for significant periods during the course of the relationship did not maintain a cheque account in Australia, and his earnings not being subject to Australian income tax, the mechanics of the purchase of the Sickles Road property and of the other properties subsequently acquired by the parties were usually attended to by the transfer of funds of the Defendant into a bank account of the Plaintiff. The funds so transferred were additional to the regular amounts which the Defendant was paying to the Plaintiff for the upkeep and maintenance of herself their children, and were in addition to amounts frequently requested by the Plaintiff for the acquisition of furniture and furnishings, and for additional expenses in respect to the children. The evidence discloses that no requests by the Plaintiff for such additional amounts for herself and the children were refused by the Defendant.

22 During the course of the relationship the Plaintiff had the benefit of the use and acquisition of a number of motor vehicles, all of which either were provided for her directly by the Defendant or were funded by the Defendant or by SOS. A BMW motor vehicle so funded by the Defendant (and valued by the Plaintiff in February 2002 at about $65,000), although now returned to the Defendant, appears to be still registered in the names of the Plaintiff and the Defendant, although the Plaintiff does not assert any entitlement in that vehicle. That being so, the Defendant is entitled to have it registered in his name alone.

23 After the return of the Defendant from overseas to Australia in January 2001 there was a discussion between the parties concerning the purchase of a larger property. The Plaintiff located a property at 11 The Meadows, Kirkham, upon which contracts were exchanged on 1 March 2001 for $720,000 in the name of the Plaintiff alone. The Defendant provided the totality of that purchase price, as well as stamp duty and associated legal expenses of almost $28,000 and additional funds of $152,000 towards the purchase of the furniture for the property and on account of the cost of proposed renovations. Despite the provision of that additional amount of $152,000, those renovations and purchases were in fact paid from an overdraft facility of $200,000 obtained by the Plaintiff from the National Australia Bank and secured over the Kirkham property. During the period of those renovations, which occupied about six months, the Plaintiff and the children continued to reside in the Sickles Drive property.

24 That latter property was sold in December 2001 for $575,000, the net proceeds of sale in an amount of about $200,000 being paid to the Defendant’s HSBC account in Hong Kong. However, less than three months later, on 18 March 2002, the Defendant transferred $200,000 to the Plaintiff’s NAB account, in order to discharge her overdraft account with the National Australia Bank. The Plaintiff was unable to offer any adequate explanation as to how she had expended the additional amount of $152,000 which had been provided to her by the Defendant for the purpose of effecting renovations to the Kirkham property and acquiring new furniture and furnishings for that residence. Those renovations and those purchases were, in fact, funded from the Plaintiff’s overdraft account with the National Australia Bank, which was ultimately discharged by the Defendant. That is, the Defendant, at the instance of the Plaintiff, first provided her with $152,000 towards effecting renovations and purchasing furniture, and then paid $200,000 for the very same purposes.

25 At the end of 2001 the Defendant negotiated the sale of his business to Hansen Technologies Limited (“Hansen”) under a share sale agreement, and shortly thereafter entered into an employment agreement with Hansen at an initial salary of US$200,000 for a term of three years (that agreement including a non-competition clause). It is unnecessary for me to set forth details of the subsequent relationship between the Defendant and Hansen, or concerning his employment by Hansen. Suffice it to say that by early 2002 the relationship had soured.

26 Ultimately the Defendant instituted proceedings in the Federal Court of Australia against Hansen for enforcement of his contractual rights. Those proceedings were extremely costly. The Defendant was required to provide an amount of $100,000 by way of security for costs. Eventually, those proceedings were resolved by way of mediation in October 2003. Hansen was required to pay to the Defendant $1,125,000 by instalments. After repaying a litigation funder almost $170,000, and meeting costs in excess of $217,000 and repaying a debt of 10,000 euros to a former business associate, the Defendant received a net amount of a little over $700,000. In November 2003 the Defendant received $75,000 by way of a refund from the amount of $100,000 which he had lodged as security for costs, the balance of $25,000 being held by his solicitors on account of ongoing costs. The Defendant used that refunded sum to meet living expenses, including child support payment which he was making to the Plaintiff.

27 In early 2002 during the course of his employment by Hansen the Defendant was located to York in the United Kingdom. Before taking up that position the Defendant, the Plaintiff and their two children enjoyed a holiday in Europe for a period of almost two months at a total cost (which included first class airfares) of about $108,000.

28 Subsequent to the termination of the relationship between the parties the Plaintiff sold the Kirkham property for $1,250,000 and acquired a rural estate at 25 McArthur Circuit, Bridgewater, registered in the name of the Plaintiff alone, which has a present agreed value of $650,000. Also subsequent to the termination of the relationship the Defendant has acquired a residential property at 14 Attunga Close, St Hubert’s Island, having an agreed value of $680,000. That property, which is registered in the name of the Defendant alone, is subject to a mortgage in an amount of $471,118 and secures an overdraft of about $80,000.

29 It was agreed between the parties that at the date of separation the value of the Plaintiff’s superannuation was $12,000 and the value of the Defendant’s superannuation was $63,000. (The Defendant’s superannuation entitlement has a present value of $113,543.) The Plaintiff still retains the ring valued at $18,250 which the Defendant gave to her in December 1995.

30 After the termination of the relationship and during the course of his litigation with Hansen the Defendant approached the Plaintiff, seeking her co-operation in funding that litigation. The Plaintiff refused any such co-operation (by, for example, allowing the Kirkham property to be used as security in the Defendant’s attempts to raise finance to fund the litigation). It is relevant in this regard to observe that at the time of its acquisition in April 2001 until its sale in October 2003 the mortgage indebtedness upon the Kirkham property was increased by the Plaintiff by an amount of no less than $218,000. She was completely unable to explain how she had dealt with moneys totalling that amount.

31 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and the cross claim of the Defendant.

32 I have had the benefit of receiving a written outline of submissions and a chronology from the legal representatives of the respective parties. Those documents will be retained in the Court file.

33 It should at the outset be emphasised that the present proceedings do not concern any claim in respect to Joshua and Nicholas, the children of the relationship. Orders have been made by consent in the Family Court of Australia concerning those children. Since the termination of the relationship the Defendant has continued to pay maintenance to the Plaintiff for the two children of the relationship. No claim for maintenance, either for herself or for the children, is made by the Plaintiff in the present proceedings.

34 The claim of the Plaintiff is a claim for the adjustment of the interests of the parties in property, being essentially a claim by the Plaintiff in respect to the Defendant’s residential property at St Hubert’s Island and a claim by the Defendant in respect to the Bridgewater property of which the Plaintiff is the registered proprietor.

35 It will be appreciated that each of those properties has been acquired by respectively the Plaintiff and the Defendant since the termination of the de facto relationship. However, that fact does not preclude those properties from being the subject of an order pursuant to section 20 (1) of the Property (Relationships) Act.

36 The jurisdiction invoked by each of the parties in the present proceedings is grounded upon section 20 of the Property (Relationships) Act, subsection (1) whereof provides,

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:
(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

37 It will be appreciated that in many instances the evidence of the Plaintiff was in conflict with that of the Defendant. Apart from the parties themselves, the only other witnesses were the Plaintiff’s parents. Her mother gave evidence supporting the Plaintiff’s claim, whilst (somewhat curiously) the Plaintiff’s father gave evidence on behalf of the Defendant.

38 It is appropriate, therefore that I should express my views concerning the reliance to be placed upon the evidence of each of the parties. In this regard, it is significant that in 2004 the Plaintiff, without the knowledge and without the authority of the Defendant, used the Defendant’s credit card number to make purchases on the internet. A certificate pursuant to section 128 of the Evidence Act 1995 was granted by me on 16 July 2007 in respect to the Plaintiff’s evidence on this topic. The giving of that certificate does not in any way alter the fact that the Plaintiff admitted to conduct which constituted deliberate dishonesty on her the part and a flagrant disregard of the financial rights of the Defendant, as well as constituting a criminal offence.

39 The Plaintiff was cross-examined concerning a cheque (a copy whereof is annexure A to the affidavit of the Defendant filed on 16 July 2007), which was dated 23 March 1996 and drawn in favour of Diner’s Club International on the account of Sultans of Software (Australia) Pty Limited in amount of $5,040.34. That cheque bears the signature “D J Logue”. The signature on the cheque is similar to, but obviously different from, the signature of the Defendant appearing on various affidavits in the present proceedings. It was the evidence of the Defendant that he did not sign that cheque, but that the Plaintiff had access to his cheque book, and that that cheque was used without the Defendant’s knowledge or consent to pay the Plaintiff’s Diner’s Club account in the sum of $5,040.34. The Plaintiff was cross-examined concerning that cheque. I regarded her responses that she did not remember and did not know whether she had signed the Defendant’s name to that cheque as being totally unsatisfactory. I do not believe her evidence in that regard. The clear inference is that she forged the Defendant’s signature to the cheque, and thus dishonestly obtained the benefit of $5,040.34 to which she was not entitled and which belonged to the Defendant.

40 The Plaintiff’s conduct concerning her use of the Defendant’s credit card number and concerning the cheque by which she paid her Diner’s Club account reflect very badly upon the Plaintiff’s credibility as a witness.

41 I regarded the Plaintiff’s responses under cross-examination to questions concerning the distribution by her of moneys totalling $200,000 in a period of 30 months, that being the amount of her overdraft account which the defendant discharged in March 2002 (details of which disbursements she was totally unable to provide), as being completely unsatisfactory. I considered the Plaintiff to be a most unreliable witness. In any area of conflict where the evidence consisted solely of the oral evidence of each of the parties, unsupported by any documentary or other evidence, I prefer the evidence of the Defendant to that of the Plaintiff.

42 The Plaintiff did not work during the relationship. Her role was that of homemaker and parent. I recognise that she was paid a small salary by SOS. I am satisfied that her employment in that position was purely nominal.

43 The Defendant was the breadwinner of the family. It was he who generated the totality of the finances which supported and maintained himself, the Plaintiff, and their two children, and which essentially provided the funds from which the various pieces of real property acquired in the names of one or other of the parties were purchased.

44 Between February 2001 and October 2003 the Defendant transferred to the Plaintiff’s bank account a total of $1,557,180. Of that amount, which included the purchase price of the Kirkham property and moneys asserted by the Plaintiff to have been expended in relation to that property, there remained a balance in excess of $481,000. The Plaintiff has not been able to explain adequately how that latter amount was expended by her. It emerged under cross-examination of the Plaintiff that she was in the habit of patronising casinos and gambling facilities (including internet gambling). Despite her denial, the inference is open that very considerable amounts of the moneys transferred to her bank account by the Defendant were gambled away by the Plaintiff.

45 In approaching a claim for the adjustment of the interests of the parties in property pursuant to section 20 (1) of the Property (Relationships) Act, the Court must make a wholistic judgment and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming of litigious exercise. (See Daveyv Lee (1990) 13 FamLR 688; see also Bilous v Mudaliar [2006] NSW CA 38 at 43, where Ipp JA said that some situations do not lend themselves to either a pure global approach or a pure asset by asset approach in determining what orders should be made).

46 It was submitted on behalf of the Plaintiff that what was described as the pool of assets of the parties which should properly be the subject of the present claim was less than it should have been, in consequence of the Defendant suppressing part of his income.

47 I am not satisfied that the evidence discloses that the Defendant did, in fact, suppress any part of his income. But even if he did, the Court should not be diverted from the clear words of the statute, where by section 20 (1) the Court is required to have regard to the respective contributions of the parties of the nature described in that subsection. The Court is not required to proceed upon the basis that the Defendant might have made greater contributions than he in fact made if his business arrangements had been otherwise.

48 As I understand it, the submission of the Plaintiff in this regard is that a business arrangement between the Defendant and one of his business associates, Mr Stefan Sieber, under which Mr Sieber was to receive (and ultimately did receive) $1,000,000 upon the sale of the Defendant’s business, should have been contributed to what was described by the Solicitor for the Plaintiff as the asset pool of the parties. (I would here interpolate that I do not find the phrase “asset pool”, or even that concept, as being particularly helpful in a claim under the Property (Relationships) Act. As I have already observed, the Court should not be diverted from the clear wording of the statute, which looks to past contributions which were actually made by the parties).

49 To the extent that the claim of the Plaintiff is grounded in some way upon the failure of the Defendant to contribute more than he actually did contribute to the relationship, I reject that claim. The Court is required to look to the contributions of the nature set forth in section 20 (1) which were actually made by each of the parties. The Court cannot proceed upon some conjectural basis, which assumes that if one of the parties had received greater assets or had had a higher income or had not disposed of assets in the way in which he did, he might have made greater contributions to the relationship.

50 But, in any event, the financial contributions which the Defendant in fact made to the relationship were very great. If the Defendant had not entered into the commercial arrangement with Mr Sieber, which ultimately required him to pay to Mr Sieber $1,000,000 from his successful mediation in the litigation with Hansen, the Defendant’s assets would have been increased by that amount of $1,000,000. That sum would not have been contributed, either during the course of the relationship or after the termination of the relationship, to the Plaintiff or to their children. But, in any event, even if that sum had been retained by the Defendant, and even if it had, in fact, been so contributed by the Defendant, then the contributions of the Defendant to the relationship would have been even greater than they in fact were, with the consequence that the entitlement of the Plaintiff would have been accordingly reduced, and the entitlement of the Defendant would have been accordingly increased.

51 The contributions of the Plaintiff as homemaker and mother were significant. It will be appreciated that for considerable periods during the relationship the Plaintiff had the sole care of the two children, during the frequent and protracted absences overseas of the Defendant.

52 However, as I have already observed, the Plaintiff throughout the relationship was not in remunerative employment (although she received a nominal salary from SOS, for which she performed no equivalent services). During the course of the relationship the parties and their children maintained a most affluent and generous (not to say extravagant) lifestyle. The Plaintiff and the children wanted for nothing, whether by way of accommodation, clothing, recreation, travel, entertainment, or education of the children, all of which were paid for by the Defendant.

53 The contributions of the Plaintiff have been well recognised by the fact that, having commenced the relationship with a motor vehicle and personal possessions and furnishings, the Plaintiff is now the registered proprietor of an unencumbered rural property valued at $650,000 and has a superannuation entitlement valued at $12,000. She has had sufficient funds to feed her gambling habits. She has not adequately explained what happened to amounts totalling at least $200,000. Those assets and funds have come to the Plaintiff entirely as the result of direct and indirect contributions made by the Defendant.

54 I am completely satisfied that that Plaintiff has not established an entitlement to receive any order in her favour by way of adjustment of the interests of the Defendant and herself in property. Accordingly, the claim of the Plaintiff will be dismissed.

55 I have already recorded that the Plaintiff received $152,000 from the Defendant at the time of the purchase of the Kirkham property, to be used by her towards the acquisition of furniture and furnishings and on account of the cost of proposed renovations and improvements to that property. She did not use that fund for those purposes (which, in the event, were funded from her overdraft account, that account, in an amount of $200,000, being ultimately discharged by the Defendant). I consider it only proper that the Plaintiff should repay that sum of $152,000 to the Defendant.

56 The Plaintiff forged the Defendant’s signature on a cheque for $5,034.34, and by so doing, not only dishonestly obtained the benefit of that sum to which she was not entitled, but deprived the Defendant of that sum which belonged to him. The Defendant is entitled now to recover that sum from the Plaintiff.

57 At the time when the Defendant proposed marriage to the Plaintiff, he gave her a diamond ring valued at $18,250 as an earnest of that proposal. The Plaintiff has not married the Defendant, and does not intend to do so. However, she has retained the ring. The Defendant is entitled to the return of the ring or to the payment by the Plaintiff of its value at $18,250.

58 The Plaintiff has no legal right to the BMW motor vehicle. However, it would appear that it is still jointly registered in the names of the Plaintiff and the Defendant. The Defendant is entitled to have the Plaintiff transfer to him whatever interest she might have in the vehicle consequent upon its being registered jointly in the names of the parties.

59 I propose, therefore, to order that the Plaintiff pay to the Defendant the totality of the foregoing sums of $152,000 and $5,034.34; to order that the Plaintiff deliver up to the Defendant the diamond ring, or pay to him its value of $18,250; and to order that the Plaintiff transfer to the Defendant whatever interest she may have in the BMW motor vehicle.

60 Since the Plaintiff has been totally unsuccessful in her claim, she must pay the Defendant’s cost of that claim.

61 The Defendant has been substantially successful in his cross-claim. Although I recognise that his monetary claim therein was for $500,000, whilst in my conclusion he will receive a sum considerably less than that amount, nevertheless, I consider that he is entitled to an order that the Plaintiff pay the Defendant’s costs of the cross-claim.

62 However, if either party wishes to seek some other order in respect to costs, either of the Plaintiff’s claim or of the Defendant’s cross-claim, an opportunity will be given for that party to do.

63 Accordingly, unless within seven days of the date hereof either party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

1. I order that the claim of the Plaintiff be dismissed.

2. I order that the Plaintiff on or before 29 March 2008 pay to the Defendant the sum of $157,034.34.

3. I order that on or before 12 February 2008 the Plaintiff transfer to the Defendant her interest in the BMW motor vehicle which is in the Defendant’s possession.

4. I order that on or before 12 February 2008 the Plaintiff deliver up to the Defendant the diamond ring given by the Defendant to the Plaintiff in December 1995, or pay to the Defendant its value of $18,250.

5. Subject to the orders herein, I declare each party otherwise to be solely entitled, to the exclusion of the other party, to all property and chattels of whatsoever nature or kind in the possession of such party at the date of these orders.

6. I order that the Plaintiff pay the costs of the Defendant of the Plaintiff’s claim and of the Defendant’s cross-claim.

7. I reserve liberty to apply.

8. The exhibits may be returned.
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