Callow v Rupchev

[2009] NSWCA 148

New South Wales

Court of Appeal

CITATION:	Callow v Rupchev [2009] NSWCA 148
HEARING DATE(S):	7 August 2008
JUDGMENT DATE:	17 June 2009
JUDGMENT OF:	Beazley JA at 1; Basten JA at 1; Handley AJA at 1
DECISION:	(1) Grant leave to the applicant to appeal against the orders made in the Common Law Division on 16 November 2007; (2) Allow the appeal in part and set aside the orders made in the Common Law Division; (3) Declare that, as at the date of judgment in the Common Law Division, the proceeds of sale of the property at 21 Redgrave Avenue, Normanhurst, held in an interest bearing controlled money account with Goldrick Farrell Mullan, solicitors, being an amount of $172,141.49 together with interest on that amount, was held, (a) as to one half share, for Mr Vladimir Rupchev; (b) as to the other half share, (i) as to an amount of $37,716, for Mr Vladimir Rupchev, and (ii) as to the balance, for Ms Beverley Callow; (c) as to such interest as had accrued at the date of distribution of the funds, for the respective parties in proportion to their entitlements set out above; (4) Declare that Ms Callow is entitled to a payment from Mr Rupchev of such amount as was paid to him from the controlled money account in excess of his entitlement as set out above, together with interest thereon at the rate prescribed by Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) from the date on which it was disbursed to or at the direction of Mr Rupchev until paid by him to Ms Callow; (5) Remit the matter to the Common Law Division for final orders (if not agreed) as to the amount of the payment due under order (4); (6) Order that Ms Callow pay Mr Rupchev’s costs of the proceedings in the Common Law Division from 26 May 2006, assessed on the ordinary basis; (7) Order that Mr Rupchev pay Ms Callow’s costs in this Court as a self-represented litigant; (8) Grant Mr Rupchev a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs in this Court.
CATCHWORDS:	EQUITY – equitable remedies – notional occupation fee set off against claim for contribution from co-owner in respect of mortgage payments - REAL PROPERTY - estates and interests in land – co-owners – co-owners in a de facto relationship – breakdown of relationship – whether departure of one co-owner constitutes ouster by the other - REAL PROPERTY - breakdown of relationship – departure of one co-owner from the property co-owned – claim for contribution by co-owner remaining – whether the departed co-owner is entitled to occupation fee
LEGISLATION CITED:	Family Law Act 1975 (Cth) Married Womens Property Act 1882 (Eng) Property (Relationships) Act 1984 Suitors’ Fund Act 1951 Uniform Civil Procedure Rules 2005, Schedule 5
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 Albion Insurance Co Ltd v Government Insurance Office of NSW [1969] HCA 55; 121 CLR 342 Armstrong v Commissioner of Stamp Duties (1967) 69 SR (NSW) 38 Bernard v Josephs [1982] Ch 391 (EWCACiv) Biviano v Natoli (1998) 43 NSWLR 695 Burke v LFOT Pty Ltd [2002] HCA 17; 209 CLR 282 Cracknell v Cracknell [1971] P 356 (EWCACiv) Dennis v McDonald [1982] Fam 63 Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; 156 FCR 53 Forgeard v Shanahan (1994) 35 NSWLR 206 In re Gorman (A Bankrupt) [1990] 1 WLR 616 In re Pavlou (A Bankrupt) [1993] 1 WLR 1046 Jacobs v Seward (1872) LR 5 HL 464 Leake v Bruzzi [1974] 1 WLR 1528 (EWCACiv) Luke v Luke (1936) 36 SR(NSW) 310 McKay v McKay [2008] NSWSC 177 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 Rupchev v Callow [2007] NSWSC 1097 Rupchev v Callow [No. 2] [2007] NSWSC 1283 Ryan v Dries [2002] NSWCA 3; 10 BPR 19,497 Silvester v Sands [2004] WASC 266 Suttill v Graham [1977] 1 WLR 819 (EWCACiv)
TEXTS CITED:	K Gray and SF Gray, Elements of Land Law (5th ed, OUP, 2009)
PARTIES:	Beverley Callow (Appellant) Vladimir Rupchev (Respondent)
FILE NUMBER(S):	CA 40821/07; 40754/07
COUNSEL:	In person (Appellant) R I Bellamy (Respondent)
SOLICITORS:	In person (Appellant) Greylings Attorneys (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 11861/04
LOWER COURT JUDICIAL OFFICER:	Bell J
LOWER COURT DATE OF DECISION:	16 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Rupchev v Callow [2007] NSWSC 1097 Rupchev v Callow (No 2) [2007] NSWSC 1283

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CA 40479/07

BEAZLEY JA
BASTEN JA
HANDLEY AJA

17 June 2009

Beverly Callow v Vladimir Rupchev

Headnote

The parties Ms Callow and Mr Rupchev lived in a de facto relationship from 1992 until July 1998. In April 1998 they purchased a property in their joint names, borrowing the whole of the purchase price from the bank. Mr Rupchev’s father (Mr Rupchev senior) guaranteed the obligations under the loan and the guarantee was secured by a mortgage over a property owned by Mr Rupchev senior. In turn, Mr Rupchev and Ms Callow granted a second mortgage over the property to Mr Rupchev senior.

Approximately three months after the purchase of the property, the relationship broke down and Ms Callow left the property. Other than during a period between September 2004 and April 2006, Mr Rupchev continued to live in the property and either directly, or through his company, made mortgage payments until he could no longer afford to do so.

In January 2004 Mr Rupchev senior took over the mortgage payments. In June of that year he commenced proceedings against Ms Callow and Mr Rupchev to enforce his security. Each of Ms Callow and Mr Rupchev filed cross-claims against each other. In May 2006, consent orders were made, which contemplated that Mr Rupchev senior would exercise his power of sale and that his solicitors would hold the balance of any proceeds of the sale in trust for Mr Rupchev and Ms Callow until further order.

The property was sold in November 2006. Relevantly, Ms Callow claimed that Mr Rupchev was liable to pay an occupation fee (to be set off against his contributions to the mortgage) for the period after she had left the property. The basis of Ms Callow’s claim was that she had been involuntarily excluded from the property by violence or the threat of violence from Mr Rupchev. Mr Rupchev denied the allegations of violence and argued that his claim for contribution, based on a legal entitlement, was unaffected by any setoff which might have arisen had he sought equitable relief.

Her Honour Justice Bell made a number of orders concerning the distribution of the proceeds of the sale, including an order that Mr Rupchev did not have to pay Ms Callow a notional occupation fee. Ms Callow sought leave to appeal from the orders. The primary issue before the Court was whether her Honour had erred in failing to order Mr Rupchev pay a notional occupation fee to Ms Callow.

Held

1. The breakdown of a domestic relationship can, in some circumstances, be described as an “ouster”. However, such relationships can break down without attributable fault on the part of either party. To describe such a breakdown as an actual ouster involves a fiction. It is better to recognise such a breakdown as an independent ground for charging the co-owner who remains with an occupation rent: [46]

2. A notional occupation fee may be set off against the claim of the co-owner in occupation for a contribution to expenses or improvement in circumstances where the co-ownership arose out of a domestic relationship which has broken down, rendering departure of one party reasonable in the circumstances: [30], [74].
Dennis v McDonald [1982] Fam 63 (followed)
Cracknell v Cracknell [1971] P 356 (EWCACiv); Leake v Bruzzi [1974] 1 WLR 1528 (EWCACiv); Suttill v Graham [1977] 1 WLR 819 (EWCACiv); Bernard v Josephs [1982] Ch 391 (EWCACiv); In re Gorman (A Bankrupt) [1990] 1 WLR 616; In re Pavlou (A Bankrupt) [1993] 1 WLR 1046; Jacobs v Seward (1872) LR 5 HL 464 (considered)


3. Where a domestic relationship has broken down, the underlying purpose is to achieve a fair and reasonable settlement of property interests as between the parties to the relationship. That exercise involves an adjustment of interests with respect to property, taking into account financial and non-financial contributions and beneficial usage: [61].

4. If neither co-owner is using the property for residence or storage it may not be appropriate or equitable for either to be charged with an "occupation rent" unless a proper basis for doing so is established: [71].
Silvester v Sands [2004] WASC 266 (referred to)

5. Because, absent an ouster, the basis for setting off a notional occupation fee is the unreasonableness of requiring the joint owners to reside together, it would be necessary, in a case where the party claiming contribution has vacated the property for a period, for the other party to demonstrate affirmatively that it was unreasonable to expect him or her to return to the property during that period: [74]

CA 40821/07
CA 40754/07

BEAZLEY JA
BASTEN JA
HANDLEY AJA

17 June 2009

CALLOW v RUPCHEV

Judgment

1 THE COURT: In 1998, the parties to the present application were living together in a domestic relationship. They purchased a house in joint names but, after approximately three months, the relationship fell apart and Ms Callow left the premises, which remained in the occupation of Mr Rupchev. The premises were ultimately sold in November 2006 and the present dispute concerns the distribution of the proceeds of sale.

2 In proceedings in the Common Law Division, Bell J delivered two judgments: Rupchev v Callow [2007] NSWSC 1097; Rupchev v Callow [No. 2] [2007] NSWSC 1283. Her Honour held that the proceeds were to be distributed as to 50% to each party, subject to the following:

(a) Mr Rupchev was entitled to recover 50% of the mortgage payments made by him alone;

(b) Mr Rupchev did not have to account to Ms Callow by way of a notional occupation fee to be set off against the mortgage payments;

(c) Mr Rupchev was entitled to a further contribution of 50% of the acquisition costs of the property;

(d) interest was payable on the amounts due to Mr Rupchev for the period during which each amount had been outstanding up to judgment, and

(e) Ms Callow should pay Mr Rupchev’s costs of the proceedings.

3 Ms Callow challenged each of these findings in this Court. As the balance of proceeds of sale was an amount of $172,141.49, the amount in dispute was less than $100,000 and, accordingly, Ms Callow needed leave to appeal.

4 Ms Callow’s claim to be credited with a notional occupation fee, in respect of the period during which she was effectively excluded from use of the premises, raised an issue of legal significance which, as will appear below, was dealt with by the trial judge on too limited a basis. Success with respect to that issue would raise the need to vary the payments with respect to interest and costs. Although in respect of the other issues, the challenges made to her Honour’s judgment must fail, no particular purpose is to be served by discriminating between those issues with respect to which leave is granted and other issues: accordingly, it is appropriate to grant leave with respect to each issue raised above.

Background

5 Ms Callow and Mr Rupchev lived in a de facto relationship from 1992 until July 1998. In April 1998 they purchased a property in their joint names, borrowing the whole of the purchase price from the Advance Bank. Mr Rupchev’s father (Mr Rupchev senior) guaranteed the obligations under the loan to the Bank. The guarantee was secured by a mortgage over a property owned by Mr Rupchev senior: [2007] NSWSC 1097 at [1]. In turn, Mr Rupchev and Ms Callow granted a second mortgage over the property to Mr Rupchev senior.

6 The parties separated about three months after they purchased the property. Thereafter, other than during a period between September 2004 and April 2006, Mr Rupchev continued to live in the property and either directly, or through his company, continued to pay the mortgage until the company got into financial difficulties: [2007] NSWSC 1097 at [18], [32]. Mr Rupchev senior took over the payments of the mortgage in January 2004 so as to protect his security: [2007] NSWSC 1097 at [2], [33].

7 On 18 June 2004, Mr Rupchev senior commenced proceedings against Ms Callow and Mr Rupchev to enforce his security. Those proceedings were settled and on 29 May 2006, consent orders were made whereby Mr Rupchev senior obtained a money judgment and an order for possession of the property: [2007] NSWSC 1097 at [3]. The orders contemplated that Mr Rupchev senior would exercise his power of sale of the property and that the balance of any proceeds of sale would be invested by his solicitors to be held in trust for Mr Rupchev and Ms Callow until further order.

8 Ms Callow defended the proceedings brought by Mr Rupchev senior. Ms Callow also brought a cross-claim against both Mr Rupchev and Mr Rupchev senior, in which she claimed she had entered the mortgage under undue influence and that she was not a party to a mortgage with Mr Rupchev senior. She sought an order that the mortgage be set aside. She did not seek any relief against Mr Rupchev or in respect of the property. She pleaded that the property was purchased as joint tenants.

9 Mr Rupchev, by a second cross-claim filed on 8 December 2005, claimed contribution to his mortgage payments; an allowance for the increase in value to the premises as a result of carrying out renovations; and contribution to the acquisition costs he had paid. Mr Rupchev also pleaded that Ms Callow’s claim for one half share in the property, when she had made no contribution, was unconscionable: [2007] NSWSC 1097 at [4]. He pleaded that in the circumstances, Ms Callow’s interest in the property was held on constructive trust for him.

10 In her defence to Mr Rupchev’s cross-claim, Ms Callow asserted that the mortgage payments had been made on account of both parties and she denied the claim to a constructive trust.

11 On 29 May 2006, when Mr Rupchev senior’s proceedings were settled, Mr Rupchev abandoned his claim that Ms Callow’s interest was held for him on trust and only claimed contribution from Ms Callow in respect of the mortgage payments and the acquisition costs. That claim was advanced in accordance with Muschinski v Dodds [1985] HCA 78; 160 CLR 583: see Trial Tcpt, 11/09/07, at 8.

12 An amended second cross-claim claiming contribution was eventually filed on 1 August 2007. Mr Rupchev pleaded in that cross-claim that Ms Callow’s claim for a half interest in the property, without making contribution to the mortgage, was unconscionable. However, the claim relating to the constructive trust was withdrawn, as was the claim for an allowance in respect of the renovations.

13 The property was sold in November 2006 and the balance of the proceeds of sale, in an amount of $172,141.49, was invested in accordance with a court order of 29 May 2006.

14 Mr Rupchev rented the property for some eight months in 2005, being part of the period when he was not in residence. He acknowledged that Ms Callow was entitled to be credited with half of the rental he had received for the period when the property was rented. Ms Callow claimed that Mr Rupchev was liable to pay an occupation fee for the period in which he otherwise occupied the premises, such occupation fee to be set off against the mortgage contributions.

15 The trial judge found that there were two relevant discussions between the parties in relation to the purchase of the property. The first discussion occurred in about 1996, when the parties were first contemplating the joint purchase of a property. Mr Rupchev said that he would pay the acquisition costs if Ms Callow paid for the food and household bills. Her Honour found, however, that during this period each party contributed to the payment of household expenses: [2007] NSWSC 1097 at [9]; [48].

16 The second conversation occurred on the day of settlement of the purchase of the property. In this conversation, Mr Rupchev said that he would take care of the mortgage repayments. Either in this conversation, or another at about the same time, Ms Callow said, “I’ll pay the household expenses and you pay the loan”. In the succeeding three months when the parties lived together in the property, they conducted their financial affairs in accordance with this arrangement. In apparent recognition of this, Mr Rupchev did not claim contribution in respect of the mortgage repayments made between the date of settlement on 20 April 1998 and the date of separation on 11 July 1998.

17 There was another discussion between the parties shortly after separation, relating to the future payments of mortgage in which Ms Callow said, “I can’t service the loan, so you keep the house, and you pay the mortgage”. Mr Rupchev said, “That’s fine, I agree to that”. There was then another conversation, in which Ms Callow told Mr Rupchev that she would like to “get off the loan”, as it was affecting her pension entitlements. However, as Mr Rupchev believed that a transfer of the property could attract the payment of stamp duty, which neither party could afford, Mr Rupchev said that matters would have to remain as they were, that is, the property would have to remain registered in both names until they could get some money to transfer Ms Callow’s interest to him.

Claim for contribution

18 Ms Callow’s case at trial was that Mr Rupchev had not made any mortgage payments and, accordingly, was not entitled to contribution. She claimed that the payments had been made by RUP Constructions Pty Limited. Her Honour rejected this argument. Although RUP Constructions actually made the mortgage repayments, she found that it did so on account of Mr Rupchev. Nothing was established in the argument on the appeal to upset her Honour's finding. There was otherwise no appeal from her Honour’s finding that Mr Rupchev was entitled to contribution from Ms Callow for the mortgage payments.

Claim for setoff by way of occupation fee

19 Ms Callow claimed that she left the property because she was in fear of Mr Rupchev. She relied upon an incident, in which she claimed that Mr Rupchev had become angry with her and put his hands around her throat. Ms Callow’s daughter witnessed this incident. Ms Callow said that it was the fact that her daughter witnessed the incident and was so closely involved in the violence in their relationship that caused her to leave Mr Rupchev and, therefore, the property.

20 Ms Callow also referred to other incidents. She said that on several occasions during their relationship, Mr Rupchev had punched holes in the walls of the premises in which they were residing. She also referred to an incident in which Mr Rupchev had not consulted her in respect of the purchase of some ceiling lights which led to an argument. This complaint appears to have been that Mr Rupchev would not permit Ms Callow to finish what she wanted to say on the matter.

21 Mr Rupchev’s version of these events was different. He denied that he had put his hands around Ms Callow’s throat. Rather, he said that he and Ms Callow were having frequent fights and she was given to sobbing and screaming at him. He agreed that an incident had occurred between them, but said that he had put his hands on her collarbone on either side of her neck and said to her, “Get some sense into you, girl” and had pushed her onto the bed and then left the room. He accepted that Ms Callow’s daughter was at the doorway when this incident occurred, but said that he had not been aware of that in the immediacy of the confrontation.

22 There was a further dispute between the parties as to where this incident occurred. Ms Callow said that it occurred in the lounge room. Mr Rupchev said that it occurred in the bedroom. Her Honour implicitly accepted Mr Rupchev’s version, as she referred to this as “the bedroom incident”.

23 Mr Rupchev also denied that he had punched holes in the walls of one of the residences in which they had lived. He admitted, however, that he had kicked a hole in a door at rented premises at Willoughby where they were living prior to purchasing the home. He admitted that there were arguments between them, which he attributed to Ms Callow’s baseless perception that he was having affairs.

24 The trial judge found that the relationship between the parties was tempestuous, but preferred the evidence of Mr Rupchev to the evidence of Ms Callow where that evidence conflicted. Ms Callow claims that her Honour was biased towards her and that this was exhibited in the adverse credit finding against her.

25 No case for bias has been established. Her Honour was confronted with different versions of certain incidents and was alive to the different perceptions as to the reasons the relationship had failed. She explained why she preferred Mr Rupchev’s version. In reaching her finding, her Honour did not only rely on the different versions of the particular incidents that were in issue. She considered Ms Callow was argumentative and defensive in giving her evidence and gave examples of answers that evidenced this. Her Honour also noted a particular instance where Ms Callow had failed to concede that the property was in relatively poor condition despite “cogent evidence to the contrary”.

26 The fact that adverse credit findings are made does not demonstrate judicial bias towards that witness. Rather, it involves the necessary and proper exercise of the judicial function. There was no documentary or other evidence that established that the credit finding was erroneous: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167. Nor, in accordance with well-established principles was any other basis established for setting aside her Honour’s credit findings.

Occupation fee not dependent on ouster

27 As appears from the discussion with respect to the last issue, the focus of the case at trial was that Ms Callow was entitled to set off a notional occupation fee because she had been involuntarily excluded from the property by violence or the threat of violence from Mr Rupchev. Mr Rupchev not only denied the allegations, but also argued that his claim for contribution, based on a legal entitlement, was not affected by any setoff which might have arisen had he been seeking equitable relief.

28 The last submission should be rejected. Although a claim for contribution between joint debtors may arise in law or in equity, a plaintiff seeking contribution cannot avoid equitable defences by invoking a common law remedy. In each case, the right is founded upon concepts of fairness and justice and is thus subject to the same qualifications: see Burke v LFOT Pty Ltd [2002] HCA 17; 209 CLR 282 at [14]-[15] (Gaudron ACJ and Hayne J), [38] (McHugh J) and [143] (Callinan J), each adopting the analysis of Kitto J in Albion Insurance Co Ltd v Government Insurance Office of NSW [1969] HCA 55; 121 CLR 342 at 349-352 (Windeyer J agreeing). In a passage adopted by McHugh J in Burke at [38], Walsh JA in Armstrong v Commissioner of Stamp Duties (1967) 69 SR (NSW) 38 stated at 48:

“It seems, however, that in England a claim for contribution of a type which can be brought at common law may be defeated if the circumstances are such that in equity the claim for contribution would fail. See Cunningham-Reid v Public Trustee [[1944] KB 602].”

29 In Burke, at [143], Callinan J, to similar effect, stated:

“The respondents certainly would not be entitled to contribution in equity because they do not have clean hands. That fraud, illegality, wilful misconduct or gross negligence will deny a perpetrator relief by way of contribution from partners just as unclean hands will similarly bar relief by a trustee against co-trustees, serves to show that, even though the doctrine of contribution is common to both law and equity, certain types of conduct can still operate to defeat a claim for contribution in law or under statute. Indeed it is likely that in modern times whatever would have provided a defence to a claim in equity for contribution would equally provide a defence in law.”

30 The first issue concerns the scope of the doctrine of ouster and its more recent developments, sometimes described as “constructive ouster”. If, as will be suggested below, it is not necessary to identify violence or a threat of violence sufficient to justify a finding that the departure of one co-tenant was involuntary, the findings discussed above will not be critical. Rather, it will be suggested, the authorities justify the conclusion that a notional occupation fee may be set off against the claim of the tenant in occupation for a contribution to expenses or improvements, in circumstances where the co-ownership arose out of a domestic relationship which has broken down, rendering departure of one party reasonable in the circumstances.

31 The traditional grounds for charging an occupying co-owner with an occupation rent, for the benefit of a co-owner who was not in possession, were an actual ouster by the occupying co-owner which prevented the other co-owner from exercising his or her right to possession, a constructive ouster by denial of title, and a claim by the occupying co-owner to be recouped for his expenditure on permanent improvements which had increased the value of the property. The relevant principles, and the decisions on which they are based, were reviewed in Luke v Luke (1936) 36 SR(NSW) 310.

32 These principles became established in cases between siblings and other relatives decided before the Married Womens Property Act 1882 (Eng). In the early cases the co-ownership was created by a common ancestor, not by the co-owners themselves. The parties in Luke v Luke were related, but were not married, and had not lived together in a de facto domestic relationship akin to marriage.

33 The increase in home ownership after the Second World War, financed by long term mortgages, the increased participation of married women in the paid workforce, and the popularity of domestic relationships without marriage, have brought before the courts a new class of disputes between co-owners, those who were or had been married, and those who had shared their lives without marriage, or such a person and the trustee in bankruptcy of the other.

34 The established principles, developed in earlier times for a different group of co-owners, were ill-suited for the resolution of disputes involving this new group of co-owners. Thus it was not long before the English courts commenced to fashion additional principles more suitable for this new group; those decisions have been followed in Australia.

35 The “new” principles, based on cases dating from the 1970s, have established that a forceful ouster is not necessary where the domestic relationship has broken down and one co-owner, for practical reasons, can no longer live in the property with the other, and leaves.

36 These “new” cases were correctly decided and should be applied where the co-ownership flowed from a marital or equivalent domestic relationship: they should be applied in the present case. On that basis it is neither necessary nor appropriate to express any views on the traditional ouster principle, or the doctrine of constructive ouster based on denial of the title of the co-owner, or their application in this case.

37 Indeed the application of the doctrine of constructive ouster to the facts of this case is doubtful, the respondent’s denial of Ms Callow’s title not being directed to her legal title, which was clear on the face of the register, but to her beneficial title. It was only maintained from December 2005 until May 2006, whereas the “new” principles could apply to the whole period from separation in June 1998 until the sale was completed in November 2006. There was no evidence that this denial had any real effect on the conduct of Ms Callow. It did not prevent her exercising her rights of co-ownership and returning to live in the property. Further, a doctrine which gives substantive effect to such a pleading is troubling: compare Warner v Sampson [1959] 1 QB 297 (EWCACiv).

38 In Cracknell v Cracknell [1971] P 356 (EWCACiv) at 363 Lord Denning MR, who gave the principal judgment, held that if the wife leaves the matrimonial home “voluntarily”, the husband who remains and makes the mortgage payments is entitled to contribution, but if she is forced out the husband is not entitled to contribution even for his payments of principal. This view did not survive. In Leake v Bruzzi [1974] 1 WLR 1528 (EWCACiv) the husband was only given credit for his payments of principal because, as Ormrod LJ said at 1533:

“… he has had the use and enjoyment of the house … and it is not at all unrealistic to regard the interest under the mortgage as something equivalent to rent or payment for use and occupation.”

39 This approach was followed in Suttill v Graham [1977] 1 WLR 819 (EWCACiv) at 822 where the wife had left the matrimonial home to live with another man. Stamp LJ said:

“… in Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 this court arrived at a similar conclusion by regarding the mortgage interest paid by the husband while in possession as something equivalent to rent or payment for use and occupation. That will normally produce a fair result and save costs; and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free.”

40 The “new” principles became established in England by the decision of Purchas J in Dennis v McDonald [1982] Fam 63. He reviewed the cases which had worked out the established principles and concluded at 71:

“Only in cases where the tenants in common not in occupation were in a position to enjoy their right to occupy but chose not to do so voluntarily, and were not excluded by any relevant factor, would the tenant in common in occupation be entitled to do so free of liability to pay an occupation rent.”

41 He then formulated the “new” principles applicable to co-owners who had lived together in a domestic relationship at 71:

“… whatever might have been the cause of the breakdown of the association, it would be quite unreasonable to expect the plaintiff to exercise her rights as a tenant in common to occupy the property as she had done before the breakdown of her association with the defendant. … Therefore, the basic principle that a tenant in common is not liable to pay an occupation rent by virtue merely of his being in sole occupation of the property does not apply in the case where an association similar to a matrimonial association has broken down and one party is, for practical purposes, excluded from the matrimonial home.”

42 These principles, still described by the Court of Appeal in that case as “an ouster” (at 80), were not challenged on the appeal from Purchas J. His decision was again followed in Bernard v Josephs [1982] Ch 391 (EWCACiv) at 401 where Lord Denning MR said:

“… seeing that he has the use of her share, it would only be fair that he should pay an occupation rent in respect of it: see Dennis v McDonald [1982] Fam 63, 64. No doubt, however, he has been paying the whole of the mortgage instalments and this should be taken into account as well. It may relieve him of paying any occupation rent for her half-share.”

43 In In re Gorman (A Bankrupt) [1990] 1 WLR 616 at 625 Vinelott J, giving the judgment of the Divisional Court referred to Suttill v Graham and Bernard v Josephs and said that they established “[t]he general principles on which the court acts in making adjustments to the shares in which tenants in common are entitled to the proceeds of sale of the property”. That case involved a dispute between the wife and the husband’s trustee in bankruptcy and the principles referred to were those applicable to parties in a domestic relationship. He continued (at 625, 626):

“In some cases, to avoid the necessity of expensive and protracted inquiries and accounts, the courts have treated mortgage interest, paid by a tenant in common who has been in sole occupation, as equal to an occupation rent, leaving only an appropriate proportion of any capital repayments to be credited to him. …
That practice is not, of course, a rule of law to be applied in all circumstances irrespective of, on the one hand, the amount of the mortgage debt and the instalments paid, and on the other hand, the value of the property and the amount of the occupation rent that ought fairly to be charged. It is a rule of convenience.”

44 Then in In re Pavlou (A Bankrupt) [1993] 1 WLR 1046, where the husband had left the wife in the property and later became bankrupt, Millett J, after referring to the judgment of Purchas J in Dennis v McDonald, said at 1050-1051):

“I take the law to be to the following effect. First, a court of equity will order an inquiry and payment of occupation rent, not only in the case where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid. The fact that there has not been an ouster or forceful exclusion … is far from conclusive. Secondly, where it is a matrimonial home and the marriage has broken down, the party who leaves the property will, in most cases, be regarded as excluded from the family home, so that an occupation rent should be paid by the co-owner who remains. But that is not a rule of law; that is merely a statement of the prima facie conclusion to be drawn from the facts. The true position is that if a tenant in common leaves the property voluntarily, but would be welcome back and would be in a position to enjoy his or her right to occupy, it would normally not be fair or equitable to the remaining tenant in common to charge him or her with an occupation rent which he or she never expected to pay. …
There remains the question of the interest element in the mortgage payments which the wife has paid. Once again, prima facie, she is entitled to reimbursement since the date on which the husband left the property. … In many cases the court has set off the interest element in the mortgage repayments against an occupation rent.”

45 He then referred to the passage from the judgment of Vinelott J in In re Gorman quoted at [43] above.

46 Under the traditional principles an actual ouster by the occupying co-owner involved a civil wrong, either a trespass to the person by assault or battery, or a physical obstruction which prevented the absent co-owner from exercising his right to occupy the property: Jacobs v Seward (1872) LR 5 HL 464 at 472-3. One can describe the breakdown of a domestic relationship as an ouster, but such relationships can break down without attributable fault on the part of either party. To describe such a breakdown as an actual ouster involves a fiction and it is better to recognise such a breakdown as an independent ground for charging the co-owner who remains with an occupation rent.

47 The relevance of the traditional grounds for charging a co-owner with an occupation rent when the parties had been in a de facto relationship arose in Forgeard v Shanahan (1994) 35 NSWLR 206 where the Court was divided. Meagher JA applied the established principles which he summarised in 16 paragraphs. He doubted the correctness of the conclusion of Rolfe J that a claim for contribution for mortgage payments could be equated with a claim for the cost of improvements for the purpose of attracting a liability to account for an occupation rent, although that decision stood because the respondent in possession had not cross-appealed: at 225.

48 The question which divided the Court was whether, as the majority held, the appellant’s claim to charge the respondent with an occupation rent could not exceed the amount of the respondent’s claim for contribution for mortgage payments. In his review of the established principles Meagher JA referred to the position of a co-owner out of occupation and said that “the law treats the latter simply as someone who has chosen not to exercise his legal right to occupy the land”: at 221. Although Dennis v McDonald had been cited, he held that the established principles applied with undiminished force to co-owners who had been in a domestic relationship.

49 Mahoney JA, who agreed with Meagher JA, said at 219:

“The principles which have been evolved in this area of the law derive in the first instance, from the incidents which the law long ago attached to common ownership of land. I see no reason to depart from them. To do so would be merely to substitute one set of judgments as to what is just for another, without there being a compelling reason for the one or the other.”

50 Kirby P, in dissent, declined to apply the established principles which had been developed for co-owners who were not married or in a domestic relationship: at 211-212.

51 The decision of this Court in Biviano v Natoli (1998) 43 NSWLR 695, and in particular the reasons of Beazley JA (Stein JA agreeing), marked a significant departure from the views of the majority in Forgeard v Shanahan.

52 Beazley JA approved the reasoning of Purchas J in Dennis v McDonald: at [40]-[41] above. Powell JA’s conclusion that there had been an actual ouster in that case and that the reasoning of Purchas J should be understood on that basis cannot, with respect, be supported.

53 Part of the dispute in Biviano concerned the quantum of the occupation fee chargeable to the appellant. The trial judge had assessed this at 65% of the full market rent: at 703. This Court reduced it to 50%, and might have reduced it further if the appellant had also challenged the adoption of the full market rent because she had a right of concurrent occupation and arguably the value to her of the use of the respondent’s half-share should have reflected this: at 704.

54 In Biviano the absent co-owner had not “voluntarily” withdrawn from the property and there was no claim for contribution to mortgage payments. Both issues arose for consideration in Ryan v Dries [2002] NSWCA 3; 10 BPR 19,497 where once again the Court was divided.

55 Sheller JA held that In re Pavlou was correctly decided and quoted with approval the passage from the judgment of Millett J, at [44] above, where his Lordship held that an occupying co-owner could be charged with an occupation rent where a domestic relationship had broken down and one co-owner leaves without an actual ouster: Ryan v Dries at [5]. He agreed with Hodgson JA that a claim by the occupier for contribution to mortgage payments as part of an equitable accounting attracted an obligation to do equity, and thus to submit to an occupation rent: at [7].

56 Hodgson JA said:

“[71] … once an occupier is required to do equity because he or she is seeking equity, there is no reason to distinguish between improvements or repairs effected to the property on the one hand, and the reduction of a charge on the property through mortgage repayments on the other. …
[75] In my opinion, the principles supported in Luke mean that the appellant, now claiming equity in relation to those payments, should do equity by making some appropriate adjustment in respect of his very much greater use of the property, and indeed exclusive use thereof since November 1997.”

57 Giles JA dissented and held that the appellant was not accountable for the value of his shared occupation of the property prior to November 1997, and that his claim for contribution for his mortgage payments did not attract an obligation to pay an occupation rent for that period.

58 In Re Pavlou and Biviano have since been applied in the Full Court of the Federal Court in Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; 156 FCR 53 at [102]-[107] (Rares J).

59 In McKay v McKay [2008] NSWSC 177, Brereton J reviewed a number of the authorities discussed above and concluded at [51]:

“I, therefore, agree with Purchas J in Dennis v McDonald and Beazley JA in Biviano v Natoli , that the basic principle that a tenant in common is not liable to pay an occupation rent by virtue merely of his being in sole occupation of the property does not apply in the case where a matrimonial or similar relationship has broken down and one party is, for practical purposes, excluded from the family home. Upon breakdown of a domestic relationship, if it becomes no longer reasonable or practicably sensible to expect the partners to co-occupy the one property, the one who remains in possession may be taken to do so to the exclusion of the other, and to be liable to pay an occupation fee. At present, however, Biviano would seem to restrict that to a case in which the exclusion was not authorised by a court order – whether under matrimonial legislation or an [apprehended personal violence order].”

60 This statement of principle may be accepted, subject to the qualification that, viewed in the context of the broader authorities, Biviano should not be seen as restricting the allowance of a notional occupation fee to those cases where the exclusion was not required or authorised by a court order. That conclusion accords with the statement of the law set out by K Gray and SF Gray, Elements of Land Law (5^th ed, OUP, 2009) at [7.4.44] in the following terms:

“To this basic common law principle of rent-immunity between co-tenants there emerged, over the years, a number of overlapping exceptions, most of which involved some trauma in the personal or family relationship of the co-owners. It came to be accepted, for instance, that an occupation rent is payable by a co-tenant whose sole occupation was achieved by the intentional ouster or violent exclusion of another co-tenant or where termination of a personal relationship made it ‘unreasonable’ to expect continued joint occupation. Likewise a co-tenant who claimed credit for improvements, repairs or mortgage outgoings paid on the co-owned land was normally required to give credit for a notional rent to be assessed in respect of any sole occupation which he had enjoyed.”

61 The operation of such a broad statement of equitable principle may have ramifications which have not been fully worked through. Underlying the concept of ouster was a lack of voluntary choice in the decision not to continue to occupy the property. Where a domestic relationship has broken down, the underlying purpose is to achieve a fair and reasonable settlement of property interests as between the parties to the relationship. That may now be more generally achievable pursuant to application under the Family Law Act1975 (Cth) or the Property (Relationships) Act1984 (NSW). That exercise involves an adjustment of interests with respect to property, taking into account financial and non-financial contributions and beneficial usage. General law principles do not replicate the statutory schemes.

Application of principle

62 The next question is how the principle set out above is to be applied in the circumstances of the present case. As noted above, Ms Callow left the premises at some point in July 1998. Mr Rupchev remained in occupation until September 2004 when he went to live in Queensland. During part of the period from September 2004 until April 2006 the premises were let and the rent was paid to Mr Rupchev. He conceded that he must account to Ms Callow for 50% of the rental payments, being an amount of $4,800.

63 The next question is the period during which the notional occupation fee should run. During the course of the hearing of the appeal, Ms Callow handed up a calculation sheet which factored in an offset for a notional occupation fee, against each mortgage payment, for the period from August 1998 until August 2002, when the mortgage was discharged. However, the Court was also taken to a document entitled “Occupation and Rent” which was apparently before the trial judge and which included a calculation for the periods during which Mr Rupchev was in occupation after repayment of the mortgage, and for the period during which he was not in occupation and during which the premises were not tenanted. The notional occupation fee was calculated until the end of October 2006, the premises being sold shortly thereafter.

64 As it was unclear for which period Ms Callow was in fact claiming a setoff by way of notional occupation fee, both she and Mr Rupchev were given an opportunity following the hearing of the application in this Court, to clarify that issue and identify arguments in support of their respective positions.

65 Ms Callow submitted that the fee was to be allowed in respect of a period which “extended past the time the Respondent lived in the property until the date the property was sold (or the premises vacated). The Respondent had the use of the property to do with as he pleased including renting out the premises, ‘renovating’ and occupying it later to the exclusion of the Appellant”. Reference was made to the judgment in McKay.

66 The supplementary submissions from the respondent took a different view:

“Should the Court impose an allowance in this instance, an equitable allowance would be limited to the period that mortgage payments were being made by the respondent under the mortgage rather than the period of occupation by Mr Rupchev or the date the property was sold. This is so because the date the appellant vacated the premises and the dates of occupation and sale are of less relevance in the calculation of an equitable fee because the vacation was not caused by exclusion on the part of the respondent but rather the respondent’s occupation of the premises was with the appellant’s concurrence.”

67 Mr Rupchev also raised an issue as to the basis of calculation. He noted that the amount of actual rent paid during 2005, namely $320 per week, was achieved after some renovations had been undertaken. He also stated that there was no agreement at trial with respect to the figure proposed by Ms Callow as appropriate to be applied throughout the period, namely $210 per week.

68 In respect of this last issue, Ms Callow did not demonstrate a basis on which any other figure than $210 per week should be applied by this Court: nor was issue taken with that figure when proposed at trial: Tcpt, 14/09/07, pp 84 and 98 (25). Accordingly, it is the figure which should be adopted in calculating a notional occupation fee.

69 With respect to the period during which the fee should be applied, there is no reason to restrict it to the period during which mortgage payments were made. It should accrue during the period of Mr Rupchev’s sole occupancy. However, both at trial and on appeal, Ms Callow claimed an occupation fee in respect of the period in 2005-2006 during which the premises were neither tenanted nor occupied by Mr Rupchev physically. The basis for that claim appears to have been that Mr Rupchev was, during that period, denying that Ms Callow had any interest in the property. That might, if made out, have justified a finding of ouster by denial of title. While Mr Rupchev conceded that he treated the property as his own and controlled access to it, it was not expressly put to him that if Ms Callow had sought to occupy the premises while he, Mr Rupchev, was in Queensland and not obtaining rent from it, he would have refused her permission: see Tcpt, 11/09/07, pp 23 and 28.

70 Because the case was not run explicitly on the basis that, absent ouster, control of premises was sufficient to give rise to a right to an occupation fee, Ms Callow’s evidence did not extend to the question of why she did not seek to reoccupy the premises when Mr Rupchev was in Queensland. She was asked, in a context which directed her attention to an earlier point in time, why she did not move back into the house, and said that she had enrolled her daughter in a local school and had “moved too many times”: Trial Tcpt, 11/09/07, p 54(10).

71 An occupation fee is chargeable, inter alia, where it is unreasonable to expect co-owners to continue to live under the same roof after a domestic relationship has collapsed, and one party moves out. However when the premises later become vacant for an extended period the party who initially remained may not be obtaining any financial benefit, or the same level of financial benefit from the property. If neither co-owner is using the property for residence or storage it may not be appropriate or equitable for either to be charged with an "occupation rent" unless a proper basis for this is established. Ms Callow’s assertion that Mr Rupchev was exercising control was just assertion based on evidence relating to an earlier period. As the relevant issues were simply not explored and she bore the onus of proof, she must fail on this issue. We express no concluded view on the legal position where it is sought to charge a co-owner with an occupation rent in respect of a vacant property.

72 Similar circumstances arose in the matter of Silvester v Sands [2004] WASC 266, described in the following terms by E M Heenan J at [147], after noting that the defendant had claimed contribution from the plaintiff:

“Against this, however, the defendant remained in possession of Essex Street from June 1994 (during the separation), and then again after May 1995 for several years. She left the premises vacant for subsequent periods since then but has been in occupation at other times. For the whole of the period from May 1995 to the present she has been entitled to the possession of the premises. Because she seeks a contribution from the plaintiff to the expenses which I have identified in the preceding paragraph, I consider that she should be obliged to pay an occupation rent for some or all of that period after May 1995.”

73 His Honour was equivocal as to whether an occupation rent was calculable for the whole period, including periods of absence from the premises. Because his Honour was satisfied that the occupation fee would extinguish the claim to contribution, this issue did not need to be resolved. In an earlier passage, referring to In re Pavlou, his Honour noted that a remaining co-owner claiming a contribution “will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises”: at [141]. However, in the context, it appears that the reference to “sole possession” was a reference to occupancy.

74 Because, absent ouster, the basis for setting off a notional occupation fee is the unreasonableness of requiring the joint owners to reside together, it would be necessary, in a case where the party claiming contribution has vacated the premises for a period, for the other party to demonstrate affirmatively that it was unreasonable to expect him or her to return to the premises during that period. That task was not assayed by Ms Callow in the present case and accordingly the notional occupation fee should be limited to the period during which Mr Rupchev was actually in physical occupation of the premises.

Interest

75 With respect to contributions to the mortgage payments, a liability to contribute arose at the time the payment was made solely by one party. Accordingly, it is appropriate that interest be calculated on each payment from the date on which it was made. The net proceeds of sale of $172,141.49 received on 8 November 2006 were invested in an interest bearing account pursuant to an order of the Court. The rights of the parties to pre-judgment interest after that date should be limited to that earned from the investment.

76 With respect to the notional occupation fees, in each case the financial benefit was obtained by Mr Rupchev, and alternative expenses were incurred by Ms Callow, from week to week as the arrangements proceeded. It is appropriate that interest be calculated on each fee (being 50% of the notional rent of $210 per week), payable on a monthly basis, from the date at which each payment accrued.

Acquisition costs

77 The only other substantive issue concerns Ms Callow’s challenge to the order that she pay by way of contribution half of the acquisition costs of $10,900 for the Normanhurst property which had been paid by the respondent.

78 As noted above, the trial judge found that the parties agreed in 1996 that they would buy a house: [2007] NSWSC 1097 at [9]. The respondent agreed to save to pay the deposit, stamp duty and legal expenses, while Ms Callow would pay their household expenses. Each was to pay half the rent of the Rozelle property where they were living at the time. This finding was based on Ms Callow’s affidavit of 31 August 2007, par 10.

79 The judge also found that Ms Callow did not meet the whole of the cost of the food and household expenses of the family but that “each contributed”: at [9] and [48]. This finding was supported by Ms Callow’s affidavit of 23 March 2005 (par 13), and by Mr Rupchev’s affidavit of 26 May 2006 (pars 14, 19). As a result, that agreement did not raise an equity in favour of Ms Callow against Mr Rupchev’s claim for contribution to the acquisition costs that he had paid.

80 A later, and presently irrelevant arrangement was made when the parties moved into the Normanhurst property which dealt with their respective contributions to the expenses of living in their new home. This disintegrated along with their relationship. Nothing turns on this later arrangement because Mr Rupchev did not claim contribution for the mortgage payments while they were living together at Normanhurst, nor did Ms Callow seek to charge him with an occupation rent for that period.

81 The order that Ms Callow contribute to the acquisition costs was based on the arrangement made in 1996, and her failure to comply with it, and not the later arrangement made in 1998. The judge’s findings about the earlier arrangement should be confirmed since they were based on the affidavit evidence of both parties which was not challenged.

Calculations

82 The trial judge held that the amount of the contribution payable to Mr Rupchev on account of the loan repayments was $55,603.05. Her Honour also found that interest on that amount calculated up to 1 October 2007 was $35,360.64. As noted above, the calculation of interest should have ceased at the end of October 2006, when the proceeds of sale were placed in a controlled account. An allowance should therefore be made by reducing the interest component by eleven months or $5,097, leaving an amount of $30,264 and a total amount (repayments and interest) of $85,867.

83 Secondly, her Honour assessed the contribution in respect of the acquisition costs as $5,450, together with interest thereon until 1 October 2007, being an additional $4,823.40. Reducing the interest payable to the period ending on 31 October 2006 by an amount of $500, the total contribution payable by Ms Callow to Mr Rupchev was $95,640, as at 31 October 2006.

84 Ms Callow produced a spreadsheet covering the same period, and calculating an occupation fee, commencing at $210 per week, together with interest. The calculation proceeded on that basis until 3 February 2004, when it increased to an amount of $320 per week. Between 31 August 2004 and 28 December 2004 it decreased to $300 per week. Thereafter it included an amount of $160 per week (being half the actual rent for the relevant period) during the course of the tenancy and reverted to $300 per week until 9 May 2006 and then $320 per week until 31 October 2006. The total claim amounted to $68,927.41. (Ms Callow added an amount for half the rent to this figure, but that calculation appears to have involved double counting.) Furthermore, there was no justification for departing from the assumption made at trial, namely that a notional occupation fee should be calculated at $210 per week. In addition, Ms Callow sought to add in various other calculations for which no leave was granted and which are to be disregarded. On the other hand, the supplementary submissions for Mr Rupchev also failed to engage with the mathematical calculation required. In these circumstances, the Court should make its own calculations, although these will not involve the degree of precision sought by the parties.

85 The occupation fee should be calculated for the periods during which Mr Rupchev was physically in occupation of the premises, periods which ran from August 1998 to August 2004 (a period of six years) together with a further six months from May to October 2006. The occupation fee for the period of six years, calculated at $210 per week, provides a notional rental of $65,520. The amount allowable as setoff (50%) is $32,760. Treating that amount as having been outstanding for half the six year period, at an average interest rate of 10%, provides a further amount on account of interest of $9,828, up until August 2004. Further interest accrued on the fee from the end of that period until the end of October 2006 (26 months), being an amount of $7,098. A further occupation fee for the last six months would provide an allowance of $2,730. Interest on that amount would be $68. The total of these amounts is $52,484.

86 To that must be added half the rental moneys collected in 2005 being $4,800. Treating that amount as outstanding from 30 June 2005, interest at 10% to 31 October 2006 will give a further amount of $640. Accordingly, the setoff allowed to Ms Callow totals $57,924.

87 That amount should be deducted from the contribution payable to Mr Rupchev ($95,640) leaving a net contribution due to Mr Rupchev as at 31 October 2006 of $37,716. Accordingly, the proceeds of sale should have been divided into two equal parts ($86,070.75), with one half being paid to Mr Rupchev together with a further amount of $37,716. Any interest earned on the account prior to distribution should have been distributed in accordance with the proportions calculated above owing to each party.

88 While it was common ground that the moneys in the controlled account had been distributed in accordance with the orders made by Bell J, no stay having been obtained, the actual amounts paid out are not known to this Court. Nevertheless, no setoff having been allowed by way of notional occupation fee, it appears that Mr Rupchev will have received an amount in excess of his entitlements, as calculated above. The balance will be a debt payable by Mr Rupchev to Ms Callow and should bear interest at the rate prescribed under the UCPR (currently 10%) from the date on which the amount (or amounts) were paid out of the controlled money account, until payment to Ms Callow. The relevant calculation should be arithmetical. In the unfortunate event that the parties cannot agree on the amount, the matter will need to be dealt with in the Common Law Division.

Costs

89 Ms Callow has succeeded in obtaining a setoff for an occupation rent and reductions in the award of pre-judgment interest on her contribution to the mortgage payments but she failed in her challenge to the orders for contribution to those payments and the acquisition costs. As she achieved a substantial reduction in the judgment she should have her costs of the appeal as a self-represented litigant. As the respondent substantially succeeded below he should have his costs of the proceedings in the Common Law Division after 29 May 2006.

Orders

90 The Court makes the following orders:

(1) Grant leave to the applicant to appeal against the orders made in the Common Law Division on 16 November 2007;

(2) Allow the appeal in part and set aside the orders made in the Common Law Division;

(3) Declare that, as at the date of judgment in the Common Law Division, the proceeds of sale of the property at 21 Redgrave Avenue, Normanhurst, held in an interest bearing controlled money account with Goldrick Farrell Mullan, solicitors, being an amount of $172,141.49 together with interest on that amount, was held,

(a) as to one half share, for Mr Vladimir Rupchev;
(b) as to the other half share,
(i) as to an amount of $37,716, for Mr Vladimir Rupchev, and
(ii) as to the balance, for Ms Beverley Callow;
(c) as to such interest as had accrued at the date of distribution of the funds, for the respective parties in proportion to their entitlements set out above;


(4) Declare that Ms Callow is entitled to a payment from Mr Rupchev of such amount as was paid to him from the controlled money account in excess of his entitlement as set out above, together with interest thereon at the rate prescribed by Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) from the date on which it was disbursed to or at the direction of Mr Rupchev until paid by him to Ms Callow;

(5) Remit the matter to the Common Law Division for final orders (if not agreed) as to the amount of the payment due under order (4);

(6) Order that Ms Callow pay Mr Rupchev’s costs of the proceedings in the Common Law Division from 26 May 2006, assessed on the ordinary basis;

(7) Order that Mr Rupchev pay Ms Callow’s costs in this Court as a self-represented litigant;

(8) Grant Mr Rupchev a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs in this Court.

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