Cameron v Lamonde

[2000] NSWSC 566

CITATION:	Cameron v Lamonde [2000] NSWSC 566
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1311/99
HEARING DATE(S):	1, 2, and 3 May 2000
JUDGMENT DATE:	26 June 2000
PARTIES :	Duncan Raymond Cameron (P & Cr-D) Paulena Margot Lamonde (D & Cr-Cl)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. P. Maiden (P & Cr-D) Mr. D. Allen (D & Cr-Cl)
SOLICITORS:	Newnhams Solicitors (P & Cr-D) Hancocks Solicitors (D & Cr-Cl)
CATCHWORDS:	De Facto relationship - Adjustment of interests of parties in property - Defendant moved into residence in house property owned by Plaintiff - Subsequently Plaintiff transferred that property to himself and the Defendant as joint tenants - Plaintiff was principal breadwinner - Defendant was not in employment, but had investment income - Respective contributions of parties to improvement of house property - Contributions by Defendant as homemaker - Loan by Defendant to Plaintiff - Relationship was of a short duration.
LEGISLATION CITED:	De Facto Relationships Act 1984 Property (Relationships) Act 1984
CASES CITED:	Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See paragraph 46

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 June 2000

1311/99 DUNCAN RAYMOND CAMERON -v- PAULENA MARGOT LAMONDE

JUDGMENT

1    MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 By statement of claim filed on 10 February 1999 the plaintiff Duncan Raymond Cameron claims orders for the adjustment of interests in property pursuant to section 20 of the De Facto Relationships Act. The defendant Paulena Margot Lamonde filed a defence and a cross-claim on 19 March 1999. By that cross-claim the defendant also seeks orders for the adjustment of interests in property. 3    The property in respect of which the foregoing substantive relief is sought by each party is a house property situate at and known as 8 Knightsbridge Avenue, Belrose (to which I shall refer as “the Belrose property”). 4    It was not in dispute that the parties were in a de facto relationship from July 1994 until 8 April 1998. On that latter date the relationship came to an end. However, the parties continued to reside in the Belrose property until 6 February 1999, when the defendant departed from that residence. 5    The plaintiff was born on 29 April 1946, and is presently aged 54 years. He has two children by an earlier marriage, Nadia (now aged 21) and Lydia (now aged about 19). The defendant was born on 15 February 1941, and is presently aged 58 years. She also has two children of a former marriage, Petria Salter (aged 35) and Amanda Salter (aged 32). 6    No children were born of the relationship between the parties. 7    Upon the commencement of the relationship the defendant moved into residence with the plaintiff in the Belrose property, which was already owned by the plaintiff. The defendant had previously been residing in rented accommodation at Fairlight for which she had been paying $200 a week. Apparently her daughter Amanda had been living with her in that rented accommodation, and Amanda accompanied her to the Belrose property when the defendant moved into residence there with the plaintiff. Amanda remained with them for a period of five months. 8    The Belrose property had been acquired by the plaintiff in about October-November 1993, for a purchase price of $265,000. That purchase price had been funded, in part, by a housing loan from the National Australia Bank in an amount of $85,000, which was secured by a mortgage. (Although the Belrose property was purchased before the commencement of the de facto relationship between the parties, the defendant accompanied the plaintiff when he was inspecting properties, with a view to making a purchase. She also gave him some assistance in moving into the Belrose property.) 9    At the commencement of the relationship the assets of the plaintiff consisted of:

(a) house property at 8 Knightsbridge Avenue, Belrose --- $280,000

(b) household furniture and contents

(c) savings, $4,482

(d) accrued superannuation entitlement, having a vested benefit in an amount of $88,930.

10    At the commencement of the relationship the only liability of the plaintiff was his indebtedness to the National Australia Bank in respect of the housing loan, which at that time stood at an amount of $82,356. 11    In June 1995 the defendant had renegotiated his housing loan with the National Australia Bank, increasing the amount of that loan to $86,000, which resulted in him receiving from the bank an additional $5,000. That latter amount, together with savings which he had totalling about $9,000, he expended on the purchase of a Ford Fairmont motor car ($10,750) and a caravan ($3,200). 12    At the commencement of the relationship the assets of the defendant consisted of:

(a) property situate at Mount Nebo, Brisbane, having a value of about $210,000

(b) furniture and effects

(c) share portfolio, worth about $79,000

(d) jewellery

(e) savings (in an amount not quantified)

13    The defendant had no liabilities at the commencement of the relationship. 14    When the relationship commenced, in July 1994, the plaintiff was employed as an Assistant Manager by Amatek at Chatswood. His income throughout the four financial years of the relationship was in the range from $68,764 to $77,535. 15    Throughout the period of the relationship the defendant was not in employment. However, she traded in the purchase and sale of shares. In addition, she received rental income from her property at Mount Nebo (the amount of that rental did not emerge from the evidence) until that property was sold, and she also received a return on her share investments. The defendant’s income from her investments (which I assume to encompass not only her shareholdings but also, until it was sold, rent from the Mount Nebo property) throughout the four financial years of the relationship was in the range from $10,742 to $18,649. The Mount Nebo property was sold by the defendant in about October 1995. From that sale she received a net amount of about $210,000 (or perhaps somewhat less: the evidence was not entirely clear). 16    By agreement between the parties (although the circumstances which gave rise to that agreement were in dispute) the defendant thereupon lent to the plaintiff from the proceeds of sale of the Mount Nebo property the sum of $80,000 on an interest only basis at bank interest rates (the arrangements between the parties concerning the loan and its repayment were incorporated in a written agreement signed by each party on 31 October 1995). The amount of that loan was then applied by the plaintiff in reduction to the amount owing to the National Australia Bank on the housing loan, with the consequence that after such reduction there was only an amount of $5,313 outstanding on that loan. 17    On 21 September 1996 the Belrose property was transferred by the plaintiff to himself and the defendant as joint tenants. The circumstances surrounding that transfer were in dispute between the parties. To the extent that it is necessary for me to do so (and for reasons relating to the credit of the parties, to which I shall refer later in this judgment), I prefer the account given by the plaintiff to that of the defendant concerning the circumstances surrounding that transfer of the Belrose property. 18    After the property had been transferred into the joint names of the parties the defendant devoted a considerable part of her time and energy to the enhancement and improvement of that property, especially the gardens thereof, and she expended her own funds on the renovation of the kitchen. 19    The extent of the work performed by the defendant upon the property, both before and after the transfer of it into the joint names of the parties, was a matter of dispute in the proceedings. (The evidence of the plaintiff in regard to the work performed by the defendant upon the property, and the intentions of the defendant concerning improvements to the property, as well as statements attributed to the defendant concerning the respective activities of the parties relating to housekeeping matters were supported by the evidence of Rhonda Olive Sharkey, an acquaintance of the parties; I regarded Mrs Sharkey as a witness of truth whose evidence I entirely accept.) It is apparent, however, that the defendant performed a considerable amount of work of a botanical and horticultural nature towards the beautification of the grounds of the Belrose property. Further, she expended an amount which, according to her, was $22,000 (or possibly about $17,000), but, according to the plaintiff, was $12,000 (or possibly, $15,000) upon the kitchen. The fact that the plaintiff might not have considered that the kitchen required such renovation I do not consider to be of significance, or to diminish the financial contribution made by the defendant in that regard. 20    Throughout the period of the relationship the plaintiff also personally performed work which had the effect of improving and enhancing the property. That work included the construction of the vehicle garage, and work upon the bathroom. 21    There was filed on behalf of the plaintiff an affidavit of Mark O’Neill, a registered valuer, annexing a valuation of the Belrose property. That valuation (the amounts in which were not disputed by the defendant) discloses that at the commencement of the de facto relationship in July 1994 the Belrose property had a value of $280,000, and at the termination of the relationship in 1998 it had a valuation of $400,000. Part at least of that increased value reflects improvements which had been effected to the property by each of the parties, including the renovations to the kitchen, and the construction of the double garage. 22    It is appropriate here to record that there was also filed an affidavit of Victor John Lupton, a registered valuer, sworn 18 April 2000, which annexes a copy of Mr Lupton’s valuation of the Belrose property. However, that valuation is a valuation of the property at the present time, and thus is not relevant to the matters which must be decided in the present proceedings. 23    It was the practice for the two daughters of the plaintiff (who, apparently, were essentially residing with their mother, the plaintiff’s former wife) to spend each alternate weekend with their father at the Belrose property, and that practice continued throughout the period of the relationship. On about four occasions during the period of the relationship the plaintiff’s mother also stayed at the Belrose property, for periods of up to seven or eight days. 24    It was suggested that on behalf of the defendant that during the alternating weekends when the plaintiff’s daughters were in residence at the Belrose property and during the occasions of the four visits by the plaintiff’s mother the defendant had responsibilities of a parental and familial nature towards those persons. The extent of any such responsibilities and the extent of the domestic duties performed by the defendant during the periods whilst the plaintiff’s daughters and the plaintiff’s mother were in residence was a matter of dispute between the parties. 25    I have already recorded that the plaintiff was in full-time employment throughout the entirety of the de facto relationship, whilst the defendant, although in receipt of income, was not in employment throughout any part of the relationship. 26    The plaintiff paid the substantial part of all expenses relating to the outgoings of the household, and paid all expenses relating to the house property itself. The defendant initially contributed an amount of $50 a week towards household expenses, and the plaintiff paid the balance of all those expenses. 27    The defendant’s contribution of $50 a week was subsequently reduced, both in consequence of the interest owed by the plaintiff to the defendant upon the loan of $80,000, after that loan was made by the defendant to the plaintiff at the end of October 1995; and also in consequence of an incident which occurred in 1996. It would appear that in that year the parties were on a motoring expedition. According to the defendant, two valuable finger rings (which, according to her, were at that time located in her handbag) were stolen from the plaintiff’s motor vehicle during a period whilst it would appear that the plaintiff had left that vehicle unlocked. The plaintiff offered to contribute to the defendant an amount of $25 a week towards the replacement cost of the rings (which apparently were not insured at the time). Those payments of $25 a week continued for more than two years (the plaintiff said 132 weeks, whilst the defendant said 105 weeks). 28    During the period of the payments in respect to the missing rings the plaintiff increased his weekly payments to the defendant from $85 a week (representing the interest on the $80,000 loan) to $110 a week. 29    Throughout the period of the de facto relationship it appeared that the defendant performed the substantial part of the culinary activities for the household. A letter from the plaintiff to the defendant dated 15 December 1997 (Exhibit 6) speaks in complimentary terms of the defendant’s competence in that field (“You are a great cook ---- I really appreciate your cooking efforts”). That letter similarly compliments the plaintiff concerning her gardening abilities (“You certainly have a green thumb. I am very proud of the garden you have created”). 30    Throughout the relationship the plaintiff was provided with the use of a motor vehicle by his employers. As has already been recorded, in June 1995 he purchased a Ford Fairmont motor vehicle, for an amount of $10,750. That vehicle was essentially used by the defendant for her personal activities, and also for the performance by her of her household responsibilities, and at times, for transporting the children of the plaintiff. She retained the use of that vehicle until she left the Belrose property in February 1999. 31    I have already observed that throughout the period of the relationship the defendant traded in shares. Despite requests in that regard by the solicitors for the plaintiff, such requests made at least as early as 22 September 1999 (Exhibit G), it was not until her affidavit sworn on 3 May 2000 (that being the last day of the three day hearing of the proceedings) was filed on that day, that the defendant provided details of her shareholdings at the termination of the relationship. 32    As already recorded, at the commencement of the relationship the shareholdings of the defendant amounted in value to $79,000. By the termination of the relationship her shareholdings amounted to no less than $322,629. It is quite apparent from those figures that, even taking into account the sale by her of the Mount Nebo property for $210,000 (of which $80,000 was thereupon lent to the plaintiff), the defendant was able during the course of her de facto relationship with the plaintiff to increase substantially her portfolio of shares. That she was able to do so can largely be explained that by the fact that throughout the relationship not only was the plaintiff the chief breadwinner for the family unit, but he also throughout bore the major responsibility for payment of all outgoings and expenses for the household and for the house property. 33    Evidence was given concerning an incident in which the plaintiff had in December 1996 provided the defendant with a signed cheque in her favour, the amount being left in blank, but the cheque being clearly intended by both parties to be used for the payment for a desk costing up to $200. In the event, the desk was not purchased. Subsequently, more than two years later, in March 1999, the defendant, without the knowledge or the authority of the plaintiff, altered the date upon that cheque (from 1996 to 1998) inserted an amount of $3,650, and deposited the cheque in her own bank account. 34    Further, immediately upon her leaving the Belrose property, that departure occurring in early February 1999, some ten months after the de facto relationship had terminated, the defendant, without the authority of the plaintiff, withdrew from a join credit card facility of herself and the plaintiff amounts totalling about $24,000. 35    Neither of the foregoing incidents reflected well upon the financial honesty of the defendant. Each reflected poorly upon her credit as a witness. 36    Further, I did not consider the defendant to be as reliable a witness as the plaintiff. For example, I regarded the evidence of the defendant concerning her share portfolio, and the value of her shareholdings at the conclusion of the relationship as being unsatisfactory. I have already recorded that the defendant adduced evidence in that regard only on the last day of the three day hearing, and, as it appeared, with considerable reluctance. 37    To the extent that it is necessary for me to do so, I express the view that where the evidence of the plaintiff and of the defendant are in conflict, and where there is no independent evidence (be it from another witness, for example, from Mrs Sharkey, or by way of documentary evidence) to support the uncorroborated evidence of either party, I prefer the evidence of the plaintiff to that of the defendant. 38    On the final day of the hearing each party tendered a minute setting forth the relief which ultimately was being sought by that party. Further, the parties by the conclusion of the hearing had reached agreement concerning the nature of certain relief which (in any event, and irrespective of any other relief which the Court might ultimately be disposed to grant to one or other of the parties) should be made in relation to the amount of the outstanding indebtedness of the plaintiff to the defendant in respect of the $80,000 loan, and in relation to the reduction of the amount of that indebtedness consequent upon the presentation of the cheque to which I have already referred and the withdrawal from the joint credit card facility. (The form of that consent order (dated 3 May 2000, signed by the plaintiff and the defendant and by their respective solicitors), together with the documents headed respectively Orders Sought by Defendant/Cross-claimant and Minute of Orders, filed for: Duncan Camerson, was admitted into evidence as Exhibit F.) 39    Each party seeks an order that the defendant transfer to the plaintiff her interest in the Belrose property. However, the plaintiff seeks an order that that transfer should essentially be in return for the payment by the plaintiff of the amount of the outstanding indebtedness of the plaintiff to the defendant in respect to the loan, with such amount being offset in consequence of any claim which the plaintiff might otherwise have had in relation to the unauthorised use by the defendant of the plaintiff’s credit card facilities. That amount is agreed by the parties (in the document to which I have already referred as forming part of Exhibit F) as constituting an amount of $50,833.79. As I understand it, therefore, the plaintiff asserts that that should be the only amount which he should be liable to pay to the defendant. 40    The defendant, however, submitted that in return for her transferring to the plaintiff her interest in the Belrose property, she should receive from the plaintiff the sum of $100,000, in addition to an amount of $80,000, described as “being the sum due under a loan from the defendant to the plaintiff”. 41    It should not be overlooked that the Belrose property was owned by the plaintiff before the commencement of the de facto relationship. The defendant had the benefit of residing in that property throughout the period of the relationship. There is no doubt that the defendant made significant contributions of a direct financial nature towards the enhancement of that property (at least $15,000 towards the kitchen), and that she made direct non-financial contributions towards the enhancement and beautification of the gardens of the property. Further, she made non-financial contributions as homemaker (and, to a more limited extent, as parent to the plaintiff’s children), and she contributed to the relationship her companionship and her status as the de facto partner of the plaintiff. 42    It must, however, be recognised that the relationship was a relatively short one, obtaining over a period of period of three years and nine months. Throughout that period the defendant had the benefit of residing in the Belrose property, and making a financial contribution to the household expenses which was significantly less than the rent of $200 a week which she had been paying for accommodation before she moved into the Belrose property (and in which rented accommodation she doubtless also would have paid all household outgoings) 43    The plaintiff was the principal breadwinner throughout the period of the relationship. Further, it must not be overlooked that it was his home into which the defendant came, and it is that home of which he must now buy back the interest which in September 1996 he transferred to the defendant. 44    I have reached the conclusion that, in all the circumstances (and conformably with the principles enunciated by the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70, in particular, the joint judgment of Gleeson CJ and McLelland CJ in Eq), it is appropriate that, in addition to the amount which the plaintiff under the consent orders has agreed to pay to the plaintiff (being the amount of $50,833.79), the plaintiff should also pay to the defendant an additional amount of $50,000, upon the payment of which latter sum the defendant must transfer to the plaintiff her interest in the Belrose property. That is, the plaintiff will ultimately pay to the defendant a total amount of $100,833.79. 45 I have not heard any submissions concerning costs. Although the defendant will ultimately receive an amount greater than that conceded by the plaintiff in his statement of claim (by which pleading the plaintiff sought that defendant should transfer to him her interest in the property in return for the sum of $95,000), it is an amount significantly less than that originally claimed by the defendant in her cross-claim ($220,000). Further, the amount which the defendant will receive is only about $6,000 greater than that which the plaintiff by his statement of claim acknowledged that he was liable to pay to the defendant ($95,000). In those circumstances, it seems to me appropriate that I should make no order as to costs, to the intent that each party should bear his or her own costs of the proceedings. Should either party desire to make any application as to costs, that party will be given an opportunity to do so. 46 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 make an order as in paragraph 1 in the document entitled Order by Consent dated 3 May 2000, signed by the plaintiff and the defendant and by their respective solicitors, initialled by me and filed in Court this day.

2. I note the notation upon the foregoing document.

3. I order that the defendant within 14 days of the date hereof transfer to the plaintiff her interest in the property situate at and known as 8 Knightsbridge Avenue, Belrose, such transfer to take place upon the payment by the plaintiff to the defendant of the amount referred to in order 1 hereof, together with the payment by the plaintiff to the defendant of an additional amount of $50,000.

4. I reserve to the parties liberty to apply, for the purpose of giving effect to order 3 hereof.

5. I make no order as to costs, to the intent that each party will bear his or her own costs of the proceedings.

6. The exhibits (other than the foregoing Order by Consent, which is part of Exhibit F) may be returned.

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Last Modified: 09/26/2000