Carnevale v Dimos

[2006] NSWSC 1134

CITATION:	Carnovale v Dimos [2006] NSWSC 1134 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20, 21, 22 and 23 February, 26, 27, 28 and 29 June 2006
JUDGMENT DATE :	30 October 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes of order and, if desired, for argument as to costs.
CATCHWORDS:	Family Law. De facto relationship. Adjustment of interests of parties in property. Commencement of de facto relationship. Respective contributions of parties. De facto relationship was of short duration.
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Domenic Luciano Carnovale (Plaintiff) Effie Julia Dimos (Defendant)
FILE NUMBER(S):	SC 2992 of 2003
COUNSEL:	Mr. T. Hodgson / Mr. D. Barry (Plaintiff) Mr. G. Thomas (Defendant)
SOLICITORS:	Egisto Solicitors (Plaintiff) A. Luong & Associates (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 30 October 2006

2992 of 2003 DOMENIC LUCIANO CARNOVALE –v- EFFIE JULIA DIMOS

JUDGMENT

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

2 The proceedings were instituted by statement of claim filed on 27 May 2003 by the Plaintiff Domenic Luciano Carnovale, by which he claims adjustment of the interests of the parties in property, pursuant to section 20 of the foregoing Act, together with other and consequential relief.

3 The Defendant filed a defence and a cross-claim, and subsequently an amended defence and cross-claim on 6 April 2005, and, later still, a further amended defence on 26 June 2006. By her cross-claim the Defendant also seeks relief under section 20 of the Act.

4 It was not in dispute that the parties were in a de facto relationship for several years, until October 2002, although the parties were not in agreement as to when that relationship commenced. The Plaintiff in his statement of claim originally said that it was in 1998, and that the relationship obtained for four years. However, at the commencement of the hearing leave was granted to the Plaintiff to amend paragraph 12 of that pleading by substituting the year 1999 and to amend prayer 1 by substituting a period of three years.

5 It was the case for the Defendant that the parties lived in a de facto relationship from about February 1997 until October 2002.

6 The Plaintiff, who was born on 3 June 1972, is now aged 34. The Defendant, who was born on 11 May 1967, is now aged 39. No children were born of the relationship between Plaintiff and the Defendant. The Plaintiff has never been married. However, the Defendant had previously been married, to Peter Dimos in 1984. Two children were born of that marriage, being Matthew William Dimos, who is now aged 20; and Pamela Paris Dimos, who is now aged 15.

7 At the time when she met the Plaintiff the Defendant was residing with her two children in what had been her former matrimonial home. The Defendant’s former husband, Peter Dimos, with whom the Defendant says said she retained an amicable relationship, was also in residence with the Defendant and their children. Peter Dimos and the Defendant separated in 1996, and subsequently divorced, the decree becoming absolute in July 1999. Neither then nor subsequently were any orders made for settlement of property between the Defendant and Mr. Dimos. At the time when they separated the Defendant and Mr. Dimos were the owners of commercial premises at Revesby. Mr. Dimos at that time conducted a business, Sydney Master Painters and Decorators, which he still operates. During the period of their separation and since their subsequent divorce, to the present time, Mr. Dimos has made generous financial provision for the Defendant and their children, although there is no formal agreement or order in that regard.

8 The Plaintiff and the Defendant met in late 1996. However, the circumstances in which they met were in dispute between the parties, the Plaintiff asserting that they met personally, whilst the Defendant asserted that they met through the medium of an internet dating service. The Plaintiff was at that time residing with his parents at their family home at 82 Edenholme Road, Five Dock.

9 Shortly after they met the Plaintiff and the Defendant entered into a sexual relationship. In early 1997 the Defendant and her two children moved into rented accommodation at 46 Abbotsford Parade, Abbotsford. Subsequently, in October 1998, she and her children entered into residence with the Plaintiff in rented accommodation situate at and known as 26/7 Figtree Avenue, Abbotsford Cove. Until that time the relationship between the Plaintiff and the Defendant appears to have been largely, if not exclusively, of a sexual nature. Their activities in that regard were chiefly conducted in the Defendant’s former matrimonial home, after the departure therefrom of the Defendant’s former husband. Until that time the parties conducted their activities in various places and locations to which they resorted for such purposes. For the first few months of the Defendant’s residence at Abbotsford Parade the sexual activities between the Plaintiff and the Defendant were carried out in secret, hidden from the knowledge of the Defendant’s children (who in late 1996 were aged about eleven and about five), and the Plaintiff’s nightly presence in the house was deliberately kept unknown from them.

10 It was not until April 1997 that the Plaintiff was introduced to the Defendant’s children. It would appear that from that time onwards no attempt was made by the parties to keep secret the nature of the relationship between them.

11 At the time when they commenced their sexual relationship in late 1996 the Plaintiff was unemployed. He was residing with and was supported by his parents; he was not paying any rent or board to them. The Plaintiff at that time was the registered proprietor of a property situate at and known as 68 Toowoon Bay Road near Long Jetty (“the Toowoon Bay property”), which had been acquired by him in 1993. That property, which was unencumbered, had been purchased by the Plaintiff for the sum of $192,500, with an amount of $200,000 advanced to him by his parents for that purpose. The only other significant asset of the Plaintiff at the commencement of the relationship was a motor vehicle.

12 On 3 October 1997 the Plaintiff purchased for $160,000 the franchise business Michel’s Patisserie at Lane Cove Plaza. That purchase, which was effected through the vehicle of Carnovale Enterprises Pty Limited, was funded by a borrowing of $150,000 from Westpac, which borrowing was secured by a mortgage over the Toowoon Bay property. On 1 December 1998 the Plaintiff refinanced that loan with the National Australia Bank.

13 The business Michel’s Patisserie at Lane Cove was acquired by the Defendant as franchisee under a franchise agreement with the owner of various businesses, each known as Michel’s Patisserie. The Plaintiff acquired that franchise through the vehicle of his company, Carnovale Enterprises Pty Limited. The Plaintiff and his sister were the sole directors and the sole shareholders of that company. The Defendant at no time was a director or a shareholder of that company. The business commenced operation in August 1997. When the Plaintiff’s sister ceased to be involved in the business some six months later, the Defendant did not acquire her shares or become a director of the Plaintiff’s company.

14 In August 1998 a company, DAG Investments Pty Limited (“DAG”) was incorporated, of which the Plaintiff owned one half of the shareholding, the other half being owned by his sister Julie Tampion and his brother-in-law Alan Tampion. The directors were the Plaintiff and Mr. Tampion. In April 1999 DAG set up business at Birkenhead Point, as franchisee of Michel’s Patisserie at that location. That business was funded by an advance of $100,000 from the National Australia Bank, secured by a floating charge. DAG sold the business in 2001 for $220,000, the proceeds being distributed as to $100,000 to the National Australia Bank, and the balance between Mr and Mrs Tampion. The Plaintiff (who was what might be described as a silent partner in that enterprise) did not receive any of the proceeds of that sale.

15 The Plaintiff during the course of the relationship acquired a share portfolio, administered by T. D. Waterhouse Investor Services in two accounts, each owned by the Plaintiff through the vehicle of his company Carnovale Enterprises Pty Limited. The value of that portfolio, according to accounts from T. D. Waterhouse Investor Services, placed in evidence on behalf of the Plaintiff, varied between $27,415 in July 2001 and $26,475 in June 2003.

16 At the time when they first met and entered into a physical relationship the Defendant also was not in employment. Her only assets consisted of a BMW motor car (said to have been worth about $30,000), as well as furniture and personal effects. In 1997 the Defendant established herself as an interior designer at Five Dock, contracting out her services as such. According to the Defendant, her BMW motor car was worth about $30,000. However, that vehicle was subsequently involved in a motor accident, and the Defendant received an insurance payout of $20,000, which she said she used towards family expenses.

17 It emerged under cross-examination of the Defendant that she had entered into an agreement with her former husband that he would pay to her an amount of $300,000 at some future time. Between 1999 and 2002 Mr Dimos had paid to the Defendant a total amount of $54,000 in partial satisfaction of that agreement. The existence of that agreement was not entirely consistent with what was stated by the Defendant in her affidavit of 30 March 2005, where she said (paragraph 4) that with Mr. Dimos she has “had an amicable relationship since our separation and have received $2,000 a week from him by way of an informal agreement in relationship to my entitlements of spouse maintenance, child support and property settlement”. In addition to her entitlement under that agreement, it was the Defendant’s evidence that she was receiving from Mr. Dimos $2,000 a week (or a total of $104,000 a year). That evidence was supported by Mr. Dimos. The Defendant’s income tax returns for 2000 and 2001 (Exhibit H) disclose that she received amounts of $108,175 and $112,125 respectively, each of those amounts being paid to her by Sydney Master Painters and Decorators.

18 During the course of their relationship there was no intermingling of the finances of the Plaintiff and the Defendant. However, in August 2002 (only about two months before the separation of the parties and the termination of the relationship in October of that year) the Plaintiff and the Defendant conjointly purchased, as tenants in common in equal shares, a house property situate at and known as 7 The Parade, Drummoyne (“the Drummoyne property”). The purchase price of that property was $695,000, which was funded by a loan of $911,000 from Permanent Custodian Limited (trading as Wizard), in the joint names of the Plaintiff and the Defendant, secured by mortgages over the Drummoyne property, the Toowoon Bay property and the Plaintiff’s franchise business at Lane Cove. The amount of that loan was disbursed as follows:

Drummoyne property
(including $695,000 purchase price) $725,000

Refinance lease for BMW motor vehicle

AHY.40F $79,000

Payout NAB mortgage
over Michel’s Patisserie at Lane Cove $104,300

Miscellaneous $2,700

Total borrowed $911,000

19 According to the Plaintiff, each of himself and the Defendant paid one half ($17,500) of the reduced deposit of $35,000 on the purchase of the Drummoyne property.

20 From the time when he met the Defendant until October 1997, when he acquired Michel’s Patisserie at Lane Cove, the Plaintiff was unemployed, and received a very small amount of money by way of unemployment benefits. According to the Defendant, the Plaintiff was otherwise dependent upon her. To that time the parties were, for practical purposes, reliant upon the Defendant’s ex-husband, whose payments to the Defendant met the rent for the Abbotsford premises, and also provided money for groceries, school fees, and various household utilities and expenses.

21 During the period of the relationship the Plaintiff also owned a sandwich shop business at Lane Cove called Lettuce Tempt You (also referred to in the evidence as Let Us Tempt You), which was established in 1999. According to the Plaintiff that business was unsuccessful and he sold it within a few months of its establishment. The Plaintiff said that his set-up costs exceeded what he recovered from its sale. The Defendant originally asserted that she had been closely involved in the establishment of that business in 1999, then working in the shop, attending to its finances, maintaining its equipment, and ultimately negotiating its sale.

22 According to the Defendant, after the purchase by the Plaintiff of Michel’s Patisserie at Lane Cove the Defendant ceased work as an interior designer, and worked in the Plaintiff’s business for 18 months without receiving any wages or other remuneration. It was her evidence that for three days a week she worked twelve hours a day and for the other four days a week she worked eight hours a day.

23 The Plaintiff disputed the foregoing periods during which the Defendant asserted she was in attendance at the Lane Cove business. Further, it was the Plaintiff’s evidence that, even during the periods whilst the Defendant was in attendance, her contributions towards the activities of the business were minimal, or were even counter-productive.

24 It was the evidence of the Defendant that, at the same time as she was participating in the business of Michel’s Patisserie and in the business of Lettuce Tempt You, she decided to work as a designer for display apartments, and in particular, for Meriton Apartments, and for that purpose formed a company, Integrated Consultants Pty Limited. That company effectively provided services to Meriton Apartments in charging out the Defendant’s work as a designer, which was performed on a contract basis. Subsequently, in 2001, the Defendant ceased trading through the vehicle of Integrated Consultants Pty Limited and thereafter worked on her own account as a sole trader, dealing with Meriton on an as-needs basis, although she said that such work was fairly rare.

25 At the termination of the de facto relationship the assets of the Plaintiff consisted of the Toowoon Bay property (having an estimated value of $420,000), his share portfolio (which the Plaintiff estimates has a present value of almost $42,000), the interest of the Plaintiff in the Drummoyne property, (which property has an estimated value of $695,000), and the business known as Michel’s Patisserie at Lane Cove (in respect of which the parties agree that its liabilities exceed its assets by $20,000). The Plaintiff also had two bank accounts, holding a total of about $6,000.

26 In 1999 a BMW motor car was acquired for $107,000, under a leasing arrangement. The acquisition of that vehicle (which was registered in the name of the Plaintiff alone) was effected on the Plaintiff’s credit card account, in respect to which the Plaintiff was paying $400 a week. It was the Plaintiff’s evidence that that motor vehicle was purchased essentially for the use of the Defendant, and that she used the vehicle every day, whilst the Plaintiff himself drove it only on Sundays. According to the Plaintiff it was subsequently agreed between the parties, sometime in the first half of 2000, that the Plaintiff would continue making payments on that motor vehicle, by way of offsetting the Defendant’s expenditure towards the outgoings of the household. According to the Plaintiff, he made repayments on that vehicle totalling $36,000 between April 2000 and September 2002. After the refinance of that vehicle by Wizard in October 2002 the loan repayments were made equally by the Plaintiff and the Defendant. The Defendant now claims a beneficial interest in that motor vehicle.

27 The Plaintiff said that throughout the period of the relationship he paid for all entertainments enjoyed by the parties and for all restaurant meals of which they partook, as well as for holidays in which he and the Defendant participated.

28 It was part of the case for the Plaintiff that the advance of $200,000 made to him by his parents in 1992 constituted a loan, which was still owing to them by the Plaintiff at the time of the termination of the relationship between himself and the Defendant.

29 At the time of the termination of the relationship the assets of the Defendant consisted of:

Interest in the Drummoyne property
Shares in Integrated Design Consultants Pty Limited, to which the Defendant ascribes a negligible value

Interest in BMW motor car

Furniture, to which Defendant ascribes a value of about $10,000.

30 At the time of the termination of the de facto relationship in October 2002 the Defendant remained in residence in the Drummoyne property, and she continues to remain there to the present time. The Plaintiff, although having a one half interest therein, and having charged his own independent assets as security for the mortgage over that property, has been deprived of any practical benefit in respect to that property for the past four years. In consequence of consent orders made on 3 July 2003 the Plaintiff pays $713 a week and the Defendant pays $600 a week towards the loan from Wizard.

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 from Counsel for the Plaintiff, together with a chronology from Counsel for each party. Those documents will be retained in the Court file.

33 At the outset it is appropriate that I should make a finding as to the duration of the de facto relationship between the parties. There was agreement between the parties that the relationship came to an end in October 2002. I have already observed that by his statement of claim, pursuant to the amendment effected at the commencement of the hearing, it was the case for the Plaintiff that the relationship commenced in October 1999. However, that date was grounded upon the date when, according to the Plaintiff, the parties commenced to reside in the Abbotsford Cove residence. During the course of the hearing a residential tenancy agreement in respect to that residence was placed in evidence (Exhibit 1), that document making it clear that the parties entered into occupation of that residence in October 1998. The Defendant was the tenant named in that agreement. It was she who was responsible for the payment of the rent for the Abbotsford Cove residence (as she had been for the rent of the Abbotsford Parade premises).

34 Section 4(1) of the Property (Relationships) Act defines a de facto relationship as being

a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

35 That section then provides,

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,


(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

36 Until they entered into residence in the Abbotsford Cove premises in October 1998 the Plaintiff was not residing with the Defendant, but was residing with his parents. He was in the habit of resorting to the Defendant for purposes of carnal activity, at the outset in a variety of locations, then, after the Defendant removed to 46 Abbotsford Parade, Abbotsford, in a clandestine fashion on a nocturnal basis at that address. Until October 1998 there was no degree of financial dependence or interdependence between the parties; they had no common ownership of property; and little mutual commitment to a shared life. The Plaintiff made no financial contributions towards the rent of the Abbotsford Parade residence (which was paid by the Defendant) or to any household outgoings. All household duties in the Abbotsford Parade premises were performed by the Defendant, who had (with her former husband) the exclusive care and support of her children. At no time, either before or after October 1998, did those children regard the Plaintiff in the character of a father figure.

37 However, from the time they entered into occupation of the Abbotsford Cove premises the nature of the relationship between the parties altered. The Plaintiff was residing with the Defendant on a full-time basis. (The Defendant was continuing to pay the rent of their accommodation.) Their relationship had ceased to be purely, or primarily, a sexual one. Their social occasions thereafter included members of their respective families.

38 I am satisfied that the de facto relationship between the parties commenced only when they entered into residence in rented accommodation at 26/7 Figtree Avenue, Abbotsford Cove, and that was in October 1998. In consequence, therefore, the de facto relationship obtained for a period of just four years until October 2002. It was a short relationship. (I would, in any event, observe that, even if, contrary to my foregoing conclusion, the assertion of the Defendant were accepted, that the parties entered into a de facto relationship in early 1997, the relationship would then have obtained for no more than five and half years, and still could not be regarded as being a relationship of any significant duration).

39 Before the Court is enabled to exercise the judicial discretion vested in it by section 20 of the Property (Relationships) Act, it is necessary for the Court to make findings concerning the respective contributions of the parties of the nature set forth in subsection (1) of that section. That subsection provides,

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.

40 The phrase “domestic relationship” is, by section 5(1) of the Act, defined to include a de facto relationship.

41 In the course of his address Counsel for the Plaintiff conceded that it was very difficult to determine the extent of the financial contributions of the parties. That determination to an extent requires a consideration of the reliance to be placed upon the evidence of each of the parties, since in many instances the only evidence concerning such contributions consisted of an oral assertion by one party and a denial by the other party, with no documentary material or independent evidence supporting either the assertion or the denial.

42 I have already referred to the fact that an element in the financial situation of the Defendant was the agreement between herself and her former husband that he would pay to her the sum of $300,000, and that he had during the course of the relationship paid to her amounts totalling $54,000 in partial satisfaction of that agreement. The failure of the Defendant to refer to the existence of that agreement in her affidavit evidence, and the fact that its existence and the details thereof emerged only under cross-examination reflects poorly upon the credit of the Defendant.

43 I did not regard either of the parties as being a particularly reliable witness, although, on balance, I preferred the evidence of the Plaintiff to that of the Defendant. A number of inconsistencies in the Defendant’s evidence were attributed by her to her solicitors. Putting the blame on them did not reflect well upon the Defendant.

44 A great deal of evidence was directed to the respective contributions of the parties to the various business enterprises of the parties, being Michel’s Patisserie at Lane Cove and Lettuce Tempt You, and to the respective contributions of the parties as homemaker, throughout the course of the relationship. I have already observed that the Defendant made no financial contributions to any of the business enterprises conducted by the Plaintiff during the course of their de facto relationship. The totality of those financial contributions came from the Plaintiff (either directly, or in consequence of advances to him from banks or other lending institutions). The contributions which the Defendant asserted she made to those business activities were in the nature of personal services which she said she performed without remuneration, and which benefited the Plaintiff in those business activities. The Plaintiff denied the extent of the personal services asserted by the Defendant, and said that, in any event, the involvement by the Defendant in those business activities, far from benefiting and advancing the success of those activities, had a negative and deleterious effect upon the success of those businesses.

45 It is unnecessary for me to deal with each assertion and counter-assertion of the parties in respect to those contributions. In approaching a claim for the adjustment of interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act, the Court should 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 and expensive of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688.)

46 In the instant case, suffice it to say that I am satisfied that the contributions of the Defendant in the business activities of Michel’s Patisserie and Lettuce Tempt You were far less than asserted by her in her cross-claims and in her various affidavits and that the Plaintiff was the principal business participant in those ventures. Indeed, it was ultimately conceded by the Defendant that the time devoted by her to Lettuce Tempt You was minimal, and that she was working full time at Mervac Apartments throughout the relevant period.

47 However, I am satisfied that the contributions of the Defendant as homemaker far exceeded those of the Plaintiff. Further, it was not suggested by the Plaintiff that he in any way fulfilled the role of parent to the Defendant’s two children, that role being fulfilled by the Defendant herself and also by her former husband. I should also here observe that during the period of their relationship (and even before they commenced to live together in the Abbotsford Cove premises) the Defendant manifested a considerable degree of generosity towards the Plaintiff, purchasing for him at various times a number of costly gifts, including jewellery, an expensive fountain pen and even an excursion to Adelaide. The Defendant said that in 2000 and 2001 she made cash advances to the Plaintiff in amounts totalling almost $20,000. Although she said that those moneys had never been repaid to her, it is far from clear from the evidence that at the time when they were made the parties treated those advances as being in the nature of loans.

48 Although at the hearing it was the assertion of the Plaintiff that Michel’s Patisserie is presently worth nothing, the Plaintiff, however, was not prepared to transfer that business to the Defendant. He said that it provided an income for him. It was the Plaintiff’s evidence that the turnover of that business was about $10,000 a week. He also said that the turnover of the business Let Us Tempt You had been in the range of about $3,500 to $4,000 a week.

49 Despite the foregoing assertion of the Plaintiff that Michel’s Patisserie Lane Cove is worth nothing, nevertheless the company statements produced at the hearing disclosed that in 2000 the net profit of the business was almost $90,000, and that additionally the Plaintiff received a director’s fee of $82,000, the total net profit of the business thus being about $172,000. Further, in the following year, 2001, the net profit of the business was $109,000, whilst additionally the Plaintiff received by way of director’s fee $85,000, the total net profit thus being $194,000.

50 I have already observed that it was the Plaintiff’s evidence that the Toowoon Bay property had been purchased with an advance from his parents of $200,000 which was in the nature of a loan. The Plaintiff flatly denied that such advance constituted a gift. Nevertheless, in his application to Wizard for the consolidated loan to which I have already referred the Plaintiff did not disclose this alleged loan from his parents.

51 The Toowoon Bay property has been rented out since 1993. For several years, from 1993 to 1996, the Plaintiff and his family, and also, subsequently, the Plaintiff and the Defendant, availed themselves of a caravan upon that property, in which to reside on holiday.

52 It was part of the case for the Plaintiff that at the termination of the relationship in October 2002 the Defendant had unlawfully retained a number of chattels belonging to the Plaintiff, being a fan, a playstation, and a Mont Blanc fountain pen. Those chattels were at the hearing produced to the Plaintiff, and were made available to him.

53 Regarding the characterisation of the monetary advance by the Plaintiff’s parents for the purchase of the Toowoon Bay property, evidence was presented from Donato Carnovale and Lucrezia Carnovale, the parents of the Plaintiff (Exhibit 10, tendered on behalf of the Defendant). In his oral evidence Mr. Carnovale said that he had made no claim for repayment of what he described as a loan to the Plaintiff, and that no repayment of that loan had been made to him. He referred to a written agreement which he said had been created at a later time in order to evidence that loan. That written agreement was not made available in evidence, Mr Donato Carnovale saying, in explanation for its absence, that his solicitor, Mr Calvitto, must have that document.

54 However, it emerged from the cross-examination of Mr Carnovale, that what he described as the written loan agreement (which he said had been prepared by his solicitor, Mr Les Calvitto, of Egisto & Romano, and which he had signed at the offices of that firm a couple of years previously, and of which he had a copy at home) was not, in fact, a loan agreement, but rather the affidavit which Mr Donato Carnovale had himself sworn in the course of the present proceedings.

55 Mr Carnovale, who is presently aged 73, his wife, Lucrezia, being aged 68 (and both being in receipt of pensions), asserted that the advance to the Plaintiff was a loan and not a gift. He said that he had inspected the Long Jetty property in 1993 before it was purchased by the Plaintiff.

56 It was also the evidence of Mr Carnovale that his daughter had received from him an equivalent benefit in about 1993, each of his two children receiving about $200,000.

57 Under cross-examination Mr Carnovale said that when he sold his residence at Five Dock in 1993 he had told Mr Egisto that he was proposing to give the proceeds of that sale to the Plaintiff. Further, that he had told Mr Egisto about two years ago that he “did not trust his son”.

58 Mr Carnovale said that he knew that the Toowoon Bay property had been used by the Plaintiff as a security in order to obtain a mortgage for the purchase of the Drummoyne property.

59 The Toowoon Bay property was owned by the Plaintiff for a considerable period before he even met the Defendant, let alone before the commencement of the de facto relationship between the parties. The Defendant made no contribution towards the acquisition, conservation or improvement of that property. That property is, however, part of the security provided for the loan of $911,000 obtained from Wizard. I am satisfied that the Defendant has no claim against the Toowoon Bay property.

60 Evidence was given by John La Mela, a registered valuer, concerning the present value of the Drummoyne property, which he had inspected in March 2005. Mr La Mela made inconsistent statements concerning the present real estate market. He said that the market has probably gone down a little since the time of his inspection, and shortly afterwards he said that the market had improved in the last month. It is difficult to reconcile those apparently inconsistent statements. He also said that settlements had picked up, but that demand was still very low. Mr. La Mela also pointed to various negative aspects regarding the Drummoyne residence, including the fact that a Housing Commission complex is located nearby, only about 70 metres away.

61 In performing his valuation of the Drummoyne property Mr. La Mela did not include a reference to the dimensions or size of the land which constitutes that property. Mr La Mela was also cross-examined concerning comparable properties and asked to make a comparison between such comparable properties and the Drummoyne property.

62 Evidence was also given by a valuer, Nicholas Robert Gaudion, who had prepared a valuation of the property Carnovale Enterprises Pty Limited.

63 It should be observed, however, that the information given to Mr. Gaudion, and upon which he based his report, was inconsistent with information contained in the income tax returns of the company. I have already recorded that the Plaintiff derived an income $82,000 from the company in 2000, and an income of $85,000 from the company in 2001.

64 Indeed the discrepancies between the foregoing figures and those which had been furnished to Mr Gaudion were so great as to suggest that there were two different sets of income tax returns prepared for the Plaintiff for each of the years 2000 and 2001. Mr Gaudion was unable to say which, if either, or those two sets of returns was correct. It emerged that the wages records of the company were not consistent with the Plaintiff’s income tax returns with which Mr Gaudion had been supplied.

65 I am not satisfied that the Defendant has established, as a result of any significant contributions thereto, any interest in the business Michel’s Patisserie at Lane Cove. The Court should recognise that the Plaintiff, through his company Carnovale Pty Limited, is the only beneficial owner of that business. The BMW motor vehicle, although registered in the name of the Plaintiff, was clearly used mainly for the benefit of the Defendant, rather than for the benefit of the Plaintiff. Until the termination of the relationship the Plaintiff paid the totality of the repayments in respect to that motor vehicle. Since the termination of the relationship the parties have been equally liable for those repayments.

66 The relief sought by the Plaintiff in the statement of claim is, essentially, that he be declared the sole owner of the Toowoon Bay property, the Michel’s Patisserie business, his company Carnovale Enterprises Pty Limited, and the portfolio of shares registered in his name. Further, that the Drummoyne property be sold and the balance of the proceeds of sale (after payment of real estate agent and conveyancing costs) be paid to the mortgagee, and that, similarly, the BMW motor car be sold and the proceeds be paid to the mortgagee. Further, that the Plaintiff make provision for the Defendant by entering into a new mortgage in his sole name with the current mortgagee for the balance of the indebtedness remaining after payment to the mortgagee of the net proceeds of sale of the Drummoyne property and the BMW motor car.

67 The relief ultimately sought by the Defendant in her further amended cross-claim filed on 26 June 2006 differed from the foregoing relief sought by the Plaintiff in that the Defendant sought that she be declared the sole owner of each of the two companies in which the Plaintiff was involved, being his own company Carnovale Enterprises Pty Limited and DAG Investments Pty Limited (as well as of the Defendant’s own company, Integrated Design Pty Limited); further, that the Defendant be declared the sole owner of Michel’s Patisserie at Lane Cove and that the Plaintiff transfer to the Defendant ownership of the share portfolio of the Plaintiff (or of any share portfolio held by either Carnovale Enterprises Pty Limited and DAG Investments Pty Limited), and that the Plaintiff account to the Defendant for one half of the sale proceeds of Lettuce Tempt You, for one quarter of the sale proceeds of Michel’s Patisserie at Birkenhead Point, and for one half of the profit from Michel’s Patisserie at Lane Cove from August 1997 to October 2002.

68 I do not see how the Defendant can establish any entitlement to the ownership of either Carnovale Enterprises Pty Limited or DAG Investments Pty Limited (or, more accurately, to the ownership of the shares of the Plaintiff in those companies). Neither do I see how the Defendant can establish an entitlement to the share portfolio of the Plaintiff. She did not assert making any financial contributions in respect to those assets. I have rejected her assertion of non-financial contribution regarding the businesses conducted by the Plaintiff or in which he was involved.

69 For all practical purposes the Defendant during the hearing abandoned any claim in respect to Lettuce Tempt You. The Defendant was not involved in Michel’s Patisserie at Birkenhead Point (which was conducted by DAG Investments Pty Limited). In any event, the Plaintiff himself received no financial benefit from his involvement in DAG.

70 I prefer the evidence of the Plaintiff to that of the Defendant concerning the nature and extent of the personal activities performed by the Defendant in Michel’s Patisserie at Lane Cove. The evidence of Maggie Newport, who had been employed in Michel’s Patisserie at Lane Cove during the period from the time of the acquisition of that business by the Plaintiff until September 2000, supported the evidence of the Plaintiff and contradicted the evidence of the Defendant concerning the nature and extent of the Defendant’s personal services and activities in that business (although I recognise that Miss Newport’s evidence was not without its unsatisfactory aspects).

71 I am not satisfied that the slight contributions by the Defendant to that business would in any way justify the Defendant in receiving one half of the profits of that business “from August 1997 to October 2002”, or for any period.

72 Counsel for the Plaintiff did not dispute that the Drummoyne property will be have to be sold (the present value being estimated at $690,000), and also the BMW motor car must be sold (its present value being estimated at $60,000) in order to meet the mortgage debt, but that there will still be a shortfall. I am in agreement with his submission that this case essentially concerns liabilities, rather than assets.

73 Relief of the nature sought by the Plaintiff would result in the Defendant receiving nothing, although she would be discharged from her liability under the current mortgage. It seems to me, however, that such an outcome would not adequately recognise what I have stated to be, in my conclusion, the significant contributions of the Defendant as a homemaker and parent. The Defendant (albeit funded by her former husband) provided a home for the Plaintiff, whose contributions towards household outgoings in the period from October 1998 to October 2002 were almost non-existent when contrasted with those of the Defendant. Those contributions of the Defendant were substantial. Those contributions and the cash advances make by her to the Plaintiff should be recognised by the payment by the Plaintiff to the Defendant of a sum of money.

74 I consider the appropriate outcome of the present proceedings to be that the foregoing relief sought by the Plaintiff in the statement of claim should be granted, together with a further order that the Plaintiff pay to the Defendant the sum of $60,000.

75 Since the various chattels which the Plaintiff sought should be returned to him have already been made available to him, it is not necessary for the Court to make any order in that regard.

76 It will be appreciated that the foregoing conclusions will result in the Plaintiff obtaining essentially the relief sought in his statement of claim, but will also require him to pay the sum of $60,000 to the Defendant; whilst those conclusions will result in the Defendant receiving considerably less than she has sought in her various cross-claims. In those circumstances I consider it appropriate that there should be no order as costs, to the intent that each party will bear his or her own costs of the proceedings. However, if either party wishes to make an application for costs, that party will have an opportunity to do so.

77 Accordingly, I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes of order and, if desired, for argument as to costs.

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