Cooper v Mulcahy

[2012] NSWSC 373

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cooper v Mulcahy [2012] NSWSC 373
Hearing dates:	4, 5, 6, 8 11, 12 July 2011, 5, 6, 7, 8, 26, 27 September 2011, 30 November, 1, 2 December 2011, 30 January 2012
Decision date:	23 April 2012
Jurisdiction:	Equity Division
Before:	Associate Justice Macready
Decision:	I direct the parties to bring in short minutes
Catchwords:	FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of approximately 15 years - whether it is appropriate to take account of a lottery win in the adjustment process - TORT - assault and battery - cross-claim for assaults by plaintiff - limitation period relating to each assault - some assaults statute barred - whether defendant suffered from a disability - compensatory damages - aggravated and exemplary damages - order made for adjustment
Legislation Cited:	Civil Liability Act 2002 Family Law Act 1975 Limitation Act 1969 Limitation (Amendment) Act 1990 Property (Relationships) Act 1984
Cases Cited:	Baker v Towle [2008] NSWCA 73 Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 Bova v Locke [2005] NSWCA 226 Chanter v Catts 64 NSWLR 366, [2005] NSWCA 411 Doherty v Doherty (1996) FLC 92-652 Dowrick v Sissons (1996) 20 Fam LR 466 Evans v Marmont (1992) 42 NSWLR 70 Howlett v Neilson [2005] NSWCA 149 Jackson v Jackson (NSWSC, 26 March 1999, unreported) Kardos v Sarbutt [2006] NSWCA 11 Kotulski v Attard [1981] 1 NSWLR 115 Manns v Kennedy [2007] NSWCA 217 Marando v Marando (1997) FLC 92-754 Marker v Marker (1998) FamCA 42 Marsh v Marsh (1993) 17 Fam LR 289 New South Wales v Harlum [2007] NSWCA 120 Norbis v Norbis (1985-1986) 161 CLR 513 Olive v Johnstone [2006] NSWCA 21 O'Neill v Foster (2004) 61 NSWLR 499 Saunders v Jackson [2009] NSWCA 192 Senno v Bailey [2011] NSWSC 679 Separovich v Ferrao [2011] NSWCA 180 State of New South Wales v Radford [2010] NSWCA 276 Varmedja v Varmedja [2007] NSWDC 385 Wallace v Stanford (1997) 37 NSWLR 1 Wendt v Wood [2011] NSWSC 781 XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 Zorom Enterprises v Zabow [2007] NSWCA 106)
Texts Cited:	Carolyn Sappideen et al, Fleming's The Law of Torts, 10th ed (2011) Thomson Reuters.
Category:	Principal judgment
Parties:	Robert Bruce Cooper (plaintiff) Barbara Alicja Mulcahy (defendant)
Representation:	Counsel Mr P Maiden SC & Mr J Priestley (plaintiff) Mr MB Williams SC & Mr CK Hickey (defendant) Solicitors Fishburn Watson O.Brien (plaintiff) AR Conolly & Company (defendant)
File Number(s):	2008/280481

Judgment

1. This is the hearing of the plaintiff's claim for an adjustment of the parties' property interests pursuant to the Property (Relationships) Act 1984. The defendant brings a cross claim seeking such an adjustment and also damages, aggravated and exemplary damages in respect of a series of alleged assaults perpetrated on her by the plaintiff.

1. The parties lived in a de facto relationship between about November 1992 until September 2007. There is some difference between the parties about the precise dates. The parties had no children as a result of their relationship but they each had children from children from their marriages before they commenced their relationship. The defendant's children resided with the parties for a short time after the commencement of the relationship.

History of the relationship

1. The plaintiff was born in 1957 and the defendant in 1951.

1. The relationship between the parties commenced when the plaintiff moved into the defendant's home in the Brisbane suburb of Gaythorne. The parties differ as to when this occurred. The plaintiff says that occurred in October 1991 and the defendant suggests that it occurred in November 1992. In the context of this case the difference is not material. However given the plaintiff's difficulty with dates and other evidence I will accept that it commenced in November 1992.

1. At the time of the commencement of the relationship the plaintiff was working for a company roof shield in Brisbane. He was a divorced man with three children who were then living with their mother. At the time of the commencement of the relationship the defendant was unemployed and in receipt of the sole parent pension. She had two children Wade aged 16 and David aged 20. At the time of the commencement of the relationship they were both residing in her mother's house but David moved out shortly after the relationship commenced.

1. In either 1992 or 1993 the plaintiff moved to Melbourne to conduct a roof shield franchise in the city. Initially the defendant did not join him but did so some months later. While in Melbourne the defendant did not work and continued to receive social security benefits. During this period she let out her property, which she owned, at Gaythorne, Brisbane. In 1994 the parties returned to Brisbane and moved into the defendant's home. The plaintiff continued to conduct a roof restoration business in his own name. This business ended when the plaintiff suffered a work injury and went on to sickness benefits.

1. In November 1995 the parties moved to the Sunshine coast for approximately 7 months and the plaintiff was involved in the "Wetcheck" business. In 1996 the parties commenced travelling around Australia, which to one extent or another they did until 2000. This involved the parties selling a range of products at field days and trade shows including welding rods, sunglasses, hats and the like. Both parties participated in the work involved although there are some differences between them as to the extent of each person's involvement.

1. From 2000 the parties in effect became property investors. They spent considerable amounts of time developing properties they purchased during the relationship. Initially in 1999 these were the properties at Coldstream Street, Yamba and at South Bank Road (sometimes also referred to as Serpentine Road) at Harwood in New South Wales. Later in 2003 an adjoining property to this was purchased and the overall parcel of land was developed. Also in 2003 the parties purchased a block of units in South Grafton that was later sold in 2007 for a significant profit. The properties bought and sold by the parties are set out later in this judgment.

1. In 2006 the parties became involved in a telephone business. The parties jointly hold 50% in the company Janmel Pty Ltd, the owner of this business, but it was the plaintiff who was the primary involved party, if not almost exclusively, as between himself and the defendant. This position continued post separation.

1. The date of separation of the parties was September 2007, which is admitted on the pleadings and was the date of physical separation. However there appears to be a period of emotional interaction up until May 2008 and on the plaintiff's version August 2008. Between September 2007 and May 2008 the parties went to Bribie Island together, the plaintiff visited the defendant at Mitchelton, staying overnight and the parties had a holiday in Vanuatu in December 2007.

1. After separation the plaintiff continued to live in the property for some time at South Bank Road and looked after the farm. He no longer lives there.

1. The factors which the Court must consider are set out in Section 20 of the Property Relationship Act 1984 as discussed by Basten JA in Baker v Towle [2008] NSWCA 73,

"[43] It has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilson [2005] NSWCA 149 (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms at [25]:

(1) identification and valuation of the property of the parties;

(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;

(3) determination of what if any order is just and equitable having regard to these contributions.

[44] What questions arise will, of course, depend to some extent on the circumstances of the individual case. For example, in some cases there will be an antecedent question as to whether the applicant is a party to a "domestic relationship" as defined in s 5 of the Act: see, eg, Delany v Burgess [2007] NSWCA 360. Otherwise, each of the three steps referred to above may require some further elucidation.

1. I will first deal with the parties' property at the commencement and conclusion of the relationship.

Property of the parties at the commencement of the relationship

1. The plaintiff's assets consisted of:

• Savings of $6,000
• Vehicle worth $1,000
• Trade debts of $4,000

1. The defendant's property consisted of:

• Her property at Gaythorne estimated to have a value of $150,000
• Her household goods estimated at $15,000
• Bank accounts and cash of $900

1. She had debts of $33,000.

1. Her income consisted of social security benefits of $407 per fortnight and board from her son Wade of $50 per week.

1. In the period from 1998 the parties purchased and sold a number of properties. They are included in the following table:

Property	Date of Purchase	Purchase Price	Date of Sale	Sale Price
Coldstream Street	18.12.98	$95,000.00	01.07.04	$387,500.00
South Bank Road	16.10.99	$70,000.00	Not sold
River Road	2000/2001	$95,000.00	Not sold
Oak Avenue	23.04.03	$63,500.00	19.09.03	$125,000.00
Cane Farm	29.08.03	$320,000.00	20.08.07 (block) 23.10.07 (removal house) Farm - not sold	$33,000.00 $415,000.00
Flaherty Street, South Grafton (units)	03.10.03	$291,000.00	August 2007	$650,000.00
TOTAL	$934,500.00	$2,808,500.00

Property of the parties at the conclusion of the relationship

1. The real estate held at the conclusion of the relationship was the following

• The jointly owned home at South Bank Road
• The jointly owned cane farm at South Bank Road
• 50% interest in River Road which the defendant owned with her son Wade,
• The jointly owned removal house
• The defendant's home at Gaythorne

1. There was personal property that is best dealt with when considering those assets at the hearing. There are bank accounts that can also be conveniently dealt with at that time. The house at South Bank Road was valued at $425,000 at separation and the Cane Farm at $550,000. The evidence did not address the value of the other real estate at the conclusion of the relationship.

1. There were liabilities to the ANZ for a line of credit of $406,855.66, a loan on the farm of $394,803.76 and a half share of the loan on River Road of $65,000. The removal house was sold in October 2007 and the proceeds of $415,000 paid to reduce the line of credit and loan.

Property of the parties at the hearing

1. The defendant sold her home at Gaythorne in January 2008 for $565,000. She kept the net proceeds so it is necessary to determine what is the appropriate add-back to ascertain the property of the parties at the hearing. There should be deducted from the net sale proceeds of $533,000 (which was arrived at by deducting the mortgage of $32,000 from the sale price of $565,000) further amounts to reflect the costs incurred in subdividing that land and fixing up the property to maximise its sale potential. Those costs amount to $43,000, which results in this amount being reduced to $490,000. There were legal fees of $13,552, which relate to the purchase of Mitchelton and they should not be deducted. The defendant also seeks to deduct her living expenses of $69,000 relying on the following passage from Marker v Marker (1998) FamCA 42:

"There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. "

1. There is nothing to suggest that the expenditure was excessive so this allowance should be made. The defendant also suggested that the add back should be reduced to reflect the use to which the property was put in acquiring subsequent properties. That is better taken into account when dealing with the adjustment process. The amount of the add back is $421,000.

1. This sale was part of a rearrangement of her family's properties which, unbeknown to the plaintiff, the defendant commenced prior to separation. In particular the evidence shows that in August 2007, the Gaythorne property was mortgaged to the Bendigo Bank and a substantial portion of the mortgage funds in the sum of approx. $500,000 were made available to the defendant's son, David, who then used those funds to assist in the purchase of another property of his own. This was done by selling the Mitchelton property owned by the defendant's son to the Mulcahy Family Trust in which the defendant maintains an interest along with both her sons. The Mulcahy Family Trust was approved for 2 loan facilities with limits of $560,000 and $80,000 respectively, both secured against the Gaythorne property, held solely in the name of the defendant and the Mitchelton property (to be purchased). The "purchase" monies in the sum of approx. $420,000 were raised by the Mulcahy Family Trust by drawing on the larger of the loan facilities. The recipient of those funds was the vendor of the Mitchelton property, which was the defendant's son, who then used those funds along with a further $80,000 drawn by the Mulcahy Family Trust on the second facility to purchase a further property for him.

1. The facility of $80,000 was repaid to the Bendigo Bank by the defendant's son after settlement of the purchase of his other property. Once the Gaythorne property had been sold in January 2008 some 5 months later, the proceeds of sale were used to pay out the loan facility that had been used primarily for the purchase of Mitchelton and the balance owed on that facility was reduced to $693.18. Subsequently, the defendant and her sons used that loan facility for their personal benefit and it was drawn back down to its maximum limit of $560,000 by April 2010. This included payments totalling more than $200,000 to the defendant's solicitors.

1. In October 2007 the plaintiff transferred $250,000 from the joint CBA account into an account in his own name. The plaintiff gave evidence that he was concerned to protect the property of the parties because he had become aware of new access to Internet banking by the defendant and a significant deposit of $250,000 had disappeared from his Internet banking accounts. In fact it had not disappeared from his accounts. He took steps to transfer that $250,000 into a net saver account in his sole name. He placed a "both to sign order" on the joint Equity Manager account (credit facility) after transferring $50,000 from that account to an account in his sole name. These amounts reflect in his present assets and thus there should n add-back of $300,000 to ascertain the properties of the parties at the date of the hearing. Given the lack of cross-examination of the defendant on this issue it is quite clear that he mislead the defendant by telling her the $250,000 had been put into a joint account when she challenged him on the matter.

1. In submissions the plaintiff suggested that the state of the parties property at hearing was as follows (I have added numbers which relate to the discussion in the following paragraph):

Legal Ownership	Plaintiff's value
Assets
South Bank Road farm (as per agreed value)	Joint	$485,000
South Bank Road house (as per agreed value)	Joint	$448,000
50% interest in 30 River Road (as per agreed value of $265,000)	Defendant with son, Wade	$132,500
Station Ave, Gaythorne - net sale proceeds	Defendant (1)	$487,000
Investment account (CBA)	Joint	Nil
Operating account (ANZ)	Joint (2)	$24,255
Netsaver account (CBA)	Plaintiff (3)	$10,280
Monies owed by Plaintiff to joint funds being repayment of loan to Janmel retained by him	Plaintiff (4)	$Nil
Monies owed by Plaintiff to joint funds having been used by him for his sole benefit	Joint (5)	$4,700
Ford F100 utility (E)	$3,000
1954 Matchless vintage motorbike (E)	$3,000
Old timber-sided trailer (E)	$300
Boat & trailer at 290 South Bank Road	Defendant's son David	-
2004 Saab Sedan (E)	Plaintiff	$10,000
Household contents purchased prior to separation that are in the Plaintiff's possession (E)	Joint	$5,000
Artworks removed from the former home by the Defendant (E)	Joint	$15,000
Honda push mower, Cox ride-on mower, whipper snippers etc removed from the former home by the Defendant (E)	Joint	$3,000
Leftover stock from Ace High Hats (hats) & Techni 2000 (welding rods) - stored at River Road, now in Defendant's possession (E)	Joint (6)	$9,000
Glassware - already distributed between the parties (E)	Joint	$25,000
Farm machinery & equipment (E)	Joint	$20,000
Janmel - 50% (as per agreed value)	Joint	$236,196
Superannuation	Plaintiff	$17,000
Total assets	$1,938,231
Liabilities
ANZ equity manager account	Joint	$145,299
Re 282 SBR	Joint	$347,150
50% share of mortgage on River Road ($130,000)	Joint	$65,000
Total joint liabilities	$557,449
Net joint assets	$1,380,782

1. The defendant's position throws up the following differences between the parties.

(1)   The add back for Gaythorne which I determine at $421,000.

(2)   Operating account. Plaintiff $24,255 defendant $26,064. In the absence of any proper explanation for the difference between the parties as to the ANZ joint operating account, I will adopt the lower figure of $24,255.

(3)   Netsaver account. The parties are agreed as to the present balance of $10,280. There is no agreement as to whether recent reductions were for joint expenses or simply personal payments for the plaintiff. The amount in the Netsaver bank account as at 1 July 2011 was $78,230. Given the agreement as to the present balance of $10,280 I will use that figure in the absence of evidence as to the purposes of the reduction.

(4)   Janmell loan. Plaintiff Nil defendant $73,692 plus interest of $17,153.07. Having regard to the affidavit evidence of the plaintiff I will adopt his figures for the Janmell loans and monies owed for use of joint funds.

(5)   Monies owed by plaintiff for use of joint funds. Plaintiff $4,700 defendant $165,612.81. Having regard to the affidavit evidence of the plaintiff I will adopt his figures for the Janmell loans and monies owed for use of joint funds.

(6)   Ace High Hats. Plaintiff $9,000, defendant nil. Given the passage of time I will adopt the defendant's value of the Ace High Hats.

(7)   Add back by Plaintiff for $250,000 and $50,000.

(8)   Mortgage on River road. This was paid out by the Mulchay family trust on 17 January 2008.

1. Given that the defendant does not give a credit for interest on her add back it is inappropriate to require the plaintiff to give a credit for interest on his add back.

1. The plaintiff filed a detailed affidavit dated 2 September 2011 as a result of a direction made by the Court on 10 August 2011 to explain the situation with respect to bank accounts and use of funds. There has been no response or cross-examination on this material and the differences claimed by the defendant, to which I have referred, are not explained in her submissions.

1. With the net assets of $1,380,782 less $487,000, being the plaintiff's figure for the addback of Gaythorne, less $9,000 being the plaintiff's figure for the Ace High hat stock plus add backs of $721,000 (from (1) and (7) above) this makes a pool of $1,605,782.

The Lotto win

1. It is the plaintiff's submission that the assets to be considered for division should not include his conceded interest of $15 million being the result of the winning lotto ticket of his now wife, Susan Cooper, formerly Borrett. In August 2010 Mrs Cooper bought a ticket in Ozlotto at a newsagent and the next day returned to the newsagent to be told she had the winning ticket and that she had won $30 million.

1. The Plaintiff submits that asset should be quarantined and not be considered as part of the available assets for adjustment pursuant to s20 of the Act. It was submitted that there were a number of reasons for this, including:

• There is no contribution of any kind by the defendant to that asset;
• The asset came to be three years after the date asserted by the defendant as the date of separation;
• The asset came to be through the good fortune of the plaintiff's then partner purchasing the lotto ticket;
• The contributions of the defendant are able to be properly recognised from the other assets of the parties;
• The fact that under the Act there is no equivalent to s75(2) of the Family Law Act 1975 to make further adjustments based on a party's future needs and means.

1. The defendant submits that the plaintiff's entitlement/benefit, direct and indirect/enrichment in respect of the proceeds are relevant in at least these ways:-

(a)   In determining on the particular facts of this case what is just and equitable adjustment of the parties' interests in the asset pool as constituted at the date of trial.

(b)   In assessing exemplary damages against the plaintiff in the tort claim.

(c)   The form of orders as regards adjustment by "cash or assets".

1. At this stage I will deal with the first of these submissions. The plaintiff's submissions dealt with the well-known cases that dealt with inherited properties as well as Lottery wins. An important case is Wallace v Stanford (1997) 37 NSWLR 1. The majority included Mahoney JA whose decision was later approved of in Evans v Marmont (1992) 42 NSWLR 70. An issue in Wallace v Stanford was how to deal with an inheritance received by one party. The inheritance was received by Mr Stanford following the death of his mother in 1984 and the parties separated in 1987. The evidence of the value of the property was that in 1989 it was worth $175,000 and at the date of trial it was worth $300,000.

1. At page 15 of the decision in Wallace v Stanford, Mahoney JA expressed the view in relation to property inherited by Mr Stanford that Ms Wallace "is not entitled to have or to have value from that property merely because Mr Stanford acquired it". Mahoney JA went on to test the proposition in the following way:

"Assume that a woman has by a lottery win acquired $1,000,000 the day before or the day after separation from a de facto relationship: what if any account is to be taken of that fact? There is in such a case no contribution to that sum by the other party to the relationship (I put aside special cases such as joint ownership of the money used to buy the lottery ticket or joint ownership of the ticket). Accordingly the Court may order part of the woman's winning to go to the man's benefit only if the fact that she has those winnings makes it "just and equitable" to give part of them to him. In my opinion the fact that she has such monies is not as such a ground for making an order which otherwise the Court would not have made. The winnings are a windfall which has no relationship to the exercise of the Court's discretion"

1. The plaintiff submitted that the determination of what is just and equitable is informed by the consideration of the contributions made by the parties to the assets. The plaintiff relies on the views expressed by Mahoney JA and which were approved by the five-member bench in Evans v Marmont. The plaintiff notes that the paragraph that followed the above passage of Mahoney JA's judgment includes the following:

"This does not mean that the fact that a woman when the order comes to be made is richer rather than poorer cannot affect the order to be made. In some cases it may. Thus one party may deserve to have an order but no order can be made because the other party has no property which can be adjusted to provide it. The Court may determine not to do what may be futile".

1. The plaintiff submitted that what was being said by Mahoney JA in these passages was that an adjustment that might be made to other assets of the parties as a result of a windfall gain would only occur if the non winning party had made relevant contributions to the other assets to such an extent as to justify such an order.

1. The defendant acknowledged in its submissions the authoritative nature of the pronouncement of Mahoney JA in Wallace v Stanford (1995) 35 NSWLR 1 that a party is not entitled to have or to have value from inherited property (a fortiori proceeds of a lottery win) merely because the other party has acquired it and, it further conceded, congruent with the judgment of Mahoney JA, that an adjustment may be made to the division of the asset pool (not including lottery winnings) that might or would not otherwise have been made but for the enrichment of one of the parties by that "windfall".

1. The defendant joined issue with the plaintiff's conclusions. It submitted that this proposition ignores for example, consideration of homemaker contributions and conduct rendering such contributions arduous of provision by the maltreated spouse. It also was submitted that it ignores individual or peculiar facts of each case:

"In this present case for example the desire of each party, especially Ms Mulcahy to build assets to provide homes for their respective children which drove her endeavours and from which Cooper benefited - all his aspirations of this type are met by windfall, whilst Ms Mulcahy's are thwarted to such extent that her children must now support her."

1. It is important in considering this matter to remember what was said by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont at 70F through to 80A is the following:

"There is nothing in Section 20 of the Act of the kind found in Section 75(2)(o) of the Family Law Act which requires or entitles the Court to take into account as a factor alongside those referred to in par (a) and par (b) any fact or circumstance which in the opinion of the Court the justice of the case requires to be taken into account.

Most importantly Section 20 specifies in par (a) and par (b) the matters to which the Court is to have regard. As I have pointed out above, those matters would ordinarily have to be considered and a judgement as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters which take their place amongst any relevant considerations. It is by having regard to those matters that the Court may adjust property interest in a just and equitable manner".

1. I also note the useful discussion by Bryson JA in Chanter v Catts 64 NSWLR 366, [2005] NSWCA 411 where he said the following at [65-67]:

65] The discretion while wide is not unlimited; the perception of what is just and equitable relates to the contributions referred to in paras (a) and (b) and not to some other or wider view of just and equitable adjustment of interests in property: see Evans v Marmont (1997) 42 NSWLR 70 ; 21 Fam LR 760 per Gleeson CJ and McLelland CJ in Eq, approving views of Mahoney JA in the majority in Wallace v Stanford (1995) 37 NSWLR 1 ; 19 Fam LR 430 and in the minority in Dwyer v Kaljo (1992) 27 NSWLR 728 ; 15 Fam LR 645 and in turn substantially approving the views of Hodgson J at first instance in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793. It should I think be understood that in Evans v Marmont Meagher JA, at NSWLR 98; Fam LR 786-7, agreed with this part of the judgment of Gleeson CJ and McLelland CJ in Eq.

[66] What I understand to be established by the majority view in Evans v Marmont is to this effect:

(a) The factors referred to in paras (a) and (b) of s 21 are fundamental factors influencing the judgment of the court.

(b) Considering contributions and nothing else cannot lead to any view on what is just and equitable in the circumstances.

(c) Factors other than contributions can have no independent bearing on what is just and equitable: they have only such relevance as they may have to the question: what is just and equitable having regard to the contributions of the parties?

(d) Factors other than contributions mentioned in s 20(1)(a) and (b) may be relevant to answer the question whether the contributions of one party have been sufficiently compensated.

(e) The financial circumstances of the parties are relevant to ascertain the property of the parties at the time of the hearing, to which any adjustments of interest are to be made.

(f) The needs and means of the parties have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of parties; but otherwise the needs and means of the parties have no relevance, and a disproportion in their assets is not a reason why it is just and equitable to make an adjustment.

(g) It would be unrealistic to attempt to evaluate contributions of the kinds referred to in s 20(1)(a) and (b) for the purpose of determining what is just and equitable having regard to those contributions in isolation from the nature and incidents of the relationship as a whole.

(h) Often it may be found that contributions of the kind referred to in s 20(1)(b) would involve shared activities or reciprocal benefits which do not give rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property.

[67] Notwithstanding the strength of the dissenting judgments of Mason P and Priestley JA in Evans v Marmont, the course of judicial opinion leading to Evans v Marmont means, in my view, that earlier judicial consideration, including consideration in the Court of Appeal, of the significance of contributions in s 20(1) should not be treated as authoritative; this observation extends not only to Dwyer v Kaljo but also to Green v Robinson (1995) 36 NSWLR 96 ; 18 Fam LR 594 and Theodoropoulos v Theodosiou (1995) 38 NSWLR 424 ; 19 Fam LR 632. The history of diversity of opinion, two refusals of special leave to appeal to the High Court and convening a Court of Appeal of five members gives the majority decision in Evans v Marmont a special claim to authority. In particular, expressions of opinion in Green v Robinson no longer govern the application of s 20(1). I do not find any clear majority expression of view in Green v Robinson.

1. There are many other cases on lottery wins a number of which I have collected in Senno v Bailey [2011] NSWSC 679. The asset in this case only came into existence three years after the conclusion of the relationship and had nothing to do with the defendant. The defendant made no contributions to it and in my view it is not appropriate to take account of it in the adjustment process.

Financial contributions to the relationship

1. The evidence of the plaintiff's earnings as disclosed in his tax returns is:

• 1991/92 - taxable income $17,118, tax $2,691 - $270 net per week.
• 1992/93 - taxable income $23,365, tax $6,441 - $326 net per week.
• 1993/94 - taxable income $3,614, tax nil - $70 net per week.
• 1994/95 - taxable income $20,978, tax $4922 - $309 net per week.
• 1995/96 - taxable income $3,564, tax nil - $70 net per week.
• 1996/97 - taxable income $8,565, tax $474 - $160 net per week.
• 1997/1998 - taxable income $7,611, after tax $140 per week.
• 199819/99 - taxable income $5,807, after tax $110 per week.
• 1999/2000 - taxable income $6,752, after tax $120 per week.
• 2000/2001 - taxable income $13,848, after tax $225 per week.
• 2001/2002 - taxable income $8,312, after tax $160 per week.
• 2002/2003 - taxable income nil.
• 2003/2004 - taxable income nil.
• 2004/2005 - taxable income nil.
• 2005/2006 - taxable income nil.
• 2006/2007 - taxable income $26,951, after tax $434 per week.

1. It was suggested that these returns do not truly reflect his earnings given deductions such as depreciation and expenditure and travelling expenses which were for the parties' personal benefit. This led to an analysis of these aspects in the returns which showed:

• for the year 1991/92 there was no depreciation and no travelling and living expenses,
• for the year 1992/93 there was no depreciation and no travelling and living expenses,
• for the year 1993/94 there was $139 for depreciation and $6,958 for travelling and living expenses,
• for the year 1994/95 depreciation was $115 and travelling and living expenses were $1,000,
• for the year 1995/96 depreciation was $116 and travelling and living expenses were $893,

for the year 1996/97 depreciation not applicable, travelling and living expenses not applicable,

• for the year 1997/98 not known,
• for the year 1998/99 depreciation $717, travelling and living expenses $123,
• for the year 1999/2000 depreciation $205, travelling and living expenses $1,488,
• for the year 2000/01 depreciation $2,288, travelling and living expenses $996,
• for the year 2001/02 depreciation $938, travelling and living expenses $1,324,
• for the year 2002/03 depreciation $1,638, travelling and living expenses $1,988,
• for the year 2003/04 depreciation $16 and travelling and living expenses nil,
• for the year 2004/05 depreciation $2,116 and travelling and living expenses nil,
• for the year 2005/06 depreciation $2,815, travelling and living expenses nil.

1. Plainly there is little force in this submission and the plaintiff's earnings on the evidence available were quite low.

1. The only evidence of the defendant's income is as follows:

(a) In 1991 her sole parent pension was $407 per fortnight.

(b) In August 1993 her pension was $312.51 per fortnight and for the period 14 December 1992 to 30 June 1993 it was $4,963.60.

(c) In March 1994 her carer's pension was cancelled and she received a Newstart allowance of $286.40 per fortnight.

1. What happened to the pension after this does not seem to be the subject of evidence. When the parties brought their tax affairs up to date in 2006 and 2007 there were accounts prepared which showed them each sharing equally in the profits from their businesses and rentals.

1. Plainly the parties received rental income and also capital profits from their investments.

1. The rental income from Grafton was first declared in the 2003/04 tax return accounts when $26,945 was declared and for the first time the Yamba rent was declared at $3,950 in the same return. The plaintiff's tax returns did not declare any income from the Yamba property until that year.

1. In the accounts for the year ending 30 June 2005 the Grafton rent was declared at $61,914 and rent from Yamba at $513. In the 2005/06 accounts the Grafton rent was declared at $58,471 and rent from Yamba nil.

1. From the table at [18] above the capital profits (on the basis of purchase and sale price) were:

• Coldstream street $292,500 in July 2004
• Oak avenue $61,500 in September 2003
• Grafton $359,000 in August 2007
• Part of farm $288,000 approx. in 2007

1. Such figures take no account of borrowings or expenses but at least illustrate a source of continuing funds to support the parties.

Non-financial contributions to the relationship

1. Before I consider the nature of the homemaker contributions in this matter I will first deal with the various assaults alleged in this case.

1. In summary the various alleged assaults appear to be the following:

• Use of abusive language from 1993 in these terms (in Paras 117 & 211 of the defendant's affidavit)

"All you Mulcahys are selfish. You've got no idea how to fucking live or behave" and

"You're a private school overeducated cunt"

"You've all got a holier than thou attitude. The holy fucking Mulcahy trinity need a fucking smack in the fucking mouth".

He would also say to me on hundreds of occasions "If you were a bloke I'd fucking knock your head in". He would also say to me on many occasions "Someone should give you a fucking smack in the mouth". On other occasions he would say to me "I should smack your fucking head in" or "I should give you a fucking smack in the mouth".

• Arguments in 1993 about the parties relationships with their children (in paras 126 and 127) including abuse in these terms:

including "you're a miserable, selfish bitch. You have your children. What about giving me time and space with mine."

• In June 1995 the plaintiff, after the defendant asked when a shed in the back yard was going to be completed, grabbed her by the arm, dragged her down the back stairs to the yard where the unassembled shed lay and abused her in these terms (in para 206):

Bob: "What the fuck to do you call that? [indicating towards the disassembled shed]

Me: The shed's not for me or Station Ave, it's purely for Wetcheck's storage.

Bob: I can't fuckin' stand the sound of your fuckin' voice or the fuckin' sight of you. Get out of my fuckin' sight. Disappear. If you don't, I'll fuckin' kill you. I'm fuckin' out of here. I'm going to pack my stuff and find somewhere else to live. Don't come back till I'm gone. I promise you I'll fuckin' kill you."

• In late 1996 in a burst of anger ordered the defendant out of the property at Maroochydore in these terms (in para 237):

"Get out of my fucking place. I'll get a fucking flat bed truck and pitch your fucking gear over the fucking balcony".

• In late 1996 ordered the defendant out of the bed and took her back to her house at Gaythorne. (Para 238)
• In late December 2000 after a discussion about helping the plaintiff's son Trevor buy a property, which the defendant resisted, the plaintiff threatened to shoot either himself or the defendant. He became very angry and tipped a beer over the defendant. (Para 312 tx 319). During it he said:

"This is driving me fucking nuts, I really should get rid of the rifles. I am either going to shoot you or shoot myself or both of us."

• A few days after Christmas 2000 he complained to the defendant in these terms: (304)

"I've had to move furniture downstairs at Gaythorne and pack up the tool room, and I had to get Shane to help me - it's not my responsibility to do this shit. I've also left the key with the tenant. The fucking Mulcahys all fucking need a fucking smack in the fucking mouth".

• The threat to shoot was repeated in mid 2007
• On 18 February 2008 during an attempt at reconciliation the plaintiff suddenly burst out with (at para 582):

"All our successes have been due to me. All our failures are due to the fucking miserable Mulcahys ... Your bloody boys in particular.

I could easily destroy David's business. All it would take is one phone call.

I could easily get that general manager's position Wade is applying for at Dimension Data. I could get that job over Wade without doubt ... piece of piss!

I could destroy them. I know people who could seriously hurt them, the fucking miserable arrogant bastards.

That fucking David should have his fucking lips cut off, with that fucking arrogant smirk.

I ought to break both their legs.

It just takes one phone call to destroy their prospects. Cunts!

I've had many conversations with David's staff. I know what they really think of him.

David and Wade are only using you. Once they've got what they want from you, they'll ditch you.

The reason we're in this fucking mess is because of your fucking kids."

• On 6 may 2008 the plaintiff to the knowledge of the defendant was to receive the results of medical tests. The defendant did not ring up to enquire about the results so the plaintiff rang and said repeatedly (in para 597):

"Cunt....cunt... cunt... you miserable selfish fucking cunt"

1. I will deal with the factual disputes in respect of the alleged assaults first and then turn to the effect on the defendant of those assaults. In general I note that the defendant gave extensive evidence on the effect of the incidents upon her. It will then be necessary to consider the application of the medical evidence in respect of the running of any time bar pursuant to the Limitation Act 1969 so far as it concerns the defendant's cross claim for assault.

1. This requires a consideration of issues of credit in respect of each party and assumes critical importance in this case because the assaults, which happened at home, were not witnessed by any outsider.

Credibility of the plaintiff

1. The plaintiff like many witnesses was not always good with dates. Two examples from the defendant's submissions are appropriate.

At T658, line 25 Cooper was asked questions about the period he was in Melbourne and at line 27 said he believed he said it was 1995 when he went there. An examination of Cooper's 1993/94 and 1994/95 Tax Returns reveal that he was clearly running Wetcheck Roof Restorers business in Enoggera in Queensland and demonstrates that the evidence of Ms Mulcahy as to when he went to Melbourne, namely 1993, is correct.

Cooper is clearly incorrect in his recollection of dates. Again at T658, line 27 in reference to when he went to Melbourne he said:-

I believe I said it was '95 I went there.

whereas in his affidavit of 22 September 2009, paragraph 12 he said in "about 1992" he moved from Brisbane to Melbourne and stayed for about a year.

1. Another example was as follows:

At T725, line 40 Cooper was asked when he first met Peter George and answered "in the early 2000's I believe" and then said "the early 2000's 1 2 3 something like that" however when suggested as follows, line 45:-

Question: You see may I suggest to you that it was 2005?

Answer: Yes it could be yes.

This exchange demonstrates that Cooper's memory is consistently faulty and he would seemingly say anything to get to the next question if he suspected there was proof of the proposition being put.

1. At times he could be argumentative. An example appears at T749 when the plaintiff was cross-examined about the beer incident. The following is seen at line 43:

Question: Following those events you drove away for the day did you not?

Answer: Drove away.

Question: I suppose you deny that?

Answer: No hang on I drove away for the day. Well hang on this is supposed to happen in the afternoon or the evening. Not only that I've allegedly been drinking and yet I get in a car and drive away. Ask anybody around. I do not drink during the day. I certainly do not drink when I'm driving and I certainly do not drink when I'm working in the shed or on the farm because if I got injured Ms Mulcahy could not drive me to hospital. She cannot drive so in terms of me drinking while I'm working it doesn't happen.

1. It was submitted that this was an example of Cooper's editorialising - said to be one of the signal stigmata of the unsatisfactory witness.

1. At T750 line 9 the plaintiff was directed to the opening words of paragraph 318 of Ms Mulcahy's affidavit,:-

Question: - do me the courtesy of looking at paragraph 318 and tell me what its opening words are?

Answer: "In the morning."

Question: "In the morning Bob drove away"

Answer: Right.

Question: You're just constructing arguments to try and persuade the Court that the truth.

Answer: No you said to me...

Then at line 38:-

"Question: So your lengthy dissertation on driving at night when you've been drinking doesn't really...

Answer: That's correct it doesn't apply.

Question: ...assist does it?

Answer: No it doesn't but it certainly applies in terms of working drinking and working in the shed.

1. This in my view illustrates his argumentative nature.

1. There are other more serious matters. In his affidavit of 22 September 2009, paragraph 25 the plaintiff, referring to a discharge of a mortgage to the ANZ Bank over the property at 30 River Road Harwood owned by Ms Mulcahy and her son Wade, said as follows:-

On the basis that the property has been re-mortgaged and the bank required all parties' signatures prior to discharge I believe that someone forged my signature on the Discharge Authority.

1. The mortgage had been re-financed with the Bendigo Bank Limited.

At T598, line 9:-

Question: And you have taken care to make sure that everything in your affidavit was true?

Answer: Yes.

Line 12:-

Question: Where is the forgery of your signature, a signature that purports to be that of you, Robert Cooper?

Line 17:-

Answer: It's not there,

Line 21:-

Answer: No it doesn't exist.

At T599, line 4:-

Question: Do you still maintain there's been a forgery?

Answer: No I do not.

1. There was no re-examination of the plaintiff in respect of this matter.

1. It was submitted that this exemplifies a sworn allegation of criminal conduct that was patently untrue and shows how much was required to get just one frank admission of an obvious truth from this witness. In my view it exemplifies a careless attitude to evidence.

1. An example of a tendency to exaggerate appears starting at T605, line 26 - 40. The plaintiff was asked questions about paragraph 516 of his affidavit of 4 November 2010 where he deposed he "spent many nights with her in Brisbane and we had a full and active sexual life" after 24 September 2007 the date of separation.

T605, line 43:-

Question: That was the date (24 September 2007) you deposited Ms Mulcahy in Brisbane for dental treatment?

Answer: I think that was the day yes.

Question: That is true is it? That by her invitation you spent many nights with her in Brisbane.

Answer: Yes I did.

T606, line 1:-

Question: Could I suggest to you that in an email on 7 August 2008 you wrote these words

"Think about how many times you invited me to come and see you and spend some time with you. Grand total since October once."

Your words or not?

Answer: Yes my words.

(the period involved was some 10 months).

1. It was submitted the plaintiff was caught out lying in an affidavit. He went on later in evidence to give an explanation, which was a most curious interpretation of "invitation" given his use of the word invitation in his email. Plainly he was exaggerating.

1. The plaintiff's conduct in an attempt to settle the case shows that he is quite capable of attempting to gain an advantage by not disclosing the whole circumstances. At T588, line 25, Cooper agreed that he had his then solicitors file a Notice of Ceasing to Act on 31 August 2010. This was 20 days after the $30 million lottery win. At T588, line 27, Cooper agreed he came to Sydney to negotiate a settlement on his own behalf with the solicitor representing the defendant. At T591, in answer to question as to why he elected to undertake his own defence at lines 5 - 10, the plaintiff replied:-

For various reasons I was, I believed I was facing bankruptcy. I was facing losing the relationship which I held very strongly with my new partner, now my wife, caused by, I believed a deliberate attempt to - and in fact it was a stated attempt that I was going to be bought to my knees and if that involved me being sent bankrupt, well so be it and it was at that point.

At T591, line 10:-

So it was economic stress, the fear of bankruptcy?

Answer:

Absolutely.

1. The transcript at T687 illustrates the $30 million lottery win was 10/11 August 2010. The plaintiff's current wife, Ms Borrett, had her last day at Janmel on 19 August 2010. On 31 August 2010 the plaintiff's solicitor was no longer acting (lines 1 - 10) and after 27 August 2010 the plaintiff was self represented.

1. On 30 September 2010 the plaintiff sent an email to Marco Williams of AR Conolly & Company, the defendant's solicitors. T689 shows the 30 September email was sent "around a week maybe less than or maybe more than the days on which Shane and Trevor's contracts for their new homes were accepted" - line 5. The plaintiff agreed he said in this 30 September email to AR Conolly:-

I do not have the funds or the borrowing capacity to meet those obligations and therefore the bank would take possession of the house at ............... which they would hold as security to cover their money. If I can be so bold as to say I believe the tactics of your client was to beat me into submission by running me out of money through these proceedings. Well it now appears that your client's tactics have been successful. Perhaps a little too successful for her own good.

T689, line 47:-

That's what I wrote yes.

1. At T690, lines 5 - 10 the plaintiff denied that he was pretending to go bankrupt or that he set out to deceive the opposing lawyers by pretending that he could not afford a lawyer and was about to go into bankruptcy.

At T692, line 7:-

Question: Mr Cooper I take it that you hotly deny any proposition at all that you were anxious about the other side finding out about your spouse's lotto win. You deny any anxiety about that do you?

Answer: Of course I do not deny that.

1. It was submitted in light of the plaintiff's admission that he is entitled to half of the $30 million lottery proceeds, that it is an available finding, and the Court would come to the conclusion, that the purpose of approaching AR Conolly and suggesting he was going bankrupt was to disguise the fact that he had funds available to him and that the matters set out in the email were no more than a pretence and set out to deceive.

1. The plaintiff referred to his evidence at T691:

Q. That it was her proposal that it be only in her name?

A. Mr Williams, the house--

Q. Is that what you tell his Honour?

A. I'm telling you the house at Coffs Harbour was bought by Miss Borrett with her money because, when she won the Lotto, she refused to - after a couple of days - this didn't happen on the first day - after a couple of days the realisation came to her that I was in a fair sort of a mess with this case. It looked very much like I was going to run out of funds before it even looked like coming to a conclusion.

Q. Yes?

A. She had been harassed and intimidated by the defendant's son at our

home. She felt that if the knowledge of $30 million and that she was still living there - she wanted to get away. She wanted to go to Coffs Harbour. So, she went down there. I helped her in looking for the properties, or at properties. She bought a home in her own name and she said to me:

"I'm sorry, until you get through this mess, we are not going to be in

a de facto relationship, because this woman will do anything to get

her hands on this money."

1. At 692 the following occurred:

Q. Mr Cooper, I take it that you hotly deny any proposition at all that you were anxious about the other side finding out about your spouse's Lotto win. You deny any anxiety about that, do you?

A. Of course I do not deny that. What I am saying to you is my greater anxiety was the fact that I was up to my armpits in trying to deal with this mess. My then partner, who had $30 million - and we both read the pre-nup agreement and it seemed to us that money didn't come into play; it was to do with joint accounts and property. And I'm saying to myself: Well, this is handy. I can't even fund the case I'm in. If Sue goes away from me, who knows what happens in six months, 12 months, 18 months' time, particularly if she received any more harassment. And I don't have the funds, whether I'm entitled to it or not, to pursue any entitlement, whether I had some or not, to get it back from her. I couldn't even fund the case that I'm in, let alone the case that potentially would come down the track. I was anxious about losing my partner. Very anxious.

Q. Have you finished?

A. Yes, I have.

1. The plaintiff admits he was anxious about the other side finding out about the lotto win, because if they found out there would be no settlement. His concerns about his partner leaving him may have been true but he still attempted to obtain a favourable outcome by making statements, which were deceptive, as they took no account of the fact that she may not leave him and he may receive substantial funds.

1. The more serious matter concerns his approach to the defendant's case by making blanket denials of a large part of the case. At T599, line 28 to 37 referring to the plaintiff's affidavit of 4 November, it was put to him that there were 432 denials of paragraphs in the defendant's affidavit and, of those, 300 were blanket denials. At line 41, the plaintiff agreed that he denied paragraph 127 and did not expand upon that denial (line 49-50). At T600, line 1, referring to paragraph 127:

Question: So, on oath, you have put before the Court the proposition that everything in that paragraph was untrue?

Answer: Yes.

1. At T600, line 7 the paragraph says:

The conversation continued for an hour and Bob shouted at me and repeated words including you're a miserable selfish bitch, you have your children what about giving me space, time and space with mine.

Bob shouted at me and stood over me looking down at me close to my face.

Line 21:-

Question: I take it you deny it?

Answer: Yes.

Question: It is totally untrue, is it?

Answer: Totally untrue.

1. At line 25 is was put to him that Ms Mulcahy said:-

Finally I left the room and I went to the lounge room and sat down. I felt intimidated and shaken.

Question: Again totally untrue?

Answer: I don't know. The incident didn't happen.

Line 31:-

Question: So it would be totally untrue for your former spouse to have said for example the whole incident in paragraph 127 being denied that you had left a note. You deny that, do you not?

Answer: I don't know what incident you are talking about.

Line 47:-

Question: You, on oath, have denied the entirety of that paragraph, have you not? You've already said that have you not.

Line 51:-

Answer: Yes the entirety. I did write a note, yes, but not to do with that alleged incident.

At T601, line 1:-

Question: So, in telling the whole truth, you did not see fit to say "Oh I did write that note but it wasn't connected with this incident" is that what you tell the Court?

Answer: Yes I am yes.

1. At T601, line 19, having been shown the note,:-

Question: What is it?

Answer: A note.

Question: What does it say?

Answer: It says "I'll be back and after I get back from Melbourne to get the rest of my stuff. I strongly advise you not to be here so I'll ring first. PS I can't believe the poison you've got stored in you going back so far." Then it says "F you."

Line 30:-

Question: Then it says what?

Answer: F you.

Question: No it does not. It says in great big capitals "FUCK YOU" with exclamation marks does it not?

Answer: Yes it does.

Question: Just tell me please and tell the Court, what did you mean when you said "I strongly advise you not to be here"?

Answer: What I meant by that was more than enough had been said to each other about some things that had been going on at the time and enough had been said. I was leaving to take the heat out of the situation. I was going to ring when I was coming back so whatever conversation had happened was going to desist and finish.

Line 47:-

Question: You finish the note saying "Fuck you" is that it?

Answer: I said I left to take the heat out of the situation.

T602, line 19:-

Question: Why did you put that in there "I strongly advise you not to be here"?

Answer: Because more than enough had been said in the argument. The argument had got very heated. I left to take the heat out of the situation.

I wrote a letter. I was quite angry and I wrote that to say: So that this does not continue I'll give you a call letting you know that I'm coming. I'm coming back to pick up my stuff and essentially I don't want to see you anymore or listen to all that had been going on.

Question: You did not intend to be intimidating to her in any way did you?

Answer: Mr Williams if I intended to be intimidating to her I would not write a note I would have walked into the lounge room and intimidated her.

1. Here it was submitted, is caught an echo of what the plaintiff in fact did in the "beer assault".

1. The handwritten note referred to is Exhibit 8, tendered at T603. Paragraph 127 of the defendant's affidavit sets out the fact of the note and the actual words used in it.

At T603, line 9:

Question: Now would you like to tell us how you say it came about that you wrote Exhibit 8?

...

Answer: We had quite a strong argument I guess and it had gone on for a fair while and it was getting more and more intense. I was being blamed for everything except global warming and the unrest in the Middle East. It was getting very frustrating for me so it blew up. I decided not to be there anymore to take the heat out of the situation.

At that point I was on my way to Melbourne to have a look at the business that we were considering taking over within the next few days. I wrote that note. I started to write you know I'm not responsible for everything that goes wrong in your life. I guess I just didn't want to continue on with that. I scrubbed through it and wrote those last two letters. I left and that was it.

1. The defendant submits that the blanket denial of everything in paragraph 127 which was re-affirmed in evidence T600, line 1 (set out above) demonstrates that the plaintiff was prepared to deny to the nth degree, unless otherwise caught out, anything that remotely suggested any of the allegations made by the defendant were true.

1. At T600, line 47 - 51 (set out above), the plaintiff's admission that he did write a note but not to do with that incident was said to demonstrate unequivocally his attempts to shuffle away from matters, which may prejudice him. The defendant submits that he ought simply not be accepted as to what he says.

1. Given his approach, which is plainly wrong, it is very difficult to accept his blanket denials. A more important matter is his inability to remember what was said in the heat of the moment. This is well illustrated in the evidence concerning the "head chatter" article. At T651, Cooper was cross-examined about Exhibit 9 the "Head Chatter" article. At line 20 he agreed that David Bourke gave him the document. At line 27 he conceded he probably had a conversation about it with the defendant. (Note the plaintiff first denied recollection of the article at all and asserted it was not in the defendant's affidavit - T720.12.)

1. At T652, line 4 and onwards the plaintiff said:-

I might have said "Look, you know, I better read it" or because I can never stop thinking about things you know. I don't know he gave me quite a number of things actually...

At line 15:-

Question: Mr Cooper you know I'm questioning you about anything you said to Mrs Mulcahy concerning you in the context of the receipt of that article? You know that is what I am asking you about don't you?

Answer: Yes I do Mr Williams and what I'm saying to you is that I believe I may have said that that, you know, it could be me because I don't stop thinking about things as well in the context of head chatter.

At 20:-

Question: You know the defendant has deposed on oath concerning what you said in the context of the article don't you?

Answer: No I do not. I don't believe she mentions this article at all in her affidavit.

1. At T652 line 25, paragraph 587 of the defendant's affidavit was put to Cooper:-

Question: Tell me if this rings any bells with you Mr Cooper - paragraph 587

In approximately June or July 2008 Bob and I talked about this and other incidents. Bob had said to me on other occasions in the past words to the effect of "If you were a bloke I'd knock your fucking head in and I forget you're a sheila and not a bloke". Bob and I talked about this and other incidents after Bob showed me an article given to him by David Bourke about head chatter.

Bob told me ..."

Is this coming back to you at all?

Answer: It is now yes.

At line 47:-

Question: Bob told me "I virtually lose my mind at times and I don't recall what I have said. You know I would never hurt you. I said to him "Remember when you dragged me down the stairs and threatened to kill me?" He said "I honestly and truly don't remember that. I didn't hurt you did I? I know I honestly would never hurt you."

I did not tell him I'm scared of him. I'm scared he will harm me and my sons in some way. I'm afraid of him. I'm deeply afraid of him. I'm deeply increasingly disturbed by his behaviour.

Now do you remember the context now?

Answer: Yes I do.

At T653, line 10:-

Question: Do you remember on your oath point blank denying that entire evidence that I've read out to you?

Answer: I don't know whether I point blank but I'm sure I denied it because I was denying the whole sequence of events that had been portrayed, yes.

1. The defendant submits that these questions and answers reveal that Cooper's failure to remember anything about the article dealing with head chatter in evidence (T652, lines 20 - 25) demonstrates that, whether he remembered or not, he was prepared to deny any suggestion put to him either from the defendant's evidence or affidavits or in cross-examination that was adverse to his interests, unless and until confronted with no other alternative.

1. The defendant submitted that the appropriate range for compensatory general damages is $175,000 to $225,000.

1. She also claims:

• Past out of pocket expenses of $19218.35
• Past economic loss of $112,011.03
• Future economic loss of $85,000, and
• Future out of pocket expenses of $83,125.

1. In support of this range, the defendant referred me to the case of Bova v Locke [2005] NSWCA 226 where there was an award of $225000 for general damages. The case is far removed from the present one and I do not find it helpful. It is trite to say that it all depends on the circumstances of the individual case. One can look at another case; say for example Jackson v Jackson (NSWSC, 26 March 1999, unreported) where I gave an award of $10,000 for an assault and battery in a domestic context. The physical circumstances of that battery were far worse than anything in the present case. However that case did not include threats to kill. Such threats had a real effect on the defendant and put her in fear of her life.

1. I have found that the defendant did not suffer from PTSD and that the disability was one in which there is a prognosis that will see the disability resolved. This is an important consideration and is where the case of Bova differs from the present.

1. Looking at the individual events, here I would fix general damages as follows:

• The threat to kill and battery in 1995 (assault and battery); $50,000
• One occasion of ordering the defendant out of the house in 1996 (assault); $2,000
• The beer incident and threat to shoot in December 2000 (assault and battery); $50,000
• Threat to shoot in 2007 (assault). $40,000

This is a total of $142,000

1. The defendant is entitled to past out of pocket expenses of $19,218.35

1. Past economic loss suggested in the defendant's submissions, namely, as a real estate property manager plus interest on half thereof with a 15% allowance for vicissitudes, namely, $112,011.03.

1. Future economic loss is for only 2 years with a 15% for vicissitudes a sum of $46,859.

1. Future out of pocket expenses were predicated on psychological treatment for 4 years, psychiatric treatment, specialist therapy and GP follow up for 10 years. Given the prognosis I have adopted, the psychological and specialist therapy figures need reducing but I would not reduce the others. I fix the amount of future out of pockets at $60,320.

Aggravated and exemplary damages

1. The defendant claimed aggravated and exemplary damages in addition to compensatory damages. She claimed that the appropriate figure for exemplary damages is in the order of $250,000.

1. In Marsh v Marsh (1993) 17 Fam LR 289 at 296 Coleman J described the relationship between these three categories of damages, as follows:

"The law is well settled that, where the conduct of the defendant is deliberate, in addition to damages awarded by way of compensation, the court may also include a sum in respect of any indignity sustained by the plaintiff, such damages being termed aggravated damages and, though theoretically compensatory, providing for a type of intangible loss not otherwise accounted for under a general damages award. In some circumstances the conduct of the defendant may be such that the court regards the award of compensatory damages, even including aggravated damages, as inadequate to punish the defendant or to deter him and others from acting similarly. If so, but only if the award of compensatory damages is inadequate for these purposes, the court may include in its award a sum by way of exemplary damages. (See the Law of Torts, John G Fleming, 7th ed, p 23)."

1. In State of New South Wales v Radford [2010] NSWCA 276, Sackville AJA (with whom Beazley and Macfarlan JJA agreed) summarised some important aspects of aggravated and exemplary damages:

"[91] In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 ; 117 CLR 118, at 129-130, Taylor J pointed out that there had been a degree of confusion between aggravated and exemplary damages. The former, Taylor J said, are:

given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing. (Emphasis added.)

By contrast, exemplary damages are awarded:

to "punish and deter" the wrongdoer though, in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages.

These passages were cited with approval by the High Court in New South Wales v Ibbett[2006] HCA 57 ; 229 CLR 638; (Ibbett (HCA), at 646-647 [31], [33]; see also Myer Stores Ltd v Soo[1991] 2 VR 597, at 602, per Murphy J.

[92] Aggravated damages, being compensatory in nature, are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno[1987] HCA 47 ; 164 CLR 1, at 8, per curiam. Exemplary damages go beyond compensation and are designed to punish and to deter wrongdoers. Such awards also assuage any urge for revenge felt by victims and discourage self-help remedies (164 CLR, at 9).

[93] Spigelman CJ in New South Wales v Ibbett[2005] NSWCA 445 ; 65 NSWLR 168; (Ibbett (NSWCA), at [83], in a passage approved by the High Court on appeal, explained the difference between aggravated and exemplary damages:

in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant."

1. In XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd[1985] HCA 12; 155 CLR 448 at 472 Brennan J described the conduct that would warrant an award of exemplary damages as "conduct showing a conscious and contumelious disregard for the plaintiff's rights".

1. There are in my view reasons why there should be aggravated damages in this case. This is because, although there has been an award in respect of the individual assaults it can be seen from the medical evidence that the combined effect of the assaults extended over the whole of the relationship with a pervasive affect on the defendant. I fix aggravated damages at $100,000.

1. So far as exemplary damages are concerned I do not see a need for them. The present judgment will be a sufficient deterrent and the plaintiff has moved on to a different phase of his life. The events occurring between the plaintiff and the defendant reflect the inherent nature of the party's relationship and I do not see the plaintiff as having adopted his course of conduct with a specific intention of disregarding the defendant's rights. If anything it illustrates his personal limitations.

1. In the result the defendant is entitled to judgment on the cross-claim for assault of $480,408. I direct the parties to bring in short minutes.

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Amendments

01 May 2012 - The figure $441,000 replaced with $421,000.

Amended paragraphs: 23

Decision last updated: 02 May 2012