Daly v Dicker

[2001] NSWSC 215

CITATION:	Daly v Dicker [2001] NSWSC 215
FILE NUMBER(S):	SC 3923/97
HEARING DATE(S):	14 and 15 November 2000 (Written submissions to 8 December 2000)
JUDGMENT DATE:	28 March 2001
PARTIES :	James Brendan Daly (Plaintiff) Ruth Diana Dicker (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	G.B. Evans (Plaintiff) C.M. Simpson (Defendant)
SOLICITORS:	Gillis Delaney Brown (Plaintiff) Newnhams Solicitors (Defendant)
CATCHWORDS:	Family Law - De Facto Relationship - Adjustment of interest of parties in property - Relationship for a period of five years - Respective contributions of de facto partners - Various property transactions - Company used as vehicle for those transactions - Equalisation of loan accounts in company - Purchase and sale of various motor vehicles - Conduct of Defendant in affecting transfer of registration of motor vehicle from Plaintiff to her company after the termination of the de facto relationship - Whether residence of parties during the relationship (in which Defendant has continued to reside) should now be sold, or whether one party should purchase the interest of the other party
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See paragraph 80

1    MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984).

2    The proceedings were instituted by statement of claim filed by the Plaintiff James Brendan Daly on 9 September 1997. Subsequently there was filed an amended statement of claim on 31 May 2000. The Defendant Ruth Diana Dicker filed a defence and cross-claim on 2 December 1997. A reply and defence to cross-claim were filed by the Plaintiff on 1 April 1998. An amended defence and cross claim were filed by the Defendant on 14 November 2000.

3    The parties lived in a de facto relationship from early 1991 until early 1996. (There was some dispute as to whether the relationship terminated on 1 February 1996, as asserted by the Plaintiff, or on 12 April 1996, as asserted by the Defendant.)

4    At the commencement of the relationship the Plaintiff was married, although he had separated from his wife in early 1991. Subsequently he was divorced on 14 January 1996. The Plaintiff and his former wife had three small children (aged only two and one at the commencement of the relationship), of whom access was allowed to the Plaintiff. Those children (of whom the younger two were twins) resided with their mother at Cairns in northern Queensland. The Plaintiff was paying child support for those children. The Plaintiff throughout most of the relationship was employed as a helicopter pilot, chiefly in Papua New Guinea. His work caused him to spend alternate months in Australia and in Papua New Guinea.

5    At the commencement of the relationship the Plaintiff owned a one-half interest in a property jointly owned with his former wife, situate at and known as 16 Hibiscus Lane, Holloways Beach in Queensland. That property, to which the Plaintiff attributed a value of about $402,000, was subject to a registered mortgage upon which about $65,000 was owing. The Plaintiff also owned a one-half interest, together with his former wife, in a property situate at and known as 13 Hibiscus Lane, Holloways Beach in Queensland. That property, to which a value of about $115,000 was attributed, was subject to a registered mortgage upon which about $35,000 was owing.

6    Apart from his interest in the foregoing properties, the only other assets owned by the Plaintiff at the commencement of the de facto relationship were personal items, to which a value of about $2,500 was attributed.

7    In consequence of property proceedings between himself and his former wife in the Family Court of Australia at Townsville the Plaintiff in February 1993 received a sum of $182, 652. I gather that in return for that sum the Plaintiff assigned his interest in the foregoing properties at Halloways Beach to his former wife.

8    At the commencement of the relationship the Defendant was (and still is) employed by a company Niugini Tours Pty Limited, of which she is the principal shareholder (having a 99 per cent interest) and of which she is one of two directors. To all intents and purposes the Defendant controls that company (to which I shall refer as “Niugini Tours”). She attributes a value of $53,606 to that shareholding at 30 June 1991. Throughout the relationship the Defendant was in receipt of a salary from that company. Although the Defendant originally asserted that by the end of the relationship that salary was in an amount of about $60,000 gross a year, it was revealed by her various group certificates that for the year ended 1996 her net income from that employment was $23,828 (although it had risen to as much as $26,400 net for 1993). It would appear that the total net income of the Defendant during the period of the de facto relationship was in an amount of about $113,000.

9    At the commencement of the relationship the Defendant owned a house property at 70 Brandling Street, Alexandria, which she had purchased as an investment in 1987, and which she asserts had a value of $175,000 at the commencement of the relationship, and which was at that time subject to a mortgage in an amount of $52,000. She also owned what was described as a restored 1977 BMW 320 motor vehicle, to which she attributed a value of $8,000. According to the Defendant she also at the commencement of the relationship held funds on loan in amounts totalling almost $42,000. The Defendant’s other assets at the commencement of the relationship consisted of a 1978 Datsun 120Y motor vehicle (to which she attributed a value of $800), together with furniture, contents and personal effects (to which she attributed a total value of $9,500).

10    During the course of the relationship the parties lived firstly in rented premises at Darling Point and then in various rented home units in a building situate at and known as 73 Victoria Street, Potts Point. In August 1994 the Plaintiff and the Defendant conjointly purchased a home unit in that building, being Unit 2003, 73 Victoria Street, Potts Point, for $450,000. That purchase was funded by a contribution of $191,987 by the Plaintiff, and a contribution of $195,369 by the Defendant, together with a loan secured by mortgage in an amount of $80,000. Although in his affidavit evidence the Plaintiff asserted that that mortgage had been taken out in his name alone, he agreed under cross-examination that he has been mistaken in that regard. The mortgage loan had in fact been taken out in the names of both the Plaintiff and the Defendant. The amount of that mortgage debt was significantly reduced in November 1994, by the payment of $40,000 by the Plaintiff and $35,000 by the Defendant.

11    During the course of the relationship the parties in about March 1992 acquired a company Truewane Pty Limited (to which I shall refer as “Truewane”). The parties became, and still remain, the only shareholders in that company, each holding one of the two issued fully paid shares therein, and became and remain the two directors of that company. (It would appear, however, that it was not until 1994 that those shares were actually transferred to the parties.) The purpose of the acquisition by the parties of Truewane was so that that company could be used as a vehicle for the property and financial transactions of the parties.

12    During the course of the relationship the Plaintiff frequently travelled with the Defendant when she was attending what were described in the evidence as trade shows in relation to her business in Niugini Tours. On many of those occasions the Defendant had the benefit of free travel, and the Plaintiff, as her de facto spouse, also received free travel. During the periods whilst the Plaintiff was in Australia he frequently travelled from his residence in Sydney to Cairns, in order to exercise his access to his three small children. On a number of occasions, whilst those children were very young, the Defendant travelled with him. The extent of the involvement of the Defendant on those occasions of access was a matter in dispute between the parties.

13    During the course of the relationship a number of motor vehicles, each a BMW, were acquired by the parties. The final such motor vehicle (a 1994 model 318i, registered number ACF 42F), which appears to have been registered in the sole name of the Plaintiff, was ultimately transferred into the name of the Defendant. To the circumstances surrounding that transfer I shall later in this judgment return.

14    During the course of the relationship the parties participated in a number of property transactions. Those transactions included the purchase in about August 1995 of a property situate at and known as Unit 211, Tropical Holiday Units, 63-73 Moore Street, Trinity Beach in Queensland (to which I shall refer as “the Trinity Beach unit”). That purchase was made in the names of the Plaintiff and the Defendant. The purchase price of $92,000 was funded by a deposit of 10 per cent thereof ($9,200) paid by the Defendant, and the balance being borrowed from the National Australia Bank, such borrowing being secured by a mortgage over the property. That property was purchased as an investment, and was rented during the relationship. The rental income was received by Truewane, and that company paid the mortgage payments and other outgoings on the Trinity Beach unit.

15    For completeness, it should also be recorded that in about February 1996 (that is, at about the time of the termination of the de facto relationship between the parties) the Plaintiff purchased a property situate at and known as 22 Jagera Close, Kamerunga in Queensland. The purchase price of $215,000 was funded with an advance of $173,000 from the National Australia Bank, that amount being secured by first mortgage. That property was sold by the Plaintiff for $230,000 in March 1999, well after the termination of the relationship. No reference to that property was made in the amended statement of claim. No claim in respect to that property has been made by the Defendant. It may even be the fact that that property was acquired after the termination of the relationship. In any event, I consider it appropriate that, for the purposes of the present proceedings, I should disregard that property at Kamerunga.

16    I have already recorded that the Plaintiff throughout the period of the relationship was a helicopter pilot by occupation. He was unemployed for the period from 10 September 1993 until January 1994, and for the period from January 1995 until May 1995. During the balance of the relationship (that is, a period of about four years and four months) the Plaintiff’s earnings as a helicopter pilot totalled about $265,000 net. In addition, the Plaintiff throughout the period of the relationship accumulated modest superannuation entitlements, totalling about $24,000.

17    At the conclusion of the relationship the Plaintiff and the Defendant jointly owned unit 2003, 73 Victoria Street, Potts Point (to which I shall refer as “the Potts Point unit”); the Trinity Beach unit; the 1994 BMW motor vehicle; household furnishings; the contents of a safety deposit box held in the name of the Defendant.

18    At the conclusion of the relationship the liabilities of the Plaintiff consisted of his liability in respect to the mortgage debt over the Potts Point unit (that indebtedness being then in an amount of $6,000); his liability in respect to the mortgage debt over the Trinity Beach unit (that indebtedness being then in an amount of $82,000); and an amount owing to him by the Defendant in respect of a loan which he had made to her in an amount of $5,500 in 1993.

19    The assets of the Defendant at the termination of the relationship included an interest equivalent to that of the Plaintiff in the Potts Point unit and in the Trinity Beach unit; as well as her business conducted through the company Niugini Tours Pty Limited; and household furnishings. In addition, it was asserted that the Defendant had an interest in a business known as South Pacific Tours.

20    The liabilities of the Defendant at the conclusion of the relationship were, in respect to the Potts Point unit and the Trinity Beach unit, equivalent to the liabilities of the Plaintiff in respect to those properties.

21    At the outset of the hearing it was noted that the parties were in agreement that at the time of separation (that is, at the conclusion of the de facto relationship) the value of the Potts Point unit was $555,000 and the value of the BMW motor vehicle was $45,000. There was no agreement between the parties as to the value of the Trinity Beach unit at the time of the termination of the de facto relationship.

22    There was a very considerable dispute between the parties concerning the nature and extent of the contributions made by them respectively towards the acquisition, conservation or improvement of each of the Potts Point unit and the Trinity Beach unit, and of the contributions in the foregoing respects made by the Plaintiff to the Defendant’s house property at Alexandria until the sale of that property in 1994 for $290,000. It was asserted on behalf of the Plaintiff that he had contributed an amount of $7,181 towards the renovation costs of the Alexandria property of the Defendant. That assertion was not contested by the Defendant. At the time of that sale there was owing on the Alexandria property an amount of $165,372, secured by a mortgage (the amount secured by mortgage having increased, to pay for the construction and renovation work effected upon that property). From the net proceeds of sale an amount of $25,000 was paid to Niugini Tours Pty Limited, an amount of $25,000 was paid to Niugini Tours Superannuation Fund and an amount of $45,456 was paid directly to the Defendant.

23    In addition, there was an assertion on the part of the Plaintiff that at the termination of the relationship the Defendant retained certain items of personal property belonging to the Plaintiff, those items including personal effects (such as clothing, photographs, books and sporting equipment); what was described as “assorted loose gold”; savings held by the Plaintiff on behalf of the Defendant; children’s gold nuggets; gold coin which had formerly belonged to the Plaintiff’s father; dining room table and chairs; lounge suite; breakfast chairs; second hand children’s bunk bed; paintings/prints, plants, floor coverings, tools, compact discs, and the like; exercise equipment; barbecue; fax machine.

24    According to the Defendant, she contributed equally with the Plaintiff towards the purchase price and associated costs for the acquisition of the Potts Point unit.

25    Somewhat curiously, the Defendant appears to rely, in support of her case, upon the fact that she made all payments of outgoings in respect to the property at Alexandria, without any contribution by the Plaintiff. Since she was the sole owner of that property, and since the Plaintiff does not and has never claimed any interest in that property, and since the parties did not ever reside therein, and since the Defendant received the entirety of the net proceeds when it was sold, it would seem only proper that the Defendant would have made all payments in respect to that property. As I have already recorded, that property was sold in 1994 for $290,000, the amount outstanding upon mortgage secured thereon being then $165,372.

26    The Defendant also relies upon the assistance which she says she gave to the Plaintiff by providing to him secretarial services (together with telephone, facsimile and office services) during the period whilst the Plaintiff was involved in the property settlement with his former wife. Further, the Defendant says that she assisted the Plaintiff in the organisation of both his personal and his financial affairs during the period of cohabitation. Further, that the Defendant made a contribution in the capacity of homemaker in respect to the three infant children of the Plaintiff, in that she assisted the Plaintiff in the day-to-day care of the children during the periods whilst the children were in Sydney with their father; she also relies upon the fact that she travelled to Cairns on a number of occasions in order to collect the children to bring them to Sydney.

27    The Defendant asserted that she had repaid to the Plaintiff the sum of $1,500, being part of the total amount of $5,500 lent to her by the Plaintiff in 1993. The Plaintiff denied such a repayment. In the absence of any independent evidence supporting such repayment, I am not satisfied that the Defendant’s indebtedness has been reduced from the amount originally lent.

28 It is in the light of the foregoing factual background that the Court must approach the claim of the Plaintiff and the cross-claim of the Defendant, for the adjustment of the interests of the parties in respect to property. The Court must exercise the discretion committed to it by section 20 of the Property (Relationships) Act in the light of the respective contributions of the parties of the nature described in that section.

29    I have had the benefit of receiving from Counsel for the respective parties written submissions, which will be retained in the Court file.

30    It was the submission of the Plaintiff that the contributions of the parties to the acquisition (and, as I understand it, to the conservation and improvement) of the Potts Point unit should be treated as equal. In that regard the Plaintiff expressly accepted the figures as to contribution set forth in paragraph 41 of the Defendant’s affidavit sworn 11 November 1998. Those figures disclosed, in summary, a contribution by the Plaintiff in a total amount of $236,987 and by the Defendant in a total amount of $230,396. It follows from those figures that the contribution of the Plaintiff was 50.7 percent, whilst that of the Defendant was 49.3 percent.

31    The Plaintiff submitted that it was appropriate that the Potts Point unit should now by sold and the net proceeds of sale should be divided equally between the parties. I have already recorded that it was agreed between the parties that at the time of separation the value of the Potts Point unit was $555,000. However, it was further submitted on behalf of the Plaintiff that, in the event that either party wished to acquire the interest of the other party in the Potts Point unit, then it was appropriate that the current market value (which at the time of the hearing was $750,000) should be adopted in order to ascertain the amount which such purchasing party should pay to the other party for a one-half interest. That is, it was the submission of the Plaintiff that, in the event that the Court were to accept his submission that the contributions of the parties towards the acquisition, conservation and improvement of the Potts Point unit be treated as equal, then if the Defendant wished to purchase the interest of the Plaintiff in that unit, she should pay to him the sum of $375,000 (being one half of the current market value of $750,000), and that, similarly, if the Plaintiff wished to purchase the interest of the Defendant in that unit, he should pay to her an identical sum.

32    As to the Trinity Beach unit, it was submitted on behalf of the Plaintiff that that property had always been regarded by the parties from an aspect of equality, except to the extent that the Defendant had paid the deposit of 10 percent. However, in this regard it was submitted on behalf of the Plaintiff (as I understood it) that the deposit had actually been paid through Truewane, the assets of which company were apportioned equally.

33    On 30 August 2000 orders were made by consent to set in train the sale of the Trinity Beach unit. The amount outstanding under the mortgage upon that property is $82,000. Although the property was purchased for $92,000, its present value is stated to be $65,000. In consequence, therefore, there will almost certainly be a shortfall upon the sale of that property. As I have already recorded, there was no agreement between the parties as to the value of the Trinity Beach unit at the time of separation.

34    It was submitted on behalf of the Plaintiff that the net proceeds of sale or the net shortfall upon sale of the Trinity Beach unit should be borne equally between the parties.

35    I have already referred to the fact that the parties during the period of the relationship acquired, in sequence, a number of BMW motor vehicles.

36    It would appear that the final one of those BMW motor vehicles, a 1994 model (registration number ACF 42F) was acquired in May 1994 for a total price of $51,284. The purchase of that motor vehicle was funded by a trade-in of an earlier BMW (1987 model), which had been owned by Truewane, together with a deposit of $2,000 paid by the Plaintiff, a further payment of $15,852 made by the Plaintiff, and the payment of a further sum of $8,500. That sum of $8,500 belonged to the Plaintiff, having been earned by him in New Guinea, but, as a matter of convenience, had been paid by him into the Niugini Tours account in New Guinea, for transfer to Australia. I reject the assertion by the Defendant that that amount of $8,500 was a contribution by her to the purchase of the 1994 BMW. The vehicle was registered in the sole name of the Plaintiff, that registration reflecting the fact that the major part of the purchase price had been paid by the Plaintiff. The vehicle was registered in the sole name of the Plaintiff.

37    In June 1996 (that being well after the termination of the de facto relationship) the Defendant, by the exercise of a power of attorney which had been given to her by the Plaintiff two years earlier (on 23 April 1994), and without informing the Plaintiff beforehand that she was proposing, firstly, to effect such a transfer, and, secondly, to avail herself of the power of attorney for such purpose, transferred that motor vehicle into the name of the Defendant. The present insured value of the motor vehicle is $45,860.

38    Various assertions and submission were made by and on behalf of the Defendant concerning the 1994 BMW motor vehicle. Firstly, that she contributed from Niugini Tours the sum of $8,500 to the purchase of that vehicle, an assertion that is denied by the Plaintiff. Further, that an amount of $22,000 was paid by the Defendant into the Truewane account. I reject those assertions and submissions. I accept the evidence of the Plaintiff (which I have already outlined) concerning the sum of $8,500 belonging to him, which was paid from the account of Niugini Tours towards the purchase price. If that sum of $8,500 had ever been beneficially owned by Niugini Tours, one might have expected that company to have sought to recover it, either from the Plaintiff or from the Defendant. Niugini Tours has never attempted to do so. Further, the assertion on the part of the Defendant that the amount of $22,000 was paid by her into the Truewane account and was then used, in some fashion, to fund the purchase of the 1994 BMW is no more than a mere assertion by her. No documentary or other evidence supports that assertion.

39    It should be emphasised that the Defendant has had the physical possession of that motor vehicle since April 1996, and that she has been its registered owner since June 1996. She has retained that possession and ownership to the present time. Since the termination of the de facto relationship, now almost five years ago, she has had the benefit of the use of that vehicle (and, presumably, any other benefits which might accrue to her through the use of that vehicle in the course of her business).

40    Quite apart from the clandestine manner in which the Defendant effected the transfer of the motor vehicle to herself some months after the termination of the de facto relationship - conduct which, by any standards, must be regarded as dishonourable - the consequence of those actions on the part of the Defendant has been that the Defendant has obtained exclusive use and ownership of a relatively valuable motor vehicle at little or no cost to herself.

41    It seems to me appropriate that, whatever be any other relief granted to either of the parties in the proceedings, the Defendant should be required to transfer the registration and transfer the ownership of this BMW motor car to the Plaintiff.

42    There was no issue that Truewane was acquired by the parties as a vehicle for their business activities. It was submitted on behalf of the Plaintiff that any disproportion in respect to contributions passing through that company should be decided in favour of the Plaintiff. The Plaintiff also submitted that the company should be wound up, and that an order should be made that the parties bear equally the costs of liquidation, or that some other order should be made by the Court in that regard. It would appear that the present assets of Truewane consist of only $30.

43    Since the termination of the relationship the Plaintiff has declined to be involved in or associated with the activities of that company, although he is still a shareholder and director of that company. In this regard it should be noted that, according to the Defendant, Truewane has not lodged any income tax returns since 1995. The Defendant also said under cross-examination that she herself had not lodged any income tax returns since 1993.

44    A considerable quantity of evidence, both documentary and oral, as well as detailed submissions by Counsel, were directed to the respective loan accounts of the parties in Truewane and the manner in which those loan accounts impact upon the claims of the parties in the present proceedings.

45    It will be appreciated that, since the present assets of Truewane amount to only about $30, neither party will, as a matter of practical reality, receive anything upon the winding up of that company. Indeed, the costs of that winding up will need to be borne by the parties equally.

46    The unaudited accounts of Truewane which have been prepared by the Defendant disclose the Plaintiff’s loan account to be in an amount of $21,129 and that of the Defendant to be in an amount of $12,249. That is, Truewane owes to the parties a total of $33,378. Equalisation of those loan accounts (as is now sought by each party) would require each party to receive $16,689 in respect to the indebtedness of Truewane to that party. Thus $4,440 (the difference between $21,129 and $16,689) should be paid by the Defendant to the Plaintiff in order to reflect such an equalisation.

47    In regard to the foregoing calculation, it should be observed that, although the accounts upon which the calculation is based have been prepared by the Defendant and have not been audited, they are the only relevant accounts presently available to the Court, and in the absence of any better, must be used in performing the appropriate calculations in respect to the equalisation of the loan accounts.

48    Further, in accepting the foregoing amounts as being the entitlement of the parties in consequence of their respective loan accounts, I have expressly disregarded payments made to and by Truewane in respect to the 1994 BMW motor car.

49    I have already, in some detail, set forth my findings and conclusions in respect to that vehicle. For me now to take into consideration, in calculating the entitlement of the Plaintiff in respect to his loan account with Truewane, any payments made to or by that company relating to the purchase of the 1994 BMW would almost certainly have the result of duplicating (at least in part) the benefit to which I have concluded the Plaintiff is entitled in regard to that motor vehicle.

50    It will be appreciated that in many areas of evidence there was a considerable dispute between the parties. For example, concerning the respective contributions of the parties to the conservation and improvement of the Potts Point unit and of the Trinity Beach unit, and to the activities of a physical nature performed by the Plaintiff on the Defendant’s Alexandria property, and to the respective contributions of each party as homemaker and as parent in relation to the three infant children of the Plaintiff.

51    I did not regard either of the parties as being an entirely reliable witness whose evidence could be accepted without question. (The two parties were the only witnesses to give oral evidence at the hearing). It is here appropriate that I should state my opinion that what I regarded as the underhand and dishonourable conduct of the Defendant concerning the transfer to her of the BMW motor vehicle some four months after the termination of the de facto relationship between the parties, together with the responses given by the Defendant when cross-examined on this topic, reflected poorly upon her credibility.

52    There is a further matter to which I should here advert.

53    I have already recorded that the relief in the present proceedings claimed by each party is sought pursuant to the provisions of the Property (Relationships) Act, in particular section 20 of that statute. Nevertheless, after the termination of the de facto relationship there was prepared a document headed Private Property Settlement Agreement (annexure D to the affidavit of the Defendant sworn 11 November 1998). That document purported to set forth details of an agreement concerning the Potts Point unit, the Trinity Beach unit, the 1994 BMW 318i motor vehicle (registered number ACF 42F) and household contents. The document contains as the final provision thereof the following,

By signing this Private Property Settlement Agreement it is agreed by both parties that it is a final property settlement and either party wavers [ sic ] the right to any appeal or dispute.

54    The document was signed by the Plaintiff and witnessed on 28 July 1996. It also bears the signature of the Defendant and that of a witness, and the date 23 September 1996. However, above the signature of the Defendant appear the words (apparently in the writing of the Defendant) “Attached letter dated 23 Sept 96 to form part of this agreement.”. There is then appended to the document which is annexure D to the Defendant’s affidavit a further document dated 23 September 1996 in the form of a letter addressed to the Plaintiff, which is signed by the Defendant and witnessed. That further document purports to qualify various matters which are set forth in the Private Property Settlement Agreement itself. Above the signature of the Defendant appears the following statement,

This letter is an attachment to the Private Property Settlement Agreement signed by James Daly on 28 July 96 and by Ruth Dicker on 23 Sept 96.

55 It is apparent that the Plaintiff has chosen not to seek enforcement of the document entitled Private Property Settlement Agreement. He seeks the discretionary relief available under section 20 of the Property (Relationships) Act.

56    Nevertheless, it was submitted on behalf of the Plaintiff that the written agreement was evidence as to what the parties themselves truly believed to be the position concerning contributions between themselves in relation to relevant assets. The written document, so it was submitted on behalf of the Plaintiff, supports the earlier submissions of the Plaintiff regarding those assets, in particular, regarding the 1994 BMW motor vehicle.

57    The letter of 23 September 1996 from the Defendant addressed to the Plaintiff, and annexed to the copy of the Private Property Settlement Agreement which is annexure D to her affidavit of 11 November 1998, should not, according to the Plaintiff, be given any weight. Although the written agreement itself made provision that it be signed by each party, and that upon signature by each party it should come into effect and be binding upon each party, yet the letter of 23 September 1996 makes no provision for acceptance by the Plaintiff of the terms of that latter document. Those terms constitute a significantly disadvantageous departure from what the Plaintiff had already signed.

58    It is my view that, in the light of the qualification of the Defendant to her signature (by incorporating the letter of 23 September 1996), there was no true meeting of minds concerning the Private Property Settlement Agreement. Any purported acceptance by the Defendant constituted what was, in effect, a counter-offer, which was never accepted by the Plaintiff. It is possible, however, that there may have been an enforceable oral agreement between the parties (such oral agreement having been the basis of the written document). But, in any event, as I have already observed, the Plaintiff does not choose to seek to have enforced any such agreement, be it the written document, or some antecedent oral agreement. He chooses to seek relief under the statute.

59    Nevertheless, it seems to me that the Private Property Settlement Agreement can certainly be looked to as evidence of what the parties themselves believed to have been their respective contributions towards the acquisition, conservation and improvement of relevant assets. For example, the 1994 BMW motor vehicle was acknowledged to have a current value of $45,860 at the date of the Private Property Settlement Agreement. Further, item 4 in that document (“Household Contents”) acknowledges various chattels as belonging to the Plaintiff, those chattels including a number of items which in the present proceedings the Plaintiff seeks to retrieve from the Defendant (including dining room furniture, lounge suite, personal CD collection, personal clothing, personal books, weights and bench-press, barbecue, personal work tools, golf set, and various other items).

60    The letter dated 23 September 1996 from the Defendant to the Plaintiff agrees to the Plaintiff receiving those items (and, by implication, acknowledges that those items belonged to the Plaintiff). For the Defendant now to be heard to assert otherwise merely reflects upon the credibility of her evidence.

61    A final matter should also be referred to.

62    It would appear that in January 2000 the Defendant made application for an apprehended violence order against the Plaintiff. Proceedings in the Local Court in relation to such application for an apprehended violence order are totally irrelevant to the present proceedings under the Property (Relationships) Act. The Court is here concerned with the respective contributions of the parties of the nature described in section 20 of the Act. Consonant with the decision of the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70 (especially the joint judgment of Gleeson CJ and McLelland CJ in Eq), the Court is not concerned with circumstances or events after the termination of the de facto relationship.

63    In my conclusion the financial contributions of the parties towards the acquisition of the Potts Point unit should be regarded as equal. Further, I consider that the respective contributions of the parties to the conservation and improvement of the Potts Point unit should also be regarded as being more or less equal. That home unit should be sold and the net proceeds divided equally between the parties. If one or other of the parties is desirous of purchasing the interest of the other in the Potts Point unit, then that can be done for one half of the present valuation of that property. If the parties cannot agree upon that present valuation, then it will be necessary for them to obtain an independent valuation (at their joint expense), for such purpose.

64    I consider that the contributions of the parties to the acquisition, conservation and improvement of the Trinity Beach unit should be treated as being more or less equal. It follows, therefore, that if there be a shortfall upon the sale of that property, then the parties should bear the shortfall equally.

65    I should also record that, although the Defendant gave assistance of the kind which she alleged in providing to the Plaintiff secretarial services and assisting him in the organisation of his personal and financial affairs, the extent of that assistance was probably less than the Defendant would have the Court believe (although the Plaintiff in a letter dated 4 February 1992 to the Defendant (Exhibit 2)) acknowledged considerable gratitude for that assistance.

66    Further, I am satisfied that the assistance given by the Defendant in the care of the Plaintiff’s infant children during the periods whilst the Plaintiff had access to those children (that is, the Defendant’s asserted contributions in the roles of homemaker and parent in relation to those children) was less than the Defendant alleged, and was certainly not as great as the contribution by the Plaintiff in his role as the actual parent of those children.

67    Further, in general, the contributions of the parties in the role of homemaker should be treated as equal. In this regard, it should be borne in mind that the Plaintiff was in employment throughout most of the period of the relationship, whilst the Defendant was self-employed throughout the entirety of the relationship.

68    I am satisfied that the Plaintiff made contributions to the conservation and improvement of the Defendant’s Alexandria property. However, it emerged under cross-examination that those contributions consisted chiefly of physical assistance given by the Plaintiff to tradesmen retained by the Defendant to perform constructional and restorational work to that property. A somewhat different impression, as to both the nature and the extent of the work performed by him, had been given by the Plaintiff’s affidavit evidence.

69    The Defendant should, if the Plaintiff so requires, transfer to the Plaintiff the registration of and the property in the 1994 BMW motor vehicle. It will be appreciated that the Defendant has had the use of that vehicle for the past almost five years, in circumstances which reflect very poorly upon the conduct of the Defendant. Although the Defendant has asserted that she contributed an amount of $8,500 towards the purchase of that vehicle - an assertion which I have rejected - it seems to me that, in any event, any contribution which may have been made by the Defendant (for example, in possible consequence of the payment made through Truewane - although I have already also rejected her asserted contribution of $22,000 in that fashion) has been more than compensated for by the benefit which the Defendant has received from the use of that vehicle in the period of almost five years since she clandestinely effected its transfer from the Plaintiff to herself. Accordingly, therefore, I do not consider that it is appropriate that any amount should be paid by the Plaintiff to the Defendant in return for the Defendant surrendering to the Plaintiff what was always his property.

70    If the Plaintiff does not require that the 1994 BMW motor vehicle be transferred to him in specie, then an appropriate adjustment in favour of the Plaintiff in an amount of $45,000 (together with interest upon that sum at Supreme Court rates from April 1996 to the date hereof) should be made in favour of the Plaintiff in respect to the division between the parties of the proceeds of sale of the Potts Point unit (or to the price to be paid by one party to the other for the transfer of a one half share in that unit).

71    As to the personal chattels, those claimed by the Plaintiff in his amended statement of claim should be returned by the Defendant to him. Otherwise, each party should be declared to be the owner of chattels and other assets in the possession and under the control of that party.

72    An order should also be made for the winding up of Truewane, at the joint expense of the parties. The Defendant must, however, pay to the Plaintiff the sum of $4,440, in order to effect an equalisation of the respective loan accounts of the parties in that company. That sum must be brought into account in respect to the costs of the winding up of that company, which costs must be borne by the parties equally.

73    It will be appreciated that the Plaintiff has been substantially successful in obtaining the relief which he sought in the amended statement of claim.

74    The Defendant in her amended cross-claim sought an order that the Plaintiff transfer to her his interest in the Potts Point unit for $360,000; an order that any shortfall upon the sale of the Trinity Beach unit be borne by the parties equally; and an order in respect to the winding up of Truewane.

75    It will be observed that the foregoing relief ultimately sought by the Defendant in her amended cross-claim differed in monetary amounts, rather than in its nature, from the relief claimed by the Plaintiff. It differs only in monetary amounts from the relief to which, in my foregoing conclusions, I have held the Plaintiff to be entitled.

76    Nevertheless, it will be appreciated that the amended defence and cross-claim were filed on 14 November 2000, that being the first day of the hearing. Up to that time, the relief claimed by the Defendant was that sought by her in the defence and cross-claim which had been filed on 2 December 1997. By that cross-claim in its original form the Defendant sought an order that the Plaintiff transfer to her his interest in the Potts Point unit for $265,000; an order that the Plaintiff transfer to her his interest in the Trinity Beach unit and that the Plaintiff pay to her an amount equivalent to one half of all expenses and outgoings paid by her in respect to the said property from the date of separation; and a declaration that the Plaintiff has no interest in the BMW motor vehicle.

77    It will be appreciated that the Defendant has been substantially unsuccessful in the first of the prayers for relief sought in the cross-claim as originally filed (that in respect to the Potts Point unit) and has been totally unsuccessful in respect to the second and third prayers for relief in that pleading (being in respect to the Trinity Beach unit and in respect to the BMW motor vehicle). Further, the Defendant must pay to the Plaintiff the sum of $4,440 in respect to the equalisation of the loan accounts in Truewane, and, must repay to the Plaintiff her outstanding indebtedness of $5,500 in respect to the 1993 loan.

78    Until the commencement of the hearing and the filing of the amended defence and cross-claim, the Plaintiff was entitled to consider that the Defendant was persisting in the claims for relief set forth in the prayers to her cross-claim filed on 2 December 1997, and to prepare his case accordingly. The fact that at the outset of the hearing the Defendant substantially reduced the nature of the claims being made by her, with the consequence that, ultimately, the relief to which I find the Plaintiff to be entitled was not significantly different from the relief sought by the Defendant in her amended cross-claim, is not in my view determinative of the appropriate costs order which should be made.

79    In my conclusion the Defendant should pay the costs of the Plaintiff, and I propose so to order.

80    I propose to stand the matter over to a date to be fixed by arrangement with my Associate (being no later than seven days from the date hereof) for the bringing in by the Plaintiff of short minutes of order to give effect to my foregoing conclusions. Accordingly, the only order which I make at the present time is:

(1). I order that the proceedings be stood over to a date to be fixed by arrangement with my Associate (being no later than seven days from the date hereof), for the bringing in by the Plaintiff of short minutes of order to give effect to my reasons and conclusions herein.

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Last Modified: 05/25/2001