Del Gallo v Frederiksen

[1999] NSWSC 737

CITATION:	Del Gallo v Frederiksen [1999] NSWSC 737 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1017/1998
HEARING DATE(S):	31/05/99 and 01/06/99 Written submissions supplied on 16/06/99
JUDGMENT DATE:	23 July 1999
PARTIES :	Christine Del Gallo v Neil Lewis Frederiksen
JUDGMENT OF:	Master Macready at 1

COUNSEL :	D.J. Lloyd for the plaintiff C.M. Simpson for the defendant
SOLICITORS:	Beilby Poulden Costello for the plaintiff Freda & John F. Newman for the defendant
CATCHWORDS:	Family Law. Application under the Defacto Relationships Act for adjustment of property interests. Whether contributions made by a party prior to the commencement of the relationship can be taken into account. ; ; Held that such contributions cannot be taken into account.
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454. Evans v Marmont (1997) 42 NSWLR 70 Griffiths v Brodingham FamLR 822 Foster v Evans (1997) DFC 95-193
DECISION:	Para 61

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Friday 23 July 1999

1017/1998 CHRISTINE DEL GALLO v NEIL LEWIS FREDERIKSEN

JUDGMENT

1    MASTER: This is an application under the Defacto Relationships 1984 brought by the plaintiff for the adjustment of the parties’ property interests. There were no children of the relationship although the plaintiff had two children by a former marriage.

2    The parties are agreed that that they had a defacto relationship from late January 1993 until 30 January 1996. At that time they resided in the defendant’s house which had recently been reconstructed at North Curl Curl. The parties first met in September 1989 after which they began staying and sleeping at each others homes particularly on weekends. The plaintiff contends that the defacto relationship commenced in April 1990 when she says that the parties were living together four to five nights a week admittedly in two houses, namely, the plaintiff’s house at 66 Duncan Street, Maroubra and the defendant’s house at North Curl Curl.

3    The defendant denies there was a defacto relationship until January 1993. The matter is of some moment as the major part of the plaintiff’s contributions took place between early 1991 and January 1993 when the parties demolished the building on in North Curl Curl and built a new house which they occupied in January 1993.

4    In order to put the matter in perspective it is necessary to look at some of the chronology in the matter. The plaintiff was born in 1956 and is now aged 43 years. She has two children, Katie born 11 June 1981 and John born 13 August 1983. In April 1990 Katie would have been 8 years of age and John 6 years of age. Accordingly there is little possibility of either child giving appropriate evidence as to the disputed period of the defacto relationship given their ages.
5    In 1990 the parties commenced going out together and slept at each other’s home at weekends. In April 1990 the plaintiff says that a regular pattern of residence emerged in which she says that the defendant spent Thursday, Friday and Saturday and each second Monday evening at the plaintiff’s Maroubra home while she spent Sunday night at the defendant’s home. The defendant for his part asserts that he spent Monday or Thursday or Friday night and occasionally more than one night at the plaintiff’s home. He agrees that the plaintiff and her children would often stay on Sunday night at his home.

6    On 7 May 1990 the plaintiff mortgaged her home at 66 Duncan Street, Maroubra for $50,000 for three years and the funds were used to discharge a liability which she had to her sister. She had previously acquired the property by buying out her husband’s interest in it and to do this she needed assistance from both her sister and her father who gave that assistance.

7    On 2 February 1991 the defendant moved from his home in North Curl Curl to the nearby property 26A Surf Road which he had leased. This was to facilitate the demolition of the property in North Curl Curl which demolition appears to have commenced in July 1991 and continued for about seven weeks. The plaintiff and the defendant as well as others were involved in the demolition and the extent of the individual contributions is a matter to which I will return later in this judgment.

8    In October 1991 work started on the building of the new home in North Curl Curl. The parties had been involved in drawing up plans and obtaining their approval. At this stage the plaintiff had started making payment for various amounts incurred by the defendant in the work. She paid bills amounting to $52,432.37 and according to her she was reimbursed by the defendant as to the sum of $50,327. The home, of course, cost more than this and the balance of the funds were supplied by the defendant. The actual building cost was $140,000.

9    Both parties worked on the construction of the new house together with subcontractors and numerous friends of the defendant.

10    By April 1992 the defendant was able to move back into the partly completed residence in North Curl Curl and in January 1993 the plaintiff and her children moved into North Curl Curl and commenced to live with the defendant. Thereafter there was work done by the parties in finishing the premises. At this stage the plaintiff let her premises at 55 Duncan Street, Maroubra, initially at $333. From time to time thereafter she would repay her father sums which owed him and in May 1993 the plaintiff discharged the mortgage for $50,000 which she had earlier taken out. Some assistance was provided by her father who advanced somewhere between $5,000 and $10,000 to enable this to happen. The plaintiff also received an inheritance of $15,000 which may also have been used. In January 1994 the rent for the plaintiff’s premises at 66 Duncan Street was increased to $380 per week.

11    In November 1994 the parties occupied separate bedrooms at the home and this continued until Easter 1995. On 10 March 1995 the plaintiff sold her house at Maroubra for $388,000. There is evidence of some assistance by the defendant in making the residence ready for sale. On 30 June 1995 the plaintiff purchased another property at North Curl Curl for $335,000. On 14 July 1995 she rented it out for $400 per week.

12    On 16 January 1996 the plaintiff and her children left North Curl Curl and took up residence in her property at North Curl Curl.

13 The question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles referred to by the Court of Appeal in Light v. Anderson & Ors (1992) D.F.C. 95 120. They referred to the decision of Mr. Justice Kearney in Simonis v. Perpetual Trustee Co. Limited (1987) 21 N.S.W.L.R. 677 where His Honour in dealing with the expression in the Act after reviewing the authorities said at page 685 the following:

"I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459):
"1 the duration of the relationship;
2. the nature and extent of the common residence;
3. whether or not a sexual relationship existed;
4. the degree of financial interdependence, and any arrangements for support, between or by the parties;
5. the ownership, use and acquisition of property;
6. the procreation of children;
7. the care and support of children;
8. the performance of household duties;
9. the degree of mutual commitment and mutual support;
10. reputation and 'public' aspects of the relationship."
His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459):
"17.10. The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance."
As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case."

14    Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the defendant under the headings set out above.

1. The duration of the relationship

15    The overall relationship was of a little under six years.

2. The nature and extent of the common residence

16    The critical question is of course the period between April 1990 and January 1993. I have previously set out the assertions of the two parties.

17    The defendant was by occupation a naturopath and he would carry on his practice at his home and also in a clinic at Chatswood. The defendant was a teacher and she had employment with the Department of Education. In addition her children were enrolled at schools in the Maroubra area which is course quite a distance from North Curl Curl. There is little outside evidence concerning the extent of the common residence at this stage. There does not seem to be much dispute that the plaintiff stayed with the defendant along with her children on a Sunday night. They would leave early on Monday morning to return to Maroubra so the children could go to school. The defendant concedes that on occasions the plaintiff also stayed on Saturday night. The real contest seems to be how often the defendant stayed at the plaintiff’s home at Maroubra during the week. He concedes one night a week, usually Monday night.

18    Essentially it is the case that the plaintiff who did yoga would engage in that activity on a Wednesday night. It is also clear that the defendant had his clinic at home at North Curl Curl on Wednesday in contrast to Thursday, Friday and Saturday when he would attend his practice at Chatswood.

19    When giving his evidence about what time he started his practice on the Wednesday morning the defendant appeared to me to be a little evasive. The true explanation may have been that he would go surfing that morning rather than being there early to attend his patients. The only other evidence about whether the defendant attended on Thursday, Friday and Saturday night at the plaintiff’s home is some evidence from the plaintiff’s mother, Mrs Green that on occasions she would telephone her daughter who would tell her that the defendant was staying at her home. She said this occasionally happened on Friday and Saturday nights.

20    This evidence does not really assist in determining the frequency. The plaintiff alleges that it was a consistent pattern. The defendant says it was occasionally. There was nothing in the way the plaintiff gave her evidence which would tend to indicate she was not speaking truthfully. However, the defendant in cross examination did tend to down play the extent of his residence at times in a manner inconsistent with his sworn evidence. See for example his evidence about Monday nights. In the circumstances I think the only safe conclusion is that the parties’ usually cohabited on Sunday night at the defendant’s place and for three or four nights at the plaintiff’s home on Monday, Thursday, Friday or Saturday nights.

3. Whether or not a sexual relationship existed

21    It is clear that there was a sexual relationship between the parties except for a period of some five months when they were going through difficulties arising from the defendant’s insistence that the plaintiff sign some agreement dealing with their property rights. At that stage the defendant moved into a separate bedroom.

4. The degree of financial interdependence, and any arrangements for support, between or by the parties

22    One of the clear indicators of financial interdependence in the period April 1990 to January 1993 is the payment of bills on behalf of the defendant by the plaintiff which payment commenced in May 1991. The parties appear to have met the outgoings on their respective properties from their own resources.

5. The ownership, use and acquisition of property

23    The relevant property always remained in the defendant’s name and there appeared to be no other jointly owned property. Each party had cars but it appeared that by preference the parties would use the plaintiff’s 4 wheel drive vehicle for outings together. There was in the evidence some dispute on various conversations about whether or not the parties were building a home for them together or a house together. The defendant attached significance to this maintaining that there was always reference to a home rather than a house. To my mind this distinction is of no significance given the way in which people, not conscious of any dispute about ownership, use the words “home” and “house” interchangeably.

6. The procreation of children

24    In this case the parties had no children.

7. The care and support of children

25    For the relevant period in dispute from April 1990 until January 1993 it is clear that the plaintiff’s children were based in Maroubra where their friends and school were located. The defendant conceded that he did take a role in caring and supporting the children but that this rarely occurred until the parties commenced living together at North Curl Curl in January 1993. It would seem to me, given the nature of the arrangements that the defendant’s version on this matter is to be preferred.

8. The performance of household duties

26    There is little evidence on this aspect for the relevant disputed period. However it seems likely that apart from cooking meals for each other, there was not a great deal of performance of household duties. The plaintiff alleges that she would do the defendant’s washing which he would bring to her once a week. This was denied by the defendant but I am prepared to accept the plaintiff on this aspect.

9. The degree of mutual commitment and mutual support

27    For the relevant period the main thrust of the parties’ endeavour was the demolition and building of a new house in North Curl Curl. It is perfectly clear from the evidence that both parties participated in this in different ways. There are disputes about precisely how much of the physical work the plaintiff did but leaving that to one side, it is clear, and the defendant concedes this, that the plaintiff spent a lot of time researching the project for appropriate fittings, materials and other matters concerned with the building and the planning of the new house. The plaintiff’s father helped at times with plans and suggestions and clearly there was a mutual effort in this whole enterprise. I would have thought that there was a substantial mutual commitment and support between each other in respect of this venture and that such support continued over into the period after January 1993.

10. Reputation and 'public' aspects of the relationship

28    There was little evidence given by outsiders about the public aspects of the relationship. Some friends gave evidence but they did not touch on these public aspects other than pointing to the plaintiff as the defendant’s girlfriend.

Conclusion

29    The defendant in this case emphasised in submissions the fact that the parties chose between April 1990 and January 1993 not to conduct their relationship from a single residence. This failure was linked to the failure of the defendant to take any effective role in the parenting of the plaintiff’s children and the separation of their financial affairs to indicate that no defacto relationship existed. On many occasions I have emphasised the importance of the public face of the relationship. In the present case there was little evidence to show a public face of the relationship as being the parties living together as man and wife.

30 I have earlier referred to the decision of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454. At page 458 His Honour had the following to say:-

It seems to me that, to attempt, as Young J appears to have done, to breakdown, into discrete elements, a single phrase intended to describe a single concept, and then to proceed to examine the facts with a view to ascertain whether, in the particular case, each such discrete element can be said to exist, is likely to be productive of error. Thus, while I accept that the concept of a man and woman living together as man and wife does not necessarily imply that the two persons in question are always living together under the same roof (see, eg, Re Fagan (at 464; 822)), it does not necessarily follow that a man and woman, each of whom maintains a separate home, are to be regarded as living together because they are accustomed regularly to spend time together, and even sleep together, in the home of one. So, too, while I accept that, while, in the normal course of events, one would expect to find that a man and woman living together as husband and wife, whether de jure or de facto, were accustomed to provide emotional support to each other, it does not necessarily follow that the presence of such support establishes, while the absence of such support denies, that the basis of their relationship is a bona fide domestic one. Finally, while I accept that the presence, or absence, in a particular case, of one or more of the factors referred to by Young J as "the main guidelines" is a matter to which one might properly have regard in determining whether the relationship under consideration involved a man and woman living together as husband and wife on a bona fide domestic basis, it does not necessarily follow, either, that his Honour's list of "guidelines" is exhaustive of the matters to which regard might be had, or, that the presence of those factors establishes, while the absence of any one of them denies, that the relationship under consideration has, or had, the relevant character.

31    Of interest is His Honour’s words where he refers to the question of the parties living together under the same roof. In the present case it is not without significance that the parties commenced to sleep together in 1990 and over a period formulated a plan for the construction of the new house. One might be forgiven for imagining that if there were a defacto relationship one might have found the defendant upon the demolition of the house moving in to live with the plaintiff at her home. That arrangement could well have been beneficial for both of them. That, however, did not occur and the defendant took the step of leasing a property nearby. The evidence did not really explore whether this was because of his part-time work from home or perhaps a desire to be near the site of the demolition and reconstruction. Be that as it may the fact that the parties did not take this step does, I think, have to be taken into account. There would be many factors perhaps why the plaintiff may have left it to the completion of that project before moving such as, for example, the placement of her children at school and local friends. Although the evidence shows some commitment together with the project and some inter-dependence in respect of contributions to that project, I think the appropriate conclusion is that the defacto relationship did not commence until January 1993 when the plaintiff moved in to the completed property in North Curl Curl.

Can pre-relationship contributions be taken into account in the adjustment process?

32 This brings me to the question which was debated in submissions about whether one can take into account contributions prior to the commencement of the relationship. In Roy v Sturgeon (supra) this matter was dealt with at length by His Honour Mr Justice Powell then sitting at first instance. At pages 460 through to 466 His Honour analysed the provisions of the Defacto Relationships Act and the Family Law Act and ultimately came to a conclusion that, contrary to the approach taken by the Family Court in applications under s 79 of the Family Law Act, it was not open to this Court when dealing with applications under s 20 of the Act to have regard to contributions said to have been made prior to commencement of the of the particular “defacto relationship”. His Honour pointed out that there was no injustice in this result for it would still remain open to a defacto partner to rely upon prior contributions as supporting a claim under the general law. (See the Act ss 7, 14(2), 38(1), 38(2).)

33 This aspect of the decision which was not over-turned on appeal from the particular decision has been referred to at first instance in two cases. The first of these is Griffiths v Brodingham Fam LR 822 a decision of Chisholm J of the Family Court who was hearing an application under s 20 of the Defacto Relationships Act pursuant to the cross-vesting legislation. His Honour concluded that it was open to the court to have regard to the contributions of the kind mentioned in s 20 notwithstanding that those contributions might have been made before or after the period of the defacto relationship. His Honour’s conclusion is at page 834 to 835. His Honour’s reasons, particularly his consideration of the Family Law Act decisions do not seem to take account of the significant differences between the Family Law Act and the Defacto Relationships Act. However, I will not go into His Honour’s reasons at this stage in detail for reasons to which I will later refer. The second decision is a decision of Mr Justice Bryson in Foster v Evans (1997) DFC 95-193. He was there concerned with contributions which were made after the conclusion of a relationship. His Honour did not accept that s 20 within its own terms contained a limitation for the period during which there was a defacto relationship as a period during which any contributions to the welfare of the family might have been made. He ultimately held that there could be contributions after the defacto relationship in circumstances where one of the partners continued to care for a child.

34    So far as I am concerned I think the matter is put to rest by the subsequent decision of the Court of Appeal in Fotheringham v Fotheringham. In that court the Judges were Powell JA, Beazley JA and Stein JA. One of the principle matters in issue was whether it is possible for a court to have regard to contributions made during an earlier period of a defacto relationship which pre-dated the relationship which was brought forward in the proceedings. The question which arose was whether it might be necessary for there to be leave to bring the action in respect of the earlier period of the relationship. Inherent in the judgment of Mr Justice Powell is an acceptance of the proposition which he had adumbrated in Roy v Sturgeon that it is not possible to take account of contributions prior to a defacto relationship. Justice Beazley agreed with the decision of Justice Stein who held that the relevant six week interruption did not mean that there were two periods of cohabitation. Accordingly, it was not necessary for either of these two justices to address the point in question in these present proceedings.

35 However, the decision of Powell J is a decision of a judge of an appellate court reaffirming a decision which he had made at first instance. In these circumstances I feel constrained to follow his Honour’s decision in Roy v Sturgeon and for this reason it is fruitless for me to embark upon a consideration in detail of the decision of Bryson J and Chisholm J and to contrast them with Mr Justice Powell’s decision in Roy v Sturgeon on this point. However I do note that Griffiths v Brodingham predated Evans v Marmont (1997) 42 NSWLR 70 in which the majority relied upon the difference between the provisions of the Family Law Act and the Defacto Relationships Act. They were of the view that those differences were conspicuous and deliberate. They noted the lack of the application of s 75(2)(o) which is fundamental to views taken by Powell J in Roy v Sturgeon. Mr Justice Bryson does not seem to have been referred to these aspects of the approach of Powell J.

36    I turn first to consider the property of the parties at the commencement of the relationship which I have found, namely, in late January 1993. At the commencement of the relationship the plaintiff owned the property at 66 Duncan Street, Maroubra. The evidence does not establish its value at that time. However, some years later it was sold for $388,000. The plaintiff also had an outstanding loan of $50,000 to a private lender at that stage. She no doubt had furnishings and personal possessions. She had a Mitsubishi car the value of which does not appear in the evidence. She had superannuation of a minor amount. Apparently the amount of her superannuation outstanding at 30 June 1993 was about $1,000.

37    So far as the defendant is concerned he had the following property:-

1. North Curl Curl which had a value of $385,000 and was unencumbered.

2. Unit 1/20 Pindara Crescent, Lismore unencumbered. The evidence does not disclose its value at the date of commencement of cohabitation.

3. Household furniture and effects.
4. 1982 Model BMW 318i.

5. Savings of approximately $20,000.
6. Naturopath practice.

38    At the conclusion of the relationship the plaintiff owned:-

1. The house at North Curl Curl which had been purchased in June 1995 for $335,000 and subsequently rented. It was unencumbered.

2. A car now estimated to have a value of $24,000.

3. Furniture now estimated to have a value of $5,000.

4. Superannuation which as at January 1997 amounted to some $12,000.

5. Cash of an amount which is not clear.

39    Since the separation the plaintiff has purchased another property. In mid December 1998 she purchased a unit at 42 Evans Street, Harboard for $245,000 using finance of $205,000. The property is tenanted and currently has a shortfall of $50 per week. The defendant in July 1995 purchased 39 Griffin Road, North Curl Curl for the sum of $280,000. He borrowed $220,000 from Westpac and used his savings for the balance. He rented out the property for $350 per week.

40    The defendant’s situation therefore at the conclusion of the relationship was as follows:-

1. Property at North Curl Curl $460,000

2. 1/20 Pindara Crescent, Lismore

3. 39 Griffin Road, North Curl Curl

4. The car

5. Furniture and effects

6. Some savings

7. Telstra and AMP shares worth several thousand dollars. At that stage he had a liability to Westpac at something under $220,000 which he had borrowed to purchase Griffin Road.

41    The parties have agreed a number of present values of properties.

1. 39 Griffin Road, North Curl Curl has a current value of $600,000.

2. The property 1 Pindara Crescent, Lismore, has a current value of $80,000.

3. The property at North Curl Curl owned by the plaintiff has a current value of $425,000.

4. Valuation evidence establishes a fair market value of North Curl Curl at $650,000.

42    I turn to the contributions which are alleged to have occurred since the commencement of the relationship which I have found was in January 1993. I will first deal with the financial contributions.

43    So far as the plaintiff is concerned I have earlier referred to her efforts in assisting by financing some payments with the defendant repaying her thereafter. Some of these did occur in or after late January 1993 but they are of a small amount. However, there is the balance which was then due being the difference between the amount which she had paid and had been reimbursed. The amount which the plaintiff has provided in this way is $2,105.64. The plaintiff also identified four other financial contributions to the house. These were:-

1. Payment of a landscape design in the sum of $90.

2. Payment of interior decorator’s fees of $160.

3. Payment to a tradesman for $160 for one day’s work to do the cornices in the defendant’s clinic area.

4. Payment to a painter of $240 to paint the defendant’s clinic area.

44    Given the evidence I am prepared to accept that the plaintiff paid for these items. Apart from this it is important in this matter to appreciate that it was the defendant who paid substantially for the construction of the house. This was in the order of $140,000. The house was built on land which he already owned unencumbered at the commencement of the relationship. The parties also met the major expenses in respect of each of their own houses individually. By this I mean that the plaintiff met either from the rent or her own income the expenses in connection with her house at Maroubra and subsequently at North Curl Curl while the defendant met expenses such as council rates, water rates in respect of North Curl Curl. The plaintiff did however, I accept, pay the house contents insurance for North Curl Curl. The plaintiff paid with assistance from the children’s father, all the education related expenses of her children. Each party met his or her medical and dental expenses. So far as the contribution to household expenses the plaintiff suggests that she paid the most of these while the defendant suggests that he paid one third and the plaintiff two thirds. There is no evidence which would allow me to assess these claims particularly as the parties have not put forward a detailed analysis of their financial affairs over the three years of the relationship. I accept that the plaintiff paid most of the household expenses.

45    I turn to the non-financial contributions. The first of the non-financial contributions which have to be considered are the contributions to the finishing of North Curl Curl and some work done on the parties other properties. So far as North Curl Curl is concerned it is clear that by the time the plaintiff and her children moved in at the commencement of the relationship that the property was substantially completed. There were a number of matters that had to be done. The plaintiff alleges that she spent hundreds of hours working on the premises finishing it including:

(1) The planning and execution of landscaping work.
(2) Watering.
(3) Sweeping.
(4) Vacuuming.
(5) Cleaning.
(6) Undertaking painting jobs.
(7) Repairing jobs such as lose handles.
(8) Restoring gyprock walls in the downstairs bathroom.
(9) Painting those gyprock walls.
(10) Removal of debris and rubbish after works.

46    I have no doubt that she did these tasks. In respect of some of them it is clear that there would have been some assistance from the defendant. However, when looking at these works it should be appreciated that they pale into insignificance compared with the amount of work which was done by the parties during the construction of the house. Although the landscaping took some work in preparation it is clear that, although attractive, the garden is not a substantial one.

47    The plaintiff alleged that she assisted in certain work at the Griffin Road property which the defendant had purchased and subsequently had let. This was clearing the back yard and wall papering a room over one weekend. There was also the erection of a gyprock wall. The defendant denies that he was assisted by the plaintiff in these tasks. However, he does admit that the plaintiff made him lunch on the day when the gyprock wall was created. Given the evidence that I have heard I think I would assume that the plaintiff was there and that she provided lunch and also would have been assisting. Accordingly, I accept the plaintiff on this aspect.

48    The defendant for his part suggests that when the North Curl Curl property was purchased that he did work to assist in preparing the property so it could be rented out to tenants. The defendant also suggested that he did some work on the Maroubra property to prepare it for sale. The work seems to have been limited to painting on one weekend and fixing the side gate and some fences. So far as his work on the North Curl Curl property is concerned, he says:

(1) He helped an electrician install new light fittings
(2) He wheel-barrowed soil from the front of the garden to the back.
(3) He cut down two trees in the back yard.
(4) He repaired a phone socket.
(5) He installed some brackets to mount the clothes dryer.
(6) He pruned the back yard trees and shrubs.
(7) He watered various plants.
(8) He mowed the lawns.

49    Most of these matters were admitted by the plaintiff.

50    So far as the contributions to the properties other than North Curl Curl are concerned it seems to me that the parties did something for each other in respect of each other’s property. If anything the properties of the plaintiff might have received some more attention than that of one property purchased by the defendant although the amounts involved and the effort involved is not substantial unlike the pre-relationship work done on North Curl Curl.

51    I turn to the non-financial contributions which are respectively the roles of homemaker and parenting. Both parties throughout the relevant three year period of the relationship were working and the plaintiff’s two children were living with the parties.

52    So far as the carrying out of ordinary household chores are concerned the parties’ versions differed but mainly on matters of emphasis. It seems that the majority of the housework was done by the plaintiff with the children as well as the defendant assisting. In particular it seems the washing up used to be done by the defendant during the last four months of the relationship. The defendant suggested that when the plaintiff was at yoga classes on Monday and Wednesday nights he would cook dinner and look after the children. The plaintiff gave more detail on that aspect and it seems that the majority of the work was probably done by the plaintiff before she left in the morning. The plaintiff normally got home at 8.30 pm and this is not far removed from the defendant often returning home by 8 pm.

53    I am satisfied that the plaintiff did the major part of the household work. She was also primarily responsible for the parenting of the children although there was some assistance from the defendant from time to time.

54    In considering what is an appropriate order to make in the present matter there are a number of matters put forward which need to be further considered. The first of these is the fact that the parties, in particular the defendant, seems to have over-capitalised the property in North Curl Curl. There was valuation evidence of this property which indicated that the value of the property in January 1993 was $385,000, in January 1996 $460,000 and at 17 May 1999 $650,000. The parties also had it valued on the basis that the original property still remained on the site. This property would have been valued in 1993 at $300,000 to $320,000 in 1996 $360,000 to $370,000 and $500,000 to $520,000 in 1999. Given the price of the building of the new house, namely, $140,000 and the enormous amount of work of the parties involved one can see that there has been some over capitalisation. However, given my decision on the commencement date for the relationship, there was in fact the new house on the property at that time and, accordingly, one has this as a starting point. The property increased in value during the period of the relationship by $75,000. How much of this was due to the matters such as the landscaping and other minor matters done by the plaintiff in contrast to the natural effects of inflation, does not appear in the evidence. It is appropriate, however, that I give consideration to this work and take some account of it in the figure to which I will arrive.

55    The other major matter which was advanced by the defendant was the effect on the plaintiff’s financial situation as a result of the decision to live together in North Curl Curl. This meant that the plaintiff could let out her Maroubra residence and North Curl Curl which was purchased once she had sold Maroubra. The amount received by her was not insubstantial. The evidence would seem to establish that she was able to use the rent to substantially repay a major part of her loan of $50,000 less the amount of her inheritance of $15,000. By the time the matter was at the preparation stage when she swore her affidavits she was able to accumulate reasonable savings.

56 Having regard to these facts and what was alleged to be the over capitalisation which I have treated somewhat differently the defendant submitted that there should be no adjustment as in the words of Evans v Marmont (1997) 42 NSWLR 70 at 76 the case was one which could be regarded as “involving shared activities or reciprocal benefits not giving rise to any disproportionate burden which would be just and equitable to satisfy by an adjustment of interest in property”.

57    In the present case I do not think this is appropriate. First I have already dealt with what I perceive to be the correct way of approaching the starting point, namely, the value of the property at the commencement of the relationship. Second, the suggestion that the plaintiff received benefits from her Maroubra properties ignores two crucial factors. These are:-

1. That it was the parties’ decision to live together jointly in North Curl Curl. At that time the defendant well knew that the plaintiff would be letting her house and the decision to live together was one made in that knowledge. There is some incongruity later, after the relationship ceases to exist, in maintaining a different position.

2. During the relationship the defendant himself acquired the Griffin Road property and he has had the benefit of the very substantial increase in the value of that between the time of its acquisition and the present time.

58    The plaintiff in her evidence referred to opportunities for promotion which she did not pursue during the course of the relationship. These matters were not referred to in submissions. These matters are not appropriate to take into account for two reasons:-

1. It involves a determination of the likelihood of her being promoted if she applied for a position and sufficient facts are not available.

2. It is an attempt to penalise a party for lost opportunities as the relationship did not work out in the end. The plaintiff refrained from applying for promotion for reasons which were no doubt satisfactory to her at that time.

59    I think it is appropriate to take into account the plaintiff’s contributions in the way I have indicated and a small balance in the defendant’s favour in respect of the contributions to properties other than in North Curl Curl. There is also to be taken into account the greater proportion of the household parenting task undertaken by the plaintiff over the three years of the relationship. Given these factors it is appropriate that there be an adjustment of the parties’ property interests by an order for the defendant to pay the plaintiff a sum of $35,000.

60    I have not dealt in these reasons to this point with any of the contributions prior to the commencement of the relationship in January 1993. In case the matter goes on appeal and another court takes a different view of the commencement of the relationship I record the following observations in respect of some of the earlier contributions.

1. The plaintiff clearly spent a substantial amount of time researching the matters connected with the design of the property. The defendant acknowledged this and was indeed grateful for the effort which she put into pricing items and even attending courses at Sydney Building Information Centre which gave her the appropriate knowledge to help the parties in the project they had undertaken.

2. The first area of work on the reconstruction project was the demolition of the old house. That took place over a number of weekends and I accept the plaintiff’s evidence that this was seven weekends. She assisted on five weekends and the demolition work as can be imagined involved the physical demolition of the building. It included stacking of tiles and bricks and also cleaning the bricks so they could be used for the new foundations. The work was done on the weekends and there was also assistance from other friends of the defendant. It seems to me that each of the two parties in this matter did work to the best of their ability on this part of the endeavour and although the type of work that each could do was probably different the contribution was a shared one and I would regard it as one where the plaintiff has done a substantial amount of work. It was not as much as that of the defendant but was not far from it. The defendant should be credited with help he had from his friends.

3. The next area of work consisted of the actual construction. In this area, as with the demolition there was some evidence from friends of the defendant speaking of what they observed the plaintiff to do. Given their intermittent appearance on the site I do not place a great deal of store on this evidence. The construction took place over about four months and the plaintiff says that she did a lot of physical work on the property averaging about ten hours per week. In some areas the plaintiff was shown to be incorrect in precisely what work was done but I have no doubt she did assist in a substantial way, even if it might have been ancillary work such as driving to get building items, during the weekends when the parties were working.

4. There is evidence of over-capitalisation touched on earlier and this needs to be more carefully considered if the commencement date of the relationship is April 1990.

61    The orders of the Court are:-

1. I order the defendant to pay the plaintiff by way of adjustment of the parties’ property interests the sum of $35,000.

2. Subject to submissions, I make no order as to costs.

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Last Modified: 11/25/2004