Dridi v Fillmore - [2001] NSWSC 319

No judgment structure available for this case.

Reported Decision:
(2001) DFC 95-232

New South Wales

Supreme Court

CITATION: DRIDI v FILLMORE [2001] NSWSC 319

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1101/2000

HEARING DATE(S): 4, 5 May 2000
3,4,5,6,17 & 18 October 2000
2,3 November 2000

JUDGMENT DATE:
30 April 2001

PARTIES :

Daniel Nourredine Dridi v Donal Russell Fillmore

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr C.R. de Robilliard for plaintiff
Mr L. de Vere Tyndall for defendant

SOLICITORS: John A. Hunter for plaintiff
Gregory Falk & Associates for defendant

CATCHWORDS: Family Law. Application under Property Relationships Act for adjustment of parties' interests following termination of a same sex relationship. Consideration of whether there was a domesticl relationship between the parties. Held that any such relationship had ceased before 28 June 1999 when the amendments brought about by the Property (Relationships) Legislation Amendment Act 1999 came into effect. - Whether parties had entered into a termination agreement. - Held no such agreement. - In the event that such an agreement had been entered into then in the circumstances regard should not be had to the terms of the agreement. - Even if there had been a relevant relationship any contributions had been adequately compensated and that no order should be made in favour of the plaintiff. - Order on defendant's cross claim for two claims for money had and received and conversion of chattels for $110,215.99.

LEGISLATION CITED: Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999

CASES CITED: Light v Anderson (1992) DFC 95120
Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677
Main v Main (1949) 78 CLR 636
George v Hibberson (1987) DFC 95-054
Hibberson v George (1989) 12 Fam LR 725 at 740
Lipman v Lipman (1989) 13 Fam LR 1
Thomson v Badger 13 Fam LR 559
Australian National Railways Commission v Gerlach (1987) DFC 95/048
Theodoropoulos v Theodosiou (1995) 38 NSW LR 424
Gazzard v Winders (unreported Court of Appeal 23 July 1998
Del Gallo v Fredericksen Master Macready unreported 23 July 1999
Del Gallo v Friedericksen [2000] NSWCA 293
Roy v Sturgeon (1986) 11 nswlr 454
MacDonald v Stilsa [2000] NSWCA 302
Evans v Marmont (1997) 42 NSWLR 70
Briginshaw v Briginshaw (1938) 60 CLR 366
Dignam Pty Ltd v Wright (No 2) (1983) 2 NSWLR 354

DECISION: Paragraph 132

Introduction

1 MASTER: This is an application brought by the plaintiff by his amended Statement of Claim in which he seeks relief under the Property (Relationships) Act 1984 as a result of a domestic arrangement that he says existed between himself and the defendant from 1994 until November 1999. The amended Statement of Claim also seeks certain declarations as to trusts in respect of property, which was the subject of occupation by the parties during the relevant period. An order has been made by a Judge that the whole of the proceedings be referred to a Master for determination. The relief sought is based upon the alleged existence of a domestic relationship in the narrow sense of a de facto relationship as defined in the Property (Relationships) Act 1984 and also in the wider sense of a close personal relationship referred to in that Act. The plaintiff also seeks to rely upon an agreement said to have been entered into on 15 September 1999 which he alleges is a termination agreement within the meaning of that expression in s 44 of the Act.

2 The defendant admits on the pleadings that there was a relationship between the plaintiff and himself from July 1994 to March 1996 and from June 1996 to November 1997. He however denies on the pleadings that it was a domestic relationship within the meaning of the Act. In addresses the defendant conceded that there was a de facto relationship from August 1994 until March 1996.

3 The defendant also brings a cross claim. In that cross claim the defendant seeks relief in respect of three general areas. The first is in respect of monies advanced for the purposes of the plaintiff’s business amounting to $253,489.38. The second relates to the conversion of chattels of the defendant by the plaintiff such chattels having a value of some $65,020. The chattels comprised artefacts, furnishings and floor coverings in the defendant’s home 36 Nobbs Street, Surry Hills. The third area of the cross claim concerns a liability incurred by the plaintiff on the defendant’s American Express card, the defendant claiming back from the plaintiff a sum of $52,445.79. The total of these claims is $370,955.17.

4 The plaintiff was born on 24 May 1971 and is French by descent. After completing a small part of his tertiary education the plaintiff became involved in sales and marketing research in France. He came to Sydney in May 1994 when he was then 24 years of age. He makes it clear that he is bi-sexual.

5 The defendant was born on 17 August 1942. He was born in South Australia and has grown up in Australia. He has no children and makes it clear that he has been gay all his adult life. From about 1980 he lived in a de facto relationship with Mr John Sidney Aust for about 12 years until that person’s death. As a result of Mr Aust’s death the defendant received substantial benefits from his estate. These included a life interest in the property 36 Nobbs Street, Surry Hills, a life interest in a property at Bilpin, a share portfolio, investment units and two retail clothing businesses. The parties first met in June 1994 as a result of an enquiry by the defendant to an escort agency. They are agreed that they commenced a sexual relationship shortly thereafter. They commenced living together in the defendant’s home in August 1994. The defendant sponsored the defendant for Australian citizenship and after completing appropriate applications in 1995 the plaintiff was granted permanent residence on 29 November 1996.

6 There were a number of businesses which were operated at the commencement of the relationship by the defendant. One was “Boutique Additonne” and the other the “Shirt Dress Shop”. In 1995 the defendant registered the name “Monsieur Elegance” as a business name and his company which was carrying on one of his other businesses was the proprietor. On 1 July 1996 the arrangements changed and the plaintiff and the defendant became partners and proprietors of the business known as “Monsieur Elegance”. This business continued until it was terminated in November 1997. At that time the plaintiff incorporated a company ME Shirt Specialists Pty Limited he being the sole director and shareholder. This company acquired stock from the former joint business. Shortly after this the relationship between the plaintiff and the defendant, according to the defendant, broke down. On the defendant’s case there had previously been a separation in their relationship from March 1996 until June 1996. Although according to the defendant the relationship had again broken down in November 1997 the parties continued to live in the same premises until November 1999 when the defendant moved out of the premises. At that time the plaintiff’s business collapsed and it was placed in liquidation in December 1999. In the middle of January 2000 the trustees of the estate of John Aust took possession of Nobbs Street, Surry Hills and ejected the plaintiff. The defendant was then entitled to possession and an interlocutory application to restore the plaintiff to possession was unsuccessful in these proceedings before Hamilton J on 4 February 2000.

7 At that hearing there was no mention of a document which has occupied a substantial amount of time at this hearing, namely, a document a copy only of which has been produced dated 15 September 1999. It is this document which the plaintiff propounds as a termination agreement in the case. In general terms the documents provides for a transfer of the defendant’s life interest in Nobbs Street to the plaintiff for fifteen years, provision of some $200,000 to $250,000 from the defendant’s superannuation to the plaintiff, the transfer of custody of dogs, a release by the plaintiff of a claim against the defendant for $510,000 and a release of any claim by the plaintiff against the property at Bilpin. The defendant denied the execution of such document and the plaintiff called witnesses deposing to the execution of the original of the document which original has not appeared in evidence.

The Law

8 Prior to the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 relief was only available under the then De Facto Relationships Act in respect of relationships between a man and a woman. Under the amendments, which took effect on 28 June 1999 there was an extension of the Act which applied to relationships which ceased after that date. Under the amended Act a de facto relationship is a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.

9 The Act applies to domestic relationships which are defined in s 5 as follows:-

“5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

Status of Children Act 1996

Children and Young Persons (Care and Protection) Act 1998

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

10 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. In the present case this is of some importance given the alleged cessation of the relationship in November 1997 and the continuance of the parties living together under the same roof until November 1999 which was after the commencement of the relevant provisions of the Act. A question will arise as to whether or not there was a de facto relationship or a close personal relationship which survived until November 1999.

11 The definition of de facto relationship itself appears in s 4 and is in the following terms:-

4. De facto relationships

(1)

(2)

(3)

(4)

12 This definition apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677.

13 Apart from the exclusioniary matters in s 5(2) there is no definition of “close personal relationship”. Little help is obtained from the reading speeches as to the meaning of “close personal relationship”. It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons “who are living together, one or each of whom provides the other with domestic support and personal care”. It is notable that both domestic support and personal care must be provided. One of the them alone would not be sufficient.

The parties’ relationship up until March 1996

14 I have already referred to the fact that the defendant conceded in address that there was a de facto relationship from August 1994 until March 1996. The evidence clearly supports this conclusion. The parties were living together, enjoying a sexual relationship and to an extent making known to friends and acquaintances their relationship. There was support between the two parties. One of the notable matters of support which the defendant offered to the plaintiff was to sponsor the plaintiff’s application for permanent residence in Australia. In a Statutory Declaration sworn 12 June 1995 the defendant spoke of his close relationship with the plaintiff, their future plans and commitments made together.

15 In 1995 the defendant set up “Monsieur Elegance” which traded in the Royal Arcade. The proprietor of the business was the defendant’s company SDS Pty Ltd and the funds for start up were provided by the defendant. Both parties worked in the business. However, by 1995, according to the defendant, the plaintiff was wishing to work there by himself and that led to the defendant spending more time at his other businesses. The plaintiff apparently from September 1995 onwards started to press for a share in the business in which he was working. This caused further friction and ultimately on 22 March 1996 there was an incident and an argument between the parties. The incident concerned the plaintiff’s communications with staff at the shop. In the ensuing argument the plaintiff grabbed the defendant by the throat and abused him. The defendant left the premises and went to stay with friends.

16 Later that day the defendant went to his home and packed the plaintiff’s possessions in bags and placed them outside. A security guard was posted and the plaintiff was prevented from returning to the house. The defendant then wrote to the Department of Immigration and Multicultural Affairs advising that his relationship with the plaintiff was over. A transfer of the joint electricity account for Nobbs Street into the defendant’s name was put in place. By the end of March the defendant had made an application to Waverley Court for an Apprehended Violence Order and an interim order was made. By April 1996 the defendant had moved back in to Surry Hills after staying with friends.

17 The plaintiff went and stayed at the property at Bilpin for a time. On or about 7 or 8 April the plaintiff returned to live with the defendant and they resumed their sexual relationship. This continued until 29 April and, as a result, the defendant did not proceed with the Apprehended Violence Order on the return date for the hearing. The relationship then again deteriorated. The defendant left Surry Hills and moved to his Bilpin property. He corresponded with his solicitors and arranged the eviction of the plaintiff on 31 May. Thereafter the defendant returned to Surry Hills. In the middle of June 1996 the defendant arrived home from work and found the plaintiff standing outside in the rain on a bitterly cold night. He allowed him back inside and there was then a resumption of the relationship although, according to the plaintiff, on a somewhat different level.

18 The plaintiff did not in general dispute the substance of the facts which I have outlined. The question which arises is whether there was in fact a termination of the existing relationship at the end of May 1996.

Law on Termination of a Relationship

19 This raises the question of how a relationship of this nature does terminate. There have been a number of references in the cases to the problem that started to surface in Australia in cases under matrimonial legislation, which provided for parties living separately and apart as a ground for divorce. An early case which is of use on the general principles is Main v Main (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:-

"Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed dictated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.

20 Questions concerning the termination of a de facto relationship frequently occur under the present Act in the context of whether or not there have been several separate periods of a relationship. This sometimes is significant because a period of a relationship before a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054 That was a decision of his Honour Cohen J, which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say:-

"The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.

21 The theme which his Honour there picked up was repeated in the words of Mahoney JA on the appeal reported as Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said of the statutory definition the following:-

“It is correct ... that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents, which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."

22 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.

23 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1, his Honour had the following to say:-

"Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.' I therefore conclude that, in this case, there were two discrete 'de facto relationships'."

24 In Thomson v Badger 13 Fam LR 559, his Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Australian National Railways Commission v Gerlach (1987) DFC 95/048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one:-

"... not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got together on the same basis again as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."

25 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSW LR 424, where he referred, with approval, to the statement of Mahoney JA.

26 Also in Gazzard v Winders unreported Court of Appeal 23 July 1998, he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George:-

"I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration."

27 In the light of those matters, I think there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:-

"...where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."

28 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may lead one, on a factual basis, to find that an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. This is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was there concerned with the more difficult question of whether the Court can take into account earlier periods of interruption to a relationship.

29 The plaintiff suggests that the fact was that there were some personal belongings still left in the house and that the parties were trying to resolve issues through their solicitors are indications to the contrary. Reference was also made to the plaintiff going to Bilpin and both parties being upset. Further reference was made to the fact that an Apprehended Violence Order was taken out and then withdrawn by agreement. However, one should look at it in terms of the facts as they occurred at the end of March. Clearly, and it only requires one person to have this view, if one person withdraws from the relationship and determines thereafter it is to end, that this is an effective end to the relationship. On the evidence before me quite clearly the defendant intended to terminate the relationship. His contemporaneous documents indicate that, as do his actions. In these circumstances I am satisfied that the relationship terminated on 22 March. It continued for a few short weeks in April, terminated again at the end of April and did not resume until the middle of June 1996. As the parties were living apart during the course of these breaks in the relationship there would seem to be no opportunity for the provision of domestic support and personal care during the breaks. Thus there could be no close personal relationship between the parties at this time.

Law on Contributions Prior to Commencement of Relationship

30 This may have repercussions so far as contributions are concerned as there is a question as to whether one can take account of contributions made prior to the existence of a relationship. I dealt with this matter in Del Gallo v Fredericksen Master Macready unreported 23 July 1999 at paragraphs 32 to 35 where I had the following to say:

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

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 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).)

This aspect of the decision which was not over-turned on the 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 in considering the Family Law 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.

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.

31 There was an appeal in Del Gallo v Fredericksen [2000] NSWCA 293 to the Court of Appeal and in the judgment on 24 October 2000 the Court dismissed the appeal. Although there was substantial argument on the appeal as to whether or not the earlier views which I have followed of His Honour Mr Justice Powell in Roy v Sturgeon (1986) 11 NSWLR 454 should prevail, the Court ultimately did not decide that matter because it made no difference to the factual outcome of the appeal.

32 The matter was briefly touched upon again by the Court of Appeal in MacDonald v Stilsa [2000] NSWCA 302. This was an appeal from Bergin J and there was a suggestion that she had taken into account contributions made prior to the relationship. On a factual basis the court did not come to this conclusion. However, His Honour Mr Justice Priestley having had regard to what was said in Evans v Marmont (1997) 42 NSWLR 70 concluded that a trial judge was entitled to take into account circumstances of or related to the parties’ relationship which occurred prior to the commencement of the relationship provided such circumstances were closely connected in subject matter, time and relevance to the financial and non-financial contributions made during the period of the relationship. Such matters could be given some but not fundamental weight.

33 In the present case no application was made by the plaintiff for leave under s 18(2) of the Property (Relationships) Act in respect of the period from July 1994 to March 1996. The plaintiff’s case was simply that the relationship had continued during March to June 1996. Even if such an application had been made it may be doubtful whether it could be granted because the period from July 1994 to March 1996 was less than two years and thus the plaintiff may have had difficulty establishing the necessary hardship.

34 It would seem, therefore, that contributions prior to June 1996 should not be taken into account.

The Parties relationship between June 1996 and November 1997

35 Between June 1996 and November 1997 the parties continued, on the defendant’s case, with a relationship. In July 1996 the business of “Monsieur Elegance” which had been carried on by SDS Pty Ltd, one of the defendant’s companies, was restructured. This was at the insistence of the plaintiff who wanted to be taken into the business. The business was transferred apparently into the names of the plaintiff and the defendant who thereafter continued on in business under the name of “Monsieur Elegance”. No accounts were taken at the time the business was transferred but after the transfer of the business the plaintiff worked full time in the business and the defendant would come and relieve him at lunch time. The defendant still continued to look after his other business. By January 1997 the business took on a part time employee and following upon that, in general terms, the defendant ceased to relieve the plaintiff during lunch time. In other words, the defendant’s connection with the business was reduced other than his interest in the ownership and the financing of it.

36 So far as the personal relationship is concerned on the defendant’s case it continued except that, so far as he was concerned, there was a change. He says he did not have sex with the plaintiff after June 1996. This is disputed by the plaintiff but, assuming for the moment the defendant’s case, the question that arises is whether the relationship continued up until November 1997 when the next major rearrangement in the parties’ business and domestic relationship occurred.

37 The defendant in his affidavit evidence talks of trying to build up his relationship with the plaintiff in that period but not being successful. He speaks of the plaintiff going to work in the evenings and not socialising with the defendant’s friends. Nothing occurred during this period on the part of the defendant to terminate the relationship. Even allowing for the absence of any sexual relationship at least on the defendant’s case it would seem to me that the relationship continued as de facto relationship up until November 1997.

The Parties’ Relationship from November 1997 until November 1999.

38 This area was dealt with in some detail in the affidavits and in cross examination. It is probably useful to first put the defendant’s view as most of his basic factual material is not disputed. In August or September 1997 the manager of the Royal Arcade where “Monsieur Elegance” carried on business informed the defendant that the business would have to move because the whole arcade was being refurbished. This led to the defendant deciding to end the partnership between himself and the plaintiff. The plaintiff wanted to keep the business going and started to look for new premises. The plaintiff went overseas in September 1997 and on his return on 13 November 1997 the partnership between the plaintiff and the defendant was terminated. At the same time a company, ME Shirt Specialists Pty Ltd was incorporated by the plaintiff. He was the sole director, secretary and the only shareholder. It became registered as a proprietor of the business name “Monsieur Elegance”. The plaintiff located premises for the new business in Shop 8 Piccadilly Arcade. The business was then conducted both at that shop and the existing shop at the Royal Arcade until that shop closed in late 1998.

39 No accounts were taken on this transfer of the business from the joint ownership by the parties to that run by the company of the plaintiff. In effect the stock was split between the two shops. From the sale of a property that he owned at Balmain the defendant provided $20,000 to enable the plaintiff to pay the security deposit for the lease of the new store. About the same time the defendant closed his remaining business, which had operated elsewhere and separately from “Monsieur Elegance”. After this rearrangement in November 1997 the defendant would arrange window displays every few weeks in the plaintiff’s store and would occasionally relieve him when the plaintiff wanted the day off or wished to travel overseas. By November 1997 the defendant contended that he had not had a sexual relationship with the plaintiff for at least a year. He says that in November 1997 he had a conversation with the plaintiff in which he said that Daniel had told him that he was in love with a girl and that he had turned “straight”. The plaintiff did not deny this. According to the defendant, from that time he regarded his relationship with the plaintiff as over.

40 The defendant continued to spend time at Bilpin for longer periods than previously. The defendant became aware of various matters, which he discovered on his return, which indicated that the plaintiff was having female company at the Surry Hills home over the weekends. So far as financial arrangements are concerned the defendant cancelled the plaintiff’s joint use of his bank account. However, he did not cancel his supplementary American Express card. That continued to be used by the plaintiff and resulted in substantial disputes between the parties. The plaintiff even used the card to allow some other retailer to buy stock overseas. In May 1998 the plaintiff says that he was endeavouring to have the plaintiff agree on what was their financial position to that date particularly as the defendant had put a substantial amount of money into the business that effectively was now being run by the plaintiff’s company. He tried to get the plaintiff to sign an agreement, which recorded that the plaintiff owed him $253,489 but that was never signed. In a discussion between them on the subject the plaintiff agreed that he owed some money. Thereafter the defendant would still from time to time at the plaintiff’s request lend him further sums. The details of these are not available except for some minor matters.

41 The defendant recounts how, in October 1998, the plaintiff informed him that he was having a relationship with a woman, known as Ms W. Demarco. Apparently she was working in his shop in the Piccadilly Arcade. The defendant also became aware that in June 1999 the plaintiff had a relationship with a Miss Victoria Favlova and the details of this relationship I will return to in due course. According to the defendant he continued to press the plaintiff for a repayment of monies which were due to the him up until October 1999.

42 On 1 November 1999 an argument ensued during which the plaintiff demanded the defendant take over his business and sign some documents. The defendant refused to do this as he would not take over the debts which had been incurred. There was an incident when the plaintiff grabbed a glass of whisky from the defendant, broke it and then tipped some bottles of whisky down the toilet. The defendant threatened to call the police and the plaintiff produced a knife saying to the defendant, “Why don’t you do it to me”. A telephone call interrupted whereupon then the defendant grabbed his briefcase and fled the house. The defendant then made an application for an Apprehended Violence Order and interim orders were eventually made on 22 December. The defendant did not return to the house and, indeed, had not returned by the time of the hearing. On 21 December his solicitor and the police changed the locks on the door. At that stage when the premises were inspected it was found that they were in a filthy condition and that most of the furniture and effects had been removed.

43 In his affidavit the plaintiff agrees with the general factual matters that occurred in relation to the transfer of the business. He puts however a different case forward, namely, that the defendant was in fact simply wanting to retire and cut down his working hours. He speaks of the defendant in 1998 spending far more time at Bilpin and only visiting the shop on one day a week. He claims that he was working hard to support the defendant and that the defendant was starting to drink substantially more than he had been accustomed to drink. He recounted a matter that occurred in February 1999 when he says that the defendant asked him for some $48,000 because he was being blackmailed and needed the money urgently. According to the plaintiff he obtained $48,000 and gave it to the defendant to pay the blackmailers. The threat for this blackmail, on the plaintiff’s case, was never explained to him. He then goes on to say that as a result of the incident he thought the relationship might break down and thus he decided to seek some financial agreement to separate their financial arrangements if the relationship broke down.

44 He says that on 15 September 1999 the defendant produced a typed document setting out their financial arrangements and required it to be immediately signed. This was at an occasion when the plaintiff had Mr John Dekker and Mr Terry Michelle at Nobbs Street to discuss the refurbishment of the shop at the Piccadilly Arcade. It was, according to the plaintiff, the day before he was to go overseas. According to the plaintiff it was signed and left in the defendant’s care. He says he obtained a copy of it from the defendant when he returned from overseas in October. He agrees that any relationship broke down in November 1999 and does not deny that most of the furniture in Nobbs Street was taken by him and placed in storage as security for his claim.

45 It is necessary to focus in further detail on the day to day manner in which the parties conducted their lives between November 1997 and November 1999. This will necessitate a decision on each of the party’s credibility. Credibility arises most sharply in respect of the agreement said to have been made in September 1999.

The Separation Agreement

46 The agreement which was propounded by the plaintiff was that attached to his affidavit of 13 March 2000 and, leaving aside signatures, was in the following terms:-

“This agreement has been made by RUSSELL DONALD FILLMORE and NOURREDINE DANIEL DRIDI, of 36 Nobbs Street, Surry Hills in the State of New South Wales, Australia.

1. RUSSELL DONALD FILLMORE transfers his life interest (for the period of fifteen years) in the property at 16 Nobbs Street, Surry Hills, New South Wales, to NOURREDINE DANIEL DRIDI, to take effect from 1 March 2000 (the first day of March in the year two thousand)

2. RUSSELL DONALD FILLMORE gives the full sum of his superannuation (estimated to be between two hundred thousand dollars and two hundred and fifty thousand dollars $200,000.00 and $250,000.00) to NOURREDINE DANIEL DRIDI.

3. RUSSELL DONALD FILLMORE transfers custody of the two dogs, TARA and THOMAS (Golden Labradors) to NOURREDINE DANIEL DRIDI.

4. NOURREDINE DANIEL DRIDI promises not to sue RUSSELL DONALD FILLMORE for the sum of five hundred and ten thousand dollars ($510,000.00).

5. NOURREDINE DANIEL DRIDI promises not to claim for the property at Bilpin, 258 Laguna Road, Blue Mountains, New South Wales.

6. NOURREDINE DANIEL DRIDI promises not to claim any recompense for his financial assistance to RUSSELL DONALD FILLMORE as a result of the blackmail.

7. In case that RUSSELL DONALD FILLMORE is arrested by the police or charged with a serious offense, NOURREDINE DANIEL DRIDI promises to pay all necessary legal costs.

8. In the event that RUSSEL DONALD FILLMORE is not arrested, both parties to this agreement agree that clauses 1, 2, 3 and 5 as stated above will still take effect.

9. NOURREDINE DANIEL DRIDI promises not to change his last will and testament (in the event of his death) and that RUSSELL DONALD FILLMORE and DAVID LEE BITEL will remain the joint executors and trustees of the estate of NOURREDINE DANIEL DRIDI.

10. With the exception of DANIEL GRIGNON and of DAVID LEE BITEL who will each receive the sum of five thousand dollars ($5,000.00) RUSSELL DONALD FILLMORE is the sole beneficiary of all that belongs to NOURREDINE DANIEL DRIDI, as it is stated in the last will and testament of NOURREDINE DANIEL DRIDI dated 6 August 1996 (the sixth day of August, one thousand nine hundred and ninety six)

Signed by Signed by
RUSSELL DONALD FILLMOR E NOURREDINE DANIEL DRIDI
in the presence of in the presence of
Witness’s full name: Witness’s full name:
Thierry Michelle John F. Dekker
Witness’s address Witness’s address
41 William Street 808/197-199
Ketraville Castlereagh St Sydney

47 There were two other different versions of that copy document which appeared in evidence. In particular one of them, MFI 4 had a large gap between paragraphs 8 and 9 to which I have referred above.

48 As I have mentioned the defendant denies the execution of this document and it is clear that no document was executed on the evening of 15 September 1999. On that day the plaintiff was in fact on an Olympic Airlines flight to France. It is likely that the meeting took place, if at all, on the day before. The plaintiff called four witnesses to prove the existence of the document apart from his own evidence in respect of the same. His evidence was that the defendant retained the original after execution but that the defendant gave him a copy in October or November 1999. This is surprising, and I will come back to this, as the plaintiff’s evidence on the application before His Honour Mr Justice Hamilton in early February made no reference to this agreement but merely to some earlier agreement said to have been made in 1996.

49 It is useful to list the points put forward by the plaintiff and the defendant in order to understand the evidence concerning the execution of this document. For the defendant’s part he puts the following matters forward.

(a) Structure

50 The defendant make two points:-

1. On the photocopy attached to the defendant’s affidavits there is a Fax heading which shows a date in November 1995. The document was said to be prepared in 1999 and obviously it had been prepared by some multiple photocopy means using an old fax which showed the letterhead.
2. “Monsieur Elegance” had ceased trading back in 1997.

(b) Content

(a) The parties description.

The description is of the defendant is “Russell Donald Filmore”. His signature on the document is D.R. Filmore. The defendant’s correct name is Donald Russell Filmore. His name appears in this way in

(i) The affidavits in the proceedings.

(ii) Letters from strangers to the proceedings.

(iii) The Power of Attorney given by the plaintiff to the defendant.

(iv) The immigration application.

(v) The Loan Agreement the defendant was trying to have the plaintiff sign.

(b) The attempt at legalise in paragraphs 6 and 7.

(c) The reference to superannuation.

4. The date of 15 September 1999.

(c) Recent Invention

5. The plaintiff’s conduct at the hearing before Hamilton J in February 2001 and his failure to remember the document which he had been given in October 1999 which was then so important to him.

6. The difference between the two statements of claim. The amended Statement of Claim being the only one referring to the agreement.

7. The first reference to blackmail threats in the affidavit evidence after February 2000.

(d) Inherent Improbability

7. Paragraph 4 refers to a promise not sue for $510,000. The evidence of the takings of the business over the relevant period showed nothing like this amount.

8. The unlikelihood of Mr Fillmore executing such a document when, even on the plaintiff’s case the defendant was asking him to sign the loan agreement.

(e) Execution

9. It is clear that the document was not signed on 15 September 1999.

11. Witnesses called by the plaintiff, namely, Messrs Michelle and Dekker, Curran and Cranch should not be accepted.

51 The plaintiff’s submissions on the agreement obviously rely upon the sworn evidence of the Messrs Michelle, Dekker and the plaintiff as to its execution. The submissions of the plaintiff dealt with many of the matters referred to by the defendant and were responsive to them. In particular when trying to point to an explanation as to why the defendant would have proffered this agreement for signature by the plaintiff they referred to the developing relationship between the plaintiff and Miss Valova. On the evidence the first contact between the plaintiff and Miss Valova was in 1997 when she rebuffed his overtures. He seems to have continued his infatuation and in June 1999 she eventually consented to go out with him. They first had sexual relations in July 1999 and they arranged to meet in Europe when the plaintiff travelled there in September. The meeting in Paris did not go well and the relationship then ended. The plaintiff had made it perfectly plain to the defendant before September 1999 that he was in love with Miss Valova. The essence of the submission appeared in the following paragraphs of the written submissions:-

“By July 1999 the first defendant feared that Mr Dridi’s attraction to Ms Valova was more than a fling. The first defendant was anxious to demonstrate to Mr Dridi his continuing commitment to Mr Dridi and his determination to meet his previous promises made to Mr Dridi.

The first defendant’s main concern was that Mr Dridi might terminate their relationship once he had spent time in Paris with Ms Valova.

The date 15 September 1999 became in the first defendant’s mind vital to the future course of his relationship with Mr Dridi. Although he had poor recall about many events (e.g. T324L25: “I cannot remember the date or month, I really can’t he said I am in love with his girl”). He had clear recall as to the date of Mr Dridi’s departure: T324L30 and T459L30.”

52 It was also suggested in submissions that it was not necessarily the defendant who prepared the document but also his adviser, being his accountant, or his friend Mr Bruce.

53 Paragraph 15 of the submissions is in the following terms:-

“The September agreement more probably than not represents an audacious scheme prepared by someone like Mr Dobbs, Mr Bruce or another of the first defendant’s advisers to lead Mr Dridi to believe, before leaving for France and meeting Ms Valova, that the first defendant had in fact honoured his previous promises. It was hoped to demonstrate to Mr Dridi that notwithstanding Mr Dridi’s declared attraction for Ms Valova, the first defendant was prepared to respect his moral debt to Mr Dridi and at the same time demonstrate his own love and continuing generosity towards Mr Dridi. In any event Mr Dridi was not given a copy of the agreement prior to his departure.

a. By the time Mr Dridi returned in early October it was apparent to the first defendant that the “Valova threat” had receded; given the dramatic, romantic breakdown in a Paris hotel bathroom. The first defendant hoped to regain Mr Dridi’s full attention by providing him with a copy of the agreement upon his return at a time when Mr Dridi was feeling upset and vulnerable.

b. By fixing the date at 15 September 1999 and using the names as used in the agreement it was hoped, (as indeed happened in these very proceedings), to throw doubt upon the genuineness and validity of the agreement should it ever become an issue.

c. The first defendant’s evidence about the first time he claims to have seen a copy of the agreement is inconsistent, puzzling and not credible.

54 I return to the various points made by the plaintiff about the document.

(a) Structure

55 Clearly a facsimile from the business of Monsieur Elegance has been used in order to construct a new document. Thus there is clearly a deliberate desire to create a connection with Monsieur Elegance which is no doubt referable to the fact that the debts said to be forgiven of $510,000 relate to allegations for a promise not to sue for that amount which relates, according to the evidence of the plaintiff, to amounts taken from that business by the defendant as cash in hand takings. Notwithstanding that the plaintiff did not have access to some of his documents clearly he had access to sufficient documents in his business as did probably the defendant so either of them most likely would have had a document from which a new document could be constructed. The use of this form if anything shows a desire on the part of whoever constructed it to show a connection with the old business in order to give some colour of authenticity to the claim for forgiveness of the $510,000.

(b) Content

56 The language used is quite important as there is first the strange reference to the names of the defendant. There are sufficient documents in the proceedings to show that the correct name of the defendant is Donald Russell Fillmore. Some documents are for example a letter written at the time of the immigration application by a friend of the defendant in support of the relationship shows the name of Donald Russell Fillmore. There is no doubt that this was told to him by Mr Fillmore who also no doubt procured that reference for the purposes of the immigration application. In contrast it became perfectly obvious from the plaintiff’s evidence in the witness box that he knew the defendant as “Russell”. He always referred to him as this and when he himself completed documents, which were formal ones, in which they were both involved he used the name Russell Fillmore for the defendant’s name. See the storage agreement Exhibit A in the proceedings. Perhaps this is a pointer to the plaintiff having constructed the document, he having known the defendant had an extra name, which was not often used, and making a mistake in the construction of the full name.

57 The signature on the document is of course one, which the defendant concedes is like his and is the way he would normally sign. The language used in the document is one, which shows drafting by a layman unfamiliar with legal principles. Both parties fit this description although the defendant from observing him in the witness box appeared to be what could be described as a more literate person who had greater fluency in the English language. This is not surprising as the plaintiff could speak little English when he first came to Australia. The language is such that I do not think that an accountant could have drawn it unless he was deliberately trying to portray the construction of the document by a layman.

58 There is a reference to superannuation. This is something that was within the defendant’s knowledge but there could surely have been discussion between the parties on that subject at some other time such as when they were contemplating a move to other premises. This of itself I do not think is an indicator.

59 The blackmail threats on the plaintiff’s case which led to him handing over $48,000 seems to have arisen for the first time in the plaintiff’s affidavit of 13 March 2000 after the hearing before Mr Justice Hamilton in February 2000. In the affidavits sworn by the plaintiff in support of that application there is no reference to the sum of $48,000 and the blackmail even though the affidavits were careful to try and establish contributions that had been made by the plaintiff to the parties’ property. The agreement of course makes clear reference to this fact, which is some support for the matter of recent invention.

60 The fact that the date of 15 September was typed on the document I do not find particularly helpful. There could be many reasons why either party might have put the date in either accurately or in error. Both no doubt knew that the departure for overseas was about 15 September 1999.

Recent Invention

61 In his evidence before Mr Justice Hamilton the plaintiff first gave evidence about having signed something when he was cross-examined on 3 February 2000. At page 5 of the transcript he said the following:-

A. Yes, that’s absolutely correct.

Q. Where is it?
A. With all my clothes in the house in Surry Hills. I have all this documentation between the life of me and Russell and the paper. All this we don’t have any more. I asked my barrister to get it and I look and it’s not in my personal boxes.

Q. What does it say on the piece of paper?

OBJECTION (DAVIES)

(Mr Davies stated that the plaintiff had not finished going through his belongings in storage and therefore the piece of paper may be amongst his belongings.)

HIS HONOUR: When is that going to occur? If what the witness says is true, going through the property becomes very material to this case.

Q. Do not tell me what was in the property, but was there written in this piece of paper something about occupation of the property in the future?
A. Absolutely, in black and white.

(Ms Dowling stated that in relation to when access could be gained to the plaintiff’s property, the plaintiff did not have a car and her instructions were he would be available to go on Saturday.)

DAVIES: We were told by Ms Dowling about representations on which evidence was to be given. This is the first time we are told in these proceedings there is something in writing.

62 His Honour thereafter adjourned and made arrangements for the plaintiff to have access his possessions. The matter came back before the Court on 4 February 2001 and the evidence the plaintiff gave appeared in his affidavit of 4 February. It was to the effect that the document was not available and that it had been created in 1996. shortly after the time of the parties’ separation in that year. He said that he had last seen the 1996 document early in January 2000 but that it had gone missing. He made absolutely no mention of the September 1999 agreement in the whole of his evidence given before His Honour who commented on how important it was for the plaintiff to be able to locate the document.

63 It was not until 18 February 2000 that a copy of what is the disputed agreement was shown to the defendant or his advisers. It was apparently faxed from the plaintiff’s solicitors to the defendant’s solicitors on 18 February. There is evidence from Mr D’Apice the defendant’s solicitor that this was the first time he had ever seen the document. When one looks at the evidence that the plaintiff gave in his March 2000 affidavit it is hard to comprehend that in February he had no recollection of having received a copy of the document from Mr Fillmore when he came back from overseas in October 1999.

64 He gave evidence before me that he was worried that the relationship was breaking up, that he needed to sort out their financial affairs and wanted some security. He said the September agreement was an important document to him and although he wanted to have his lawyers check it first he was prepared to sign the document when presented by Mr Fillmore. He himself had been discussing the matter, he said, with Mr Fillmore since earlier in the year. The plaintiff in his recounting of these discussions indicated that the defendant had told him that his accountants, Dobbs Vumbacca & Co, were preparing the agreement.

65 I find it almost inconceivable that the plaintiff could have entirely forgotten about the 1999 agreement at the time he gave his evidence before Mr Justice Hamilton early in February 2000.

66 The original Statement of Claim filed on 31 January 2000 in paragraph 20 contained references to promises to be able to stay in the Bilpin property which reflected the evidence given in the witness box before His Honour Mr Justice Hamilton. In contrast the amended Statement of Claim, which was filed on 7 March 2000, incorporated paragraphs 28, 29 and 30 and a reference for the first time to the September 1999 agreement. This indicates that the plaintiff had given thought and instructions to his solicitors in relation to the existence of any agreement prior to the issue of the original Statement of Claim on 31 January 2000. There are also in this context the allegations that also were made for the first time in the plaintiff’s 13 March affidavit concerning blackmail. All of these matters are consistent with there being a recent invention of a story concerning the 15 September agreement and its creation by the plaintiff.

(d) Inherent Improbability

67 Paragraph 4 refers to a promise not to sue for $510,000. This was the subject of some cross-examination. The document presumably is supposed to deal with the financial affairs between the parties when they owned the business Monsieur Elegance together. In his affidavit of 13 March the plaintiff in paragraph 22 - 25 referred to the takings of “Monsieur Elegance” commencing at $2,500 per week in February 1996 and increasing to between $4,000 and $6,000 per week late in 1996. In paragraph 25 he said that they increased to about $4,500 per week in September 1996. That joint business continued through until November 1997. Accepting the plaintiff’s case at its highest, and not taking into account his evidence of his own business having takings of some $3,000 per week, one has gross takings for the relevant period of 20 months in the order of $102,000. It is to be remembered that these are gross takings and take no account of purchases for stock or wages. How there could be any sum of $510,000, even on the plaintiff’s case, coming into the shop over the relevant period is impossible to conceive. The defendant himself conceded that the plaintiff had been pushing to have the loan agreement that the plaintiff had drawn up and signed by the plaintiff. The plaintiff dated this as occurring in October. It would seem strange that such a contradictory document as the loan agreement would be being propounded by the defendant for the plaintiff to sign immediately after the execution of the 15 September agreement.

68 The other strange thing about the whole document is what one might call the exceeding generosity contained in the document on the defendant’s part. The defendant had by September 1999 sold his shares and two properties at Balmain and was approaching the end of his assets. What he was doing by the agreement was giving up his right of residence of Nobbs Street, Surry Hills. In effect the only thing he was keeping was the right to reside at Bilpin. This would seem to be an extraordinary act of generosity on the defendant’s part or, alternatively, ultimate foolishness based upon what the plaintiff would submit was the defendant’s hope to attract the plaintiff back into the relationship and continue the relationship.

(e) Execution of document

69 The plaintiff concedes that the document was not signed on 15 September 1999 as his passport clearly showed he left Australia on that day. The affidavits of the plaintiff and the two witnesses of Mr Michelle and Mr Dekker put the event in the evening. Both witnesses gave affidavits in which they described the meeting in fairly consistent terms. Their evidence as to where the meeting took place in the house and description was not greatly at variance. There were some minor differences on time. Mr Dekker had known the plaintiff since April 1999 and gave evidence that his relationship with the plaintiff concerned a business proposal to renovate the business premises of the plaintiff. He had three or four discussions with the plaintiff about the matter prior to the meeting. There was nothing in his cross-examination, which suggested that his account in his affidavit had not occurred. He gave his evidence in an extremely quiet manner almost as though he was afraid to speak. Mr Michelle was also someone who had known the plaintiff since April 1999. He said he was not close to him but that he knew him well. He had worked for the plaintiff as a sales assistant in his shop for a few weeks. He was a French national having obtained Management, Business and Accounting qualifications in France. He said that he was approached to give evidence in the case in February 2000. As with Mr Dekker there was nothing in the way Mr Michelle gave his evidence, which would lead me to conclude that he did not appear to be speaking truthfully.

70 There are two witnesses who gave evidence which touched on the existence of the agreement in 1999. These were Messrs Curran and Cranch. Mr Curran’s affidavit was read and subpoenas were issued on a number of occasions to secure his attendance. They were not able to be served and he did not attend for cross examination. In these circumstances and because his evidence needed to be tested I do not propose to have regard to the matters in his affidavit.

71 Mr Cranch gave evidence of the defendant’s use of cocaine, alcohol and his sexual exploits. He also suggested that the defendant showed him a copy of the agreement in October 1999 and sought to enlist Mr Cranch’s help in court. This he says he declined to do. The defendant denied the allegations. He denied regularly drinking with Mr Cranch.

72 Mr Cranch was a young man who worked at David Jones near the shop of the plaintiff. He had a de facto partner and a child. He made it plain that he was not gay or bisexual. His evidence was to the effect that he drank with Mr Fillmore three to four times a week over a fourteen month period ending at the conclusion of 1999. The relationship was thus more than a casual acquaintance. Surprisingly, Mr Cranch, in cross examination was able to give no information about the defendant which one would expect from such close drinking friends. He could give no details of:-

(a) The defendant’s family.

(b) The defendant’s business.

(c) The relationship between the plaintiff and the defendant.

73 He thought that the defendant lived in Katoomba. He never told his wife of this close relationship he had with the defendant. He made some material changes in his evidence. In his affidavit he said he saw the agreement in October 1999. In cross examination he said he first saw it after February 2000. In re-examination he put it at May 1999. This was before it was executed. In the witness box it became clear that he was simply guessing. He appeared apprehensive in giving his evidence.

74 Mr Cranch’s evidence is inherently unbelievable and, accordingly, I am not prepared to accept him as a witness of truth.

75 The other person who swore as to the execution of the document was, of course, the plaintiff. This requires consideration of his evidence and his credit.

Plaintiff’s Credit

1. During the period of the hearing the plaintiff felt no compunction in lying to a reporter in order to divert her from remaining at the hearing.

2. In his evidence he dealt with matters which did not appear in his Statement of Claim. For instance, the contribution of some $51,000. When challenged he simply blamed his lawyers.

3. There was a general tendency for the plaintiff to blame inconsistencies in his evidence to his advisers.

4. The plaintiff was in error about an important date, namely, the date of the meeting of 15 September and the date he departed. He consistently maintained that he departed on 16th the meeting having been on the evening of 15th. In fact his passport showed to the contrary and it was only when this was eventually produced to him that he conceded that he was wrong.

5. The plaintiff seemed to prevaricate about the production of documents in relation to Notices to Produce given to him.

76 I was not overly impressed with the plaintiff’s evidence and leaving aside for the moment the ultimate result which I might come to on this question of the September agreement, I would normally need some corroboration in order to feel satisfied about his evidence.

The Defendant’s Credit

77 The defendant’s credit is, of course, also critical he swearing to the fact that the September agreement was not executed. A few matters are worth noting.

1. He deliberately lied when filling out the immigration application and the statutory declaration in support of it. The lie was in the recounting of the circumstances in which he first met the plaintiff. The defendant admitted to lying during the hearing of a court case in which he was appearing to support the plaintiff. The lie related to whether or not he was employed by the plaintiff.

78 Generally I found the defendant endeavoured to give his evidence clearly and with some care. He was far more articulate than the plaintiff. He seemed to be more accurate when giving his evidence. However, there were some occasions where he has clearly lied in the past. This usually concerned something to do with assistance to Mr Dridi. In general terms he seems to have dissipated his fortune in this relationship with the plaintiff. That is contrary to the impression he gives of an intelligent careful person.

79 Although I would on some matters be prepared to accept the defendant’s evidence over that of Mr Dridi, I would only do so with some trepidation where the matter touched on his foolishness in the relationship. Any decision on the existence or otherwise of the September agreement raises serious questions about the evidence given before me. Either the defendant is lying or alternatively the plaintiff and Messrs Dekker and Michelle have deliberately lied to the Court. In these circumstances it is appropriate that I remind myself of what was said in Briginshaw v Briginshaw (1938) 60 CLR 366. At pages 362 - 362 His Honour Mr Justice Dixon, as he then was, said:-

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co. 70 (1875) 10 Ch. App. 515, at p. 530). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett 71 (1820) 4 B. & Ald. 95, at p. 123; 106 E.R. 873, at p. 884). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake 72 (1858) 31 L.T. (O.S.) 387; Kisch v. Central Railway Co. of Venezuela Ltd. 73 (1865) 12 L.T. 295; Lumley v. Desborough 74 (1870) 22 L.T. 597). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson 75 (1855) 10 Moo. P.C.C. 502, at pp. 531, 532; 14 E.R. 581, at p. 592; Boyce v. Chapman 76 (1835) 2 Bing. N.C. 222; 132 E.R. 87; Vaughton v. London and North Western Railway Co. 77 (1874) L.R. 9 Ex. 93; Hurst v. Evans 78 (1917) 1 K.B. 352; Brown v. McGrath 79 (1920) S.A.L.R. 97; Motchall v. Massoud 80 (1926) V.L.R. 273; Nelson v. Mutton 81 (1934) 8 A.L.J. 30; Gerder v. Evans 82 (1933) 45 Ll. L. Rep. 308, at p. 311; sed quare as to the statement of Swift J. in Herbert v. Poland 83 (1932) 44 Ll. L. Rep. 139, at p. 142; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

80 He also commented later in his judgment at page 368:-

81 I have earlier set out the salient matters that have been put forward as to whether I should find that the September agreement was executed. Of particular importance is the failure of the plaintiff to advert to the matter in the hearing before His Honour Mr Justice Hamilton in February 2000. This and its associated matters point very strongly to a fabrication of the document after that hearing particularly as the plaintiff had been unsuccessful in obtaining occupation before His Honour.

82 The language used in the document is consistent with the plaintiff’s manner of expression and him fabricating the document. The language used and the structure is such that not even an accountant would have adopted such language and form. Although it is plain on a consideration of the whole of the material that the defendant was infatuated with the plaintiff and desired a relationship which ultimately the plaintiff spurned the timing of such an agreement towards the end of the relationship as suggested by the plaintiff, when the defendant had already expended the whole of his inheritance on the plaintiff, seems highly improbable.

83 The plaintiff suggested an elaborate plot on the part of the advisers for the defendant with the defendant’s connivance to induce Mr Dridi back into a relationship with a document, which was designed to come unstuck if it was ever challenged by legal proceedings. This is pure fantasy in my opinion. Admittedly the defendant and his advisers sought to offer, at the time of a previous break up of the parties’ relationship, free passage and some money for the plaintiff to go back to France, but I cannot conceive of anything so foolish as contriving the present scheme. The conclusions that I have reached on Mr Cranch’s evidence would suggest that the plot might lie with the plaintiff.

84 In the circumstances I am satisfied that the meeting and the signing of the September agreement did not happen. I am also satisfied that the alleged blackmail did not occur.

85 However, in case it may be held that I am wrong on the existence of the agreement to which I have referred, I think it might be useful if I say some things about the termination agreement.

86 A termination agreement is defined in s 44 (1) as follows:-

"termination agreement"

(a) that is made in contemplation between two people and that one or both of them might have some relationship with other parties. In the present case such evidence that there is of the external aspects of that relationship would seem to indicate that it was not close. See the evidence of Mr Bruce. In these circumstances I am satisfied that there was no close personal relationship between the parties as at 28 June 1999. In the circumstances I would therefore conclude that any close personal relationship and de facto relationship effectively had ceased by early 1990 when the parties started to debate their concerns about the final resolution of their financial affairs even though they continued to share the same house until October 1999. In these circumstances it is then necessary to go on to deal with the extent of any contributions that might have occurred during the period of the relationship. However, in case it may be held that I am wrong on the existence of the agreement to which I have earlier referred, I think it might be useful if I say some things about the termination agreement. of the termination of a domestic relationship existing between them, or after the termination of such a relationship between them, and

(b) that makes provision with respect to financial matters, whether or not it also makes provision with respect to other matters,

and includes such an agreement that varies an earlier domestic relationship agreement or termination agreement, but does not include an agreement to which subsection (2) applies.

(2)

(3)

Property (Relationships) Legislation Amendment Act 1999

87 The effect provided for by the Act in respect of such an agreement is set out in s 47 which is in the following terms:-

(1) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied:

(a) that there is a domestic relationship agreement or termination agreement between the parties to the relationship,

(b) that the agreement is in writing,

(c) that the agreement is signed by the party against whom it is sought to be enforced,

(d) that each party to the relationship was, before the time at which the agreement was signed by him or her, as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that, before that time, the solicitor advised that party, independently of the other party to the relationship, as to the following matters:

(i) the effect of the agreement on the rights of the parties to apply for an order under Part 3,

(ii) whether or not, at that time, it was to the advantage, financially or otherwise, of that party to enter into the agreement,

(iii) whether or not, at that time, it was prudent for that party to enter into the agreement,

(iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable, and

(e) that the certificates referred to in paragraph (d) are endorsed on or annexed to or otherwise accompany the agreement, the court shall not, except as provided by sections 49 and 50, make an order under Part 3 in so far as the order would be inconsistent with the terms of the agreement.

(2) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied that there is a domestic relationship agreement or termination agreement between the parties to the relationship, but the court is not satisfied as to any one or more of the matters referred to in subsection (1) (b), (c), (d) or (e), the court may make such order as it could have made if there were no domestic relationship agreement or termination agreement between the parties, but in making its order, the court, in addition to the matters to which it is required to have regard under Part 3, may have regard to the terms of the domestic relationship agreement or termination agreement.

88 There has not been compliance with sub-sections 1(b) and (e) in section 47. I would be hesitant to apply the agreement because of the minimal contributions of the plaintiff to which I later refer in contrast to those of the defendant. In short the agreement is too generous on the part of the defendant and should be put to one side in the consideration of what would be an appropriate order for adjustment.

Further Consideration of the Parties’ Relationship between November 1997 and November 1999

89 I return now to some of the other indicia as to whether or not either a de facto or a close personal relationship might have continued after November 1997. One of the important matters was the further sexual relationship, which each party had thereafter. The defendant for his part denied that he had sexual relations with anyone else after November 1997. The plaintiff readily conceded that he had had sexual relationships with four women. Initially he put this between 1994 and 1999 but in further cross examination he agreed that it was between 1997 and 1999. The most important of these and the one, which figured prominently in the evidence, was the relationship he had with Victoria Valova, a Russian lady who had immigrated to Australia 1992. She had completed a Commerce Law degree at the University of New South Wales in 1994 and obviously was extremely attractive. She came to know the plaintiff when she was working at Raymond Castles shoe shop, which was on the ground floor of the Piccadilly Arcade near the retail store, Monsieur Elegance. She was first approached by the plaintiff to go out with him in 1997 but she did not do so. In March 1999 she started receiving flowers from the plaintiff who also gave her compliments. Eventually after rejecting some of his offers she went out to dinner with him in June 1999. Thereafter they started seeing each other more often and it was about a week before Bastile Day on 14 July that year that they first started a sexual relationship. At this stage she found the plaintiff attractive and very romantic. The pair continued to meet and according to Miss Valova the plaintiff continued to meet her at her residence rather than have her come to Nobbs Street, Surry Hills.

90 Miss Valova was travelling to Europe in August 1999 and an arrangement was made for them both to meet in September in Paris. When she met the plaintiff in Paris she found that the plaintiff appeared to her as somewhat rude and arrogant and arguments started between them. These finally erupted into a violent confrontation when according to Miss Favlova she was physically attacked by the plaintiff who tried, amongst other things, to push her head into the toilet. Eventually after he went to sleep she fled from the hotel, went to the airport and flew back to Australia. Thereafter she would have nothing further to do with the plaintiff. However, that had no effect on the plaintiff who was still obviously infatuated with her. He tried to apologise, sent her flowers and when he persisted in his endeavours she obtained an Apprehended Violence Order against him. Notwithstanding this he persisted with his attentions and even went to the stage of fabricating a false death notice, which was sent to her with other items in order to elicit her sympathy.

91 The plaintiff did not deny the substance of the relationship with Miss Valova. What is outstanding about it is that the plaintiff was totally smitten by her to an extraordinary degree.

92 As I have mentioned he also admitted to at least three other relationships. One was with a Miss Demarco, which was for some months from late 1998. It was a sexual relationship. He also conceded having had sexual relationships with two other women prior to that period but after 1997 but could give no details of them.

93 The arrangements between the plaintiff and the defendant concerning their household habits also touched upon the bedrooms used by them. There were two bedrooms, the front one, which was the defendant’s bedroom, and another one next door, which was occupied by the plaintiff. The plaintiff kept his clothes and his other possessions such as model aeroplanes in the second bedroom. According to the plaintiff he continued to always sleep with the defendant apart from odd occasions when the defendant was either drunk or, according to the plaintiff, taking drugs. There was evidence from a Mr Webb who was the cleaning contractor from 1998 to early 1999. From his evidence it was quite clear that he saw both rooms being occupied as bedrooms, that is, beds used. He also gave evidence of on occasions being in the house when the plaintiff on waking came from the second bedroom. I prefer his evidence, which is inconsistent with the evidence of the plaintiff.

94 This brings me back to the question of the sexual relationship between the parties. It is clear on the evidence that the plaintiff had informed the defendant that he was having a sexual relationship with the last two women to whom I have referred. The plaintiff insisted that he had continued the sexual relationship with the defendant until December 1999. This was denied by the defendant. He said that the sexual relationship ceased shortly after they had got back together in mid 1996. Having regard to the intensity of the plaintiff’s relationship with Miss Valova it would seems highly unlikely that the sexual relationship between the parties would have continued. Accordingly, I am prepared to accept the defendant’s version that the parties’ sexual relationship finished in 1996 and did not continue thereafter.

95 The defendant also indicated in evidence that the plaintiff had little to do with his friends from before November 1997 and I am prepared to accept this evidence on the defendant’s part. In addition the contact at the business substantially decreased particularly in 1998.

96 The parties continued to share the house throughout 1997, 1998 and 1999. During this period it is not doubted that domestic work was done at home. It was the defendant who did the cooking and if the plaintiff were at home he would have meals, which were cooked by the defendant. There was cleaning done by the cleaner and some difference of opinion between the parties as who did other housework.

97 It is important to note that the business relationship between the defendant and the plaintiff ceased in October 1997. Thereafter the only business contact was occasional help from the defendant in shop dressing for the plaintiff’s business. There was still a continued financial involvement because the defendant continued to allow the plaintiff to use his credit card.

98 It is necessary to consider whether or not the de facto relationship which I have found and which continued to exist up until November 1997 continued thereafter. An important matter that occurred in November 1997 is the change in the sexual orientation of the plaintiff. He said, and on this aspect I will accept the defendant’s evidence, that he was going to go straight and he did commence relationships with women. There seems to be little common activities carried on by the two parties thereafter apart from minor continued involvement in the business of the plaintiff. That this involvement should occur is not unnatural given the defendant’s financial contributions to that business. However, it lessened during 1998. As I have said the sexual relationship did not continue but this is not critical by itself. Of more importance are the public aspects of the relationship and on this aspect the defendant said that even before November 1997 the plaintiff did not socialise with his friends. After 1997 even the defendant’s contact with friends declined. The plaintiff led no evidence on these public aspects from 1997 to 1999. On the contrary the evidence of his attachment to several women reflect the absence of any public aspect of the parties’ then relationship.

99 I am satisfied that the relationship between the plaintiff and the defendant started to deteriorate in November 1997. In my view it is clear that by some time early in 1999 the relationship had degenerated to a point where it could not be considered to be a de facto relationship. On the evidence the parties were endeavouring to sort out their financial affairs and the public reputation aspects were absent. In addition the quality of the personal relationship had substantially deteriorated. There was a minor business involvement and that was all.

100 The other matter that has to be determined is whether there was a close personal relationship, which existed until after 28 June 1999. By early 1999 there had been a fall off in the relationship in the way I have discussed. Although a sexual relationship had not commenced with Miss Valova it is clear that the plaintiff was actively involved in courting her by this time. He had also had a sexual relationship for some months with another woman which was of some note. This occurred in late 1998.

101 Of itself the commencement of other relationships is not a matter, which would mean that there could be no close personal relationship between two people. I accept that there could be a very close personal relationship between two people and that one or both of them might have a relationship with another party or parties.

102 I have earlier referred to aspects of what the Act describes as a “close personal relationship”. It has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care”.

103 So far as the first requirement is concerned since we are not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow’s home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home.

104 The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg, shopping for both parties, washing clothes etc.

105 It is the provision of “personal care” which provides the clue to the meaning of the composite expression “domestic support and personal care”. Some of the primary meanings of “personal” include:-

(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one’s own.

(b) Of or pertaining to one’s person body or figure; bodily.”

106 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(a) The person concerned.

(b) An employed valet or lady in waiting,

(c) a mother for her sick child or

(d) a daughter for her elderly incapacitated mother.

107 The legislation in terms excludes the first two but would include the last two examples.

108 In the present case there is no evidence, which would suggest that there was any personal care in the sense mentioned by either party I would not have thought that matters such as “emotional support” would by themselves have fallen within the composite expression. The expression seems to be directed to a different level of reality such as assistance with mobility, personal hygiene and physical comfort. Such activities obviously however will include an element of emotional support. In the factual circumstances of this case the matters of personal emotional support referred to in the 1995 statutory declaration by the defendant in support of the plaintiff’s application to become a permanent resident had long since disappeared by early 1999. There was reference in the evidence of the plaintiff to the defendant drinking to excess and using drugs. There was no evidence that such matters, if they existed in any meaningful way, led to personal care being provided by the plaintiff to the defendant.

109 Accordingly, I am satisfied that there was no close personal relationship between the parties as at 28 June 1999.

110 In these circumstances it is not necessary to go on to deal with the extent of any contributions that might have occurred during the period of the relationship but as a precaution I will deal with them.

The Plaintiff’s contributions

111 The following s 20 (1)(a) contributions were alleged by the plaintiff in his pleadings:-

(a) Working for no wages in the business.
This should be seen against the actual businesses that existed. The first business that the plaintiff was involved in was “Monsieur Elegance” when the defendant owned it in September 1995. In July 1996 it was converted a joint business and the plaintiff’s evidence was that he did not receive any payment for the work he did up until January 1996 while he was working at the shop in the Royal Arcade. After February 1996 he says that he received small amounts of money from the takings to supplement his living expenses. After September 1996 when the plaintiff became a partner in “Monsieur Elegance” he said that he used to rely upon the defendant for day to day living expenses and referred to their joint use of a bank account. Clearly he is entitled to drawings and a share of any profits in the period from July 1996 until November 1997 when the business ceased and he commenced his own business. There has been no quantification by the plaintiff of the amounts that he received for living expenses and no effort made to show there was a serious imbalance between what was received by him and the income from the shop to which he would be entitled. In addition one has to bear in mind, when considering this claim, that the plaintiff was supported by the defendant from the commencement of the relationship in 1994 until late 1995 as the plaintiff was not entitled to work in Australia. Having regard to this factor and also the fact that the parties jointly owned the business for the relevant time up until the end of 1997 it seems to me that there is little to take into account bearing in mind that I am only concerned with contributions after June 1996.
(b) Supporting the defendant after he retired from business in 1997.

There is no credible evidence to address any quantification in respect of this claim.
(c) Repairs to the Surry Hills property.
The first of these concerned the painting of part of Nobbs Street for $3,000. This was in July or August 1995 and, accordingly, cannot be taken into account on my findings. There was also a claim in respect of an airline ticket said to have been paid for $4,100 in October 1995. That also cannot be taken into account. There is a reference in paragraph 36 of the plaintiff’s main affidavit to the repair of a door for $2,000, which was done in about March or April 1996 after they had reconciled. From the description it would seem that this was prior to June and in any event the plaintiff says that this was paid through the business, which at that stage was the business of the defendant. In paragraph 40 there is a reference to replacement of the ventilation system for $4,000 in the first half of 1997. The defendant denied this matter. Given the absence of any documentation I am not satisfied that these matters were paid for by the plaintiff. In paragraph 53 the plaintiff referred to paying some $3,500 to the defendant on account of urgent costs for the repair of the roof prior to the defendant being reimbursed by the insurer. The defendant did not specifically deny this and, accordingly, I am prepared to accept that there was this contribution.
(d) Contribution to furniture.
The evidence does not seem to address this.
(e) Contributions to cleaning the Bilpin property.
There is some evidence by the plaintiff that he employed a gardener for the Bilpin property each fortnight for an amount of $100 per week. The period was not referred to in his affidavit. The claim was disavowed in cross-examination. There was, however, some evidence given in cross examination that the plaintiff paid $30 per week as a contribution towards the cleaner for about four or five months and I am prepared to accept this.

(f) Repairs to the Bilpin property.

112 So far as the claim for emotional support is concerned there was no doubt such support in the early years of the relationship. The evidence does not show any imbalance in such contributions.

113 It is necessary of course to look at the defendant’s contributions to this relationship. This involved substantially providing accommodation to the plaintiff. There was also the provision by the defendant of funds to help the plaintiff set up his business in November 1997 and subsequently. These certainly are in the order of at least $20,000 plus other unspecified amounts. It can be seen from the discussion on the contributions by the plaintiff that virtually there are none. In the circumstances, if I had to make a decision on the matter, it would seem inappropriate that there be any order by way of adjustment of the parties’ property interests. The plaintiff effectively contributed little during the relevant period from June 1996. The claim under the Act should be dismissed. The claim for relief in respect of the agreement should be dismissed as should the claim for a constructive trust in respect of Nobbs Street and Bilpin as there is no evidence in respect of such claims nor were they argued. The claims against the former second and third defendants have been dealt with in my judgment of 4 May 2000.

114 I turn to the cross claim which is propounded by the defendant.

American Express Card

115 The plaintiff did not deny the provision of this American Express card or that he purchased items on it. He did not deny that the arrangement was that he should meet the cost of some purchases on it himself. I am prepared to accept the defendant’s evidence that the plaintiff agreed to meet his expenditure on the supplementary card after November 1997. The defendant says that thereafter the plaintiff did make some payments off the card. The defendant identified amounts of $33,361.75, $11,865.48 and $7,218.56, a total of $52,445.79 which were incurred by the plaintiff pursuant to the arrangement.

116 The defendant has identified payment made by him of $11,865.48, $17,500 a total of $29,365.48 in reduction of these amounts and he still has a liability to American Express of $15,830.11. The defendant is thus entitled to judgment against the plaintiff in the sum of $45,195.99.

Conversion of Chattels

117 It simply was not denied by the plaintiff that he arranged the removal of the chattels from the Nobbs Street property. This was apparently as a result of some advice he had from a solicitor to obtain security for his claim. Notwithstanding that he placed them in a deposit in the name of himself and the defendant their whereabouts were kept from the defendant. The chattels have in effect disappeared. There is a list provided by the defendant of the missing items with estimates of values. The total value estimated is $65,020. This includes estimates taken from a P.L. Pickles & Co valuation in February 1990 in respect of eleven items having a total value of $25,800. No objection was taken to this evidence and the plaintiff’s evidence did not address the value.

118 The claim made is for conversion and in detinue. Orders sought are for delivery up or their value or for damages for conversion or detention.

119 The short facts in relation to the removal of the chattels are as follows:-

(a) The plaintiff assisted by his employer and friend, Mr Bailey, with the help of a removal van, removed artefacts, furniture and rugs from Nobbs Street on 19 December 1999. A neighbour who gave evidence observed this process.

(b)On February 1999 some goods were placed in storage at Millers Storage, Waterloo in Space No NH 101. The deposit was made by the plaintiff in his and the defendant’s names.

(c) On 21 February the defendant learnt of the removal. He had no information as to where the goods had been taken.

(d) The plaintiff concedes that he took the goods as security for his claim on the advice of a solicitor who did not give evidence before me.

(e) Mr Bruce whose children have a remainder interest in Nobbs Street was asked to mediate the dispute between the parties. On 2 January was given two keys by the plaintiff to a place at Katoomba where the plaintiff said the goods were stored. The plaintiff refused to divulge the address of the place of storage.

(f) On 15 August Mr Bruce, probably from his employed security company, obtained information as to the possibility of the goods being at Millers Storage.

(g) He went there and using one of the keys found some items of the defendant’s (which are not included in the claim), some items of the plaintiff’s and one item belonging to him.

(h) Mr Bruce has sworn to the fact that he safely removed the plaintiff’s and the defendant’s items to other storage places which were made available to the respective parties. He kept his own item.

(i) No other area has been located which is opened by the other key given to Mr Bruce by Mr Dridi.

120 The plaintiff’s case was to attempt to attack the credit of Mr Bruce and to suggest that there was no intention to deprive the defendant of the chattels. Suggestions were made in submissions that there was no evidence the plaintiff removed the items from storage and that therefore it must have been Mr Bruce.

121 I found Mr Bruce to be a careful and accurate witness. He was a friend of the defendant who genuinely was trying to resolve the parties’ differences. I have no hesitation in accepting his evidence even when it conflicts with that of the plaintiff.

122 Clearly the plaintiff kept the whereabouts of the missing goods from Mr Bruce and the defendant. They may never have gone to Millers at Waterloo. His claim that they were taken as security is untenable given his failure to indicate their whereabouts. What has happened to them? He has not called Mr Bailey or his advising solicitor to give evidence. Therefore they could not assist his case.

123 I am satisfied that the plaintiff has converted the goods and deprived the plaintiff of his right to present possession of the goods.

124 There should be judgment for damages in the sum of $65,020.

Agreement

125 The defendant’s claim in the cross claim is based upon what are said to be the loan agreements in July 1995, September 1995 and June 1996. The evidence of the defendant did not address these agreements for loan but did address the fact that the defendant had provided unspecified funds for certain of the businesses including the jointly operated “Monsieur Elegance”.

126 The defendant’s evidence referred to his concerns which arose in 1998 after the plaintiff’s company had taken all the stock of the jointly owned business. The defendant had a schedule prepared showing what he claimed he advanced to the business. In a discussion he had with the plaintiff in May 1998 he says that the plaintiff agreed that he owed $253,489.38 shown at the bottom of the agreement.

127 The defendant had a loan agreement prepared which he gave to the plaintiff to sign. This the plaintiff never did.

128 Thus the defendant’s case for repayment of a loan rests upon an oral admission of a document placed before the plaintiff.

129 It is plainly apparent from the document that it does not deal with loans. What are recorded are various matters touching upon a sale of shares in the plaintiff’s business (not the subject of evidence), advances to the joint business for stock and other unspecified amounts. It is some attempt at an accounting that the defendant on his own evidence admits was never done on the transfer of the various businesses. It takes no proper account of opening and closing stock figures or other matters which would normally be dealt with in the taking of account for a partnership businesses.

130 In my view the document underlying the admission does not support an admission of a debt due and therefore the claim fails.

131 I note that no claim was made for an accounting.

132 Accordingly, I dismiss the plaintiff’s claim and give judgment in favour of the defendant against the plaintiff in the sum $110,215.99. I will hear argument on costs and I note that having regard to my findings that the principles referred to by His Honour Mr Justice Holland in Dignam Pty Ltd v Wright (No 2) (1983) 2 NSWLR 354 may be applicable to some of the time spent in this case.

**********

Last Modified: 01/03/2002

Actions

Download as PDF Download as Word Document

Citations

Dridi v Fillmore [2001] NSWSC 319

Most Recent Citation

Pereira v Andrea Janette Patrick and John Reyburn in their capacity as Administratrix and Administrator respectively of the Estate of Gordon Paul Patrick (Dec) [2001] WASC 342

Cases Citing This Decision

27

Hayes v Marquis [2008] NSWCA 10

Le v Angius; Angius v Angius [2024] NSWSC 924

Sheen v Hesan [2023] NSWSC 468

Cases Cited

13

Statutory Material Cited

2

Light v Anderson [1992] NSWCA 136

Bar-Mordecai v Hillston [2004] NSWCA 65

VBH and Anor; Secretary, Department of Family and Community Services [2006] AATA 1

CITATION:	DRIDI v FILLMORE [2001] NSWSC 319
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1101/2000
HEARING DATE(S):	4, 5 May 2000 3,4,5,6,17 & 18 October 2000 2,3 November 2000
JUDGMENT DATE:	30 April 2001
PARTIES :	Daniel Nourredine Dridi v Donal Russell Fillmore
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr C.R. de Robilliard for plaintiff Mr L. de Vere Tyndall for defendant
SOLICITORS:	John A. Hunter for plaintiff Gregory Falk & Associates for defendant
CATCHWORDS:	Family Law. Application under Property Relationships Act for adjustment of parties' interests following termination of a same sex relationship. Consideration of whether there was a domesticl relationship between the parties. Held that any such relationship had ceased before 28 June 1999 when the amendments brought about by the Property (Relationships) Legislation Amendment Act 1999 came into effect. - Whether parties had entered into a termination agreement. - Held no such agreement. - In the event that such an agreement had been entered into then in the circumstances regard should not be had to the terms of the agreement. - Even if there had been a relevant relationship any contributions had been adequately compensated and that no order should be made in favour of the plaintiff. - Order on defendant's cross claim for two claims for money had and received and conversion of chattels for $110,215.99.
LEGISLATION CITED:	Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999
CASES CITED:	Light v Anderson (1992) DFC 95120 Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677 Main v Main (1949) 78 CLR 636 George v Hibberson (1987) DFC 95-054 Hibberson v George (1989) 12 Fam LR 725 at 740 Lipman v Lipman (1989) 13 Fam LR 1 Thomson v Badger 13 Fam LR 559 Australian National Railways Commission v Gerlach (1987) DFC 95/048 Theodoropoulos v Theodosiou (1995) 38 NSW LR 424 Gazzard v Winders (unreported Court of Appeal 23 July 1998 Del Gallo v Fredericksen Master Macready unreported 23 July 1999 Del Gallo v Friedericksen [2000] NSWCA 293 Roy v Sturgeon (1986) 11 nswlr 454 MacDonald v Stilsa [2000] NSWCA 302 Evans v Marmont (1997) 42 NSWLR 70 Briginshaw v Briginshaw (1938) 60 CLR 366 Dignam Pty Ltd v Wright (No 2) (1983) 2 NSWLR 354
DECISION:	Paragraph 132