Giller v Procopets

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7804 of 1999

ALLA GILLER	Plaintiff
v
BORIS PROCOPETS	Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4, 6, 9-13, 16-19, 23-27 February, 1-5, 11-12, 16-18 March 2004
DATE OF JUDGMENT:	7 April 2004
CASE MAY BE CITED AS:	Giller v Procopets
MEDIUM NEUTRAL CITATION:	[2004] VSC 113

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DEFACTO RELATIONSHIP – What is – Claim under Part IX of Property Law Act 1958.

Claim for interest in real property pursuant to equity.

Claim for assaults - Entitled to damages.

Claim in detinue and conversion.

Claims for unlawful distribution and showing of video cassette of sexual activity between the parties.

Claim for breach of confidence - No right to recover general damages in equity.

Claim for intentionally causing mental harm – No recovery for distress without injury.

Claim for breach of privacy – No claim in Australian law for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.D. North SC and Mr R.K. Davis	Carew Counsel Pty Ltd
For the Defendant	In person

TABLE OF CONTENTS

Parties................................................................................................................................................... 3

Basic Facts............................................................................................................................................ 4

Causes of action.................................................................................................................................. 6

Facts...................................................................................................................................................... 7

The Claims – The Law..................................................................................................................... 33

Claim in Real Property – the Law................................................................................................. 35

Part IX of the Property Law Act................................................................................................ 35

Claim in Equity................................................................................................................................ 56

Assaults – The Law.......................................................................................................................... 59

Detinue/Conversion Claim – The Law........................................................................................ 60

Distribution of Video Showing Sexual Encounters between the Parties – The Law......... 61

Breach of confidence – Law....................................................................................................... 62

Intentional Infliction of Mental Harm........................................................................................ 71

Privacy................................................................................................................................................ 76

Claim for Interest in Real Property.............................................................................................. 77

Claim under the Property Law Act.......................................................................................... 77

Defacto Relationship................................................................................................................ 77
(a) Period from 13 March 1990 to 6 July 1993................................................................. 77
(b) Period from 6 July 1993 to 20 October 1996............................................................... 79

(ii, iii, iv and v) Period of Relationship, Living in Victoria, and Proceeding Within

Two Years After Date Relationship Ended............................................................................. 88

Adjustment of Interests.............................................................................................................. 88

Claim in Equity.............................................................................................................................. 100

Assaults............................................................................................................................................ 106

Detinue and Conversion Claim................................................................................................... 112

Distribution of Video.................................................................................................................... 114

Counter Claim................................................................................................................................. 127

Order by Kellam J to Provide Funds.......................................................................................... 128

Caveats on Properties.................................................................................................................... 129

Orders............................................................................................................................................... 130

HIS HONOUR:

This is a proceeding instituted by a writ, in which the plaintiff, a wife in a former de‑facto relationship, seeks relief against the defendant. The plaintiff makes a number of claims. She claims an interest in real property owned by the defendant, damages for a series of assaults which occurred over some four years, damages for detinue and conversion and damages for distress and hurt caused by the defendant showing and threatening to distribute a video of the parties indulging in sexual activities.

Parties

The plaintiff, Mrs Alla Giller was born on 7 June 1961 and is presently aged 42 years. She lived in Kiev in the former USSR and migrated to Australia with her husband Jakov Giller and her seven year old daughter Julia. They arrived in this country on 14 February 1990. The family had left the Ukraine approximately one year prior to that date and had spent the previous twelve months living in poor circumstances in Italy. The plaintiff met the defendant on 16 February 1990.

The defendant, Boris Procopets, was born on 2 February 1945, is presently aged 59 years and migrated to Australia in 1978 from Kiev, USSR. He resided thereafter in Melbourne.

The plaintiff and defendant met a few days after the plaintiff arrived in Australia, and the defendant provided help and assistance to the plaintiff’s family. The Giller family had been sponsored by a Jewish welfare organisation. The marriage of the plaintiff and her husband, according to the plaintiff, was unhappy and within one month the plaintiff commenced to live with the defendant at his residence at 22 Orrong Crescent, Caulfield, with her daughter, on 13 March 1990. The marriage break up was evidently fairly amicable because the defendant provided assistance to the husband Jakov, who moved into a property owned by the defendant at Otira Road, Caulfield.

As at 13 March 1990 the defendant had a number of properties which generated income. He was not working. He occupied himself collecting a variety of used articles, repairing and selling them. He looked after his rental properties. He also bought motor vehicles which he sold, usually at a profit.

Basic Facts

The facts which led to the dispute and this proceeding can be briefly summarised. In 1988 the defendant acquired four pieces of real estate. Each was subject to mortgage. He resided in one of the properties and the other three were leased. His income in March 1990 was derived from these properties. On 13 March 1990 the plaintiff and defendant commenced a de-facto relationship residing at the defendant’s property at 22 Orrong Crescent Caulfield. The child Julia also resided with them. The plaintiff fell pregnant very soon after co-habitation commenced and on 31 December 1990 she gave birth to twin sons Albert and Arthur. On 20 November 1990 her marriage was dissolved.

On 1 July 1993 the plaintiff’s parents arrived from Israel with their son. They went to reside with the plaintiff and the defendant. On 6 July 1993 the parties separated. The plaintiff alleged that the defendant violently evicted the plaintiff, her daughter, the twins and the plaintiff’s parents and brother. The defendant denies that he evicted the family and states that he requested the parents and the brother to leave. However, the plaintiff also left with the three children. That day the family obtained a flat in Bentleigh. Between July 1993 and January 1994, the plaintiff and her daughter and twin sons resided with her parents in Bentleigh but during that period she stayed at the defendant’s home from time to time. In January 1994 she obtained a flat in Port Melbourne where she lived with the twins and her daughter. From January 1994 until at least December 1996 the plaintiff lived at Port Melbourne. She alleged she spent periods in each month residing at the defendant’s home. When this occurred she took the twin sons with her but not Julia, who stayed at her father’s place or with her grandparents.

By about May 1996 it appears that the parties had reached a point where the relationship was practically at an end. It is said by the plaintiff that by about 20 October 1996 she ceased to have any relationship with him. She asserts that the relationship after July 1993 was a de-facto relationship. The defendant contends that it was a male/female relationship but not a defacto one.

On 12 November 1996 the plaintiff obtained an interim intervention order against the defendant after an alleged assault on 10 November 1996. The application was heard on 22 November 1996, when an intervention order was made which provided inter-alia that the defendant was prohibited from assaulting or harassing the plaintiff, approaching her or her children and being within 350 metres of the property in Port Melbourne. The surprising aspect of the events of this period is that the parties resumed a sexual relationship on 19 November 1996 despite the interim order. After the plaintiff had obtained an intervention order at the Melbourne Magistrates’ Court on 22 November 1996, having given evidence on oath that she was in fear of the defendant, she and the defendant that afternoon indulged in sexual intercourse. The evidence revealed that they had sexual intercourse on 19, 21, 22, 23, 24, 25, 26, 27, 28 of November and 1 December 1996. The sexual encounters during this period were filmed by the defendant using a video camera, surreptitiously up to 25 November and then with the consent of the plaintiff. Relations between the parties deteriorated rapidly after 1 December. An altercation occurred on 6 December 1996 and the defendant threatened the plaintiff that he would show the video and photographs taken from the video to various people including her employer. On 8 December 1996 the plaintiff, who had sworn she was in fear of the defendant, attacked him with a length of steel at the Camberwell Market whilst he was filming her and her mother. The defendant suffered bruising injuries.

Between 5 and 7 December 1996 the defendant showed a video of the sexual activities of the parties to one person, left a video with the plaintiff’s father and threatened to show the video to a number of people including the plaintiff’s employer. He made contact with her employer on 9 December. He was taken into custody by the police early the following day. He did not attempt to show the video again until about the middle of the following year when he showed it to a female friend of his.

On 26 August 1998, the plaintiff commenced proceedings in the Family Court of Australia seeking an interest in the real property owned by the defendant, and damages.

By reason of the decision of the High Court in Re Wakim; Ex parte McNally[1], the defacto proceeding was transferred to be heard in this Court. A separate proceeding was instituted in this Court on 3 December 1999. On the same day Beach J in this Court made orders for the future conduct of the proceeding in this Court, including orders restraining the defendant dealing with his real estate and a bank account.
[1](1999) 198 C.L.R. 511

Causes of action

The plaintiff has pleaded a number of causes of action in her Statement of Claim. The Statement of Claim is a very long, extremely detailed and verbose document.

The statement of claim contains a number of causes of action in respect to four categories of complaint.

The first category claims an interest in the property owned by the defendant at 22 Orrong Crescent, Caulfield North. Two causes of action are pleaded in respect to that claim. First, a claim pursuant to Part IX of the Property Law Act 1958 which deals with a claim by a de-facto partner for an interest in real property. In the alternative, a cause of action is pleaded seeking an interest in the property pursuant to the principles of equity concerning trusts.

The second category of claims concern the alleged assaults. All told there are eight causes of action claiming damages for assault, the first alleged assault occurring in early 1992 and the eighth alleged assault occurring on 10 November 1996. The first three assaults are alleged to have occurred at a time greater than six years prior to the institution of the proceeding in the Family Court and accordingly were statute barred. The plaintiff made application to extend time pursuant to s 23A of the Limitation of Actions Act 1958 and Kellam J on 14 August 2002 refused to extend time in respect to the first two assaults but extended time in respect of the third assault which allegedly occurred on 29 April 1992[2]. All told there are six alleged assaults. The plaintiff claims damages in respect of each alleged assault.
[2][2002] V.S.C. 305

The third category of complaint is a claim in detinue and/or conversion. The plaintiff alleges that as at 20 October 1996 when the relationship finally came to an end the defendant refused to permit her to take possession of items owned by her and the defendant refused to deliver up the goods. It is alleged he converted them to his own use.

The fourth category of claim concerns the videoing of the parties’ sexual encounters during the months of November and December 1996 and the distribution by the defendant of videos to other persons. The plaintiff has pleaded three causes of action, namely a claim for damages for breach of confidence, a claim for intentional infliction of emotional distress and finally a claim for invasion of privacy. The plaintiff claims compensatory, aggravated and exemplary damages.

Facts

In the course of the interlocutory steps, Kellam J made an order that the evidence at trial be by affidavits subject to cross-examination. The statement of claim occupies some 41 pages together with schedules of 31 pages. The plaintiff swore an affidavit on 26 May 2003 comprising 269 paragraphs over 47 pages. In addition she relied upon two affidavits that were filed in the Family Court. Substantial parts of the Statement of Claim, in particular the schedules, and the affidavits, contain material which is irrelevant or marginally relevant and material which is designed to criticise the defendant and his living conditions in an endeavour to paint him as a nasty, mean, dirty, violent, miserable person. One may be excused for observing that if this is true, why did the plaintiff spend time with him? Much of the criticism is irrelevant, a lot of it is exaggerated and some of it is untrue. It caused the defendant, who appeared for himself, to contest the criticisms. The trial became extremely prolonged. I raised a criticism on the first day of the trial that paragraphs of the affidavits were argumentative, conclusionary, speculative and non-factual and I said that I expected counsel to focus on the issues in the case. The defendant made the point that these issues had been raised against him and until they were abandoned he wished to deal with them. From time to time it was necessary for me to indicate that I would not rely upon material in the various affidavits. This was in an endeavour to expedite the hearing. In addition to the plaintiff’s affidavits, she relied upon a number of affidavits from a variety of sources. Many of the affidavits contained conclusionary evidence, sweeping and untrue generalisations and irrelevant material. The worst examples were the affidavits of the plaintiff, Mrs Bella Drobitsky, Mr Semyon Furman and Julia Giller. Some of the material of the defendant was irrelevant but he had an excuse – he is not a lawyer.

Before stating the facts it is necessary to make a number of observations. The resolution of the factual disputes has been a difficult exercise in this proceeding due to a number of reasons. First, many affidavits tendered in the plaintiff's case contain much material designed to paint the defendant in the poorest light and was irrelevant. Some of it was untrue and deliberately so; especially evidence of the plaintiff and her family. This is a familiar tactic used by family lawyers to blacken the other party’s reputation, making it difficult for the party to refute the slur, especially where applications are made on affidavit material. As I have already stated, this damning evidence caused the defendant anguish and activated him into contesting many statements of little importance to the issues in the case but nevertheless affecting his reputation and character. As he rightly pointed out his cross examination on these matters sometimes went to credit and he was able to demonstrate that some of the evidence was untrue.

Secondly, the plaintiff as a witness has no credibility and falls into the category of witnesses whose evidence cannot be accepted unless confirmed by evidence from a reliable and credible source, or admitted or corroborated by false denials of the defendant. She is an attractive, intelligent, cunning woman who is manipulative and will lie deceive and mislead if it is in her interests, especially her financial interests. Some of her affidavit evidence was deliberately false. She has managed by deception to gain financial advantage from the following organisations since arriving in Australia in February 1990 -

(a)     The Department of Social Security – she obtained a single parent's pension after she and her husband parted despite living with the defendant and being supported by him. Her daughter by her marriage Julia, lived with the parties. She obtained a weekly sum in the vicinity of $205 per week. Her deception was added to by her entering into a lease agreement with the defendant by which she received from the Department a rent subsidy. This occurred very early in the relationship.
(b)     Her child Julia went to a local Jewish school Beth Rivka in 1990. She misled the school into believing she was a single parent and accordingly received subsidised fees. The school found out within two school terms, Julia was requested to leave and a proceeding was brought against Mrs Giller in the Magistrates’ Court for some $4,500.
(c)     She gave birth to the twins on 31 December 1990. In the year 1994 she made application for the two boys to attend a child minding centre. Her application form revealed that she was a single parent and the defendant was noted as an uncle who had permission to collect the children. By this device she obtained subsidised child care fees for the two children.
(d)     She enrolled her daughter Julia at the Mt Scopus School in 1996. She misled the school as to her situation including her financial position. After Julia had completed her schooling Mt Scopus brought a proceeding against her in the County Court and recovered a judgment in the sum of $55,000. The cause of action was fraud.

The plaintiff obtained an intervention order from the Melbourne Magistrates’ Court on 22 November 1996. She had obtained an interim order on 10 November ex parte. This occurred after an alleged assault. Despite her alleged fear, and at this stage the parties were not living together, she indulged in sexual intercourse with the defendant on 19 November 1996 and on 21 November 1996. On the afternoon after obtaining the intervention order, having given evidence on oath that she was in fear of the defendant, she and the defendant indulged in sexual intercourse. She did so on the following six days and 1 December 1996, hardly the conduct of a person who was in fear of the defendant. The video evidence of the sexual encounters hardly supports the view that she was in fear of him.

On 8 December 1996 the defendant was present in the market videoing at a distance the plaintiff and her mother selling goods. The plaintiff became irate and picked up a car lock which comprised a rod of steel, approached the defendant and swung it at him. She hit him, causing bruising injuries to his upper body. Again hardly the conduct of a person in fear of the defendant. The plaintiff’s version given to police on 10 December 1996 is untrue as the video of the incident establishes. The incident occurred two days prior. Her statement was deliberately untrue. So was her mother’s version of the incident.

Some of the plaintiff’s affidavit evidence was exposed in cross-examination as deliberate lies. The defendant cross-examined her, at times skilfully, over a period of some eight days. Some of the evidence which damned the reputation and character of the defendant was shown to be a deliberate lie. I refer to her evidence concerning the payment of fees for child minding. She said the defendant did not pay any of the fees. He produced a calendar which was on the refrigerator and which was marked. It was suggested to her that the markings indicated when each had to pay. She initially said that that was the arrangement but he did not meet it and then when confronted with the calendar for the following year, she first of all denied that she filled in the calendar and then speculated that the reason was because he was obliged to pick the children up on the days that were marked. I do not believe her. In paragraph 212 of her affidavit she said she had not received any child support since 7 December 1998. She alleged that the accrued arrears “now exceed $30,000”. This was quite untrue. It is hard to accept that it was due to a defect of memory. Paragraph 172 is also incorrect. It asserts that prior to 6 December 1996 the defendant did not seek to have any contact with the twins by himself. It is clear that between June and December he had constant contact. He was picking up the children and delivering them to a child minding centre and this would be sometimes two to three days per week. Again in my opinion paragraph 172 is a deliberate lie. The last sentence of paragraph 177 asserts that although the defendant was granted supervised contact with the twins he never availed himself of that contact. She admitted this was incorrect. It is hard to accept that that was due to a memory lapse. Her description as to the state of Otira Road when the defendant moved into the property in late 1994 is exaggerated and I do not accept it. Her evidence as to the pensions that were obtained from the moment she moved in with the defendant up until July 1993 is also inconsistent and untrue. She first of all said that she and her husband had an unemployment pension for some considerable time, then she changed her version to say they only had it for a few weeks and she then obtained a sole parent pension. However, when a document was produced in re-examination of her, showing that the sole parent pension was granted in 1992, she denied that she had first received the sole parent pension from March 1992. She said that the letter she had received was in a form that always contained the first sentence suggesting that she just made a claim for a sole parent pension. I do not accept her explanation. This cross examination demonstrated her willingness to lie if she thought it appropriate. Her evidence as to why she endorsed three cheques provided by the defendant to her in July 1996 to a Mr Cwikla was unbelievable. She asserted that she did it, to put the money beyond the reach of the defendant. This was an extraordinary proposition bearing in mind that the defendant had taken the step of obtaining three cheques under $10,000 to avoid the bank reporting the transactions to the authorities and handing over the cheques to her. At that stage she was in complete control of her own monies. I do not accept her evidence. In re-examination she told the Court that between 1994 and 1996 the defendant spent about one night per fortnight at her Port Melbourne residence. This does not accord with the evidence of her daughter. It was the first time it was mentioned in the case. I do not accept the plaintiff’s evidence in relation to this matter either. Her evidence contained in paragraph 102 is also a deliberate untruth. It reads –

“102 – If the children regurgitated their food, which they did frequently, especially Albert who was the weaker of the twins, the defendant would collect the regurgitated food into a container and make the children eat it again. If they refused to eat the regurgitated food he would slap their faces or shake them until they ate the food. When I tried to interfere and stop him, he would also assault me.”

In an affidavit sworn on 4 November 1997 by the defendant, he in fact criticised her for not looking after the children. This was put to her. She then admitted to this Court that the children had had a problem holding down their food for most of their early years. She then admitted that when food was regurgitated on occasions they attempted to get the children to eat it. This is not a surprising state of affairs when young children are prone on occasions to spit out their food. What was said in paragraph 102 is a lie. I do not accept that the defendant became angry and slapped their faces. Indeed there was considerable evidence placed before the Court which showed that the defendant as a loving and caring father who had a very good relationship with the twins in their early years. There were many instances in the proceeding when the plaintiff gave evidence that was hard to accept or unbelievable and, on occasions, was deliberate lies. She is very intelligent, and it was apparent that she on occasions anticipated the cross examination and was prepared to make up a story or speculate to head off the questions. Not only did the plaintiff tell lies, but she appears to have induced others to tell like lies. An affidavit by her brother contained material which he frankly conceded in the end was incorrect. He struck me as an honest witness. He was not prepared to support the plaintiff in much of her evidence as to the behaviour of the defendant. In addition she met a retired Professor Poynter some 10 years after she had met him at the University of Melbourne and prompted his memory that on one occasion he observed her in a distressed and injured state. This led to an affidavit which in the end turned out to be incorrect. Not for one minute am I criticising the deponent. I am quite satisfied that Professor Poynter did see the plaintiff on one occasion distressed and showing signs of injury. However his evidence was out by at least one year and as corroborative evidence of a particular assault was shown to be of no corroborative value at all. Whilst one might criticise the deponent for his careless approach to the evidence, nevertheless the plaintiff and her advisers must accept some responsibility for the situation. Further the affidavit of the daughter Julia, which is similar in terms to her mother's affidavit, was exposed as containing much false evidence. Paragraphs 11 and 12 of her affidavit, which I have excluded as being irrelevant, were put to Julia after she was shown a video and I am quite satisfied on all the evidence that what she swore was false and in my opinion deliberately false.

There are other aspects of the daughters’ evidence which was in my view false and it is hard to accept that the errors came about because of a faulty memory. Her evidence about the messy house turned out to be that there were a lot of boxes around the place and there were papers on the floor. Her evidence in relation to this was exaggerated and overstated. Her evidence in relation to the problem the twins had eating solids in paragraph 15 is in my view untrue. One compares it with paragraph 12 which, although excluded, was put to the witness, and she admitted that it was untrue. Her evidence in paragraph 35 is based upon what others have told her. Paragraph 36 is also a lie. She said –

“36 – I recall the defendant would assault the plaintiff almost daily for even the most minor thing.”

This was over a three year period. This is clearly a lie. In the end she said that the word “assault” meant verbal as well as physical. On no view is that a correct statement. In paragraph 44 she talks about both parties deciding to subdivide the property but when giving evidence she frankly admitted that she did not know and she thought they were talking about it. In paragraph 45 she said that the defendant was regular visitor to the flat but this was in my view incorrect. I do not believe her when she said it was true. Paragraph 47 is also exaggerated and according to her evidence she only went there a few times between 1994 and 1996. Much of the criticism I have made of the daughter Julia’s evidence has come about because of the failure by those responsible for preparing the affidavit to carefully consider what she was saying.

I am also satisfied that some of the evidence of the plaintiff’s mother was contrived and some of it untrue. Her evidence concerning the circumstances of obtaining money which was ultimately lent to the defendant was untrue.

The defendant, who described himself as fat and ugly, is some 15 years older than the plaintiff, and is not the most attractive looking man. However, I am quite satisfied that he is intelligent, cunning and determined. Equally I am satisfied that he would lie and cheat if he could gain something from it. He also falls into the category of a witness whose evidence the Court would not accept unless confirmed or corroborated in some way by independent evidence, admission or false denials of the other party. There were many instances in his evidence where I am satisfied that he was telling deliberate untruths. Further he appeared for himself in the proceeding and cross-examined with a degree of skill most of the witnesses called by the plaintiff. He adopted a certain modus operandi in his cross-examination which became fairly apparent. He would seek to test the memory of witnesses and show that his memory was far superior, and in most cases he was successful in doing so. But he then indulged in dishonest conduct. Most witnesses were cross-examined allegedly on credit aimed at showing that the witness was dishonest in some way. This prompted at least one witness to become very aggressive and annoyed and demand an apology. Other witnesses when confronted with the lie more often than not looked in amazement, sometimes gave a faint smile but categorically denied the assertion. Mr Vladimir Khostov, an electrician, was cross-examined suggesting that his job with the defendant had been terminated because he was indulging in drug dealing. He had been in the country some four weeks having come from Russia and was working on a casual basis for the defendant. He left, as he said, to obtain other employment. I am satisfied it was a deliberate lie by the defendant to suggest that Mr Khostov was drug dealing.

Another example concerned Mr Leonid Volkov who was cross-examined suggesting that he agreed to look at the video and that he was prepared to give the defendant a document and demanded money from the defendant. This was denied by the witness and I believe him. The defendant in my view made up the story to put to Mr Volkov. The defendant put to Mrs Raisa Furman that he had no cassettes with him when he approached her and said that he was trying to get the plaintiff not to dump him. The witness said that that was untrue. It was then put to the witness that she and Mrs Giller were getting together because Mrs Giller was going to get money out of the defendant. It was put to Mr Semyon Furman that the defendant did not go to speak to him and that he did not speak to the defendant. I believe the witness that the defendant did seek to speak to him. It was put to the brother Alex Zuperman that he had, when the defendant was talking to him about the tape, gone up to the defendant and grabbed the tape from him and the defendant tried to get it back. Again this was a lie on the part of the defendant. In addition I am satisfied that the defendant was a willing party to some of the plaintiff’s deceptions of the Department of Social Security.

The defendant has an excellent memory of the events, supported by many documents that he obviously kept over the years. However, I am satisfied that in cross-examination he was not truthful in respect to a number of matters that were put to him. He falls into the category of a very cunning person who lies if he thinks it can gain him an advantage. He was cross-examined about his interview with Senior Constable Cain. Many of his answers in cross-examination demonstrated a person who was prepared to lie if he thought it could help him.

The propensity of both the plaintiff and the defendant to lie and deceive makes the resolution of the factual matters in this proceeding extremely difficult. Of course the plaintiff has the burden of establishing her various causes of action.

The facts which I now set out are in the main non-contentious, but it will be necessary to further consider the facts in relation to particular issues.

The plaintiff was born on 7 June 1961. She trained as a teacher in Kiev in the USSR. She married Jakov Giller and they had a daughter who was born on 2 November 1982. The plaintiff and her family left the USSR hoping to migrate to the United States of America in early 1989. They went to a camp outside Rome in Italy and remained there for about one year. The evidence indicates that their stay was an ordeal, things were not easy and money was scarce. Eventually it was ascertained much to their disappointment that they could not go to the United States of America and on 14 February 1990 they arrived in Melbourne, Australia. They were sponsored immigrants. The plaintiff had very limited english.

The defendant was born on the 2^nd February 1945 and is some 16 years older than the plaintiff. He was trained as toolmaker in Kiev in the USSR and obtained qualifications in that trade. In 1978 at the age of 33, he left Kiev, eventually arriving in Australia on 26 July 1979. He obtained employment as a toolmaker between 1979 and 1983. In 1983 he began investing in property. In 1986 he purchased a residential property at 37 Otira Road, North Caulfield for $188,500. It was registered in his name. He obtained a loan to purchase the property, secured by mortgage. It is more particularly described in Certificate of Title, volume 4170, folio 919. In 1987 he purchased a property at 22 Orrong Crescent, Caulfield North for the sum of $171,100 which again was purchased with a loan secured by mortgage. It is more particularly described as Certificate of Title, volume 04711, folio 036. He also acquired properties at 59 Hotham Street, St Kilda in 1987 for $151,000 and 120 Westbury Street, St Kilda in 1988 for $248,500. The Hotham Street property is more particularly described in Certificate of Title, volume 5459, folio 777 and the Westbury Street property is more particularly described in volume 4891, folio 189. These two properties were also purchased with loans secured by mortgages. He resided in a large house at 22 Orrong Crescent and leased out the other three properties. By the beginning of February 1990 he was not engaged in any employment, but spent his time looking after his properties, maintaining them and seeking tenants. He also purchased and sold motor cars and collected second hand goods and sold them.

The plaintiff and her family arrived in Australia sponsored by a Jewish organisation and facing the task of settling into a new country which was entirely foreign to them, learning a new language and a new way of life and culture. Fortunately they were supported by the Russian Jewish community in Melbourne. On the 15 February 1990 the plaintiff and her family met the defendant. The defendant was then aged 45 years and the plaintiff then aged 28 years. The plaintiff is, and was on 15 February 1990, an extremely attractive woman with a shapely figure. She did not speak English at that stage. The defendant who was then aged 45 years, was a man owning a number of properties, all of which were subject to mortgage. He had been in this country since July 1979, spoke reasonably good english, was street wise, an investor in property although he could hardly be described as a good looking man. He did describe himself in cross examination as a fat, round and dumpy man but one thing he did have in his favour, he was a man of property.

The plaintiff said that her marriage to her husband had deteriorated whilst they were in Italy, and the parties more or less agreed to separate when they arrived in Australia. They did in fact separate on 13 March 1990 and the plaintiff together with her daughter moved in to the defendant’s home at 22 Orrong Crescent, Caulfield. They commenced a sexual relationship about that time and very soon thereafter the plaintiff became pregnant. The parties lived under the same roof until 6 July 1993. Twin boys were born to the union on 31 December 1990.

During the period from 13 March 1990 until 6 July 1993 the defendant was not engaged in any employment. He continued to look after his investment properties, doing maintenance and attending to his tenants, and spent a lot of his time at home. He was also involved in buying and selling second hand goods in this period and also in purchasing, repairing and selling a few motor vehicles. In the year 1990 the plaintiff resided at home, the parties shared the household activities and the defendant paid all outgoings in respect to the property, namely the mortgage payments, rates, taxes, electricity, gas and other outgoings. He also purchased clothing for both the plaintiff and her daughter Julia and provided some assistance to Julia who attended a Jewish school Beth Rivka in St Kilda in 1990 for a number of terms.

The plaintiff was in receipt of money in the year 1990. There is some dispute about the nature of the source of the monies, but on any view it was provided by the Commonwealth government. On one version for the first number of weeks after the plaintiff arrived in Australia, she and her husband received unemployment benefits but by the time she had moved in with the defendant she was in receipt of a sole parent pension. The other version is that the plaintiff and her husband received a joint pension or benefits for some years and the plaintiff first received the sole parent pension in March 1993. The documentation leads me to the conclusion that the latter version is correct. The amount of the benefits was something in the order of about $205 per week. The plaintiff states that she was required to attend the bank with the defendant who demanded that she take the fortnightly pension out of her bank account and pay the cash to him. He disputed that she paid the amount of the pension to him. The evidence does reveal that she did spend some of the pension monies on her own living requirements and some on Julia’s schooling requirements, contrary to what is stated in her Statement of Claim and her affidavit. For some months in the year 1990 the plaintiff attended an institution to learn english.

In the following year 1991 the plaintiff was looking after the needs of the two children but, I am satisfied, so did the defendant. By this time the household was in receipt of benefits of the order of about $230 per week. The parties perpetrated a fraud on the Commonwealth Department of Social Security. The parties fraudulently entered into a lease which imputed that the plaintiff was a tenant in the property and this was used to extract a rent subsidy from the Commonwealth government. I am satisfied that the plaintiff and the defendant were willing parties to this fraud.

In 1991, the plaintiff continued her studies learning english and later that year enrolled at the University of Melbourne to undertake a Bachelor of Education which she commenced in 1992. During that year the defendant did not have employment and accordingly was able to perform many of the household duties, including driving the plaintiff to various places, looking after the children while she was attending lectures at the University of Melbourne and her english classes. The times of her lectures varied, some early in the morning, some late afternoon and the defendant undertook a number of chores concerning the children, including Julia, and also performing cooking and doing household chores.

The plaintiff continued her studies in the year 1993. Up to 6 July 1993 the pattern was much the same as in the previous year. The defendant was not in employment, was doing some of the household chores including looking after the children, and the plaintiff was attending lectures at the university, as well as performing parenting and household tasks.

The plaintiff’s parents Arkady Zuperman and Sofia Rudutskaya left Kiev and settled in Israel for a short period of time. The defendant provided financial help whilst they were in the Ukraine and also through his sister provided assistance to them whilst they were in Israel. I am satisfied that the defendant was instrumental in obtaining the necessary entry permits for the plaintiff’s parents and also financially assisted them come to Australia. They arrived in Australia on 1 July 1993 with their son Alex who was then aged thirteen years. They lived at the defendant’s premises at Orrong Crescent. In a matter of days it was apparent that the presence of the parents and their son was not to the liking of the defendant. Primarily as he put it, because the plaintiff’s daughter Julia and the son did not get on and were arguing, and also the added numbers in the house were hardly conducive to a pleasant situation. It also appears that the defendant did not get on with the plaintiff’s parents, in particular her mother. There is a dispute as to what occurred on 6 July 1993. The plaintiff stated that the defendant lost his temper, a verbal and physical confrontation occurred and the defendant demanded that the plaintiff, her daughter, her parents and her brother leave the home. It is said that the defendant dragged out the bedhead from the bed used by the parents and broke it up in the backyard. He denies the plaintiff’s version. That version is not supported by the brother’s evidence and the daughter Julia’s evidence is vague. I accept the defendant’s version, that he required and indeed demanded that the parents and the brother leave the home because it was creating problems, and the plaintiff said that if they were going, so was she. The end result was that on 6 July 1993 the plaintiff, Julia, the plaintiff’s parents and brother left the premises at Orrong Crescent. Surprisingly they found a flat 4/13 Philip Street, Bentleigh that night. The plaintiff was quick to point out to the Court that she was able to obtain the flat mainly because of the defendant’s reputation. However, there is evidence that up to July 1993 there had been physical confrontations between the plaintiff and the defendant and on at least two occasions the plaintiff left the home and sought refuge. She said she was constantly mistreated, from time to time was assaulted, she was dominated by the defendant and the house was untidy, cluttered and a mess. She said he mistreated the children including Julia and he was mean. Clearly at times the plaintiff was not happy at the premises. Despite the alleged confrontation on 6 July 1993 it is surprising to note that on 26 July 1993 the parties got together, including the plaintiff’s parents to enter into a contract concerning an alleged loan made to the parents. I accept the version of events given by the plaintiff. He did not want the plaintiff and the twins to leave. She decided to go with the parents.

The plaintiff did not call herself Mrs Procopets. This is not surprising as it appears to be a Russian custom for the woman to retain her own name in a marriage. That accords with the approach of many women nowadays in Australia who do not change their name on marriage. The daughter Julia retained her father’s name. When the plaintiff registered the twin’s names she did not include the defendant’s name as the father. She states that he objected to that course. I do not accept her version. It is incumbent upon the mother of an illegitimate child to complete the birth certificate and it is a matter for the mother whether or not she discloses the father of the child. The true position in my opinion is bound up with the benefits received from the Commonwealth. The plaintiff did hold herself out in some quarters as a single parent.

I accept the evidence of the defendant that he did not want the plaintiff to leave and take their children with her and that he wanted them to come back. However, in the meantime the plaintiff activated an application made earlier for a Housing Commission flat. She gave evidence that when she and her husband arrived in Australia she made application for a Housing Commission flat which was basically put on hold during the following years. It is difficult to know what the true position is. However, when she left the residence of the defendant, it was a matter for her whether she returned. She went to live with her parents in Bentleigh and it appears that some time late in October she returned to live with the defendant from time to time. She spent periods of a few days per week with the defendant during the period from about 20 October 1993 to January 1994. On those occasions she returned and slept with the defendant and brought with her the two boys. Julia, who did not like the defendant, refused to return and did not do so. However, the plaintiff did not stay there permanently and returned to reside with her parents, who in the meantime had moved to a flat in St Kilda.

In November 1993 the plaintiff successfully completed her Bachelor of Education at the University of Melbourne and in the following year went through a graduation ceremony which was attended by her parents and the defendant. It is clear that the plaintiff and the defendant were extremely proud of the plaintiff’s graduation.

The plaintiff was offered a Housing Commission flat in December 1993 and she took up a tenancy at 96 East Esplanade, Port Melbourne. The daughter Julia and the twin sons resided at the premises. The rental payable by the plaintiff depended upon her income. She remained in that flat for a number of years, finally bringing the lease to an end in about 1999. I am satisfied that during part of that period she failed to disclose her full income to the Department. She did for a period pay a small rental based upon the income she disclosed.

Although she had the flat at Port Melbourne and maintained her household there she returned for periods to reside with the defendant at Orrong Crescent in the year 1994. She also commenced studying interpreting and translating and successfully completed the course.

It is difficult to know how much time the plaintiff spent at the defendant’s residence in the year 1994. She gave evidence that she spent approximately half of each month at the residence. Julia gave evidence that she never returned to live at that residence, and although she stayed with her father and her grandparents from time to time she stated that her mother never left her alone at the Port Melbourne flat. The defendant denies that the plaintiff spent long periods with him during the year 1994. His evidence was that there was not a set pattern, it varied from month to month. Initially visits were in the order of two days a week for some weeks and then there would be a gap. He said that in later years it was less frequent. In my opinion the time spent at Orrong Crescent was not as extensive as the plaintiff maintained. She did return from time to time to reside at Orrong Crescent, and doing the best I can, it was in the order of about seven days in each month. When this happened the defendant looked after the two boys who were attending a child minding centre nearby. During this period the plaintiff was in receipt of a single parents’ pension, a family pension and also income from working as a part-time teacher and doing casual interpreting. She stated, and I accept her evidence, that from time to time she took food to the defendant’s premises when she stayed there but I do not accept that she paid out of her own pocket any of the defendant’s expenses during this period. In other words her contribution to the household comprised of food for the family.

In the year 1995 the plaintiff commenced studies at the University of Melbourne to be a teacher, teaching english as a second language. She also worked as a casual interpreter and was employed as a teacher at the Prahran-Windsor Primary School on what is described as forty percent time. She continued to stay with the defendant from time to time at Orrong Crescent taking the boys with her when she did so and taking food with her from time to time. In the latter part of 1994 and early 1995 the defendant considered, decided, prepared and finalised a development proposal at 22 Orrong Crescent. He was the owner/builder. In March 1995 the house was demolished and construction commenced of two units on the property. In order to finance the transaction, the defendant obtained loans from a bank which were paid in instalments during the course of the construction. Construction took place over the next fourteen months. As owner/builder the defendant was very involved in all aspects of the construction.

During the year 1995 the plaintiff continued as a teacher and also as a casual interpreter, and in addition received the single parent’s pension and the family pension. She was in charge and control of her money.

The defendant moved into his premises at 37 Otira Road, Caulfield. Much criticism has been levelled at him as to the general state of cleanliness of the premises and more particularly, the quantity of articles and equipment that were inside and outside the house. It is a criticism that I pay no attention to. He was buying and selling goods and he was making and repairing goods from second hand goods. He did not have the facilities or workshops at Otira Road which he had at Orrong Crescent. Whether or not the plaintiff wished to stay at Otira Road was a matter entirely up to her. She did come and go and she brought the children to stay there. I am satisfied that in the year 1995 the pattern seen in the previous year was basically followed. She did stay with the defendant from time to time. In this period the defendant did visit the flat at Port Melbourne but I am satisfied that he only stayed overnight once or twice in this period. He was extremely busy in this period planning and arranging the construction and obtaining sub-contractors to perform the work. He carried out some of the work himself. The plaintiff contends that in this period she assisted him with the work. The alleged work is particularised in paragraph 10.1.2 of Schedule A to the Statement of Claim. Her contributions to the construction are very much in dispute and I will consider this issue later. The defendant denies that she made any contribution to the construction of the units.

The plaintiff stated that in mid-1995, December 1995 and January 1996, she and her parents paid sums of money to the defendant for the construction of the units. Her mother gave evidence that she and her husband lent a sum of money. The evidence was extremely vague and inconsistent with the position of the parties. Whilst the plaintiff was in receipt of a number of pensions, making money as teacher and casual interpreter but supporting herself and the children, her parents were not working and were living on pensions. The parties including the plaintiff’s parents apparently acquired some motor vehicles which they later sold. The plaintiff gave evidence that she paid three instalments totalling $4,000 towards the construction of the units at 22 Orrong Crescent in mid-1995 by attending at a bank in the city at the request of the defendant and paying amounts of interest on the mortgages. The defendant stated that the plaintiff did not pay any money into any of his accounts. I do not believe the plaintiff. I do not accept that she made any financial contribution. It is said that the plaintiff paid the defendant a sum of $10,000 in December 1995 towards the cost of constructing the units. It is also said that the parents provided the defendant with the sum of $12,000 towards the construction in January 1996. The details of these payments, where the money was sourced from and the circumstances are all very vague and the evidence is somewhat inconsistent. The plaintiff, her mother and the defendant gave evidence in relation to the matter. What appears to be extremely odd is that on 26 July 1996 the defendant repaid the alleged loans by three cheques, payable to the plaintiff. I am not satisfied of the truthfulness or reliability of the evidence of either the plaintiff or the defendant. They entered into an arrangement whereby the amount, which was in the vicinity of $26,000, was divided into three separate cheques of $8,666.66 each. This was done to avoid the bank informing the authorities of a transaction of $10,000 or more. The three cheques were made out to the plaintiff. She then endorsed the cheques over to a man by the name of Lesh Cwikla. Mr Cwikla was involved in buying and selling motor vehicles. The explanations in relation to raising the money paying it to the defendant, the method of repaying the amount, the payments and why the cheques were endorsed to Cwikla raises suspicion about the transactions. The mother was cross examined as to where she got the money to lend, with her husband, the sum of $12,000 towards the construction of the units in January 1996. Her evidence was to the effect that she obtained a loan without security from a female person who was not called as a witness. She said that she obtained the loan because she requested this person to lend it to her and that she lent the money to the defendant because he asked for it. I am not satisfied the evidence was the truth. It seems odd to say the least that the money, when paid by the defendant in July 1996, was not paid in a cheque to the mother to repay the loan. The defendant’s version was that the two payments totalling $22,000 were repayments of money lent by him to the plaintiff and her parents and that the alleged payment of $4,000 was untrue. Whilst the evidence tended to support the defendant’s version, he could not give any satisfactory explanation as to why he gave the plaintiff $26,000 in July 1996. He said it was a loan to her. I do not believe him. The whole evidence is shrouded in mystery and suspicion. Why did the plaintiff endorse the cheques to Mr Cwikla? She gave an explanation that it was to put it beyond the reach of the defendant. That is nonsense and I do not believe her. There must have been another reason. On the other hand why did the defendant lend her $26,000 at the end of July 1996. By this time the relationship between the parties was extremely rocky; a suggestion has been made that both had entered into sexual relationships with new partners. The Court has not heard the truth concerning these transactions. I do not accept that the monies were paid by the plaintiff to the defendant as a contribution towards assisting with the construction of the units.

In the latter six months of 1996 the plaintiff worked as a teaching aide, this time on fifty percent time, and was paid accordingly. She had casual interpreting jobs and was also in receipt of the two pensions. She was leasing the property at Port Melbourne at a small rent although later the rent was increased substantially when her true financial position was revealed.

The plaintiff asserts that she decided to bring the relationship to an end in October 1996 and gave evidence that on 20 October 1996 the relationship ceased. The pattern over the year 1996 was that from time to time she did stay with the defendant at Otira Road but I find that in 1996 she was spending less and less time at that residence. In May 1996 the defendant met Marina Kavalertchik and commenced a relationship with her. On 3 June 1996 the parties, together with the plaintiff’s parents, brother and the two boys, went to a restaurant to celebrate the plaintiff’s thirty-fifth birthday. Again I have conflicting evidence of what occurred. I have seen a video of some of the events of the night. It was asserted that the defendant was difficult, that he assaulted the plaintiff, and verbally abused the plaintiff and her parents. I am not persuaded that he did assault anybody nor am I satisfied that anything untoward occurred that evening. The video which was produced in evidence showed a completely different picture. Indeed it shows a friendly occasion. It shows the defendant having a friendly and close relationship with the two boys. In July 1996 the defendant’s relationship with Marina Kalvalertchik ceased and it is said that the defendant recommenced a relationship with Bella Drobitsky in about September 1996. He had had a previous relationship with her in the late 1980’s.

Some time in October 1996 the plaintiff commenced a relationship with Dmitry Blanovsky. The relationship apparently lasted for about one month. The defendant learned of the association. On the other hand the defendant had had a relationship earlier that year and recommenced a relationship with Mrs Drobitsky. It is quite apparent that around this time both parties were looking for companionship elsewhere. It is that setting which is the background to the events which occurred in the months of November-December that year.

On 10 November 1996 the parties met near the plaintiff’s Port Melbourne flat and an altercation occurred. The plaintiff alleges the defendant assaulted her by grabbing her around the neck and punching her on the side of the face. The defendant asserts that she became annoyed with him and started to strike him and in order to defend himself he grabbed her clothing around the neck, and that as a result she suffered bruising around the neck. He denies striking her on the face. Soon afterwards the plaintiff made a complaint to the Port Melbourne police. Photographs of the plaintiff show marks around her neck and a swollen left cheek. The plaintiff obtained an interim intervention order ex parte against the defendant from the Melbourne Magistrates’ Court on 12 November and the further hearing was adjourned until 22 November 1996. The terms of the order forbade the defendant to come within a certain distance of the plaintiff. Nevertheless the parties talked and on 19 November 1996 they met. The defendant made a number of promises that he would behave. He was very anxious that they should get back together. Thereafter the parties resumed a sexual relationship at the defendant’s home in Otira Road. Unbeknown to the plaintiff he videoed their sexual encounters. They had sexual relations on 19 November, on the 21, 22, 23, 24, 25, 26, 27 and 28 November and on 1 December 1996. The plaintiff was unaware that the defendant was videoing their sexual activities until 25 November 1996. She did not object to the continuation of the videoing. It is very apparent from observing the video that the plaintiff was aware that they were being filmed. She played up to the camera, and the parties indulged in a variety of sexual activities, including fellatio and cunnilingus. The filming did not appear to inhibit the parties in their sexual activities. Neither party showed any sign of embarrassment or inhibition during the filming.

In the meantime the intervention application was heard in the Melbourne Magistrates’ Court on 22 November. The parties had indulged in sexual activity on 19 and 21 November. Prior to the hearing the defendant requested the plaintiff not to seek an intervention order against him. This is clear from their conversation captured by the video on 19 November 1996. The plaintiff stated that she proposed to proceed with the intervention order and the assault charges against the defendant would be dropped. The defendant indicated that he would prefer assault charges than have an intervention order. It was very clear from the conversation that the plaintiff was aware of the procedures in the Magistrates’ Court, which she had observed during her role as an interpreter. She told the defendant that it did not depend upon him; she was asking for an intervention order and “I will get it automatically at my request, with or without your consent.” The defendant indicated he would tell his side of the story but the plaintiff pointed out it was on the balance of probabilities if “the Judge is convinced that you are a real threat to me”. The plaintiff made it quite clear that she was going to proceed with the application and the defendant stated he did not want an intervention order and that he would prefer to stand trial for assault. He ended by pointing out to her that she was blackmailing him. Despite this and the entreaties of the defendant not to obtain an intervention order against him the parties attended the Court together, and the plaintiff gave evidence on oath that she was afraid of the defendant and was fearful for her own safety. It is difficult to accept that her evidence was truthful bearing in mind their intimate relationship at that time. Nevertheless she obtained the order. One of the terms was that the defendant was not to contact the plaintiff except in the company of the police. That afternoon sexual intercourse took place. The parties continued to indulge in sexual activity which was filmed up to 1 December 1996. There is no doubt the intervention order caused the defendant a degree of distress. By its terms the defendant was prohibited from assaulting or harassing the plaintiff, approaching her except in the presence of police, he was not permitted to be within 350 metres of her flat at Port Melbourne and was restrained from damaging her property.

The parties fell out after 1 December 1996. On 6 December 1996 the defendant picked up the twins at the Caulfield Child Minding Centre in his car and caught up with the plaintiff who was in her car with her mother, and a verbal exchange took place. The defendant held up photographs of the plaintiff to the mother which showed some sexual activity and nudity. He told the mother that her daughter was an immoral woman.

On Sunday 8 December 1996, the plaintiff and her mother were at the Camberwell Market. Her mother was selling various items. The defendant attended at the market and commenced to take a video film of their activities some distance from the plaintiff. This caused the plaintiff to become extremely angry. She picked up a car wheel lock consisting of a length of steel and approached the defendant who was still filming the plaintiff and her mother and struck him a number of times with the piece of steel. By this time the plaintiff was aware that the defendant was threatening to show the video film to others, including her employer, had left a tape with her father and had shown it for a short period to Mrs Volkova. She was extremely annoyed with him. Nevertheless her conduct was surprising bearing in mind that she has sworn on oath on 22 November that was she was in fear for her life. She then walked away and made contact with police.

On the night of 9-10 December 1996 the plaintiff made a statement to the police which was taken by Senior Constable Mark Cain. By this time she had been referred to the Moorabbin police complex which had a squad concerned with dealing with family relationships. The statement comprises six pages. Although the plaintiff acknowledges that the statement is true and correct and that she has made it knowing that if she has made a false statement she may be liable to penalties of perjury, I am quite satisfied that a number of portions of the statement are untrue. Her version of what occurred at the Camberwell Market was as follows –

“The day I went to the Camberwell Market, it was the eighth day of December, it was around 10.30-11 am. I was at one of the stalls with my mother when the owner of the stall brought my attention to a man she had seen video taping us with a camera. A gentleman called Robert Perkins who I now know as a Rotary Club volunteer he offered his help as he witnessed this person videotaping me. I recognise this male as Boris Procopets, my ex-defacto. Boris came over to me and tried to talk to me. Boris started talk about the intervention order again, I told him that after what he had done the day before, distributing the videotape, that we had nothing further to discuss.”

The videotape which was produced of that confrontation shows that what the plaintiff said was untrue.

She concluded her statement as follows –

“As a result of Boris’s conduct I have been very fearful for my life and that of my children. I cannot sleep at night and have not been able to carry on a normal life since Boris hit me back on the 10^th of November 1996. Boris knows every move I make and has admitted watching my every movement with binoculars. I’m scared everywhere I go and I look of my shoulder all the time. When I think about Boris’s behaviour and his violent outburst I believe that he is more than capable of carrying out his threats. I have suffered much mental anguish as a result of this mans behaviour and constantly I am frightened by the fact that he constantly follows me around, I just want him to stop and leave me alone.”

This cannot be accepted when considered in the light of the party’s conduct during the latter part of November. On 7 December the plaintiff taped telephone conversations with the defendant and taped a number of conversations on the following days.

There were discussions between the parties from about 1 December in which the defendant threatened to show the video of their sexual activities to others. On 5 December 1996 he tried to show the video to the plaintiff’s father in the presence of her brother Alex. They refused and the defendant left a cassette with them. This was handed over to the plaintiff who was extremely distressed by the thought of the video being shown to her family. On the same day the defendant attempted to leave the video with Mr and Mrs Furman and on 6 December 1996 the defendant showed sexually explicit photographs to the plaintiff’s mother from his car when the mother was in the plaintiff’s car nearby. On 7 December 1996 the defendant showed the video for a matter of a minute or two to Mrs Meda Volkova, whom he did not know. He brought a video recorder with him to enable her to see the video. She refused to look at the video when she realised what was on it and asked the defendant to leave, which he did, promising to bring another one back. He did not do so. The plaintiff was aware of these events. On 9 December the defendant rang the operations manager of Victorian Interpreting and Translating Service saying that he was representing a group of interpreters concerned about the unethical behaviour of one of the interpreters and that she was using her position to gain sexual favours. The defendant told the operations manager that he had a video cassette secretly made, in which the interpreter was engaging in sexual activity. The defendant denied that he made the telephone call. I do not believe him.

Later that evening the plaintiff made a statement to the police which she signed in the early hours of 10 December. The plaintiff had approached the police earlier on or about 6 December after the incident involving the defendant showing the photographs to her mother. Over the period from 6 December through to 8 December the plaintiff recorded a number of telephone conversations with the defendant. She made another detailed statement on 16 December 1996. It is clear from the statements that her main concern was that she did not want to have any contact with the defendant, as he appeared to be following her. While she referred to the threat of showing the video and the fact that he did try to show her parents the video, the main thrust of the statements concern contact with the defendant. A statement made on 2 February 1997 again is concerned with the relationship since about January 1994 and the reference to the showing of the video is contained in one paragraph in which it is noted that the defendant had possession of the video and that he was going to give copies to a number of people who were named.

The telephone calls recorded by the plaintiff without the knowledge of the defendant were admitted into evidence. They have been translated. In the telephone calls the defendant does make some admissions in relation to some facts to which I will refer later.

In the early hours of Tuesday 10 December 1996 and clearly very soon after the plaintiff had signed her statement, Senior Constable Cain and other police took the defendant into custody and at 4.30am commenced an interview with him. This continued through to 7am. The questions covered a number of topics, including the relationship between the plaintiff and the defendant. He was also asked about the filming of the sexual activities and when asked why he commenced filming, he stated that he wanted the intervention order removed. He lied when he told the police that the plaintiff knew about the existence of the camera for the whole period. I do not accept that. Indeed looking at the video it is very clear that she became aware from about 25 November 1996. He was asked what he did with the tapes. It is very clear that the defendant was aware that a complaint had been made about showing the videos and his fingerprints were taken. He was told that he may be charged with offences of breaching the intervention order and assault. The evidence revealed that the video was not shown to any other person after 10 December, nor was any threat made after that date to show the video to anybody. The video did get into the possession of Mrs Drobitsky who was handed the tapes and some documents in a sealed envelope by the defendant. Mrs Drobitsky said that she viewed the video in the privacy of the defendant’s home in the following year 1997, at which time she was having a relationship with him. The relationship ceased in about mid-1997, and despite requests by the defendant to her to hand over the tapes, she refused to do so. Later after their relationship had ceased, she made contact with the plaintiff, telling her about the existence of the tapes and that she had seen one of them, and arrangements were made for her to go and see Senior Constable Cain. She made a statement to the police. The plaintiff arranged for her to attend at the police station. As a result of Mrs Drobitsky’s statement, the defendant was charged with breaching the intervention order and was imprisoned for a period of approximately thirty-one days before he obtained bail from a Judge of this Court. This occurred in the latter part of 1997.

I have closely considered the evidence and observed both the plaintiff and the defendant whilst giving evidence and in Court. Each dislikes the other to the extent bordering on hatred. Each has spent considerable time on the proceeding. I have observed the way the defendant has presented his case and in particular the way he has cross examined the plaintiff and her witnesses. In my view both the plaintiff and defendant are amoral; they lie, deceive, and mislead as a way of life. The oath means nothing to either of them. Each will lie if he or she thinks it will benefit him or her. As I have said, the defendant pursued a tactic in cross examination of the plaintiff’s witnesses of making up a story aimed at blackening the reputation and honesty of the witness. The plaintiff must have gained something from the cross examination because she instructed one of her counsel to put to a witness that he had made a claim on insurance, the suggestion being that he had made a fraudulent claim. It was not put with any conviction by counsel.

The plaintiff is an attractive, intelligent, cunning woman who, during evidence was quick, alert and intellectually nimble enough to change her story. She was quick to anticipate cross examination and invent a story to meet the challenge. She is an extremely manipulative person. The defendant is a dishonest man who is extremely cunning, is prepared to indulge in deception to gain an advantage or a benefit, and lies without thought. On the other hand if I was prepared to choose between the plaintiff and the defendant as to the degree of reliability and accuracy I thought that the defendant was more likely to be honest and accurate than the plaintiff. He has an excellent memory of events aided by documents which he has retained. However that is not saying very much at all. What either party said had to be viewed with a degree of scepticism and in the end I was left in the position where I could not accept the evidence of either party unless it was corroborated in some way. Because of the difficulties in accepting the evidence of either I have found the resolution of the factual issues in this case extremely difficult.

The Claims – The Law

The first category of claims seeks an interest in the real property of the defendant. A number of causes of action have been pleaded seeking an interest in the property. At the date when the parties commenced cohabitation, namely 13 March 1990, the defendant owned four pieces of real estate. The parties commenced their cohabitation at 22 Orrong Crescent, Caulfield. In late 1994 the defendant, demolished the house and in 1995/96 built two units on the land. He built the two units using sub-contractors. The units were completed in about May 1996. In late 1994, the defendant commenced occupation of his property at 37 Otira Road, Caulfield and he has remained in that property ever since. The front unit, being 22A, was sold in October 1997. The back unit has remained unoccupied. He sold two other properties earlier. The claim made by the plaintiff identifies the rear unit at 22 Orrong Crescent as the real property in which she seeks an interest. Her pleading refers to making contributions in respect of other properties but it is clear that if she has an interest it is in respect of that property. That property was valued in September 2002 at $480,000.

The plaintiff seeks an interest pursuant to the statutory cause of action found in Part IX of the Property Law Act 1958. Part IX was introduced into the law in 1987 by the Property Law (Amendment) Act 1987 which came into operation on 1 June 1988. The statutory cause of action gives the court jurisdiction to adjust the interests of defacto partners in real property. Section 285 (1) was amended by the Property Law (Amendment) Act 1998 which came into operation on 29 June 1998. The amendment does not apply to the present application by reason of s. 276 of the Act. Hence the jurisdiction of the Court in this proceeding is confined to adjusting the interests in real property, if appropriate, of the defacto partners.

In the alternative, the plaintiff seeks to rely upon the general principles of law and equity relating to interests in property. The pleading is hardly the paradigm of good drafting. The heading to paragraph fourteen asserts “Claim for Interests in Property -Equitable Claims including Constructive Trust” and thereafter the pleadings make claims for a constructive trust, an enforceable contract, equitable estoppel, and failure of consideration. However in final address Mr T.D. North SC who appeared with Mr R.K. Davis for the plaintiff stated that the cause of action relied upon was based on a constructive trust. He referred to Green v Green[3], Grant v Edwards[4] and Maharaj v Jai Chand[5]. It is convenient to consider the law relating to the statutory cause of action found in Part IX of the Property Law Act first. This Part was enacted into the law to overcome the injustices that sometimes resulted after a defacto relationship ceased and one of the partners received little or no recognition for the contributions made to the relationship. The law of trusts and to a lesser extent contract often failed to deliver a fair and just outcome after a defacto relationship had finished despite the endeavours of the Courts to broaden the law to encompass contributions other than directly financial[6]. It facilitated the proof by a partner in a defacto relationship to obtain an interest in real property. The Act has since been amended to include any property[7]. This case is concerned with real property, although contributions to any property are to be taken into account.

Claim in Real Property – the Law

[3](1989) 17 N.S.W.L.R. 343

[4][1986] Ch. 638

[5][1986] A.C. 898

[6]see Muschinski v Dodds [1985] 160 C.L.R. 583; Waltons Stores (Interstate) Ltd v Maher (1988) 160 C.L.R. 583 and Baumgartner v Baumgartner (1987) 164 C.L.R. 137

[7]see s.285(1) amended by Act 23/1998

Part IX of the Property Law Act

A plaintiff seeking an interest in real property of either or both partners of a defacto relationship has to prove the following under Part IX of the Act:

(i) That the parties were defacto partners in a defacto relationship[8].
[8]see definition s.275

(ii) That the defacto relationship existed for a period of at least two years, although the Court may make an order, where the relationship lasted less than two years, if there was a child of the defacto partners, or a failure to make the order would be a serious injustice because the plaintiff has made substantial contributions within the meaning of s.285(1)(a) or (b) or has had the care and control of the child of the other partner. [9]
[9] see s.281(2)

(iii) That one or both defacto parties lived in this State on the day the proceeding was commenced[10].
[10]see s.280(a)

(iv) That both partners have lived in this State for at least one third of their relationship - see s. 280(b)(i) or the plaintiff has made a substantial contribution within the meaning of s. 285(1)(a) or (b)[11].

(v) That if the relationship has ceased, the proceeding was commenced within two years after the date the relationship ended – s.282(1). -A court may grant leave to bring the proceeding out of time[12].

(vi) That it is just and equitable to adjust the interests of the defacto partners or either of them in real property because of the financial, non-financial, home-making and/or parenting contributions made by the plaintiff or both of them, or any written agreement entered into by them[13].

[11]see s.280(b)(ii)

[12]see s.282(2)

[13]see s.285

The statutory cause of action, does not affect any right of a defacto partner to any remedy or relief under any other law, statutory or otherwise[14]. It is the duty of the Court to end the financial relationship so far as it is practicable and to avoid further proceedings between the parties[15]. The Court has extremely wide powers to give effect to any adjustment of property[16] and may adjourn the proceeding if there is the likelihood of significant change in the circumstances of the parties[17] and defer the operation of the order if a partner is to become entitled to property which may be applied in satisfaction of any order[18].
[14]see s.277 and 279(2)
[15]see s.284
[16]see s.291, 278 and 285(2)
[17]see s.286
[18]see s.288

I am satisfied that the plaintiff has established that the relationship was a confidential one, that she did not authorise him to distribute the video or show it, that his unauthorised distribution was a breach of that confidence and she would be entitled to relief for that breach of confidence.

I also find in respect of the threats to show, the distribution and the showing of the tape in December 1996, that the defendant intended to cause the plaintiff mental harm and that in distributing the video the plaintiff was distressed, annoyed and embarrassed.

The plaintiff gave evidence that she suffered from severe emotional distress, loss of self esteem and her confidence had been depressed as a result of the distribution of the video. She in fact said that she had been told by a substantial number of people that the defendant had attempted to or did provide copies to them. They are listed in the Statement of Claim but there is no evidence to that effect and I do not accept her evidence. She said that she became embarrassed, annoyed and self conscious when in public and she was aware of the gossip, sniggering and laughing behind her back. She said the stress occasioned by the separation, the constant threats and then the video tape distribution has caused her insomnia, depression, loss of appetite and a sense of shame and disbelief. She said her credit was greatly injured and her character and reputation have been brought into shame, ridicule and contempt.

She did not give evidence that she suffered any psychiatric or psychological injury. She did not seek any medical advice. There is no medical evidence that she suffered any physical, psychological or psychiatric injury. If the evidence of Professor Mendelson suggests she did, I do not accept it. Because of her lack of credibility, I approach her evidence as to the effect on her of the threats, distribution, and showing the tape with a degree of reservation. I have considered the tapes of the conversations had around this time over the telephone with the defendant. I have observed the video of the attack upon the defendant at the market by the plaintiff and I have also observed the plaintiff in the witness box and in the Court. She is a determined woman who is not over sensitive. Indeed her complaints about the assaults are exaggerated. She had no reservations about attacking the defendant at the Camberwell Market with a steel rod. In addition one has to analyse precisely what it was that was being distributed. What was being shown is sexual activities between consenting adults. It was known to all those who were shown the video that she and the defendant had had a sexual relationship over many years. The revelation of that to the community was of no consequence and could not have caused her any anguish. No doubt the showing of the intimate relationship to others was a matter of distress, embarrassment, annoyance and upset. However by 10 December it had been nipped in the bud. She had made her complaint with the police, the police had moved in and taken the defendant to the police station where he was interviewed for a substantial number of hours early in the morning about these very incidents. By the end of December statements had been made by the various witnesses to the police. It must have been very apparent to her by the end of December that the defendant’s conduct was viewed by others as shameful and that his conduct was condemned by all. There is no evidence that the more intimate details of their sexual activities were shown. Indeed it is very apparent that one has to go a long way into the video to see the more intimate activities of the parties. One cannot overlook the fact that the damages are compensatory and that the question of aggravation and more particularly exemplary damages involve different considerations.

Expert evidence was given by Professor George Mendelson, a psychiatrist holding many posts including those in the area of psychological medicine. He saw her on 22 October 2002 for one and a half hours in his consulting rooms. He saw her for psychiatric examination. He was provided with a letter from the solicitors and a draft affidavit which apparently was the plaintiff’s main affidavit in this proceeding. In making his assessment and diagnosis and forming an opinion as to the plaintiff he had to rely upon what she told him and what appeared in the affidavit. As he told the Court his opinion was based purely and simply on what she had told him. He was not making any diagnosis or forming any opinion on his observations. He agreed that she was not clinically depressed. He came to the view however that she was suffering from a clinically significant anxiety disorder with indications of autonomic nervous system hyper arousal which, he was of the view, was developed as a consequence of the emotional abuse and physical violence to which she had been exposed during her relationship with the defendant. The Professor frankly conceded in cross examination that on the scale of anxiety, her anxiety was at the minor end. He was also skilfully cross examined by the defendant who highlighted all the matters of stress that the plaintiff was exposed to after she left the Ukraine in 1988. She moved from the depressing situation in the Ukraine to a camp in Italy in circumstances where the family had little money and life was extremely difficult. They hoped to go the United States of America. They were disappointed when this did not happen. They came to a new country which was strange, not understanding the language, culture or way of life of Australia. The break up of her marriage, the difficulties associated with her daughter and the marriage break up, her deception of various bodies to obtain pensions, subsidised rent, subsidised childcare, free education for her daughter Julia, all of which backfired on her and ended up in demands being made for her to reimburse the various suppliers of the financial assistance, all contributed to her anxiety. The Professor frankly conceded that they were all factors which would cause a degree of anxiety to the plaintiff. The Professor suffered from the fact that he only saw her for an hour and a half in October 2002, and he was relying on what she told him. I have already indicated that her credibility is questionable. He was prepared to base his opinion on what she said. He thought that she may be suffering from battered wife syndrome but went on to observe that the Court was in a far better position than he was to make some assessment of her condition based on all the evidence before the Court. I reject any suggestion of battered wife syndrome in this relationship. The relationship effectively ended in July 1993 and thereafter the plaintiff pursued her own life independently of the defendant. The incident in December 1996 I have no doubt was a cause of annoyance and distress to her but I do not accept that it in any way contributed to an anxiety condition that the Professor thought she may be suffering from at the moment. Indeed her deceptions of a variety of suppliers of money and services and the pursuit of her by the various suppliers would cause anxiety in most people. This litigation brought its fair share of anxiety. I formed the opinion in this case that the plaintiff was a very strong willed and determined person who had a deep hatred of the defendant and was determined to make him pay. She spent much of the time in Court when her counsel were cross examining and addressing the Court supplying them with handwritten messages. I do not accept that the incident in December 1996 caused her an anxiety disorder and if she suffers from one I am quite satisfied that the causes were found in areas other than that incident. I refer to the police statements made at the time.

In a police statement made 10 December 1996, early in the morning after the incident involving her employer, the plaintiff referred to the threats made concerning the distribution of the tape. She said that in the previous few days the defendant had called at home and told her –

“Unless I withdrew the intervention order he would distribute the tape of us making love to all the places where I work as a Russian interpreter, to other Russian interpreters, colleagues, to all my friends and family, he also told me that he would destroy me as a person.
Boris told me he would ruin my reputation completely and I would never work again. He told me he was in possession of information which suggested I was in breach of interpreters’ codes of conduct. By this he meant that I was selecting any available men during the course of my work for the purpose of sexual intercourse, which was total nonsense.”

The plaintiff then referred to the defendant giving a copy of the tape to her family. She described the effect of the defendant’s conduct on her in the last paragraph of that statement in the following terms –

“As a result of Boris’s conduct I have been very fearful for my life and that of my children. I cannot sleep at night and have not been able to carry on a normal life since Boris hit me back on 10 November 1996. Boris knows every move I make and has admitted watching my every movement with binoculars. I am scared everywhere I go and look over my shoulder all the time. When I think about Boris’s behaviour and his violent outbursts I believe that he is more than capable of carrying out his threats. I have suffered much mental anguish as a result of this mans behaviour and constantly I am frightened by the fact that he constantly follows me around, I just want him to stop and leave me alone.”

The emphasis is on matters other than the video tape incidents.

In a detailed statement on 2 February 1997, the plaintiff referred to the distribution of the tapes and she stated the following –

”In regard to the video tapes that Boris had in his possession of us both engaging in sexual intercourse, Boris stated that he was going to give copies of this video tape to..”

And then set out a number of people. She makes no mention of the effect of his conduct upon her. In considering her evidence as to the alleged effect one has to take into account the statements made at the time.

The defendant’s conduct was outrageous. It was done in the course of a battle between warring former sexual partners. Each was determined to hurt the other. The plaintiff’s campaign, because the defendant would not give her any interest in property, was to have nothing more to do with him. The defendant was upset by that. He waged his campaign. His conduct in the circumstances was outrageous. However fortunately for the plaintiff and indeed the defendant, it was nipped in the bud when the police arrested him on 10 December 1996 and charged him with a number of offences including breaching the intervention order. The plaintiff was extremely annoyed and justifiably so that he approached her employer, she was distressed and justifiably so in that he attempted to blacken her name within the Russian-Jewish community. However the reaction of those whom he approached was one of anger and disgust and when one stands back and analyses the nature of the alleged mental harm, it is annoyance, distress and embarrassment. The only person who saw the video was Mrs Volkova. He left the tape with two other persons and Mrs Drobitsky. He showed Mrs Drobitsky the tape in circumstances which came to the knowledge of the plaintiff when Mrs Drobitsky made contact with her and the two women approached the police and the defendant was dealt with.

I find that the plaintiff has established the elements of the tort of intentionally inflicting mental harm. However the harm was annoyance and distress and is not recoverable. It follows that the plaintiff’s claim must fail. However if I am wrong, it is appropriate that I assess the damages. In assessing the amount of damages, I emphasise that it is compensatory and not punishment. The defendant’s conduct was outrageous conduct but it was nipped in the bud by 10 December 1996. I assess the compensatory damages at the sum of $5,000. I think the wrong has been aggravated by his conduct in approaching the plaintiff’s employer and threatening to show it to the employer and colleagues. I would add $3,000 for aggravation. By the 10 December 1996 the plaintiff knew of the police involvement and was no doubt comforted by that fact.

The plaintiff also claimed exemplary damages. Exemplary damages are not compensatory damages. They are awarded in order to punish a tortfeasor because of the grossness and severity of the wrongful conduct and that the circumstances demand that the tortfeasor be punished. The purpose of exemplary damages is to punish a defendant for his outrageous conduct concerning the plaintiff. The principles of law were discussed by Windeyer J in Uren v John Fairfax and Sons Pty Ltd[120]. The principles were summarised by Brennan J in XL Petroleum (NSW)Pty Ltd v Caltex Oil[121]. His Honour said –

“As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages.”

[120](1966) 117 C.L.R. 118 at 153; see also Lamb v Cotogno (1985) 155 C.L.R. 448

[121]supra

The behaviour of the defendant in the circumstances was outrageous and is deserving of an award of exemplary damages. However the law does not permit the awarding of exemplary damages where the tortfeasor has been punished by the criminal law. In Gray v Motor Accident Commission[122], the High Court held that where the criminal law has been brought to bear upon a wrongdoer and substantial punishment inflicted, exemplary damages may not be awarded. The infliction of substantial punishment is a bar to the award.
[122](1998) 196 C.L.R. 1

The defendant has been dealt with by the criminal law and substantial punishment was inflicted upon him because of the distribution of the video tapes. In the Magistrates Court he was convicted of a number of breaches of intervention orders and sentenced to a period of imprisonment. On appeal he was convicted and fined $500 for breach of an intervention order, convicted and fined $1,500 for stalking, he was ordered to pay costs fixed at $3,300 and the orders made were conditional upon “the appellant surrendering all video tapes/copy video tapes of any sexual/offensive acts involving Alla Giller to the Court by 2.30pm that day.” It was directed that the video tapes be retained in the Court file. In fact the Court file was sent to this Court and the video tapes had been retained in the Court file. In addition Mrs Drobitsky with the assistance of the plaintiff approached the police in late 1997 and informed the police that she had been shown the video tape and this resulted in the defendant being arrested. He was incarcerated for a period of thirty-one days until he obtained bail in this Court.

There is no doubt that the defendant did receive substantial punishment for his wrongful acts in distributing and showing the videos. Accordingly the plaintiff would not be entitled to recover exemplary damages if she was otherwise entitled to damages.

Counter Claim

On 20 May 2003, Redlich J gave leave to the defendant to file a counter claim. On 3 July 2003 the defendant filed a fifteen page document purporting to make a number of claims. The plaintiff in her defence to counter claim pleaded that the counter claim failed to disclose any causes of action and further that if any causes of action were pleaded, they were statute barred by reason of the Limitations of Actions Act 1958.

At the end of the plaintiff’s case I ruled on the counter claim and held that the claims set out in paragraphs 1, 2, 3, 4, 7, 14, 17 and 18 did not disclose causes of action. The claims which were arguably made in paragraph 5 and 6 were statute barred, as were the claims in paragraphs 10,11, 12 and 13.

In paragraph 8 the defendant brought a claim against the plaintiff alleging that she unlawfully lodged caveats on her properties and as a result he has suffered damage. I ruled that the claim would be adjourned and would be decided after I had delivered my reasons in the proceeding.

The claim in paragraph 9 I did not strike out or rule was statute barred because it appeared that it was an allegation that the plaintiff had conspired with the police in order to obtain orders against him that should not have been obtained. It was alleged that on 12 November 1996 and on 22 November 1996 the plaintiff obtained intervention orders when it was known that she was not in fear for her safety and life. However late in his evidence the defendant told the Court that the plaintiff did tell the Magistrate on 22 November 1996 that they were indulging in sexual relations. I must say I find the whole situation bizarre. However I am satisfied that if there was a cause of action, which I doubt, I am not persuaded by the evidence that it was established, and further it was statute barred. The defendant fails.

The claim in paragraph 15 is dismissed. It does not involve any cause of action in respect to any claim by the defendant. Indeed it appears to be a claim brought on behalf of others.

The final cause of action is pleaded in paragraph 16 and alleges that the plaintiff conspired with Mrs Drobitsky to encourage her to make a false statement to the Victoria Police which resulted in the defendant being arrested and his bail revoked. This claim was not statute barred. I must say I am concerned about some of the matters that occurred in relation to these events. I am by no means convinced that I have the full story. It would appear however that orders were made against the defendant and he was incarcerated without appearing in Court. I find this hard to believe. Further I have read the statement of Mrs Drobitsky and I find it extraordinary that the circumstances set out demanded the imprisonment of the defendant. If the gaoling was due to the showing of the video to her in the privacy of the defendant’s home, I find it extraordinary that he was sent to gaol for some thirty-one days, especially as the plaintiff was involved with Mrs Drobitsky in arranging for her to see the police. However I have found that Mrs Drobitsky was truthful in telling the police that she did see the video and accordingly she did not make a false statement in relation to that. Accordingly the claim is dismissed.

The defendant has failed in all his claims save for the removal of the caveats.

Order by Kellam J to Provide Funds

An application was made to the Court by the plaintiff seeking an order that the defendant pay a sum of money to enable her to engage an accountant to prepare her case. A sum of $15,000 was ordered to be paid by way of interim costs on 5 August 2002. Kellam J held that the Court had jurisdiction to make the order sought and that an order should be made to enable the other party to have resources to investigate and prepare the case. The order was sought to enable the plaintiff to engage an accountant to prepare a report of the financial circumstances of the defendant. His Honour made an order that the sum of $15,000 be paid, being $1,500 on account of valuation fees, $1,500 on account of a medical report and $12,000 in relation to a financial investigation. His Honour went on to order that “the sum be taken into account in such manner as the Trial Judge may determine.”

The defendant has represented himself in this proceeding and has no legal costs strictly so called. The $12,000 paid for the investigating accountant ended up with a report which I perused. I strongly stated that in my opinion the evidence contained in the report was not expert nor was the report in a form that could be admitted into evidence. In the end the accountant was not called. The only evidence adduced prepared by the accountant was a chart of the liabilities of the defendant during 1990-1993, which evidently formed an appendix to one of his reports. In my opinion the solicitors could have prepared the same chart as it did nothing more than summarise the mortgage position in relation to the four properties. The plaintiff called medical evidence and also valuation evidence and I have no criticism of the money being spent for those purposes.

In my opinion the money must be taken into account in this proceeding. It is a question in which way it should be taken into account. I will hear the parties on this question. My provisional view is that it should be taken into account in respect of costs. The plaintiff has succeeded in some of her claims, and hence would be prima facie entitled to costs in respect of those particular claims. In my opinion the costs orders should be subject to the payment of the $15,000 back to the defendant. It will be necessary to hear the parties on the question.

Caveats on Properties

As the plaintiff has failed in her claim for an interest in property, she has no interest in the defendant’s real property to support a caveat. They should be removed.

Orders

Subject to submissions by the parties, I propose to make the following orders –

(i)That the claims by the plaintiff for an interest in the defendant’s real property brought pursuant to Part IX of the Property Law Act 1958 and the principles of equity are dismissed;
(ii)that the claim in detinue and conversion brought by the plaintiff is dismissed;
(iii)that the plaintiff recover the sum of $4,928 in respect of five causes of action based on assault and that the cause of action of assault alleged to have been committed in June 1996 is dismissed;
(iv)that the causes of action of breach of confidence, breach of privacy and intentionally causing mental harm are dismissed;
(v)that the caveats lodged by the plaintiff on the properties owned by the defendant at 22 Orrong Crescent, Caulfield North and 37 Otira Road, Caulfield North on 17 September 1998 being the properties described in certificates of Title volume 4711 Folio 036 and volume 4170 Folio 919 respectively be removed, otherwise the defendant’s counter-claim be dismissed save for the claim for damages for the lodging of the caveats;
(vi)That the defendant’s claims for damages caused by the lodging of the caveats be adjourned to a date to be fixed.

I will hear the parties on the questions of interest on damages, and costs.

[2004] VSC 113

7 April 2004