Grech v Jones

[2000] NSWSC 61

Reported Decision: (2000) DFC 95-227

New South Wales

Supreme Court

CITATION:	Grech v Jones [2000] NSWSC 61
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1954/99; 1598/99
HEARING DATE(S):	7 and 8 February 2000
JUDGMENT DATE:	23 February 2000
PARTIES :	Paul Grech (P in 1954/99; D in 1598/99) Linda Jones (P in 1598/99; D in 1954/99)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. T. Hodgson (P in 1954/99; D in 1598/99) Miss D. Coulton (P in 1598/99; D in 1954/99)
SOLICITORS:	Altobelli & Associates (P in 1954/99; D in 1598/99) Vizzone Ruggero & Associates (P in 1598/99; D in 1954/99)
CATCHWORDS:	Property (Relationships) Act 1984 - Some form of a relationship between the parties obtained at various times over a period of thirty-two years - Not disputed that the parties cohabited and were in a de facto relationship for at least a total of eleven years during the foregoing period - Adjustment of interests in property - House property purchased in names of plaintiff and defendant as joint tenants - Defendant made no financial contribution to purchase price - Respective contributions of each party - Respective earnings and income of the parties - Plaintiff was principal breadwinner, whilst defendant was principal homemaker.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Evans v Marmont (1997) NSWLR 70
DECISION:	See paragaph 50.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 23 February 2000

1598/99 LINDA JONES -v- PAUL GRECH
1954/99 PAUL GRECH -v- LINDA JONES

JUDGMENT

1 MASTER: There are presently before the Court two separate proceedings between the same parties. The first in point of time was instituted by summons 1598 of 1999, filed on 5 March 1999, by which Linda Diane Jones seeks, substantively, the sale of certain real property situate at and known as 40 Eyre Street, Chifley, pursuant to the provisions of Part IV Division 6 of the Conveyancing Act 1919. The defendant to that summons is Paul Grech. 2 The later proceedings were instituted by statement of claim 1954 of 1999, filed on 9 April 1999, by which Paul Grech seeks orders for the adjustment of interests in property pursuant to section 20 of the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). The property in respect of which that substantive relief is sought is the same real property situate at and known as 40 Eyre Street, Chifley. The defendant to those proceedings is Linda Jones. 3 At the outset of the hearing I ordered, by consent, that the two proceedings be heard together and that the evidence in the one, so far as is relevant, be treated as evidence in the other. 4 The hearing consisted essentially of a hearing of the claim of Paul Grech (to whom I shall refer as the plaintiff) for relief under the De Facto Relationships Act against Linda Jones (to whom I shall refer as the defendant). It will be appreciated that a determination of that claim will have the practical effect of deciding also the claim of the defendant for the sale of the subject property. 5 The subject property is held by the parties as joint tenants. At the outset of the hearing it was noted that the parties were in agreement that the present value of the Chifley property was $610,000. 6 The plaintiff was born on 3 February 1943 (and is presently aged fifty-seven). The defendant was born on 8 July 1950 (and is presently aged forty-nine). The parties met in 1965, when the plaintiff was aged twenty-two and the defendant was aged fifteen. The parties were, in fact, for a period engaged to be married during the early part of their acquaintance, in the late 1960s. 7 At various times from late 1965 until August 1997 --- that is, over a period of more than thirty-two years --- the parties lived together or were otherwise in some form of a relationship. The precise nature of that relationship (which at times was a de facto relationship of the nature described in section 3(1) of the De Facto Relationships Act, and at times was of a different, and somewhat lesser, status) was the subject of dispute between the parties. Similarly, the parties were in dispute as to the precise periods during which they cohabited. 8    It was not in dispute, however, that at least for a period from 1985 to 1991 and for a period from 1993 until their final separation in August or September 1997 the parties lived together in a de facto relationship. It was not disputed that upon that final separation the defendant vacated the Chifley property, which had (subject to the interruption in their de facto relationship from 1991 to 1993) been their family home from the time of its acquisition. Since the final departure of the defendant from the Chifley property the plaintiff has continued to live in that residence. 9    At various times the parties cohabited at the residence of the defendant’s mother (with whom the defendant was residing at the time when she and the plaintiff first met), and at other times they resided together in Housing Commission accommodation occupied by the defendant located variously at Liverpool and at Maroubra. 10    Subsequently the parties lived together in a house property situate at and known as 192 Botany Road, Kingsford (“the Kingsford property”), in which there were also residing the plaintiff’s brother Frank Grech and Frank Grech’s wife. That property, which had been purchased by the plaintiff and his brother in about 1971 for $29,500, was sold in mid-1985 for about $230,000. At the time of its sale the Kingsford property was unencumbered. The proceeds of sale were divided equally between the plaintiff and his brother, each receiving about $115,000. At about the same time (or a little earlier) there was purchased in the names of the plaintiff and the defendant as joint tenants the property at 40 Eyre Street, Chifley (“the Chifley property”), which is the subject of the present proceedings. 11    I shall later return to the evidence given by each party as to the circumstances in which that property was purchased in their joint names. 12    There was born to the parties one child (a son Paul) who was born 8 October 1972 and who is presently aged twenty-seven. There had previously been born to the defendant a daughter Lisa (who was born on 3 February 1971 and who is presently aged twenty-nine). Whilst the parties were living together Lisa and, after his birth, the younger Paul, resided with the parties and were both treated by the parties as members of the household consisting of the plaintiff, the defendant and the two children. For all practical purposes Lisa was treated as if she were a child of the parties. The defendant did not receive (and made no application for) any child maintenance in respect to Lisa from Lisa’s father. During the periods whilst the plaintiff and the defendant were not living together the defendant did not make any application for child maintenance for their son Paul, and, according to the defendant, received no such maintenance from the plaintiff for their son. According to the plaintiff, however, during those periods he paid to the defendant financial support for Paul and purchased groceries and clothing for him. 13    The plaintiff is a butcher by occupation. Throughout the period from the time when he met the defendant until shortly before their final separation some thirty-five years later he worked in that occupation, either as an employed butcher or as the proprietor of his own butchery business. During the periods of their relationship the plaintiff always supplied all the meat for the household, at no cost to the defendant. 14    The defendant was employed for various periods and in various occupations throughout the period from the commencement of the relationship with the plaintiff until the termination of their relationship. There was considerable dispute between the parties concerning the nature and the periods of such employment. For periods whilst the defendant was not in employment she was in receipt of a supporting parent’s pension (for possibly as long as ten years). 15    In almost every area of dispute between the parties the evidence consisted solely of the oral assertion of one party and the denial of that assertion by the other party. There was an almost total absence of any documentary material supporting the assertion of either party concerning such matters as the periods of their cohabitation, the dates upon which they resided at various addresses, periods of employment or unemployment of the defendant, the dates of purchase and of sale of the Kingsford property and the date of purchase of the Chifley property. Similarly, there was no documentary material in respect to the funding of the purchase of either of those properties. 16    It becomes necessary, therefore, for me to express a view concerning the reliance which should be placed upon the unsupported oral evidence of each party when that evidence is disputed by the other party. 17    There were a number of unsatisfactory aspects to the evidence of the plaintiff (for example, his enthusiastic characterisation as “a lie” of any aspect of the evidence of the defendant with which he did not agree, and his constant refusal to acknowledge that the defendant had been responsible for the performance of even minimal activities of a housekeeping nature). 18    Likewise, I considered that the evidence of the defendant on any matters in dispute should be approached with caution. The evidence of the defendant concerning the source of funds which she asserted she used to pay for household expenses was vague in the extreme. She produced no documentation concerning any of her various asserted employments throughout the period from 1972 until 1997, during lengthy parts of which period she asserted that she was in employment, albeit (as I understood it) often of a part-time or of a casual nature, or in the capacity of assisting her mother in cleaning work, apart from a single document. That document was a Certificate of Service from David Jones (annexure D to the affidavit of the defendant sworn 18 August 1999). Even in regard to that single piece of documentation, the defendant herself disputed its accuracy, asserting that her employment with David Jones (as a sales assistant for Estée Lauder Cosmetics) had been of a longer period than that disclosed in the Certificate. 19    It also appeared to me to be of significance, in approaching the evidence of the defendant, that she chose not to place before the Court any evidence of a corroborative nature from either her daughter or her son, each of whom (as she agreed under cross-examination) was sitting with her in Court throughout the entirety of the hearing of the proceedings. I was invited to draw the inference that no evidence from either the daughter or the son of the defendant would assist the defendant. It seems to me appropriate in the circumstances of this case that such an inference should be drawn. 20    Whilst I have considerable reservations concerning the reliance to be placed upon the evidence of each of the parties, my preference, where that evidence is in conflict on any significant issue is to prefer the evidence of the plaintiff to that of the defendant. 21    However, there was no dispute between the parties concerning many of the aspects of this case. 22    It is not necessary, in my view, that I express concluded findings concerning whether or not a de facto relationship (or a relationship of some lesser nature) existed during each and every part of the period of thirty-five years during which the parties were associated with each other. There is no doubt that the parties not only cohabited but also were in a de facto relationship at the Kingsford property during various periods between 1973 and about 1985 (when, according to the defendant, on account of disputes between herself and the wife of her brother in law, Frank Grech, the defendant left the Kingsford property). Further, there was no dispute that the parties cohabited in the Chifley property from mid-1985 until 1991, and that they again cohabited there from 1993 until their final separation in August 1997. There was no dispute between them that a de facto relationship obtained between the parties during each such period of cohabitation. 23    During substantial parts of the times when the plaintiff and the defendant were not living under the same roof, it was their practice to spend nights together at the residence of one or other of them (usually the residence of the defendant). 24    I have already observed that the Chifley property, which is the subject of the substantive dispute between the parties, was purchased in the names of the two parties as joint tenants in 1985. According to the plaintiff that purchase was funded by savings of the plaintiff in an amount of $20,000, and a borrowing by him in an amount of about $70,000. Shortly thereafter, the plaintiff received an amount of $115,000 from the proceeds of sale of the Kingsford property, which had been sold in mid-1985 for $230,000. It was not disputed by the defendant that the plaintiff had expended considerable money, time and physical energy upon the restoration and improvement of the Kingsford property. Neither was it disputed by her that she had made no direct financial contribution towards that work. 25    According to the plaintiff the Chifley property was put in the joint names of himself and the defendant as a result of the following conversation between them:

Defendant: I don’t feel part of this house.
Plaintiff: I will put your name on the house.

26 That conversation was denied by the defendant, who offered the following explanation for the acquisition of the Chifley property in the joint names of the parties. Whilst they were still residing in the Kingsford property, the defendant, according to her evidence, said to the plaintiff, “Why don’t we buy your brother out of the property?”, to which the plaintiff replied, “No. Francis does not want to do that.” According to the defendant the parties then decided to buy a property of their own. The defendant said that it was she who negotiated the purchase of the Chifley property which, at that time, was on the market for $95,000. According to the defendant, she negotiated that price down to an amount of $85,700, for which price the property was then purchased in the names of both parties. The defendant said that it was agreed between them that the Chifley property would be in both names. 27 It was not disputed by the defendant that she made no financial contribution to the acquisition of the Chifley property. 28 According to the plaintiff, when (about three months after the acquisition of the Chifley property) he received $115,000 from the sale of the Kingsford property, he used $40,000 of that sum to repay a bank loan which he had earlier obtained to finance the butcher’s shop at Cabarita. Most of the balance of $75,000 was expended by the plaintiff upon the Chifley property. Those renovations, which were mostly paid for by the plaintiff personally, included the conversion of what had originally been a three bedroom single storey cottage into a five bedroom double storey residence, involving the addition of two bathrooms and a new kitchen, and substantial renovation and redecoration of both the inside and the outside of the residence. The installation of an in-ground swimming pool, the construction of a double garage, the conversion into a self contained flat of what had previously been another garage, the construction of a pergola and a barbecue, and landscaping to the grounds of the residence were also effected. 29 According to the plaintiff, the contribution by the defendant to the foregoing work was limited to help in painting one bedroom. 30 I am satisfied (and, indeed, this was agreed by the plaintiff under cross-examination) that for about twenty-seven years of the period of thirty-two years from the commencement of their acquaintance until their final separation the parties were in some form of a relationship, and that for significant parts of that total period of about twenty-seven years, being periods totalling about eleven years, the parties lived together in a de facto relationship. 31 It was not disputed that a de facto relationship was in existence at the time of the final separation in August 1997, and that, in consequence, the proceedings were instituted within the time required by section 18 of the De Facto Relationships Act. 32    To the extent that the commencement of a de facto relationship between the parties had occurred before the acquisition of the Kingsford property by the plaintiff conjointly with his brother, neither party at the commencement of the relationship owned any assets of significance. As I understand it, the only assets owned by either party at that time were personal possessions. At the termination of the relationship in 1997 the assets of the parties consisted of their respective interests as joint tenants of the Chifley property, together with personal possessions owned by each party. 33    During the course of the relationship the plaintiff assisted the defendant in the purchase of a Hyundai motor vehicle for about $18,000 in 1996. Apparently the plaintiff had sufficient funds in his savings account to advance that sum to the defendant, who then repaid the amount (all but $400 thereof) by instalments (and by the purchase for the plaintiff of a refrigerator and vacuum cleaner in lieu of instalments) over a period of twenty months. 34    The plaintiff said that he contributed the sum of $3,000 towards the wedding when Lisa married for the first time in about 1994. The defendant denied any such contribution by the plaintiff to Lisa’s first wedding. She asserted that the extent of any financial assistance by him towards that wedding was that the plaintiff lent to Lisa the sum of $1,000. However, it will be appreciated that no evidence (whether by affidavit or oral evidence) was placed before the Court by Lisa, who was in attendance with the defendant throughout the entirety of the hearing. In August 1997 the plaintiff and the defendant went on a holiday to Bali, at the expense of the plaintiff, that holiday coinciding with Lisa’s second wedding. The plaintiff estimated that he had expended about $2,500 on that excursion to Bali. The defendant denied that on that visit to Bali the plaintiff made any payments for her. It was her assertion that the cost of the trip, so far as the defendant was concerned, was paid for by her daughter Lisa. 35    It was the assertion of the plaintiff that, essentially, the defendant retained her own earnings for herself, rather than contributing, to the extent that she was able, from those earnings towards the outgoings of the household. 36    The evidence did not disclose that the defendant, throughout the periods of her employment, had been able to save anything from her earnings, or that she had been able to acquire any assets during the periods throughout which she was residing under the same roof as the plaintiff. 37    Despite the foregoing assertion on the part of the plaintiff, I am satisfied that the defendant, whenever she was in employment, expended the totality of her earnings not only on the maintenance of herself, but also on the maintenance of her two children. 38    It was the assertion of the plaintiff that during periods of their relationship he made weekly payments to the defendant. He said that he was paying her $60 a week for a period whilst she was living at Liverpool, and that when she lived in the Kingsford property he was paying her $120. According to the defendant the plaintiff did not commence making any payments to her in respect to outgoings and household expenses --- apart from occasional payments for petrol expenses --- until they moved into residence in the Kingsford property. Thereafter, according to the defendant the plaintiff paid to her about $80 a week until 1989, when he ceased making payments to her at all. As I understand it, the purpose of those payments was that they should be used for household expenses. But, according to the plaintiff, the defendant did not expend those moneys for that purpose, but retained them for her own private benefit. He even asserted that at one stage he ceased making payments to the defendant, when he discovered that there was no food in the cupboards for their son Paul. I have already observed that the evidence did not disclose the existence of any savings or the acquisition of any assets by the defendant as a result of her earnings or as a result of any payments which she received from the plaintiff. 39    The defendant did not assert that she had made any direct financial contribution to the acquisition or improvement of either the Kingsford property or the Chifley property. It was, however, the assertion of the defendant that, in consequence of contributions of an indirect nature (being, according to her, the purchase of food and other household items and the major responsibility for the expenses associated with the upbringing of the children), she had thereby enabled the plaintiff to expend his earnings upon firstly the acquisition and improvement of the Kingsford house, and, subsequently, the acquisition and improvement of the Chifley house. There was no dispute by the defendant that the plaintiff was the principal breadwinner for the family during the periods throughout which the de facto relationship obtained. 40    From about 1988 until the final separation in September 1997, it was the practice of the parties to rent out rooms to overseas students in the Chifley property. It was the assertion of the defendant that, whilst she attended to the cleaning of the rooms and prepared meals for the students (sometimes as many as four at a time), it was the plaintiff who received and retained the totality of the rent paid by the students for those rooms. The plaintiff denied the extent of the defendant’s involvement with the cleaning of the rooms and the preparation of meals for the students. Further, he asserted that during a period whilst he was absent from the Chifley property (on a visit of several months to Malta) and the defendant still remained in residence therein, the defendant retained the entirety of the rent paid by the students, and has never accounted to the plaintiff for those payments 41    Despite the denials by the plaintiff in that regard, I am satisfied that the defendant was the person primarily responsible for fulfilling the role of homemaker and that she had the primary responsibility for the child of the relationship and for her own daughter, who during the periods of the de facto relationship was treated by the plaintiff as a child of the relationship. By the same token, however, it must be appreciated that throughout those periods of the de facto relationship during which the parties were living in the Kingsford property and in the Chifley property, the defendant and her children had the benefit in living in residences which had been acquired by and paid for by the plaintiff, and towards the acquisition of which the plaintiff had made no direct financial contribution. 42    There was placed in evidence by the plaintiff a power of attorney dated 12 February 1991 which had been granted to him by the defendant in respect to the Chifley house. The effect of that power of attorney would have been to enable the plaintiff alone to dispose of that house, without requiring the execution of any documentation by the defendant. There was also placed in evidence by the defendant a document of a somewhat curious nature, which was annexure A to her affidavit of 18 August 1999. That document was in the following form,

I, Linda Grech, of 40 Eyre St Chifley acknowledge that I have been advised of my property rights under the De Facto Relationships Act, and that the property 40 Eyre St is the only significant asset between Paul and I, and that because Paul can immediately divest himself of the proceeds of the sale of 40 Eyre Street I am by giving him an irrevocable power of attorney effectively signing away up to $150,000 which is rightfully mine by virtue of the De Facto Relationships Act.

Linda Grech
12-2-91

43    The explanation for the creation of the foregoing document offered by the defendant in the course of her oral evidence was somewhat difficult to follow. As I understand it, she said that that letter was prepared and signed by her in consequence of advice given to her by an independent solicitor, a Mr Warwick Crumblin, of Coogee. It would appear that Mr Crumblin also acted for the defendant in 1995 when she revoked the power of attorney which she had given some four years earlier to the plaintiff. 44    There was considerable dispute between the parties concerning the nature and extent of any assistance which might have been given by the defendant to the plaintiff in the butcher’s shop which was being conducted by the plaintiff at Cabarita from about 1981 or 1982 until late 1990. On balance, I prefer the evidence of the plaintiff (which was supported by that of Mr Charles Spiteri) to the evidence of the defendant herself concerning the extent of any such assistance and participation by the defendant. It was the plaintiff’s evidence that any such assistance and participation was irregular in occurrence and minimal in extent. It was not disputed that the plaintiff made no payment to the defendant for any work that the defendant might, in fact, have performed in the Cabarita butchery. 45    Nevertheless, I do not consider that any contributions made by the defendant, by way of some part-time attendances and assistance in the butchery business, will in any way be determinative of these proceedings. 46    In my conclusion the plaintiff was the primary breadwinner of the family. The defendant had the primary responsibilities as homemaker and as parent to the children. Those responsibilities were by no means insignificant. In consequence of the defendant accepting and carrying out the role of homemaker and parent, and contributing, to the extent that she was able throughout the various periods of her own employment, her earnings towards the upkeep of the household and towards the maintenance of the children, I am satisfied that the plaintiff was enabled to expend the major part of his earnings upon the acquisition and improvement firstly of the Kingsford property and, subsequently, of the Chifley property. I do not accept the submission of the plaintiff that at most the defendant had a very modest claim to an interest in the Chifley property. It should, in this regard, be observed that by the statement of claim the plaintiff offers to acquire the interest of the defendant in the Chifley property for an amount of $25,000. 47    Further, the plaintiff, by allowing the Chifley residence to be acquired by himself and the defendant as joint tenants, in circumstances where the defendant had made no financial contributions towards the purchase, must be taken to have recognised that the defendant was entitled to an interest in that property. 48    The defendant submitted that she was entitled to a recognition of her legal interest as a joint tenant with the plaintiff of the Chifley property and that, in consequence, her entitlement should be in an amount of $305,000, being one half of the agreed present value of that property. Further, that if the plaintiff was not in a position to pay that amount, the defendant should have an order for the appointment of statutory trustees for the sale of the property, as sought in her summons. 49    In my conclusion (and conformably with the principles enunciated by the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70, in particular, the joint judgment of Gleeson CJ and McLelland CJ in Eq), the contributions of the defendant to the relationship should be recognised by the payment by the plaintiff to the defendant of the sum of $100,000, in return for which the defendant should transfer to the plaintiff the defendant’s interest in the Chifley property. In the event that within a specified period the plaintiff does not make such a payment to the defendant, then the Chifley property must be sold and out of the proceeds of sale the defendant must receive $100,000 and the plaintiff will receive the net balance of the proceeds of sale. 50 The foregoing amount of $100,000 to which I consider the defendant is entitled is considerably more than that offered by the plaintiff in the pleadings or at the hearing, but is far less than that claimed by the defendant. In those circumstances, I consider it appropriate that I should make no order as to costs, to the intent that each party will bear his or her own costs of each set of proceedings. However, I have not heard argument as to costs. If either party is desirous of seeking any other order as to costs, then I will stand the matter over to a date to be fixed by arrangement with my Associate (being no later than 14 days from today’s date) for argument as to costs. I also direct the plaintiff to bring in short minutes of order in each set of proceedings on a date to be fixed by arrangement with my Associate, for the purpose of giving effect to my foregoing conclusions.

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Last Modified: 09/25/2000