Howell v Fiorenza - [2008] NSWSC 163

No judgment structure available for this case.

CITATION: HOWELL v FIORENZA [2008] NSWSC 163

HEARING DATE(S): 7, 8 June 2007; 27 July 2007; 24 August 2007

JUDGMENT DATE :
3 March 2008

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: (a) An order in favour of the plaintiff against the defendant representing his adjusted interest in the property, Lot 13 Old Northern Road, Laguna, pursuant to s.20(1) of the Property (Relationships) Act 1984 in the amount of $45,000. (b) That there be an equitable charge on the property referred to in (a) for that amount.

LEGISLATION CITED: Property (Relationships) Act 1984
Family Law Act 1975
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Bilous v Mudaliar & Anor (2005) 65 NSWLR 615
Black v. Black (1991) 15 Fam. LR 109
Chanter v Catts (2005) 64 NSWLR 360
Davey v Lee (1990) 13 Fam LR 688
Del Gallo v Frederiksen (2000) 27 Fam LR 162
Dwyer v Kaljo (1987) Fam LR 785
Evans v Marmont (1997) 42 NSWLR 70
Green v. Robinson (1995) 36 NSWLR 96
Kardos v Sarbutt [2006] NSWCA 11
Mallet v. Mallet (1984) 156 CLR 605
Powell v. Supresencia (2003) 30 Fam LR 463
Sullman v Sullman [2002] NSWSC 169
Wallace v Stanford (1995) 37 NSWLR 1

PARTIES: Iain HOWELL v Irene FIORENZA

FILE NUMBER(S): SC 3017 of 2006

COUNSEL: P: A Jamieson
D: E Pender

SOLICITORS: P: Zerrin Jamieson
D: Winn Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL J

MONDAY 3 MARCH 2008

No. 3017 of 2006
No. 2588 of 2006

IAIN HOWELLv IRENE FIORENZA

JUDGMENT

1 HIS HONOUR: The plaintiff instituted proceedings by way of statement of claim filed on 22 November 2005 claiming relief pursuant to the Property (Relationships) Act 1984 (the “Act”).

2 The plaintiff and the defendant lived in a domestic relationship between June 1993 and 25 February 2004. The plaintiff claims that he made financial and non-financial contributions to the relationship. The defendant denied the making of any such contributions. She maintained that the plaintiff had the benefit for most of the relationship period of living in her home and that he was properly remunerated for work performed in a dry cleaning businesses she acquired in 1995.

3 The defendant filed a defence on 8 March 2006. In it, she admitted the relationship as pleaded in the statement of claim, but otherwise denied specific allegations set out therein. In her defence, she pleaded the following matters:-

(a) That the plaintiff had no assets at the commencement of the relationship and had, at that time, liabilities amounting to $26,000.

(b) That at an early stage of the relationship, she acquired a laundrette business at Artarmon. It was profitable and on sale she invested monies from the sale in a farm property at Laguna. She denied that the plaintiff contributed to the setting up or operation of the business or contributed to the running of the farm property.

(c) She admitted that the plaintiff paid an amount of $600 per week between June 1993 and September 2003 by way of “… as a boarding fee …” (paragraph 8(a)(i)). She otherwise denied that the plaintiff made direct financial contributions as alleged.

(d) She denied that the plaintiff contributed equipment for the purposes of the second business at Chatswood dry cleaning business valued at $27,000.

(e) That at all material times she resided at 42 Garland Road, Naremburn, which had been her home since 1972. The plaintiff moved into the home in June 1993. The defendant maintained that she paid all outgoings and expenses and denied that the plaintiff maintained the property. Title to the Naremburn property was and is in the defendant’s name.

(f) That she made regular payments for the Laguna farm property and that all mortgage payments were paid by herself. She denied that the plaintiff owned or has or had an interest in the Laguna property.

4 The plaintiff and defendant, accordingly, cohabitated as de facto partners for just under 11 years. The plaintiff introduced into the relationship her home in Naremburn. There was no evidence led as to its value as at the date of the hearing. The evidence was that she acquired unencumbered title to the property following a matrimonial settlement with her former husband.

5 The defendant’s evidence was that at the commencement of the relationship, she owned a vehicle, which she had purchased in 1991 for $30,000, $20,000 in savings and furniture and other house contents.

6 During the relationship, she purchased two businesses. The abovementioned laundrette at Artarmon was purchased on 19 July 1994 for $38,000 and it was sold in June 1996 for $83,000 (which left a net amount of $75,000). In 1995, the defendant purchased a dry cleaning business in Chatswood which she sold in 2002 for $225,000 (leaving a net amount after expenses of $106,971). The purchase price of the Chatswood business was not revealed in the evidence.

7 The plaintiff purchased the Laguna farm property in June 1996 for $250,000. The parties agreed on the value of the property as at the date of hearing as $650,000, an increase in value of about $400,000 on the purchased property.

8 The approach adopted by the parties, as reflected in particular in their the submissions, was at variance with the approach to be taken to an application under s.20 of the Act of identifying and valuing the “divisible pool of property” at the time of the hearing, that is, “the property of the parties to the relationship or either of them” as referred to in s.20 which may be the subject of an order adjusting property under that section. The plaintiff’s claim was brought upon the basis that it did not include the defendant’s Naremburn residence notwithstanding evidence relied upon by him as to having helped carry out some improvements to it.

9 The approach taken in the present proceedings, accordingly, is an individual asset approach in which an order by way of adjustment of interests in the Laguna farm property is sought rather than adopting the global approach: Kardos v Sarbutt [2006] NSWCA 11 at [51]; Bilious v Mudaliar & Anor [2006] NSWCA 38 at [41] and [42] per Ipp JA (Giles and McColl JJA agreeing).

10 The plaintiff claimed that he made contributions in the form of minor handyman work, some minor renovations to the bathroom and verandah of the Naremburn property. He also claimed that he assisted in the establishment and maintenance of the Laguna property and rendering assistance to the plaintiff at a market stall conducted by her on Sundays, although the period during which he attended the market stall was not disclosed by the evidence.

11 Whilst the plaintiff alleged that he made various contributions in respect of work on the Naremburn and Laguna properties, there is no evidence that quantifies or places any estimate or value on such work.

12 The plaintiff also contended that he had equipment in his former Hornsby business which he claimed was worth “about $27,000” and which he later transferred for use in the defendant’s Chatswood business. There was no evidence that established the actual value of the equipment.

13 The plaintiff did not own any real property at the commencement of the relationship. The value of the abovementioned equipment said to have been transferred from the Hornsby business was very much in dispute.

14 During the relationship, the plaintiff received an inheritance from his mother’s estate amounting to $40,926.72. It was common ground that he deposited that amount into the defendant’s bank account (in June 2000). He also claimed that he received $14,000 for shares which he said he gave to the defendant to be placed in “the business account”. The deposit of the inheritance monies were admitted by the defendant, although she claimed that they were repaid. The payment of the money from the sale of shares was not admitted. There was no documentation in evidence in the plaintiff’s case as to the number, description or value of the shares or as to the plaintiff’s receipt of the proceeds of sale.

15 The plaintiff admits that the defendant at an early point in the relationship paid $26,000 to discharge some of his business debts and that the defendant also paid him in 2004 amounts of cash totalling $5,300.

16 The evidentiary shortcomings in the plaintiff’s case include the absence of records (including bank account records) that substantiate the value of business equipment, the amount of any contribution made by him to joint living or business expenses and of the actual hours worked by him in the Chatswood business. This last-mentioned matter will be considered at some length below.

17 The plaintiff claimed that the defendant benefited from his day to day conduct of the Chatswood business and the profits it returned her without either paying him proper remuneration or other financial reward for his contribution in building up and generally conducting the business.

18 Accordingly, this was not a de facto relationship where both parties brought real property contributions to the relationship. Nor is it one in which they jointly purchased property during the term of the relationship. The defendant individually acquired the Laguna property in her name as well as the two businesses. The defendant funded the purchase of that property and the two businesses through her own contributions and loan monies for which she was responsible. The plaintiff claimed she had the use of his capital being the inheritance monies and proceeds of the share sale referred to above. He also claimed, in effect, that she benefited from his personal exertion in the Chatswood business for which he claims he was not properly paid.

19 As the owner of the Naremburn home which became the place of co-habitation between June 1993 and February 2004, the defendant claimed a contribution from its commencement by providing it as their place of residence.

20 In the evaluation of the plaintiff’s application under the Act, due regard is given to the disparate contributions of the parties. By reason of the approach taken by the parties, as noted above, no determination was sought as to the increased value of the Naremburn home as an asset in the “divisible pool”. The claim was limited and based upon the increase in value of the Laguna property, the plaintiff, in this respect, relying upon the contributions he claims as referred to in paragraph [18].

21 In his oral evidence, the plaintiff maintained that the income generated by the business, which he claimed was operated by the defendant and himself, all went into a family pool for the benefit of the defendant, her children and himself. However, as discussed below, the evidence adduced in support of the plaintiff’s claim does not provide a basis upon which an assessment can be made of the amount of his income said to have been paid by him into the “pool”.

The provisions of the Act

22 Part 3 of the Act, Proceedings for Financial Adjustment, s.14, “Applications for orders under this Part”, provides:-

“Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both.”

23 “Property” is defined in s.3(1), unless the context or subject matter otherwise indicates or requires, as follows:-

“Property

, in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property.”

24 Section 20(1) is a key provision in the Act. It provides:-

“20(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:

(a) the financial and non- financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely-:

(i) a child of the parties,

(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

(2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.”

25 The language of s.20(1)(a) requires the contributions of both of the de facto partners to be taken into account. As Campbell, J. in Sullman v. Sullman [2002] NSWSC 169 at [246] explained, this is because the legislature had quite deliberately used the plural, “of the de facto partners”. Campbell, J. also there observed that it is the property of both partners and the financial resources of both partners, which need to be taken into account. His Honour then observed:-

“… however, to qualify under paragraph (a), it is not any contribution which is made by a partner in the context of the de facto relationship which counts. It must be a contribution with a particular purpose or effect, such that it can properly be described as a contribution ‘to the acquisition, conservation or improvement of …’ property.”

26 Section 20(1)(a) then is directed to financial and non-financial contributions to the acquisition, conservation or improvement of the property of the parties or either of them or to their financial resources. Section 20(1)(b) is substantially concerned with contributions to the welfare of the other party or of the family constituted by the parties.

27 On an application to adjust interests with respect to property, the power of the court is not at large. The court is empowered to make such order adjusting the interests of the parties in the property “as to it seems just and equitable”, not as a general proposition, but by reference to the financial and non-financial contributions described in s.20(1)(a) and the contributions described in (b) of that section.

28 In giving effect to the social judgment embodied in s.20, the following matters, at least, require consideration (see Wallace v. Stanford (1995) 37 NSWLR 1 per Mahoney, JA. at 14):-

(a) what have been the contributions of each party?

(b) what is the balance between those contributions?

29 Once the task of identification and valuation is complete, the court is required to consider whether it should adjust the interests of the parties in the property in such manner as to it considers just and equitable, having regard to:-

• The contributions identified in s. s.20(1)(a) and (b).

Dwyer v. Kaljo

Evans v. Marmont

30 The Court must ascertain what the property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made.

31 Reference in the Act to “adjustment” of property interests does not convey an invitation to engage in an unbounded exercise in distributive justice: per Gleeson CJ and McLelland, CJ in Eq in Evans at 79. As their Honours also observed in that case, considerations of fault are not mentioned and there is no reference to means and needs of the kind referred to in the Family Law Act. Accordingly, the reference by Hodgson, J. in Dwyer v Kaljo (supra) to the needs and means of the parties has to be read with this in mind.

32 It is clear from the authorities to which reference has already been made that the constraining effect of s.20(1) is important in what the court may find to be “just and equitable” in adjusting the interests of the partners to the relationship. In other words, what is just and equitable is not determined at large but will depend upon, or at least be influenced by, the considerations to which the court may have regard in making such a determination: Wallace v. Stanford (supra) at 9 per Mahoney, JA. The considerations in this context are the “contributions” of the parties and the balance between them – not merely to financial and non-financial contributions, but to the more general contributions referred to in s.20(1)(b):-

“It is those contributions and their contribution to the property or financial resources of the parties and to their welfare to which consideration is limited. It is upon this basis that the court is to determine what is just and equitable in the particular case.”

Wallace

33 Adjustment of property on an application under the Act is not automatic: Green v. Robinson (1995) 36 NSWLR 96 at 115 per Cole, J. As the authorities referred to indicate, the key questions are whether and, if so, what order should be made in the applicant’s favour, being an order that seems to the court just and equitable, having regard to the contributions in s.20(1)(a) and (b).

34 In this latter respect, I note that s.17(2) instances one circumstance in which a “serious injustice” to an applicant would occur. This is the case where, absent an order adjusting property interests, a partner would not be adequately compensated for the contributions which he or she has brought to the de facto relationship: see Green v. Robinson (supra) at 115.

35 A court, however, does not commence with a presumption that, upon cessation of a de facto relationship, s.20(1) is intended to produce the result that each party will emerge with equality of property value: see by analogy Mallet v. Mallet (1984) 156 CLR 605 at 625 and with respect to s.20(1) of the Act, Green v. Robinson (supra) at 114, per Cole, JA. As Clarke, JA. said in Black v. Black (1991) 15 Fam. LR 109 at 113, a court is not entitled to work on any preconceived notions or adopt any formula as a starting point.

36 The starting point in the determination of an application under s.20(1) is then the property of the parties at the date of the application for an adjustment: Green v. Robinson (supra) at 114 per Cole, JA. In determining an application under s.20 of the Act, it is necessary for the court to identify and value their property and financial resources: Green v. Robinson (supra) at 108 per Powell, JA.

37 In considering the exercise of the discretion required by s.20(1), the court may, as appropriate, have regard either to the assets of the parties considered globally or individually. It is not an error of principle to adopt one approach or the other: Green v. Robinson (supra) at 115.

38 Finally, it has not infrequently been observed that it is difficult to approach with any degree of precision the exercise of the discretion which s.20 requires. Mathematical precision will not be possible nor is it called for by the Act. However, that said, in the evaluation, it is important to give full and proper value to contributions of the kind referred to in s.20(1)(b): Powell v. Supresencia (2003) 30 Fam LR 463 at [19], as well as take into account the financial contributions specified in s.20(1)(a).

The evidence in the plaintiff’s case

39 The evidence in the plaintiff’s case included the following affidavits:-

• The plaintiff’s affidavit sworn on 21 February 2006.

• The plaintiff’s affidavit in reply to the defendant’s affidavit sworn on 3 May 2006.

• The plaintiff’s affidavit in reply to the affidavits of Mathew, Andrew and Livianna Fiorenza.

• The affidavit of Melvyn Freedman sworn on 20 February 2006.

• The affidavit of Ole Bach Reinhold sworn on 20 February 2006.

40 In the circumstances of this case, where the defendant took issue with most issues, it has been necessary to closely evaluate the plaintiff’s evidence particularly in light of the exhibits tendered in the defendant’s case. The plaintiff stated in evidence that such documents as may have been relevant to his claim have either been mislaid or lost.

41 The lack of corroborative evidence, of course, does not mean that the plaintiff’s affidavit and oral evidence is not to be accepted. It has, however, meant that the case presented has lacked particularity and support on several issues including, in particular, the number of hours of work performed by him in the defendant’s business. There was also no evidence from which the true value of the machinery and equipment he says he gave to the defendant can be established.

Facts

42 The plaintiff is presently aged 54 years of age (date of birth, 5 September 1952). The defendant is presently aged 55 years (date of birth, 4 August 1951). She migrated from Greece with her parents in 1957. In these proceedings, the plaintiff has standing to apply for an order for relief. This is so by reason of the long de facto relationship that existed between him.

43 In approximately 1971, the plaintiff commenced working in a dry cleaning business at about 18 or 19 years of age. In about 1973, he commenced to operate his first dry cleaning business in Hornsby. On an unspecified date, he left Sydney and travelled to Queensland where he lived with his parents and worked as a sign writer. There is no evidence as to the period over which this occurred.

44 Following a period or periods in Queensland, he returned to Sydney and worked with his brother for a number of unspecified years in a dry cleaning business. He was employed by his brother until he obtained a shop in Hornsby. The evidence did not identify when he acquired the Hornsby business, whether he purchased it or whether he established it as a new business. In oral evidence, he stated that he operated his business that traded as Thrifty Mac Drycleaners, for about four years.

45 The plaintiff said he met the defendant in about 1970 at his brother’s fruit shop in Chatswood. The defendant said that she first met him in about April 1971 through his elder brother. The plaintiff’s evidence was that in the years 1991 to 1992, he commenced to see more of her. At that time, they were both in other relationships. The defendant’s evidence was that it was in early 1973 that she made contact with the plaintiff to find out his brother’s address. The plaintiff was then working at Thrifty Mac dry cleaning business. She said he first came to visit her in about February 1993.

46 As noted earlier, the de facto relationship between the plaintiff and the defendant commenced in June 1993. At that time, the plaintiff moved into the defendant’s residence in Naremburn with his son Benjamin and daughter Lynda, who were teenagers during the period they lived in the house with the defendant’s children.

47 The plaintiff stated that at the time he commenced cohabitation with the defendant, the defendant was not undertaking paid employment and that her income at that time was coming from a boarder or boarders at her Naremburn property.

48 The parties agreed that the plaintiff’s children lived as part of the combined families at Naremburn until approximately June 1995.

49 It was also agreed that the plaintiff moved out of the house and the relationship ended in February 2004.

50 As noted above, the defendant acquired full ownership of the Naremburn property following a property settlement with her former husband. They had, prior to the dissolution of their marriage, operated a successful pizza business.

51 Shortly after moving in with the defendant, the plaintiff claims that he said to her:-

“How much would it cost per week to keep your house going?”

52 The defendant is said to have then discussed expenses and bills and said words to the effect, “$600 a week”. The plaintiff then claims that he said to the defendant, “I will pay all your expenses for you and then there will be no need for you to worry about a boarder”. There was no evidence as to any income the defendant had previously received from anyone who boarded in her home. The defendant’s account differed from the plaintiff’s evidence in that she said that she permitted the plaintiff and his two children to live in her house for $600 per week for food and rent.

53 According to the plaintiff, it was he who found an advertisement for the sale of the laundrette business in 1993, not the defendant. The defendant gave evidence in her affidavit sworn on 7 March 2006 at paragraph 26 that in about March 1993, she saw an advertisement for a laundrette in Artarmon. The defendant stated that she discussed the purchase and the running of the business with the plaintiff (paragraph 28 of her affidavit). The defendant’s version is corroborated by the affidavit of her son Matthew Fiorenza sworn on 26 August 2006, at paragraph 9, where he stated that his mother commenced work at the laundrette in March 1993. The plaintiff submitted that the recollection of the defendant’s son is unreliable by virtue of his age at the time of the occurrence of the events (12 years of age). The defendant’s version is also corroborated by her sister, Elie Katholos, in her affidavit sworn 26 August 2006, which sets out a conversation between the defendant and her sister in January 1993 about the purchase of the laundrette business in Artarmon. This was submitted by the plaintiff to be inaccurate because the sale of the Artarmon laundrette was not advertised until March 1993.

54 Although the parties spent much time over whose version was the correct one, not a great deal at all turns upon the issue. The more relevant aspect was the extent to which the plaintiff assisted the defendant in setting up the business and helping her in its operation. There was very little in the plaintiff’s case on the matter. He claimed that he advised her and assisted the defendant by using his own shop to do dry cleaning work for her business. However, just how much work of this kind the plaintiff provided and its value is unknown for it was not the subject of any documentation or estimation. The plaintiff said in his affidavit in reply that the defendant “kept all the payments”. However, he did not give or otherwise adduce any evidence from which the amount of such payment could be calculated or estimated. The defendant’s evidence was that it was her family members and friends who helped her set up the business but the plaintiff did not help in the start-up phase.

55 The plaintiff said that he was during this time providing the defendant with $600 per week. He also claims that he gave her the takings of his business, being an additional $800 per week. The plaintiff said that he did not receive any financial benefit from his Hornsby business undertaking dry cleaning work on behalf of the defendant’s Artarmon business. There was no evidence to permit any quantification of the dry cleaning work nor as to the payment of the $800 per week. He claimed he made payments in that amount until his business closed in December 1994 with substantial debts.

56 In about early 1995, the plaintiff went bankrupt. He says that this was associated with a claim for workers compensation by a former employee, he not having any insurance to cover the claim. The defendant’s case was that the plaintiff’s business was a failure and accumulated debts amount to $81,412.68 when it closed. Liabilities in that amount were disclosed in the Statement of Affairs in the plaintiff’s bankrupt estate (Exhibit 3).

57 In 1996, the defendant purchased the Laguna farm property in her own name. The plaintiff said that he had searched out and located the property with the intention of using it as an art gallery and as a retirement property. The proceeds of sale from the Artarmon laundrette were used to provide the deposit for the property. The plaintiff did not contribute financially to either the acquisition or to any development of the property. However, he claimed that the defendant was able to service the loan and other outgoings from the earnings of the Chatswood business in which he worked between 1995 and 2002 and that he also contributed by performing work on the property.

The defendant’s evidentiary case

58 The evidence in the defendant’s case included the following affidavits:-

• Affidavit of the defendant sworn on 7 March 2006.

• Affidavit of the defendant in reply sworn on an unspecified date in November 2006.

• Affidavit of Mathew Fiorenza sworn on 26 August 2006.

• Affidavit of Andrew Fiorenza sworn on 26 August 2006.

59 In the defendant’s affidavit sworn 7 March 2006, she stated that she first met the plaintiff in about April 1971, she having had a relationship with the plaintiff’s older brother, Kenneth Howell, from about June 1970 to about August 1971. By that relationship, her first child was born on 3 November 1971.

The defendant’s family history

60 The defendant was married for the first time in 1969 but she separated from her then husband in 1970.

61 Following the birth of her first child in November 1971, the defendant worked as a cleaner and later as a machinist. She moved into her parents home in Cammeray and whilst there she met Livio Fiorenza, who she married on 27 April 1974. Before that marriage, they purchased the Naremburn property for the sum of $32,500. The house was in a very bad state of repair at that time. The defendant says she paid the deposit and other expenses from her savings.

62 The property was mortgaged to the Commonwealth Bank and later a second mortgage was taken out with her defendant’s parents being guarantors to that mortgage.

63 The defendant and her former husband moved into the Naremburn property in 1974 and undertook a considerable amount of repair work before and after that time. It had three bedrooms and one bathroom. The property is said now to have four bedrooms, two bathrooms and an outdoor room.

64 The defendant had three children by her second marriage to Mr Fiorenza (Andrew, born on 26 June 1978, Mathew, born on 11 May 1981 and Livianna, born on 25 November 1984).

65 The defendant said that she continued to work after she had her children and between 1973 and 1978 worked as an office clerk at Holt Saunders, a firm selling educational supplies in Artarmon.

66 From 1978 to 1981, she said that she worked as a machinist for Clean Room Garments working from home. She said that she also ran a preschool from her home between 1981 and 1983.

67 Her former husband, in 1984, bought a shop and set up Livio’s Pizza Restaurant at Cammeray. That business apparently ran successfully until they separated. Enough money was made from the business to pay off the mortgage and to purchase a further property. The defendant’s former husband retained the business after their separation and property settlement.

68 According to the defendant, she and her former husband purchased a block of four flats and two shops in Towoon Bay for about $250,000 in 1985. Those flats were rented and she managed them between 1985 and 1990.

69 The defendant’s evidence was that her divorce was finalised on 13 April 1993.

70 In consequence of the agreement arrived at in Family Law proceedings, the former matrimonial home in Naremburn was transferred into her name and the property was then unencumbered. Her former husband obtained ownership of the Towoon Bay property.

71 According to the defendant, the plaintiff first visited her at her Naremburn property in about February 1993. Prior to that meeting, she said that she had been making inquiries in relation to purchasing the Artarmon Laundrette business. The Naremburn property was still unencumbered at this time and she said that she had savings of about $20,000 and a vehicle, a Jeep Cherokee which she purchased for approximately $30,000 in 1991. The contents of the house she said was worth about $50,000.

The Artarmon business

72 In March 1993, after the defendant saw an advertisement for a laundrette business in Artarmon, she said she attended upon the plaintiff at his Hornsby business named Thrifty Mac Dry Cleaning. She sought advice from him about the value of the business and discussed her plans with him to purchase it.

73 According to her 1995 income tax return, Exhibit B, she purchased the Artarmon Laundrette on 19 July 1994 for $38,000 apportioned on the basis of $19,000 for goodwill and $19,000 for plant. The evidence was, however, that she worked in the business for some time prior to buying it.

74 The defendant’s 1996 income tax return recorded that the business was sold approximately 21 months later on 25 March 1996 for $86,000 apportioned $15,517 for plant and $61,831 for goodwill. Funds for the purchase had originally been raised by her selling her car for $20,000 and borrowing $18,000 from her mother.

75 According to the defendant, family and friends assisted her in setting up the business. She stated that the plaintiff did not, as he was working at his Hornsby business. The plaintiff’s case was that he did in fact assist in the setting-up phase. However, there was little detail in the evidence as to precisely what the plaintiff did in this respect.

The plaintiff takes up residence with the defendant

76 In June 1993, the defendant said that she had discussions with the plaintiff in which he proposed moving in with her and his two children. The plaintiff, at that time, according to the defendant, was renting at Manor Place, Hornsby. She observed that those premises were in a state of disrepair. She stated at this time that he said to her “I owe the swimming pool man about $500 but I’m not going to pay him”. It was at this time that the defendant claimed that she became aware that the plaintiff had outstanding debts.

77 The defendant explained that, in order to help her first born son to get in touch with his father and family, she agreed to allow the plaintiff and his two children to live at the Naremburn property for payment of $600 per week for food and rent. The plaintiff, according to the defendant, brought with him furniture which was stored. She said that she persuaded him to sell the furniture at garage sales and that the plaintiff kept the proceeds of those sales. The plaintiff said that at some unspecified time, he did in fact sell the furniture and used the proceeds of sale (there is no evidence of their amount) on day to day family expenses.

78 According to the defendant, the plaintiff paid the amount of $600 per week for three months up to September 1993. The parties were agreed on that fact. According to the defendant, the plaintiff said to her, “I’m not able to pay the board”. She said that she asked him, “Why?”. According to the defendant, the plaintiff replied, “My business is not doing well at the moment, but I will pay you back”.

79 By reason of the shortage of bathrooms, renovations were undertaken on the Naremburn property. The defendant said that the plaintiff made no payments towards these renovations. She arranged for a friend of hers, a Mr John Greenfield, to renovate the bathroom after another friend of hers had commenced renovations. The cost of the renovations, the defendants stated, were paid by herself. The plaintiff, on the other hand, said he contributed to the costs. He, however, did not specify either the amount of the costs or the amount of his contributions.

80 In respect of the Naremburn property, the defendant said that she engaged VIP Builders to undertake certain work on the renovation of the verandah to create a new bedroom for her daughter. A Mr Vinco Mellik was asked to carry out renovations. The defendant said she purchased all the materials. The cost of labour was $8,800 and materials, wardrobe, lights, ceiling and building materials amounted to $11,236. The defendant said that the renovations were completed in about March 2004.

81 Further renovations to the Naremburn property took place. The defendant said that this occurred when the plaintiff asked if she would like a fireplace installed. She said that she paid for the installation of it.

82 The defendant said that the plaintiff painted the family room on one occasion, but in an unsuitable colour so that she arranged for her brother in law to repaint the walls.

83 The defendant’s evidence was to the effect that the plaintiff and his children stayed at the house and she continued to provide food and board for them. The plaintiff’s son and daughter, according to the defendant, left the house in 1995. She stated that the plaintiff did not pay board (beyond the initial three months to September 2003) until the time he left in February 2004.

84 After the defendant became aware of the fact that the plaintiff was having problems paying his debts from his Hornsby business, she raised his indebtedness with him. According to her, he told her not to worry and that he was a skilled manager and experienced in running dry cleaning businesses.

85 On an occasion in about October 1994, the defendant said that the plaintiff said to her words to the effect “I can’t pay my debts. Do you think you could help me? I will keep running the business and I will be able to pay you back”. She stated that she told him that she would help him.

86 At some unspecified date after that conversation, at the plaintiff’s requested, the defendant attended a solicitor for advice about the Hornsby business and how she could help him in relation to it. She claims that she was informed as to the amount of indebtedness of the business.

The closure of the plaintiff’s business

87 The plaintiff’s Hornsby dry cleaning business ceased trading in December 1994. The plaintiff was declared bankrupt in February 1995. He was bankrupt for the minimum statutory period of three years, that is, until 9 February 1998.

88 The defendant’s evidence was that she paid the following debts incurred by the defendant:-

Ole Reinhold $6,500

(accounts admitted as Exhibit 2)

Ashley Caldicott $5,000

McNamara $6,000

Total $26,000

89 The plaintiff agreed that the defendant paid the Turton accounts amounting to $8,500, the Reinhold debt as above, the Caldicott account in the amount of $5,000. Although no accounts or receipts produced in evidence in respect of the McNamara debt, the plaintiff did not dispute that the defendant paid debts in all amounting to $26,000.

90 The defendant stated that the amount of $75,000 from the sale of the laundrette business was paid towards the purchase in June 1996 of the Laguna property.

The Laguna property

91 The net proceeds on the sale of the Artarmon business ($75,000) was, as earlier noted, utilised in the purchase of the Laguna property in June 1996 for a total price of $245,000. The defendant borrowed $190,000 from St George Bank to finance the purchase using her Naremburn property as security. She paid $1,000 per month under the mortgage. At the time of the hearing of the proceedings, the agreed value of the property was $650,000, an increase in capital value of that property of $405,000.

92 The Laguna property is stated to be a property of 40 hectares. It has a shed upon it. The defendant said local tradesmen were hired to erect fences and gates and a contractor was engaged to grade the road from the main road to the shed. The defendant said that it cost her $3,000.

93 The defendant also stated that the plaintiff at an unspecified time hired local workmen to erect a fence. She told him, however, not to go ahead with it but that he did so nonetheless. She said the fence was poorly built and that she refused to pay and in consequence a dispute over payment arose.

94 She stated that the plaintiff purchased cattle at sales that he attended but that she paid accounts for the purchases on receipt.

95 The plaintiff deposed in his affidavit of 21 February 2006 at paragraph 26 that he carried out work on the farm at Laguna and assisted the defendant with the purchase of cattle at cattle sales. The defendant’s evidence that the plaintiff did not have knowledge or expertise regarding cattle and that his function at the cattle sales was to provide company for her. Mr Jamieson was observed on behalf of the plaintiff that he was not cross-examined in relation to the work he carried out and deposed to in paragraphs 26 and 27 of his 21 February 2006 affidavit.

The Chatswood business

(a) Investment of capital

96 The defendant stated that on 17 February 1995, she borrowed an amount of $100,000 to purchase equipment and machinery to set up the business, Chatswood Dry Cleaners at 450 Victoria Avenue, Chatswood. She leased premises for five years and subsequently moved to another location at Shop 2/465 Victoria Avenue, Chatswood on 29 February 2000. She said that she continued trading until November 2002 at which time the business was sold.

97 The defendant’s 1995 tax return, Exhibit B, recorded that she commenced leasing premises at 450 Victoria Avenue, Chatswood on 17 February 1995 and she installed dry cleaning machinery and equipment costing $34,684. Finance of $61,515 was provided by St George Bank. Total fixed assets (plant and equipment) were valued at a cost of $53,684.

98 The plaintiff’s evidence in re-examination was that, apart from equipment on lease from Esanda which was subject to a debt to Esanda of about $32,000, there was other pieces of equipment which he gave the defendant from his Hornsby business. These included:-

(a) A utility press.

(b) A vacuum unit attached to the press.

(c) A computerised cash register.

“spotting”

99 In oral evidence, the plaintiff stated that his estimated value for such equipment ($27,000) was based upon present day values. Some of the equipment, when transferred to the Chatswood business, was about five years old. The press was 30 years old but the plaintiff said he had restored it. The presses, he said, were the most valuable pieces of equipment.

100 According to the defendant, she employed the plaintiff and three other employees. The plaintiff commenced working for the defendant in the Chatswood business from about March 1995, the month after he went into voluntary bankruptcy. The entries in the wage book exhibits (Exhibits 10, 11 and 12) commenced in the week ending 5 July 1996. The defendant’s evidence was that the plaintiff was paid on the basis of an award wage of $300 gross per week and that he received an amount of $253.85 cash per week. She stated that at no time did the plaintiff pay money for board and lodging (apart from the three months period referred to above) or repayment of the debt she claimed was owed to her.

101 The defendant stated that the plaintiff worked in the business from 6.30 am with two hours break in the middle of the day and then worked until 6.30 pm at night (affidavit sworn 7 March 2006, paragraph 46). As will be seen below, this evidence was significant in supporting the plaintiff’s case that he worked long hours in the business. In oral evidence, she claimed, based on an entry in the wages book, that he only worked eight hours a day. However, there was only an entry to support the more limited hours for the “first day” in the weekly wage sheets and no entries as to the actual hours worked for the whole week throughout the relevant period. The defendant said that the wages increased in accordance with award rate movements until the business was sold in November 2002.

102 The defendant’s evidence was that, for a time, she managed the Chatswood Dry Cleaners and the Artarmon Laundrette businesses concurrently. She said she attended both businesses daily and attended to the hiring of staff and maintaining of wages books and records in respect of tax and superannuation and paid all outgoings including maintenance, repair and purchase of equipment.

103 The defendant stated that the plaintiff continued to work at the Chatswood Dry Cleaners until the business was sold in November 2002. She claimed his wages rose to $341 net per week.

104 The Chatswood Dry Cleaner business was sold in November 2002 for the amount of $225,000. After payment of $89,959 in respect of business liabilities and expenses including a business loan and selling costs and rent, the balance, namely, $106,971, was paid into the St George Home Loan Account and used to pay down the loan on the Laguna property. The mortgage was discharged on the Naremburn property. According to the defendant, the balance of $23,070 went to pay other expenses.

(b) The plaintiff’s work hours in the business

105 The plaintiff’s evidence was that he worked long hours in the business. The defendant disputed the extent of hours claimed by the plaintiff. That was a matter of much evidence by both parties.

106 The defendant’s case was that the plaintiff was paid the appropriate award wage of $300 per week as recorded in the wages book. In oral evidence (but not in his affidavit evidence), the plaintiff maintained that the entries therein were not accurate.

107 The actual outgoings of the business in respect of wages paid in the 1996 year was recorded in the defendant’s 1996 income tax returns (Exhibit D) as a total of $15,600 or $300 per week.

108 The question of whether the plaintiff was paid wages in respect of work performed for the defendant’s Chatswood business was a central issue in evaluating the contribution he made towards its operation and the profits generated from it. It is also a matter that raised issues that were relevant in evaluating his credibility.

109 The plaintiff did not, in his first affidavit sworn on 21 February 2006, claim that he had not received regular wages. The defendant stated in her affidavit sworn on 7 March 2006 that he was paid an award wage of $300 gross per week (paragraph 46). In his affidavit in reply sworn on 3 May 2006, the plaintiff did not directly dispute the defendant in that respect. He simply stated:-

“19. In relation to paragraph 46 of the defendant’s affidavit, I say that the amount of $300.00 per week was the maximum that I could earn in my bankruptcy and I say that that amount compared to the normal earnings that I could have made to the benefit of the defendant.”

110 In paragraph 53 of the defendant’s affidavit sworn on 3 May 2006, she stated that the plaintiff worked in the Chatswood business until November 2002 and that “… his wages increased in accordance with the award wage, at the time of sale the gross amount was $500 and each week I paid him $341.00”.

111 The plaintiff’s oral evidence initially confirmed that he did not challenge the defendant’s claim that he was paid wages at $300 a week and net of $253.85.

112 Mr Jamieson of counsel, who appeared on behalf of the plaintiff, in his opening submissions made reference to the fact that “she (the defendant) was only paying him $300 a week gross in the business” (transcript, p.9, lines 30 to 33).

113 However, during oral evidence, the plaintiff claimed he did not, in fact, receive wages in the amounts that the defendant had claimed (transcript 7 June 2007, at p.38, lines 27 to 30). Having given the plaintiff’s evidence close consideration, his later evidence that he was not actually paid such wages must be rejected.

114 In oral evidence, for the first time, the plaintiff said that “I never received a wage because it all sort of went into a family sort of pot … to pay expenses and what not” (transcript, p.30). He said that he never had a bank account.

115 In cross-examination, it was put to the plaintiff that he received cash wages like the other employees, which he denied, adding (transcript, p.30):-

“…. As running the business, if I wanted some small amount for coffee and milk or anything like that, it would come out of the till. I never received no such thing as a pay packet or anything like that.”

116 When it was put that he was paid wages subject to tax, he responded:-

“That was on the book for legal taxation requirements.”

117 It was put to him (transcript p, 31):-

“Q. So, you had no cash at all to live on? A. No, I didn’t. It was all in a sort of family business manner.

Q. I just want to get this very clear. You say you never received money, payment of cash, from the business? A. As far as my recollection, I don’t recall having any pay packet whatsoever handed to me on a Friday.

HIS HONOUR: Q. Did you receive from time to time amounts of cash that you understood to be relative or in respect of your work? A. I – all I did was, if we went out together, the defendant and I, she paid for whatever was required, because it came out like a sink- a joint fund.”

118 There is a fundamental difficulty in accepting the plaintiff’s account for the first time in evidence given on 7 June 2007 that he had not in fact been paid wages. If true, it meant that the plaintiff, over a number of years, worked for no actual remuneration in the form of wages. Such an extreme hardship would be expected to have been raised and put clearly in his affidavits. However, it was not raised.

119 Later in the cross-examination, referring to paragraph 19 of his affidavit in reply sworn on 3 May 2006 on the question of wages, it was put to the plaintiff:-

“Q. … you don’t assert there that you did not receive any wages, or do you? A. No, your Honour. That’s correct.

Q. … you don’t there challenge or take issue with or dispute the defendant’s assertion that you were paid wages at $300 per week and not of cash of $253.85 per week? A. No, I don’t your Honour, can I say something?

Q. Yes. A. This was because I went bankrupt, see. It had to be shown I was earning some money so therefore it was put down on paper that I was earning the very minimal amount for the purpose of the taxation department.”

120 He, a little later said “I said I didn’t get the money”.

121 He conceded that the first time he raised the non-payment of wages was during evidence on 7 June 2007.

122 In opening submissions for the plaintiff, Mr Jamieson stated that the plaintiff’s earnings were “going into the pool” by which he meant pooling together the family income. Apart from the payment of $600 per week for three months, the plaintiff did not give any particulars as to when, how or in what amount any earnings he received were “pooled” for the benefit of the defendant and/or the defendant’s children. In those circumstances, it is simply not possible as Mr Jamieson in opening submitted, (at transcript p.11, lines 21 to 27) that I simply evaluate the plaintiff’s “contribution” at $300 per week.

123 The plaintiff’s evidence of not having been paid in accordance with entries in the wages book contradicted earlier statements he made in evidence admitting that he had received wages on that basis. The plaintiff’s contradictory evidence on this fairly central matter, of course, reflects adversely on his credibility. That, however, does not mean that he was fully or properly remunerated for the hours worked, a matter to which I shall return below. The remuneration issue must, in my opinion, be approached upon the basis that the plaintiff was paid in accordance with the wage book entries signed by him. The issue then is whether those wages did or did not properly reflect the actual hours worked.

124 The plaintiff submitted that it was unexplained by the defendant as to why the plaintiff’s son, Benjamin Howell, was paid the same amount of wages according to the wage books as the plaintiff, despite there being a difference in age and experience between the two employees.

125 The plaintiff described in his affidavit of 21 February 2006 (paragraph 23) the duties he performed in the laundry, including the operation of the dry cleaning equipment, carrying out of repairs and maintenance on equipment used in the business. It was observed that his carrying out of these duties was not challenged by the defendant’s evidence and that he was not cross-examined regarding his carrying out of these duties.

126 An analysis of the three wages books (Exhibits 10, 11 and 12) reveal the following:-

(a) Exhibit 10(1): for the period week ending 5 July 1996 to week ending 29 October 1999

127 In respect of most weeks the exhibit recorded a 38 hour working week in respect of the plaintiff, $300 gross per week wages, $253.15 net.

(b) Exhibit 12(2): for the period week ending 6 November 1999 to week ending 30 June 2000

128 The plaintiff’s working hours are shown as 38 hours, gross wages of $300 per week, net $253.85.

(c) Exhibit 11(3): for the period week ending 7 July 2000 to week ending 6 July 2001

129 The plaintiff’s working hours in respect of most weeks are recorded as 35 hours per week with an increase to $400 gross per week, $331.40 net.

130 The plaintiff called two witnesses to corroborate his account as to the work he said he performed in the Chatswood business.

131 Mr Ole Reinhold, a friend of the plaintiff, swore an affidavit on 20 February 2006. He stated that he saw the plaintiff, on the occasions that he visited the Chatswood business, carrying out work in the business on his own, including operating the presses and working at the counter and carrying out deliveries. Mr Reinhold said that he observed the plaintiff carrying out work in the yard of the Naremburn property and on two occasions when he visited the Laguna property.

132 Mr Melvyn Freedman swore an affidavit on 20 February 2006. He said he became acquainted with the plaintiff when he, the plaintiff, was working in the Chatswood dry cleaning business. He supplied dry cleaning products to the business. He said that he attended the business on a regular basis and observed the plaintiff on many occasions carrying out work on the machinery and equipment in the Chatswood business. On the occasions upon which he visited the business, the plaintiff was working on his own. Mr Freedman also stated that he assisted the plaintiff in carrying out some manual work on the Laguna property in relation to the building of a shed. He also gave evidence that he observed the plaintiff working at the defendant’s stall at the markets on Sundays.

133 I will return below to the evidence as to the plaintiff’s contribution to the Chatswood business in terms of hours worked and duties performed.

The plaintiff’s inheritance

134 The evidence was that, during the course of the relationship, the plaintiff received an inheritance from his mother in the amount of $40,926.72. That amount was paid into her St George Loan Account. The plaintiff, at that time, is said not to have had his own bank account.

135 The defendant agreed that that amount was paid into her St George loan account. She said the plaintiff did not have his own accounts and needed a means to cash his cheque. She said “I paid him at regular intervals amounts when he required money …”. She did not provide any details of when these amounts were paid as she claimed or their amount. She maintained that the inheritance was not a loan or a gift and that “at the time there was no dispute with that arrangement as all the money was paid back to him” (defendant’s affidavit, sworn 7 March 2006, paragraph 45).

136 In his affidavit in reply, the plaintiff stated the inheritance monies were paid into the St George loan account for the purpose of bringing “the on-line debt to a manageable level. I say that the amounts were never repaid … and I did not draw on it as alleged” (paragraph 28).

137 The defendant’s evidence referred to in paragraph [135] was permitted to be given in this form without objection. The defendant’s evidence as to the arrangement and as to when and what payments were said to have been made by her lacked detail as to when and what were the terms of the claimed “arrangement” and no banking or other records were produced in relation thereto.

Shares

138 The plaintiff’s evidence was that he sold certain shares which he said his father had given or bequeathed to his two children. He did not identify in his affidavit or in oral evidence the precise number of shares nor the companies to which the shares related, nor the date upon which it is said that he sold the shares and paid the proceeds to the defendant. This was another unsatisfactory aspect of the plaintiff’s evidence.

139 The plaintiff agreed in cross-examination that he did not list any shares in his statement of affairs verified on 20 January 1995. However, he stated that the shares had been given to his children by their grandfather. It was put to him that no monies were paid from the sale of shares to the defendant.

140 The defendant’s 1996 Income Tax Return, Exhibit D, recorded under the heading “Capital Introduced” the following:-

$1,056

141 That amount is identified in the Capital and Current Accounts for that year as “Capital contributed”.

142 The plaintiff’s two children are Benjamin Howell and Lynda Pope nee Howell. The plaintiff’s evidence was that the proceeds of the sale of the shares given to the defendant amounted to $14,000. Although there was no corroboration as to the amount of the proceeds of sale, there was no reference made to or other evidence or explanation given to the above entries in the 1996 Balance Sheet “gifts” totalling $11,882 other than they related to capital introduced into the business. The plaintiff did state in cross-examination (referring to shares):-

“But it didn’t belong to me and I didn’t want – it was against my will that I did sell those shares, but the defendant never let up, said the business – it’s a new business we need the money, otherwise we’re going to go under. And the pressure was enormous and we had enormous amounts of arguments about it and I said okay, I agreed providing when the business is sold that money gets paid back to my children.”

143 When recalled to give further evidence on 8 June 2007, the plaintiff said:-

“My father gave them to me to keep for them until they were older and to give them to them when they reached a mature age where they could look after them responsibly for themselves.”

144 In cross-examination the plaintiff was emphatic that the defendant had not repaid any of the inheritance monies, nor had any money been received from the defendant’s sister on account thereof.

Were the inheritance monies repaid?

145 The defendant was given leave to file the affidavit of the defendant’s sister, Ms Elie Kathalos, sworn on 26 August 2006. As the transcript confirms, however, that affidavit was not formally read and no reliance was placed upon it in the course of Ms Pender’s submissions on behalf of the defendant. It is, accordingly, unnecessary to consider whether parts of that affidavit were in admissible form. Whether, and to what extent, Ms Kathalos’ evidence may have assisted the defendant on the question of the alleged repayment of part or any of the inheritance monies did not arise. Mr Jamieson, in his final submissions, sought to rely on a Jones v Dunkel point in the failure to call Ms Kathalos. As the transcript records, he stated that notice had been given for Ms Kathalos to be cross-examined on her affidavit, but that she had not attended. In those circumstances, Mr Jamieson submitted, that not only was there no evidence from her, but that the failure for her to be called operated in the plaintiff’s favour.

146 In circumstances in which it is not evident from other evidence as to the role Ms Kathalos played, I do not consider that a Jones v Dunkel inference is open. However, in the absence of any cogent evidence which demonstrates that any part of the inheritance monies were, in fact, repaid by the defendant to the plaintiff, I accept the plaintiff’s evidence as reliable and truthful when he stated that he did not receive any repayment of such monies or any part of them. I do not consider that I should accept the defendant’s bald denial without reference to any detail or underpinning facts. The defendant on other matters gave attention to producing documentation.

Where the share monies paid to the defendant?

147 The plaintiff’s evidence in his affidavit sworn on 21 February 2006, paragraph 28, was that he sold shares amounting to “about $14,000” and that he gave the monies to the plaintiff and they were not repaid.

148 The defendant did not respond and deny the plaintiff’s evidence on these matters. Had there been a basis to dispute payment or assert repayment, the defendant’s affidavit, it would be expected, would have raised facts in support. Not having done so, I consider that the plaintiff’s account should be accepted, save as to the precise amount of monies. The plaintiff’s evidence that “about $14,000” was paid to the defendant is imprecise. In the circumstances in which the plaintiff has not established the amount paid to the defendant, I am of the opinion that I should use the abovementioned entries in the balance sheet for the 1996 year as a guide. I, accordingly, consider that an amount of $11,500 should be taken as the approximate amount paid to the defendant from the proceeds of the share sale and I so find.

149 Following separation, the defendant stated the plaintiff came back to the house on many occasions to collect his belongings and to borrow money. She stated that on 26 February 2004, she lent him the amount of $300, on 29 February an amount of $1,000 and on 15 March 2004, she lent him $4,000. There was no dispute in relation to these amounts and the plaintiff, in fact, admitted in his affidavit sworn 3 May 2006 (paragraph 29).

Principles in relation to adjustment of property interests – plaintiff’s submissions

150 It was submitted on behalf of the plaintiff that a comparison can be drawn between the duration of the relationship in this case, which extended over a period of 11 years, and the duration of the relationship in Chanter v Catts (2005) 64 NSWLR 360; [2005] NSWCA 411, which continued for a period of 13 years, and that a similar approach to the one taken by the court in that case should be adopted in the present case. In Chanter (supra), at the commencement of the parties’ relationship, both parties were medical practitioners but where the appellant had minimal net assets and the respondent had substantial assets following litigation and resolution of property affairs with a former spouse.

151 The plaintiff emphasised the following observation made in Chanter by Bryson JA (at p.376):-

“A decision applying s.20(1) must, after making findings establishing what was the property of the parties to the relationship at relevant times, and establishing what contributions of the kind referred to in par (a) and par (b) were made, reach the point of an evaluative determination about what order (if any) adjusting interests in property seems just and equitable. This is a discretionary decision not susceptible of complete exposition …”

152 Mr Jamieson, for the plaintiff, also drew attention to the following observations made by Hodgson JA in Chanter (at p.367-368):-

“I find it helpful to take a broad view, having regard to initial contributions of the parties, contributions arising from inheritances and gifts, and the asset situation at the time of the separation and the time of the hearing.”

153 It was submitted that the plaintiff’s contribution to the business by way of long working hours and his work around both properties should be taken into account in accordance with the principles relating to income forgone and the cost of the contribution to the person making it.

154 The plaintiff submitted that the following observations made by the Court of Appeal in Bilous v Mudaliar & Anor (2005) 65 NSWLR 615 per Ipp JA, were of relevant to this case (at p.623):-

“Generally, the Court has a broad discretion in determining the approach to adopt in considering what order to make under s.20(1). As Brereton J (with whom Basten JA and Hunt AJA agreed) said in

Kardos v Sarbutt

(2006) 34 Fam LR 550 at 564 [51] (relying on

Norbis v Norbis

(1986) 161 CLR 513):-

‘Although in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law’. Brereton J (at 565[54]) observed that:-

“[54] … As Lenehan [

In the Marriage of v Lenehan

(1987) 11 Fam LR 615] shows, the principal indicator for an asset-by-asset analysis is discrepant identifiable contributions of the parties to different assets: in that case, the proportionate contribution of the parties to the acquisition, conservation and improvement of the matrimonial home on the one hand, and to the business assets on the other, were quite different. Such an approach will often be contra-indicated where, as here, there has been a pooling of income.

If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result:

Kardos v Sarbutt

(at 563 [51], 564 [54]). Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets.”

155 Mr Jamieson submitted that in relation to the use of rent-free accommodation, the approach taken by the Court of Appeal in Bilous (supra) per Ipp JA, should be applied to the present case (at p.634):-

“With respect to his Honour, I do not accept that, in this case, it is appropriate to use the free accommodation provided to the appellant as being a countervailing benefit to be weighed against contributions made by him.

The respondent's provision of the family home was a contribution by her to the partnership, and appropriate weight should be accorded to it. It would be wrong in principle, however, to accord it weight and then, to require a notional rental in respect of the appellant's accommodation in the home to be deducted from the value of his contributions. That would be impermissible double counting. It would not be just or equitable.”

156 Mr Jamieson also submitted that the correct approach in this case was to make an holistic value judgment in exercising of a discretionary power of a very general kind, and that according to principles confirmed in the Court of Appeal in Bilous (supra), the court was not, in the words of McLelland J in Davey v Lee (1990) 13 Fam LR 688 at 689, required to undertake a:-

“… reductionist process analogous” to the taking of partnership accounts … by examining every alleged ‘contribution’ of the kinds described in the Act with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is then eliminated by the requisite financial adjustment. Rather, the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind ... mathematical calculations, while not determinative, are of use in testing conclusions about what is just and equitable and in promoting transparency and consistency in decision making.”

157 It was further submitted that in a case such as this where it was contended that there had been, in effect, a pooling of income, a global approach should be taken by the court in assessing parties’ contributions, consistent with the observations of the Court of Appeal in Kardos v Sarbutt [2006] NSWCA 11, rather than an ‘asset by asset’ analysis which is more suited to a case in which parties have made discrepant contributions to different assets. It was further submitted that, as pointed out by the Court of Appeal in Kardos, an asset by asset approach almost always carries the risk of undervaluing domestic contributions which are not reflected in any particular asset. That, by analogy, was said to apply here.

Factual findings

158 The evidence of both parties has presented difficulties in ascertaining factual matters relevant to the contributions each claim were made to the relationship. It will suffice at this point to refer to the following:-

(a) The essence of the plaintiff’s claim is that he made monetary contributions (inheritance monies and proceeds of the sale of shares) and worked extremely long hours in the defendant’s principal business at Chatswood. There was conflicting evidence from the plaintiff on the question of remuneration paid to him as discussed above and there was little in the nature of corroborative evidence on many aspects of his case.

(b) The plaintiff in his primary affidavit failed to address and quantify the hours he said he worked on a weekly basis. The only clear evidence on the matter in the defendant’s primary affidavit, stated that he worked a 10 hour day between the hours of 6.30 am and 6.30 pm.

(c) There was no evidence establishing the purchase price of the Chatswood business or the increase in value of the business when sold in 2002.

(d) There was no valuation evidence in respect of the machinery and equipment the plaintiff said he transferred from his former business to the Chatswood business which he claimed was worth $27,000.

(e) There was no evidence of the remuneration payable to either a “manager” of a dry cleaning business or a person performing the general range of duties undertaken by the plaintiff including the work of a “presser” .

(f) The plaintiff claimed that there was a “pooling” of his earnings with the defendant’s earnings from the business. However, he denied receiving cash in accordance with wage book entries and did not establish what amount or amounts were “pooled” as alleged on a weekly or other basis.

(g) The plaintiff failed to adduce any evidence that would permit a quantification or an estimate of the amount and value of dry cleaning work undertaken by his Thrifty Mac business for the Artarmon laundrette in 1994. There was no evidence as to the precise or even approximate period that year when this work was said to have been performed for the defendant’s business as claimed.

“would only be made in the period up until December 1994”

159 On a consideration of the evidence, I am of the opinion that I should accept the submission made on behalf of the defendant that the plaintiff did not establish a financial contribution, direct or indirect, to the operation of the Artarmon business. Up until December 1994, he was operating his own business and such dry cleaning work as may have been carried out by the plaintiff’s business for the Artarmon business has not, as I have stated, been particularised or quantified in the evidence.

160 I accept that the plaintiff did advise the defendant with respect to the acquisition and operation of that business and probably assisted her in unspecified ways in its early days of operation. However, beyond that, no other findings as to the plaintiff’s contributions are, in my opinion, open on the evidence.

161 The Artarmon and Chatswood businesses over a total period of approximately nine years produced sufficient earnings which provided the plaintiff and the defendant with both a source of income to cover living expenses and a return on capital and their labour. The net proceeds on the sale of the Artarmon laundrette was $75,000 and $106,971 on the sale of the Chatswood laundry business, a total net return on sale of $281,971.

162 The initial net return of $75,000 on the sale of the Artarmon business I consider to be principally the product of the defendant’s capital investment and borrowings and her personal work and effort. The defendant’s initial capital contribution for that business came from the proceeds of sale of the defendant’s motor vehicle ($20,000) and borrowing of $18,000 from her mother.

163 The net return on the sale of the Chatswood business was the product of the defendant’s capital investment and, subject to findings to be made with respect to the plaintiff’s hours of work and remuneration paid to him, the combined labour of the plaintiff and herself. Whilst the evidence included details of the sale of the Chatswood business in November 2002 (for the amount of $225,000) with liabilities for $89,959 and outstanding rent of $5,000 and $23,000 paid for “other expenses” and leaving the net return of $106,971, there was, as earlier noted, no evidence as to initial purchase price and borrowings. There was reference in the defendant’s evidence (her affidavit sworn on 8 March 2006, paragraph 45) to the fact that in February 1995 she borrowed $100,000 “to purchase equipment and machinery to set up Chatswood Dry Cleaners …”. The defendant’s evidence included a general unsupported statement that the machinery and fittings purchased by her for the business “amounted to about $250,000 …” (paragraph 47).

164 Without knowing the original purchase price for the Chatswood business, it is not possible to assess any increase in value of the business between the date of purchase in 1995 and as at the date of its sale in 2002.

165 In relation to the labour contribution made by the plaintiff and the defendant, I am of the view that the defendant’s evidence in paragraph 46 of her primary affidavit should be accepted. This was, as earlier discussed, that the plaintiff’s work hours commenced at 6.30 am and concluded at 6.30 pm (a 12 hour day less a break of two hours per day, net of 10 hours active work per day), on a five day working week basis. The plaintiff on this basis was required to be available for a total of 50 hours (10 hours per day) in a 12 hour daily period between 6.30 am and 6.30 pm (a total of 60 hours). I accept the defendant’s evidence that the plaintiff did not regularly work on Saturday’s although he probably occasionally attended for a few hours on Saturday mornings.

166 The defendant’s oral evidence established that actual trading hours for the business were 7.00 am to 6.00 pm. The evidence does not establish the number of hours worked by the defendant herself on a daily and weekly basis. The evidence established that there was a division of labour between her and the plaintiff. The defendant was clearly the financial manager of the business. It was evident from her evidence that she kept a close eye on money matters. She said in her affidavit sworn on 8 March 2006 (paragraph 47) that:-

“… my work consisted of attending both businesses daily, hiring staff, keeping the books for wages, tax, superannuation for the employees, paying all outgoings including maintenance, repair and purchase of equipment …”

167 The plaintiff had a background in dry cleaning operations, having worked for some years for others in their businesses and in his own business at Hornsby. The plaintiff’s case was that the range of duties performed by him indicated that in assessing what was fair remuneration he could not be placed on the same award classification as other employees who only performed work as a “presser”. It is clear that the plaintiff’s knowledge and experience and his personal exertion in the defendant’s Chatswood business benefited the defendant. Whilst the defendant had employed other personnel for the business, it was not suggested that they consistently worked the same hours as the plaintiff (between 6.30 am and 6.30 pm) nor undertook the range of work duties that he performed (maintaining the equipment and machinery, effecting some repairs and performing the hands-on work of presser, dealing with customers).

168 In summary, the Chatswood business operated as a profitable business, due to the combined labour and investment of the defendant and the experience and labour of the plaintiff. In determining the question of the contributions made by the parties to the relationship, these matters require close evaluation.

169 In evaluating the value of the plaintiff’s work in the defendant’s Chatswood business, the following matters are noted:-

(a) The plaintiff’s remuneration in respect of the period 1 February 1995 to 30 November 2002, a period of approximately eight years, totalled $112,968.30.

(b) Although the defendant stated that the entries in the wages books were accurate, there were no overtime entries recorded.

(c) The plaintiff was not remunerated for hours worked in excess of the award prescribed hours of 40 hours per week: clauses 7 and 10 of the Dry Cleaning (State) Award . On the calculations set out below, the value of the plaintiff’s estimated overtime work is approximately $42,408. The plaintiff’s performance of unpaid overtime work as measured by the award overtime entitlement was both a cost to the plaintiff and a contribution to the defendant’s Chatswood business.

Accordingly, the increased value attributable to the plaintiff’s labour is not capable of calculation. Although the risk capital for the business was outlaid by the defendant, the plaintiff’s contribution to the business was a significant factor in the business operating so as to generate income for living and other expenses and the return realised on sale. The value of his contribution, however, could not, on the evidence, in my opinion, be assessed as equal to the defendant’s investment of her capital and labour.

“family pool”

170 I have carefully considered the evidence of the plaintiff and the defendant on the disputed issue as to payment of wages and whether, as the defendant contended, the plaintiff was, in fact, paid on a regular weekly basis in accordance with the amounts shown in the wages books. I have concluded, for the reasons earlier stated I should accept the defendant’s account and that the plaintiff did receive weekly wages as she claimed. That conclusion, as discussed below, however, leaves outstanding the question as to whether or not the remuneration paid to the plaintiff was adequate, having regard to the hours and nature of duties performed by him on behalf of the defendant.

171 It is true, as Mr Jamieson submitted, that the defendant did derive benefit from having the plaintiff work long hours in conducting the operational side of the Chatswood business. Whether another person could have fulfilled that role to the same or a greater level of competence was not, in my opinion, established by the evidence. The fact was that the defendant received earnings from the business over approximately seven years that provided her with a level of income sufficient to cover living expenses and to meet her financial obligations and to build up a business that produced a net capital return in excess of $100,000. Those results were, to a significant extent, due to the plaintiff’s participation in the business as well as to the defendant’s investment and role. The plaintiff’s participation is not to be equated to the defendant’s investment of capital her labour. However, he did, on the findings, make a worthwhile and valuable contribution. Whether the plaintiff was adequately remunerated for his efforts was one of the primary issues for determination.

The defendant’s attack on the plaintiff’s work performance

172 The defendant gave oral evidence to the effect that some advice provided by the plaintiff was wrong, that his supplier of cleaning products sold at prices that were too high and that some of the machinery supplied by the plaintiff was in need of repair. I have also had regard to the affidavit and oral evidence given by Mathew and Andrew Fiorenza and Livianna Fiorenza on questions raised as to the plaintiff’s work performance.

173 The defendant’s failure to raise an issue as to absences from work in her affidavits is a matter of significance. Her affidavit evidence on work performance issues was limited to a general statement in paragraph 54 of her affidavit sworn on 7 March 2006. The defendant gave the distinct impression in the witness box of endeavouring to denigrate the plaintiff, there being evident ill-will in her towards him. Had it been the case that the plaintiff was unreliable in his attendance at work or failed to undertake the hours expected of him, then it would be expected that such matters would have been properly addressed in her primary affidavit. Whilst the plaintiff may have taken time off work from time to time, the defendant’s affidavit did not suggest that a practice of irregularity developed in this respect.

174 Accepting, as I do, that the plaintiff took approximately two hours or work in a 12 hour period between 6.30 am and 6.30m Monday to Friday, I accept his evidence that he essentially was present on a daily basis at the business throughout the period of its successful operation until its sale in 2002.

175 In estimating the contribution made by the plaintiff, the following matters are relevant to the assessment:-

• The approximate number of hours worked by the plaintiff on a weekly basis from March 1995 to November 2002.

• The total wages paid and received by the plaintiff in that period.

176 Accordingly, the approach to be taken in this case consistent with that adopted by the parties in their submissions. Appropriate regard is to be given to the particular contributions said to have been made by both the plaintiff and the defendant to the principal business asset of the relationship, the Chatswood dry cleaning business.

177 The plaintiff’s claim additionally requires consideration and findings with respect to:-

• The financial contribution claimed by the plaintiff based upon payment of the “inheritance” monies in the amount of $40,926.

• The financial contribution claimed by the plaintiff based upon the alleged payment of the proceeds of the sale of shares ($14,000).

178 It has been necessary to have regard to the contributions made by the defendant in terms of:-

• The provision of accommodation and living expenses.

• The financial contributions made by the defendant in paying business debts of the plaintiff in the amount of $26,000.

• Remuneration paid to the plaintiff from the Chatswood business.

• Other monies paid to or on behalf of the plaintiff.

Defendant’s submissions

179 In her opening and closing submissions, Ms Pender submitted that, allowing for set-offs, the Court would not find a net balance in favour of the plaintiff. Alternatively, it was submitted on behalf of the defendant, that in respect of the asset primarily in dispute, the Laguna property, the Court would not find that the plaintiff’s contribution would be equal to 50% of the increased value of that property. The contribution, it was submitted, would be 10% of the increase in the value of that property in the period between purchase in 1996 and 2004, namely, the amount of approximately $400,000. Alternatively, if the Court did not accept that the plaintiff’s contribution was as limited as 10%, it would be no higher than 25%.

180 Ms Pender, in her written submissions dated 23 August 2007 (p.15) observed that:-

“It is submitted that, in the circumstances where it is not possible to work out the increase in the capital value of the businesses and where it is agreed that the profits of both businesses went into the Laguna property, the asset in question is the increased value of the Laguna property. The Naremburn property, which was owned outright prior to the relationship is not in question and should not be considered an asset of the relationship.”

181 Ms Pender further submitted for the defendant (p.18 of her written submissions):-

“If at the end of the day, the Court is against the Defendant in terms of the arguments set out in (1) and (2) above, if the Court accepts the Plaintiff’s evidence despite its inconsistencies, contradictions, lack of documentary evidence and in preference to the evidence of the Defendant, then it is submitted that, if the Court finds that the Plaintiff did contribute his inheritance and monies from the sale of shares to the Chatswood business, that would be a contribution of $54,000 plus the loans of the Defendant for $200,000 which were used for the business and equipment ie $54,000 out of $254,000. Let us say, one fifth.

The Defendant says that any shortfall in wages or contribution in work is outweighed by the amount that would be allowed back for rent. However, if the Court were to decide that these factors counterbalance each other (contrary to the sums for notional rent above), then one may work out a result as follows:-

Taking the increase in value of Laguna as $400,000 over 11 years:- The Plaintiff was contributing to that until separation in 2004, ie 8 years. Thus the share of the pool, of assets is 8/11 of $400,000 ie $290,909. One fifth of this is $58,181.

However, as set out above, the Defendant submits that the Plaintiff’s claim must fail and if so, the Defendant seeks costs.”

Financial contributions

182 The defendant, following the sale of the Chatswood business, repaid the outstanding loan on the Laguna property from the net proceeds of sale. I have had regard to the approach referred to in Ms Pender’s submissions of determining the ratio of the capital contributions of the plaintiff and the defendant towards the business (the defendant’s submissions refer in this respect to $52,000 from the plaintiff and $200,000 loan monies from the defendant). On this basis, it was submitted of the total capital contribution of $252,000, the plaintiff contributed 20.63% and the defendant 79.30%.

183 The question, however, is not simply whether the plaintiff contributed to the increase in value of the Laguna property. The increase in its value appears on the facts to be the consequence of the escalation in property values, given that there were few improvements made to the property after purchase. The question should be refocused so that the question is whether the plaintiff made financial and other contributions to the relationship and whether, having regard to the joint contributions of both parties (financial and by personal exertion) an adjustment order should be made in the plaintiff’s favour.

184 As noted above, in evaluating an appropriate apportionment of the increase in value of the Laguna property, the true value of the plaintiff’s financial contribution to the defendant as I have found it, namely, a total of $52,426 ($40,926 + $11,500), was both the capital amount of such monies and their value to the defendant as, in effect, an interest-free advance from the dates of payment (approximately from 1996 to the time of hearing in 2007) in respect of the amount of $11,500 arising from the sale of shares and from 2000 to 2007 in respect of the inheritance monies, namely, $40,926.

185 The time value of the amount of $11,500 (the proceeds of shares) over 11 years at 10% (based on prescribed rates under the Uniform Civil Procedure Rules) over 11 years is calculated at $12,650. If, in respect of the inheritance monies of $40,926, interest is calculated on $14,000 of that amount (to allow for monies the plaintiff received from the defendant for payments of debts) the net interest over seven years would be $9,800. The total value of such monies on such an interest calculation ($12,650 + $9,800) is $22,450.

186 In the present case, the adjusting order sought by the plaintiff does not seek an order based upon the total value of the Laguna property. In this respect, the plaintiff implicitly acknowledged the initial contribution made by the defendant to the property’s acquisition principally through the use of the net proceeds of the sale of the Artarmon business. Accordingly, one aspect relevant to the determination as to what is “just and equitable is the fact that the application is confined to the increase in value of the Laguna property over and above initial contributions and is not based on the property’s total value.

187 The justice and equity of the plaintiff’s case is essentially derived from the fact of his personal exertion in the Chatswood business (the earnings of that business providing the source of funds to meet the defendant’s commitments, including the mortgage on the Laguna property) for which he was not, on the findings made and expressed above, properly or fully remunerated, and from the financial contributions he made from the inheritance/sale of shares and the non-financial contributions made. These are to be balanced by the defendant’s countervailing contributions which are to be given that appropriate value and weight.

188 In seeking to evaluate the extent of the plaintiff’s contribution in that respect, I have regard to the fact that the defendant provided some of her own capital. Obligations with respect to loan funds for the acquisition and running of the Chatswood business were met from the proceeds of the business. I consider that, in respect of the agreed increase in the value of the Laguna property of $400,000, that 25% of that amount in favour of the plaintiff ($100,000), having regard to his financial contributions, would constitute a just and equitable apportionment between the plaintiff and the defendant based upon their respective financial contributions.

189 I do not accept the submission that there should be an off-set for payment of rates etc in respect of the Laguna property. The defendant’s income from the Chatswood business provided the source for which such expenses could be met.

Value of the plaintiff’s work not remunerated

190 The plaintiff was entitled, under the Dry Cleaning (State) Award, to overtime payment in respect of work performed in excess of 40 hours per week. On the basis of the defendant’s evidence, to which I have referred, the plaintiff worked an average 10 hours a day, five days a week, or 50 hours. In accordance with the relevant award provision, hours in excess of 40 hours per week are to be paid at time and a half. In this case, the plaintiff’s hours were 10 hours over ordinary time of 40 hours per week or two hours per day for five days each week. The calculation of unpaid overtime based on the award entitlement to is as follows:-

Calculations based on two hours of overtime per day = 10 hours per five-day week, based on the wage books:-

1 February 1995 to 12 May 2000 (274 weeks):-

40 hours x $253.85 = $6.35 x 1.5 = $9.53

12 May 2000 to 30 November 2002 (131 weeks):-

40 hours x $331.40 = $8.29 x 1.5 = $12.44

1 February 1995 to 12 May 2000 (274 weeks):-

For 12 May 2000 – 30 November 2002 (131 weeks):-

Therefore, the plaintiff’s total overtime entitlement on the above basis (40 hour week) was:-

$26,112.20 + $16,296.40 = $42,408.60

191 On the defendant’s evidence, the plaintiff was paid only the base pay for a 40 hour week. The plaintiff, accordingly, contributed overtime work for which he was not paid in the amount of $42,408.60 which directly benefited the defendant in the running of her business.

192 The plaintiff’s contribution should be valued by an additional amount representing unpaid holiday pay of $3,000. The defendant acknowledged that the wages books, Exhibits 10, 11 and 12, recorded only one year’s payment of four weeks’ annual leave in a three year period. Accordingly, unpaid annual leave amounted to $3,000.

Non-financial contributions

193 The plaintiff gave evidence as to work performed on the Laguna property. This included lawn mowing, cutting of wood and general duties not capable of precise quantification. I propose to allow in a general way or by way of a “cushion” on the basis referred to in the next paragraph.

194 The value of the plaintiff’s work in the defendant’s business beyond the award classification of “presser”, the non-financial contributions which I have assessed as limited and the assistance the plaintiff rendered to the defendant in her market stall should be accorded a general overall, albeit a limited value, which I consider to be a lesser amount than the overtime and annual leave entitlements calculated above. I consider, doing the best I can on the limited evidence, that all such contributions together should be assessed in the order of $20,000 to $40,000. I consider that the amount of $30,000 should be awarded in respect of this general category.

Notional rent

195 In determining that the defendant is entitled to have what has been referred to in submissions as “notional rent” balanced against the plaintiff’s contributions, I have had regard to the observations of Heydon JA (as his Honour then was) in Del Gallo v Frederiksen (2000) 27 Fam LR 162 at [48] and at [42]-[53] in relation to the benefit of accommodation received from the defendant and rent received from the plaintiff’s capital asset in that case. I have also considered the discussion of that case and the principle s enunciated and applied by Ipp JA in Bilous (supra) at [114] to [128].

196 In the present case, there is not the home-maker contribution by the plaintiff in respect of the Naremburn home as occurred in Bilous. Accordingly, there would be no negation of such a non-financial contribution arising in this case by off-setting the “notional rent”. Accordingly, I should accept Ms Pender’s submission that there should be an appropriate counter-balancing of a notional allowance for the defendant received by way of free occupation provided by the defendant. The contributions made by the plaintiff to which I have earlier referred, in other words, did not contribute to the conservation or improvement of the Naremburn property in which he resided

197 Ms Pender, in opening submissions, had referred to an amount of $125 per week as the basis for calculating board and lodging for the purposes of quantifying the set-off in relation thereto. In final submissions, that figure was increased for calculation purposes to $200 per week for most of the period.

198 The evidence establishes that, prior to the commencement of the relationship, the plaintiff rented premises in Hornsby. However, there was no evidence was to what amount of rent he was paying in respect of those premises. The defendant did not seek to establish in evidence a basis for assessing the “notional rent” claimed by her as a “set-off”. Whilst the amount of $125 per week was suggested in opening submissions for the plaintiff’s own board and lodging, in later submissions, an amount of $150 was proposed for the defendant, I consider the amount of $135 per week should be adopted to calculate the “notional” rent on and from 1995 and a greater weekly amount be allowed from 1993 to 1995 when the plaintiff’s children lived in the premises.

199 In summary in respect of each of (a), (b) and (c):-

(a)	Contribution based upon increased value of the Laguna property (based on 22.5% of the increase in value of $400,000).	$100,000
(b)	Value of plaintiff’s work not remunerated (overtime and annual leave unpaid)	$45,000
(c)	Non-financial contributions	$30,000
Total	$175,000

Defendant’s contributions

200 On the evidence, the following contributions by the defendant have been established:-

(a)	Payment of plaintiff’s debt	$26,000
(b)	Payment of cash amounts to plaintiff	$5,300
(c)	Payment of medical expenses	$2,100
(d)	Purchase of Toyota Hilux vehicle (27 August 2003)	$15,847
(e)	Notional rent and living expenses – contribution by way of living expenses and rental (i) September 1993 to June 1995 – one year, nine months (88 weeks at $200 per week) (ii) June 1995 to February 2004 – nine years (468 weeks at $135 per week)	$17,600 $63,180
Total	$130,027

201 The balance of the value of the plaintiff’s contributions as assessed above over the value of the defendant’s contributions assessed is the amount of $45,000.

202 Accordingly, I propose to make orders as follows:-

(a) An order in favour of the plaintiff against the defendant representing his adjusted interest in the property, Lot 13 Old Northern Road, Laguna, pursuant to s.20(1) of the Property (Relationships) Act 1984 in the amount of $45,000.

203 I will provide the parties with the opportunity to make written submissions on the question of costs. I request the parties to lodge short minutes of orders to give effect to the proposed orders.

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Citations

Howell v Fiorenza [2008] NSWSC 163

Most Recent Citation

Nichol v Lane [2012] TASSC 25

Cases Citing This Decision

3

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Ryan v Kalocsay [2010] NSWSC 620

Nichol v Lane [2012] TASSC 25

Cases Cited

10

Statutory Material Cited

3

Kardos v Sarbutt [2006] NSWCA 11

Bilous v Mudaliar [2006] NSWCA 38

Sullman v Sullman [2002] NSWSC 169

CITATION:	HOWELL v FIORENZA [2008] NSWSC 163
HEARING DATE(S):	7, 8 June 2007; 27 July 2007; 24 August 2007
JUDGMENT DATE :	3 March 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hall J at 1
DECISION:	(a) An order in favour of the plaintiff against the defendant representing his adjusted interest in the property, Lot 13 Old Northern Road, Laguna, pursuant to s.20(1) of the Property (Relationships) Act 1984 in the amount of $45,000. (b) That there be an equitable charge on the property referred to in (a) for that amount.
LEGISLATION CITED:	Property (Relationships) Act 1984 Family Law Act 1975 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Bilous v Mudaliar & Anor (2005) 65 NSWLR 615 Black v. Black (1991) 15 Fam. LR 109 Chanter v Catts (2005) 64 NSWLR 360 Davey v Lee (1990) 13 Fam LR 688 Del Gallo v Frederiksen (2000) 27 Fam LR 162 Dwyer v Kaljo (1987) Fam LR 785 Evans v Marmont (1997) 42 NSWLR 70 Green v. Robinson (1995) 36 NSWLR 96 Kardos v Sarbutt [2006] NSWCA 11 Mallet v. Mallet (1984) 156 CLR 605 Powell v. Supresencia (2003) 30 Fam LR 463 Sullman v Sullman [2002] NSWSC 169 Wallace v Stanford (1995) 37 NSWLR 1
PARTIES:	Iain HOWELL v Irene FIORENZA
FILE NUMBER(S):	SC 3017 of 2006
COUNSEL:	P: A Jamieson D: E Pender
SOLICITORS:	P: Zerrin Jamieson D: Winn Legal