Hull v Eather
[2005] NSWSC 59
•16 February 2005
CITATION: Hull v Eather [2005] NSWSC 59
HEARING DATE(S): 03.02.04
04.02.05
JUDGMENT DATE :
16 February 2005JURISDICTION: Equity
JUDGMENT OF: Acting Master Berecry at 1
DECISION: See paragraph 69
CATCHWORDS: De facto relationship - Factors to be considered in respect of adjustments - Balancing contributions of both parties - Contributions in respect of children brought in by one party.
LEGISLATION CITED: Property (Relationships) Act 1984
CASES CITED: Evans v Marmont (1997) 42 NSWLR 70
Dwyer v Kaljo (1992) 27 NSWLR 728
Stanford v Wallace (1995) 37 NSWLR 1
Powell v Suprasencia (2003) NSWCA 195PARTIES: Kenneth David Hull
Sharon Deborah EatherFILE NUMBER(S): SC 4140.02
COUNSEL: R Druitt
S StewartSOLICITORS: Karen L Haga & Associates, Castle Hill
Lili Bulyk, Pitt Town
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
A/MASTER BERECRY
16 February 2005
4140.02 Kenneth David HULL v Sharon Deborah EATHER
JUDGMENT
The application:
1 CORAM: The plaintiff and the defendant resided together, although not married, for a period from approximately December 1994 or January 1995 until November 2001. Both parties brought assets to the relationship, and both parties contributed, financially and non financially, to the relationship. During the course of the relationship, the parties purchased a residential property at Castle Hill. At the end of the relationship, both parties resided in the Castle Hill property. Subsequently, that property was sold and the net proceeds of sale were held in an account controlled by Messrs Ian Bullock Partners, solicitors.
2 On 21 August 2002, the plaintiff commenced proceedings by statement of claim seeking an adjustment pursuant to s20 of the Property (Relationships) Act 1984. The plaintiff claims, inter alia, an order that “both parties forthwith sign all necessary documents, instruments, writings and things, to authorise and director Messrs Ian Bullock Partners to apply and disburse the net proceeds of sale as to 60% to the plaintiff and 40% to the defendant”.
3 On 14 October 2002, the defendant filed a defence and a cross claim. The cross claim pleads matters of a similar nature to those pleaded in the statement of claim. The cross claimant seeks, inter alia, seeks an order that both parties forthwith sign all necessary documents, instruments, writings and things, to authorise and direct Messrs Ian Bullock Partners to apply and disburse the net proceeds of sale, together with interest thereon, of the Yaringa Road, Castle Hill property, as to 75% to the cross claimant and 25% to the cross defendant”.
Background:
4 Prior to residing together, both parties had been married. The plaintiff had two daughters by his earlier marriage and, at the date the parties commenced cohabitation, he was paying maintenance in respect of his younger daughter. That position continued until the end of 1995. The defendant, during her marriage, lived at Moree with her husband and two sons. The plaintiff and his wife owned and resided in a property at West Pennant Hills. The defendant and her husband owned and resided in a property in Moree. That property was unencumbered.
5 The parties met towards the end of 1993 and, throughout 1994, met one another and communicated via the telephone. In late 1994, it was decided that they would cohabit. The defendant placed her Moree property on the market and moved to Sydney with her two children to reside with the plaintiff.
6 They rented a property at Crestwood. There was some dispute concerning the commencement of the relationship however, having regard to the fact that both parties’ assertion is within six to eight weeks of the other, and as nothing turns on when the relationship commenced, the starting date is immaterial. The defendant has put on evidence that established that the electricity account for the Crestwood property commenced in January 1995. That is not conclusive evidence that the relationship commenced in January 1995, however in the absence of any other evidence, it seems that in all probability, the parties commenced living together in January 1995.
7 Prior to commencing cohabitation, the defendant was employed in Moree. On coming to Sydney, she gave up her employment in Moree and, for a period of two to three months, was unemployed.
8 The plaintiff was employed prior to, and at the commencement of, the relationship. He conducted his own business under the name of Ken Hull Electrical Services. The plaintiff remained in employment throughout the relationship.
9 The defendant also appears to have been in employment for the majority of the relationship. After her initial period of unemployment, she obtained temporary employment with Drake Services and ultimately obtain full time employment, and continued that with various employers throughout the course of the relationship.
Assets at the commencement of the relationship:
10 On commencement of the relationship, the plaintiff had the following assets:
(a) 5 Aiken Road, West Pennant Hills, held jointly with his former wife, which property was subsequently sold for $315,000, the plaintiff receiving a net sum of $77,879.44;
(b) joint interest in 71 Budgewoi Road, Noraville with an agreed value in 1995 of $100,000;
(c) savings of $30,000;
(d) AMP superannuation plan;
(e) 1973 Ford Mustang motor vehicle;
(f) 1994 Ford panel van;
(g) an interest in GIO superannuation scheme;
(j) personal items and furniture including art works.(i) business known as Ken Hull Electrical Services; and
11 The defendant’s assets at the commencement of the relationship were as follows:
(a) 4 Warrina Crescent, Moree, held jointly with her former husband and valued at $90,000 (defendant’s interest $45,000);
(b) vacant land at 23 Kelvin Crescent, Port Macquarie, held jointly with her former husband and valued at $90,000 (defendant’s interest $45,000);
(c) Nissan Maxima motor vehicle valued at $17,500;
(d) monies held with St George Bank $14,000;
(e) monies held with New England Credit Union $12,771.54;
(f) monies received from Moree Plains Shire Council, value unknown;
(g) household goods and furnishings $57,000; and
The value of some of these items, in particular the household goods and furnishings, is not admitted by the plaintiff.(h) clothing and personal effects $11,600.
12 The plaintiff continued to operate the business known as Ken Hull Electrical Services until 2 March 2001. On that date, he commenced employment as a maintenance officer at the Five Dock RSL Club. The approximate net income received by the plaintiff during the relationship was as follows:
| Year | Net Income | Weekly Income |
| 1995 | 27,028 | 519 |
| 1996 | 38,248 | 735 |
| 1997 | 47,995 | 923 |
| 1998 | 35,803 | 688 |
| 1999 | 56,123 | 1,079 |
| 2000 | 53,231 | 1,024 |
| 2001 | 48,642 | 935 |
| $307,070 |
13 The defendant’s income according to her notices of assessment for the same period were as follows:
| Year | Net Income | Weekly Income |
| 1995 | 26,205 | 504 |
| 1996 | 22,354 | 429 |
| 1997 | 23,699 | 455 |
| 1998 | 29,741 | 572 |
| 1999 | 28,226 | 543 |
| 2000 | 29,223 | 562 |
| $159,448 |
14 The parties remained at the Crestwood premises until about March 1997. During the period of residence at Crestwood, rent was paid for the property. The lease of those premises was in the name of the defendant and all receipts were issued in the defendant’s name. It is conceded by the defendant that the plaintiff paid the rent and that that money was paid in cash from the business. The weekly rental paid was $240. The defendant’s evidence is that, from the payout she received from the Moree Plains Shire Council upon resignation, she contributed towards rent and a bond of $960. That was not challenged by the plaintiff.
15 The arrangement appears to have been that the plaintiff would pay the rent on the premises and the defendant would pay for groceries and other household requirements. The defendant also asserted that she was responsible for payment of all utilities, in particular gas, electricity, water and telephone. Her evidence was that the cost to her per week was $320. The family that she was providing for consisted not only of herself and the plaintiff, but also her two sons.
16 The defendant gave evidence that, from time to time, and because of his Family Court proceedings, the plaintiff approached the defendant saying that he was short, and could she pay the rent. Having regard to the fact that she was unemployed for two to three months after the relationship began, and her concession in cross examination that the plaintiff obtained cash from his business to pay the rent, I am not satisfied that the defendant made any significant contribution toward the payment of rent. I do however accept her evidence that she paid for the day to day household expenses.
17 In relation to the electricity and telephone account for the major part of the rental period, the plaintiff asserts that he made those payments and relies on exhibit PX3. The invoices however are addressed to the defendant and it is not clear from the documents who in fact paid those accounts.
18 In March 1997, the parties purchased a property known as 61 Yaringa Road, Castle Hill for $317,000. The amount was paid as follows. A loan from Advance Bank in the sum of $100,000, each party contributed the sum of $113,572.91. The loan with Advance Bank was later substituted by a loan from the St George Bank.
19 As a result of their respective property settlements, the plaintiff had the property at Noraville transferred into his name alone, and the defendant had the property at Port Macquarie transferred to her name. The funds used to purchase the Castle Hill property came from, in respect of the plaintiff, his share of the proceeds of sale of the West Pennant Hills property together with savings, and in respect of the defendant, from the proceeds of sale of the Port Macquarie property together with other savings that she had. It not precisely clear however where the balance of funds came from.
20 The arrangement reached by the parties in respect of their domestic finances was that the plaintiff would be responsible for mortgage repayments, and the defendant would be responsible for day to day living expenses of the family.
21 Contrary to that arrangement, the plaintiff did not meet all mortgage repayments on the loan. Whilst he made regular payments, including lump sum payments, there were periods where the defendant also made regular payments including lump sum payments.
22 It is agreed that the parties made the following repayments in respect of the loan: the plaintiff $73,607, and the defendant $62,117.56.
23 The mortgage facility that the parties had with the St George Bank enabled them to redraw on the facility. Towards the end of the relationship, the defendant withdrew $40,000 from the account. Earlier, she had withdrawn $6,000 towards the purchase of a motor vehicle.
24 The plaintiff also obtained a loan in respect of the Noraville property in 1996, primarily to pay out his former wife’s interest. This loan was discharged within 3.5 years. The defendant complains that the plaintiff concentrated on making payments to his superannuation schemes and to the Noraville property, to the detriment of their family unit. Annexure B to the plaintiff’s affidavit of 13 June 2003 contains fifteen statements of account showing the history of the Noraville loan. There are two payments of $10,000, however there is no explanation where those funds came from, either in the statements or in the evidence.
25 Throughout the course of the loan, the repayments fluctuated between $570 per month, and $285 per fortnight. The statements show that, except for the two lump sum figures of $10,000, the payments were received from Ken Hill t/as Ken Hull Electrical Services. The plaintiff has maintained that the mortgage repayments were made from the rental he received in respect of that property. His evidence in cross examination was that he currently receives a weekly rental of $195 or slightly more than $800 per month. It is unclear however whether he has received that amount each week since 1996.
26 The defendant asserts that the plaintiff during 1995 spent Saturdays (7.00 am to 9.00 pm) working on the Ford Mustang motor vehicle. During this period, she was responsible for taking her two sons to their sporting events and for the household cleaning and purchase of weekly groceries.
The law:
27 Section 20 of the Property (Relationships) Act 1984 provides as follows:
- 20 Application for adjustment
(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.
28 In Evans v Marmont (1997) 42 NSWLR 70, the Court of Appeal settled the approach to be taken when determining whether or not there should be an adjustment of interest pursuant to s20 of the then legislation, the De Facto Relationships Act 1984. The current legislation, the Property (Relationships) Act 1984 is, of course, the same piece of legislation as the former. Subject to some amendments, those amendments do not affect this application.
29 In Dwyer v Kaljo (1992) 27 NSWLR 728 at 732-3, Mahoney JA said the following:
- “It is, of course, possible to determine what has been done by one party for the welfare of the other and to assess the extent to which the welfare of the other has been has been forwarded by it. But, in my opinion, the assessment of “the contributions” made by one party is not one sided; it cannot have been the intention of the legislature that what one party has done for the other is to be considered – and rewarded – in isolation. Regard must be had to what that party has received in return. Special cases apart, what is contemplated by the provision is, therefore, that it the balance of the contributions of the one over those of the other, which is to be taken into account in determining what justice and equity require the Court to do. At least, in deciding what “to it seems just and equitable”, the contributions of each side are to be had regard to.
- I do not mean by this that what is involved is merely the weighing of the quantum of the benefits: it may be that quality also is to be weighed. But, in the end, it is, I think, the balance between the contributions of each which is, or at least, the contributions of each which are to be taken into account. But such balance is not to be determined by the number of lawns mowed or dishes washed. The process is to an extent normaltive. And that leads to an examination of the functions underlying the section and the process it requires to be undertaken.”
30 In Stanford v Wallace (1995) 37 NSWLR 1, Mahoney JA once again revisited the opinions he expressed in Dwyer v Kaljo (supra). His Honour concluded by saying that any order made is constrained by having regard to the contributions of the parties and the balance between them.
31 The term “contributions” extends not merely to financial and non financial contributions to property, but to the more general contributions referred to in s20(1)(b). It is those contributions to the property or the 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 a particular case. In Powell v Suprasencia (2003) NSWCA 195 at 83, Einstein J said:
- “The following propositions appear to me to have been clearly established as the result of a number of decisions referred to by Sheller JA and, significantly, following the clarification by the five member Court decision in Evans v Marmont , supra, of matters which have been somewhat inchoate prior to delivery of that decision:
· Paragraph (a) and paragraph (b) of s20(1) prescribe the focal point by reference to which the discretionary judgment as to what seems just and equitable must be made. It is by having regard to those matters that the Court may adjust property interests in a just and equitable manner;
· A judgment as to what is just and equitable having regard to those matters will ordinarily have to be made in a context;
· The critical question is, “what is just and equitable having regard the plaintiff’s contributions?”;
· Without being exhaustive (it is not possible to set a limit on what circumstances may be relevant to the critical question), matters germane by reason of context, to the answering of that question, may include: the length of a relationship; any promise or expectations of marriage; any opportunity lost by the plaintiff by reason of the plaintiff’s contributions (cf Dwyer v Kaljo (supra));
· These matters are significant because they identify: the part played by the factors referred to in paragraphs (a) and (b); and the part played by reason of those factors, in determining what is just and equitable in the circumstances.”
32 Therefore, it is the application of the above to the facts and evidence of a particular case, which will determine whether or not it is just and equitable to make any adjustment between the parties.
33 In the current proceedings, both parties have made application for adjustment in their favour pursuant to the Act. The plaintiff, by his statement of claim, seeks an adjustment in his favour, and likewise, the defendant seeks in her cross claim seeks a similar adjustment in her favour.
The evidence:
34 While some of the evidence is unclear concerning the value of the assets brought to the relationship and, to some extent, the nature and value of contributions made during the course of a relationship, it is still clear from the available material that the value of the plaintiff’s assets brought to the relationship were greater than those of the defendant.
35 However, there was not a significant disparity between the assets both parties brought into the relationship. At the commencement of the relationship, both parties had been working although, for the first two or three months of the relationship, the defendant was unemployed. The reason for this was because she had moved from Moree to Sydney to enter into the relationship. However, since that time she has by and large been in full time employment. Both parties brought an interest in their former matrimonial homes to the relationship, as well as an interest in a second property. The plaintiff’s second property was at Noraville, and the defendant’s at Port Macquarie. As a result of property settlements with their former spouses, each acquired a complete interest in their respective second property.
36 In the first year of the relationship, the parties income was very similar. The plaintiff’s net weekly income was $519. The defendant’s net weekly income was $504. Both parties obtained rent from their respective properties. The defendant’s evidence was that she received all of the rent from the Moree property, and that was declared in her tax return. Thus the weekly income of $504 reflects the wage that she earned during the tax year 1995, as well as the net rental she received for the Moree property. The plaintiff’s income also appears to have included the rent he received in respect of the Noraville property.
37 There appears to be agreement that the arrangement at the commencement of the relationship that the plaintiff would pay the rental on the Crestwood property and he was also responsible certain of the outgoings. The defendant’s responsibility was to provide food for the family and pay other incidentals from time to time.
38 It was put to the defendant that she did not have the income to meet the expenses that she asserted were met by her. However, her evidence was that the weekly outgoings she was responsible for cost between $240 and $320 per week. It is clear from the schedule of income tendered by both parties that the defendant had sufficient weekly income to cover those overheads. I accept her evidence on that point. Her evidence was that she also, from time to time, paid the rent when requested to by the plaintiff because he had a shortfall for a particular week. The plaintiff’s evidence was that he paid for the rental throughout that period. It seems to me that in all probability the plaintiff did in fact pay the rent throughout that period. The rent was $240 per week.
39 In March 1997 the parties purchased a property at Castle Hill for an amount of $317,000. The evidence given by both parties is the same in respect of this property. It was agreed that the sum of $100,000 was borrowed and that each party contributed the sum of approximately $113,000 towards the balance of the purchase price and they were recorded as tenants in common.
40 Once again the evidence shows that there was a distribution of responsibilities between the parties in respect of the Castle Hill property. The defendant brought into the relationship her two sons, one of whom was a teenager. The plaintiff was responsible for child maintenance for his younger daughter and that continued through until the end of 1995. The arrangement appears to have been that the plaintiff would meet the mortgage repayments and the defendant would be responsible for the ordinary household expenses. There was disagreement concerning the payment of utilities whilst it was conceded that some of the utilities, namely the gas account, was in the name of the defendant and receipts were issued for the defendant, the plaintiff produced evidence (PX3 pp94-202) which shows that by and large he made those payments throughout the course of the relationship.
41 The areas for consideration concerning any adjustment were identified by counsel for both parties as follows:
(a) Financial contributions in accordance with s20(1)(a).
(b) Contributions made in respect of the Noraville property.
(c) Contributions made in respect of the Mustang motor vehicle.
(e) Contributions to the plaintiff’s business.(d) Contributions to superannuation.
42 Upon entering into a property settlement with his former wife, the plaintiff acquired her interest in the Noraville property. To acquire this, he had to service a mortgage of approximately $41,000. Annexure B to his affidavit of 13 June 2003 consists of 14 pages of statements from St George Bank in relation to the monies borrowed for the Noraville property. Throughout the life of that mortgage, all payments were made from Ken Hill Electrical Services. Initially, the payments were $570 per month, later adjusted to $285 per fortnight, and then in 1999 he made two deposits of $10,000 each into the account and subsequently increased the mortgage repayments to $500 per fortnight. It was asserted by the defendant that the increased mortgage repayments and the payment of the two lump sums of $10,000 were funds that should otherwise have been applied to the family relationship.
43 The plaintiff’s evidence was that the monies paid in respect of the mortgage came from rental received on the Noraville property. The plaintiff’s evidence was that the $10,000 payments came from the business. At the time of the loan application in respect of the Castle Hill property, the plaintiff was in receipt of $145 per week on the Noraville property – over a four week period that gave the plaintiff a gross income of $580. This figure covered the mortgage repayment, although it may not have covered agent’s commission and rates. However, the difference would not have been significant. By 2004, the rental received for Noraville had increased to $195 per week. Exhibit PX3, at pp 8-9, shows that for the period July 2002 to July 2003, the weekly rental was $175. For the same period in the following year, the weekly rental was $195. Management fees in the second year were slightly more than $700. Although there is no evidence of the rental income during the last year of the relationship, if one can assume that the weekly rental increased by increments of approximately $20 per year, then during the last year of the relationship, the rental income would have been approximately $155, giving the plaintiff an income of $620 per four week period. It is clear from the evidence therefore that during the last seven months of the relationship, the plaintiff had to make additional payments to the bank in respect of the Noraville property in order to reduce the mortgage by $500 per fortnight. It is clear the plaintiff had the resources to undertake this: the question is whether or not he should have been making additional contributions to the family. The parties’ income during the relationship is set out above paragraphs 12 and 13.
44 It can be seen from those figures that, after the first year, the plaintiff’s income exceeded the defendant’s income on most occasions by at least 50%, and in some years closer to 100%. At the end of the relationship, the plaintiff’s financial position does not seem to have changed in a detrimental way. However, the same cannot be said of the defendant’s position.
45 The plaintiff purchased the Ford Mustang motor vehicle prior to the relationship. It would appear that renovating this motor vehicle was a hobby of the plaintiff’s. The defendant claims an adjustment in her favour for non financial contributions in respect of the motor vehicle. Her evidence was that during the period of the renovation of the vehicle, the plaintiff would spend Saturdays, between 7.00 am and 9.00 pm, at another person’s place assisting with the renovation of the motor vehicle. This continued for a period of about twelve months. Her evidence is that, during this period of time, she was responsible for looking after the boys on the weekends when her former husband didn’t have them, taking them to sporting events, cleaning the house and doing the shopping. This enabled the plaintiff to renovate the Mustang.
46 However, the plaintiff’s evidence is that most Saturday mornings, he would spend time doing quotes for jobs and that he would work on the motor vehicle during the afternoon, usually returning home before 5.00 pm. The defendant conceded that the plaintiff spent most Saturday mornings doing quotes, although according to her, he also did quotes during the week. It seems to me the fact that she concedes that generally on Saturday mornings he would do quotes, establishes that the plaintiff was not spending the amount of time on the vehicle that she alleges. Nevertheless, while she was taking the boys to sporting events, etc, that did enable the plaintiff to undertake a work related activity, namely to prepare quotes for upcoming jobs. It seems to me that to some extent, there was a non financial contribution made by the defendant. However, such contribution was not made in respect of the Mustang, but in respect of the work that the plaintiff generated. On balance in relation to the contribution of the Mustang motor vehicle, it seems to me that any contributions of a non financial nature made by the defendant were not so significant that they would require some adjustment.
Superannuation:
47 The evidence of both parties in respect of superannuation was not satisfactory.
48 The evidence shows that in April 1995, the plaintiff had superannuation units valued at $14,815 – exhibit PX3 pp203.1-204. In the corresponding period in 1996, the figure had grown to $16,345. There is no evidence of the value of the superannuation as at the date of termination of the relationship, however there is evidence which shows the superannuation held by the plaintiff with the Five Dock RSL as at 30 June 2004 totalled $27,006. That statement shows that, as at 30 June 2003, the superannuation was worth $13,787. During the course of the twelve months prior to 30 June 2004, credits of $11,601 were made to the superannuation plan. It is unclear whether those funds came from a termination of the earlier superannuation policies, or whether they came from the plaintiff’s savings. The evidence is not particularly helpful in determining the value of the plaintiff’s superannuation. At page 204.1 of PX3, there is a statement from GIO Australia showing, as at 30 June 1995, the plaintiff’s superannuation entitlements with the GIO were $10,269.
49 Exhibit DX1 is a statement, as at 30 June 2001, showing the defendant’s superannuation entitlements. Her entitlement at that time was $8,424.
50 Although the plaintiff’s superannuation benefits were no doubt greater than the defendant’s at the end of the relationship, the difference during the course of the relationship, if one were to discount the figure of $14,800 from whatever the ultimate figure would have been, would show that there is not a great difference in the superannuation that has accumulated to both parties during the course of the relationship. This has led to a further difficulty in trying to determine the superannuation, in that the defendant does not disclose when she commenced to contribute to superannuation. It would appear, having regard to what she asserts she brought into the relationship, that she began contributing to superannuation at some point during the course of the relationship. If that be the same, then the contributions made by both parties to their superannuation funds does not appear to have any significance which would require an adjustment to be made between the parties.
51 Furniture and other items of personalty have been agreed between the parties that they will retain what they currently have in their possession.
K Hull Electrical Services
52 This was a vehicle used by the plaintiff to earn an income. He worked as an electrical contractor up until approximately the last year of the relationship when he closed down the business and commenced employment as a maintenance officer with the Five Dock RSL.
53 The defendant’s evidence was that she assisted the plaintiff with his electrical business. Her evidence was that she answered the telephone, prepared quotes, invoices and correspondence, designed layouts for business cards, invoices and job books, and spent many hours during the week and on weekends preparing documentation for the plaintiff’s accountant in respect of BAS statements. She also installed MYOB software on his computer. Her evidence was that generally she would spend about 10 hours per week assisting the plaintiff in his business.
54 The plaintiff’s evidence was that most business contact was through his mobile telephone. This seems to be borne out by the business card that appears as an exhibit in PX3. However, the defendant’s evidence was that, from time to time, people for whom the plaintiff had done work or who knew him often rang home rather than the mobile to get in contact him. I accept her evidence to that extent, but it would seem to me that on balance I prefer the plaintiff’s evidence on this point, and that the vast majority of initial contact with the plaintiff was via his mobile telephone. Evidence was given by the plaintiff of the business card design and the remittance advice. The plaintiff’s evidence was that both documents were similar in design to Kelvin Dale Products Pty Ltd. Those documents form part of PX3 at p3. It appears that the two business cards are very similar and it is difficult to see that the defendant would have spent a great deal of time designing it, however I accept that she spent some time on that project.
55 The defendant was shown a number of books, being ledgers, cash books and invoice books. She admitted that she had not made any entries in any of those books. The plaintiff gave evidence that he did not know how to use the computer and had never used the MYOB software. The handwriting in each of the books was identified as that of the plaintiff. It would appear that, in respect of maintaining business records, the defendant played very little or no role in that function.
56 The defendant could not point to any evidence which would show that her contribution was of such a nature that it increased the productivity or profitability of the plaintiff’s business. It would seem to me that the work she did in relation to the business was probably spasmodic and of a minor nature. Therefore, in my view, justice and equity does not require that there be adjustment made in favour of the defendant in respect of work that she did in the business.
Financial and non financial contributions
57 Throughout the course of the relationship, both parties worked other than the first couple of months at the commencement of the relationship when the defendant was unemployed. A schedule of income for both parties was agreed and reflected accurately the income each party derived during the relationship. The schedules are based on annexures to the defendant’s affidavit and documents contained at pp77-86 of PX3. Those documents are notices of assessment issued by the Australian Taxation Office.
58 In addition to each party making an equal contribution to the initial purchase price of the Castle Hill property, it was agreed between the parties that the plaintiff would be responsible for the mortgage repayments and the defendant would be responsible for all other matters. No doubt the plaintiff thought that was fair on the basis that the defendant was bringing her two children into the relationship, and she and her ex husband were the primary carers for those children. However, it does not necessarily follow from s20(1)(b)(ii) that that is the case. The plaintiff accepted those children into the relationship and together they formed the family. However, it could be said that by providing a roof over their heads, the plaintiff had made a non financial contribution towards the defendant in respect of her children. Both parties made contributions towards payment of the mortgage. The plaintiff’s evidence is that he made contributions towards the reduction of the mortgage in the sum of $73,607. The defendant’s evidence is that she made contributions for the reduction of the mortgage in the sum of $62,117. Approximately half of that sum came from her wages, the other half from proceeds she received in respect of the sale of the Moree property. Therefore, both parties have made similar contributions in respect of repayment of the mortgage.
59 Of the total amount repaid by the parties, the plaintiff’s contributions totals approximately 55%.
60 The defendant’s evidence is that she, on average, spent approximately $275 per week on the family in respect of food, groceries, and the like. Her evidence is that, during the relationship, she spent approximately $86,000 on household items. Further, her evidence was that she made payments in respect of the household insurance policy, and made payments in respect of other matters such as gas, electricity, water and council rates. However, the evidence shows that with the exception of the household contents policy, the plaintiff paid the majority of all other expenses of the kind referred to above. The plaintiff’s evidence was that with his credit card, he paid water and council rates, electricity and telephone accounts, home building insurance and gas accounts. The defendant was examined about these payments and she conceded that they were made from the plaintiff’s credit card. There was no suggestion in the evidence that she made any contributions to his account which was used to pay these bills and I therefore accept the plaintiff’s evidence in relation to these matters that he provided the funds for those accounts.
61 The payments made by the plaintiff in respect of those matters over the period that the parties occupied the Castle Hill property amount to approximately $14,000.
62 The relationship lasted approximately six years, with both parties working during the course of that relationship, and with the defendant’s two children residing with the parties for slightly more than half of the relationship.
63 The evidence seems to suggest that the plaintiff performed most of the tasks associated with the house, its cleaning, the preparation of food, washing and ironing, although there was some dispute in relation to the washing and ironing. The plaintiff’s evidence was that he did his own ironing and, once the children had left, he also did his own washing. The defendant’s evidence was that the only time the plaintiff did any ironing was if he needed a shirt and there was nothing ironed, he would then do it. I accept the defendant’s evidence that by and large she performed most of those functions.
64 In respect of maintenance of the property, in terms of lawns and gardens, the evidence seems to be consistent from the parties that most of this work was performed by the plaintiff.
65 Towards the end of the relationship, there is evidence that the defendant withdrew the sum of $46,000 from the joint account: $6,000 having been applied towards the purchase of a new motor vehicle, and the remaining $40,000 was money that she kept. When the property was sold, there was an amount of $45,000 owed to the mortgagee. Without the withdrawal by the defendant, there may not have been any money repayable to the mortgagee at the date of sale of the property.
66 The non financial contributions made by each party do not weigh heavily in favour of one party or the other. However, when one looks at the financial contributions, although there was a division of payment, and in theory equal contributions by both parties, when one accepts the evidence by both parties, it is clear that the defendant made a more significant financial contribution than the plaintiff did, notwithstanding that part of that financial contribution went towards maintenance of her two sons for at least half the relationship. The plaintiff’s contribution in relation to mortgage repayments were approximately $11,000 greater than the defendant’s. However, the plaintiff’s contributions in respect of other matters are far out weighed by the defendant’s contributions. The defendant’s unchallenged evidence was that she spent approximately $86,000 on household expenses. There is no evidence to suggest that the plaintiff spent any money on household expenses, in fact part of the evidence was that if they went out for dinner on Friday night, the plaintiff’s view was that the defendant must pay for the meal as he regarded that as a part of the household expenses. His contribution however was payment of the utilities. That amounts to some $14,000. At the end of the relationship, the plaintiff significant assets. He had approximately $120,000 in savings, superannuation funds, and he was in employment. The defendant had $70,000, superannuation funds, and of course they both had an interest in the Castle Hill property. During the course of the relationship, the plaintiff was able to use some funds generated by his employment to supplement mortgage repayments made in respect of the Noraville property, and he was able from some source to pay $20,000 by two lump sums, in reduction of that mortgage. The defendant was not placed in the same position. In fact money she received from the sale of the Moree property went towards reduction of the mortgage, and the money she received from the sale of Port Macquarie went towards her initial contribution to the acquisition of the Castle Hill property.
67 The plaintiff asserts that there needs to be an adjustment of the $46,000 that the defendant had taken from the joint account. It seems to me that that is a benefit that the defendant has enjoyed out of the relationship, and an accounting needs to be taken in respect of that.
Conclusion
68 In my view, an adjustment should be made in favour of the defendant. Having regard to the financial contributions she made to the family, it is just and equitable that there be an adjustment made in her favour. In my view, the proper adjustment to be made in her favour, taking into account the $46,000 she received as a benefit, should be an entitlement to an additional 7% of the net proceeds of sale from the Castle Hill property, which are currently held by a solicitor.
69 The order I make therefore is as follows:
(a) the summons be dismissed.
(b) on the cross claim, the defendant to receive 57% of the net proceeds held in the St George portfolio cash management account # 065208558 held by Ian Bullock Partners.
(d) the plaintiff pay the defendant’s costs of the proceedings.(c) Order that the parties each retain possession and ownership of items of personalty currently in their possession.
0
4
1