Jennifer Penn Symons v Ricky Tan
[2009] ACTSC 86
•23 July 2009
JENNIFER PENN SYMONS v RICKY TAN
[2009] ACTSC 86 (23 July 2009)
Domestic Relationships Act 1994 (ACT)
No. SC 191 of 2005
Judge: Buchanan J
Supreme Court of the ACT
Date: 23 July 2009
IN THE SUPREME COURT OF THE )
) No. SC 191 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JENNIFER PENN SYMONS
Appellant
AND:RICKY TAN
Respondent
ORDER
Judge: Buchanan J
Date: 23 July 2009
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff is to bring in formal orders to give effect to this judgment within 14 days.
The statutory context
These are proceedings under the Domestic Relationships Act 1994 (ACT) (“the Act”). The parties in this case were in a “domestic relationship” (as defined by s 3 of the Act). I shall deal shortly with when it commenced. It lasted for about four years.
The Court has power, provided an application is made within two years after a domestic relationship has ended, to make an order adjusting the property interests of the parties (s 15). Amongst other things the Court is directed to have regard to matters identified in s 15(1) including (so far as relevant) s 19(2) of the Act. For present purposes, the provisions which seem relevant concern the contribution, financial and non-financial, which each party made to the property or resources of either or both of them and to the welfare of the other (s 15(1)(b) and (c)). The Court must make an order that “seems just and equitable to it”.
The statutory conditions for an order are met in this case. Ms Symons made her application shortly before two years had expired from the time the relationship ceased. The parties were in a domestic relationship. They each made relevant contributions. There remains some property. That property is largely in Mr Tan’s hands. The bulk of it, in financial terms, is represented by a residential property previously owned by Ms Symons in which the parties lived at the commencement of their relationship and, after a period living elsewhere, were living when they separated.
The principles to be applied
There is no dispute about the principles to be applied. This Court has accepted the approach developed by the Family Court of Australia to the assessment of value of property and the evaluation of the significance of contributions made by parties to a relationship during the period of the relationship.
First, the property, liabilities and financial resources of the parties must be identified and valued. The identification and valuation is made as at the date of hearing. Next, an assessment is required of the “contribution” made by the parties to the relevant resources. The contribution might be financial or non-financial. It might, if financial, be represented by capital or income put at the disposal of the parties.
Finally, an evaluation is required, by reference to the contributions made by the parties, of a just and equitable distribution between them of the value of the current pool of assets.
I take the effect of the authorities to which I was referred, and about which the parties were not disagreed, to be that voluntary acceptance during the relationship, by one party or another, of any disproportionate financial or non-financial burden should not be used to diminish an objective evaluation of the substance of the respective contributions.
In the present case the parties each took a stand initially on a number of alleged non-financial contributions to their joint welfare or the welfare of the other. The evidence which was exchanged descended into the minutiae of their domestic arrangements. At the hearing, however, it was accepted by counsel for both parties that it was not possible to argue for a sensible or relevant assessment of non-financial contributions which would significantly favour one party over the other. One important factor, in that respect, is that the relationship was relatively short-lived. In the circumstances, the principles I have identified need application to a fairly narrow range of matters.
The “pool” of assets
The current financial details of the parties were disclosed by financial statements verified respectively by Ms Symons on 16 June 2009 and Mr Tan on 1 May 2009. The single largest asset in contest was a property at 4 Reader Court, Banks in the ACT (“the Banks property”).
Valuers engaged separately by the parties met in conference a week before the hearing. They were agreed that the current value of the Banks property is $345,000. It is unencumbered. Otherwise Mr Tan disclosed assets of $4,000 (car), $1,500 (house contents), $800 (savings) and $5,851 (superannuation). He identified a debt of $29,153 (money borrowed for legal expenses). His total disclosed net assets are, therefore, $327,998.
Ms Symons disclosed assets of $3,000 (savings), $2,000 (household contents), $3,000 (personal jewellery) and $35,871 (superannuation). Her total disclosed assets are, therefore, $43,871.
There was no relevant challenge to the identification or valuation of the assets disclosed. There was no claim that the parties’ position should be assessed or modified by reference to their current needs, income or financial resources or that either should make any ongoing provision for the support of the other. All that was sought by Ms Symons, and resisted by Mr Tan so far as he was able, was a redistribution of the value of the pool of assets as I have identified it.
That pool has a total value of $371,869.
Credibility
Before I commence to deal with the matters where some relevant factual contest between the parties requires examination I need to explain the way in which it has been necessary to approach the assessment of the parties’ evidence. It is regrettable when it is necessary, in order to evaluate evidence, to be critical of witnesses or even, in the less usual case, to conclude that a witness, or witnesses, has not been truthful. However, the present is such a case and it is not possible to evaluate some of the evidence without taking that into account.
I did not find either Ms Symons or Mr Tan to be entirely truthful in their evidence. To the contrary, I am satisfied that each of them was untruthful about some matters. Of course, even an untruthful witness tells the truth about some things. The difficulty lies in evaluating evidence which is neither clearly untruthful nor clearly reliable.
I am not prepared to accept disputed evidence from either of them about their interactions in their relationship unless it is corroborated in some other way. That circumstance, in the end, probably does not have a great deal of significance for the final result, although it has certainly contributed to the overall length and cost of the proceedings which, as the relevant principles are fairly clear and the financial issues limited, should not have been necessary at all.
Commencement of cohabitation
Ms Symons’ evidence, which was supported by entries in her diary, was that she and Mr Tan were introduced in February 1999 and met again in April 1999. In May 1999 they started going out together. According to Ms Symons, by mid May 1999 she and Mr Tan “were spending every night together and were, for all intents and purposes, living together at [her] home”. Mr Tan, on the other hand, insisted that he did not stay overnight in Ms Symons’ home until he commenced living with her, which he said occurred on 1 July 1999. Ms Symons’ evidence is supported by contemporaneous diary notes in which she recorded:
“May 1 - Rick came back from Melbourne. Dinner at my place.
2 - Ricky still here…
8 Ricky virtually moved in…”
In this, as in many things, I do not accept Mr Tan’s evidence. Ms Symons’ evidence is to be preferred as it is corroborated by contemporaneous records. I accept that the parties were in a domestic relationship, for the purposes of the Act, from mid-May 1999. They were agreed that Ms Symons left the relationship on 12 April 2003.
The Weston property
When Ms Symons and Mr Tan commenced their relationship, Mr Tan was the owner of a property at 12 Fowles Street, Weston in the ACT (“the Weston property”) which he claimed to have purchased in September 1998. The Weston property was unencumbered. At the time the parties commenced their relationship it was apparently rented out.
The Weston property was sold on 4 June 2001 for $220,000. Apart from a number of specific disbursements, including a payment to Mr Tan’s ex-wife, and payment of the balance of $133,950.97 to Mr Tan, there was a payment of $25,000 to Ms Symons. The explanation for this payment was contested, but the payment itself could not be. The sale of the Weston property therefore contributed $158,950.97 to a “pool” of “joint” resources at that time.
Ms Symons’ evidence was she and Mr Tan were contemplating marriage at the time the sale of the Weston property occurred. Although Mr Tan did not accept that was so he did accept that they became engaged to be married a short time later (in August 2001) and, at about this time, they were actively contemplating relocation together to Queensland.
In the present proceedings Ms Symons claimed that the $25,000 payment should be seen to reflect a contribution made by her, rather than by Mr Tan, because of preceding events. As will be seen, Mr Tan had various explanations for it which changed with time and, apparently, as it suited him.
The $25,000 payment on 4 June 2001
Mr Tan said, in his pleadings and initial affidavit, that this payment was a loan to Ms Symons made at her request to allow her to discharge personal debts, including a car loan. Ms Symons agreed that the money was used for that purpose but in her affidavit and oral evidence in response to this allegation said that the payment of $25,000 represented repayment of $20,000 advanced to Mr Tan during the previous two years to assist with the renovation of the Weston property, and agreed “interest” on that sum.
In proceedings before the Federal Magistrates Court of Australia (“the FMCA”) in 2000, in which Mr Tan and his ex-wife were in dispute about a division of property arising from the failure of their marriage, Mr Tan provided a financial statement, verified by affidavit, which stated that he was indebted to “Singapore and Australian friends” in an amount of $30,000. A chronology provided to the FMCA in support of his position, signed by Mr Tan’s solicitor, asserted that from July 1999 to January 2000 Mr Tan had renovated the Weston property and borrowed $20,000 from Ms Symons (presumably for that purpose). Ms Symons provided a signed statement for use in those proceedings corroborating Mr Tan’s claim that she had loaned him that sum “in several different amounts” over that six month period.
In the proceedings before me, both by affidavit and in her oral evidence, Ms Symons maintained that she had provided $20,000 to Mr Tan for renovations of the Weston property. I am satisfied that this evidence was untruthful, as were the statements made by each of them to the FMCA. I will deal in due course with the extent of Ms Symons’ disposable income before mid-2001. It was very modest and very significant amounts of what was available were spent on gambling in poker machines at a variety of clubs around Canberra. For the moment it is sufficient to say that I am satisfied that she could not have advanced Mr Tan $20,000 in the period in question and did not do so.
It follows that no adjustment should be made in Ms Symons’ favour for the sum of $25,000 paid to her on 4 June 2001. I shall deal in due course with other explanations given by Mr Tan which departed from his initial evidence that the money was advanced to Ms Symons principally to pay personal debts. As I have rejected her explanation, and will later reject his alternative explanations, his initial explanation is the version which will remain standing. The result is that the whole of the net proceeds of $158,950.97 from the sale of the Weston property will be regarded as a contribution by Mr Tan.
The Banks property
When Ms Symons and Mr Tan commenced their relationship she was the sole proprietor of the Banks property. They commenced their cohabitation in that property. At the time they met the property was subject to a mortgage of $99,000. In September 1999 Ms Symons increased it to $104,000. I am satisfied that the refinance was part of the overall arrangements she made during this period which were largely directed to sustaining her gambling.
In October 1999 the couple moved to the Weston property and the Banks property was let. Nevertheless, on her evidence, Ms Symons was struggling financially. Part of the reason appears to have been due to the burden of servicing the various debts she had assumed in various ways, including on credit cards. Another reason was her expenditure of money on gambling.
In January 2001 the Banks property was vacated by its tenants and an increased burden fell upon Ms Symons who was required to meet mortgage (and other) repayments without the benefit of any rental income. When Mr Tan arranged to sell the Weston property he and Ms Symons moved back to the Banks property. They reached an agreement that he would purchase the Banks property from her. The explanations for this agreement are contentious. Ms Symons asserted that she was misled and, in effect, defrauded. Mr Tan said it was all very straightforward and done to help her.
The nominal purchase price was $130,000. The parties’ valuers were agreed that, at that time, the property had a value of $140,000 and not, as Ms Symons initially claimed, $180,000. Contracts were exchanged on 19 June 2001 and settlement took place on 2 July 2001. Mr Tan had available to him the proceeds of sale of the Weston property.
It was not only the nominal sale price which was contentious in the proceedings. The contract provided for a deposit of $13,000. The settlement sheet made allowance for it and showed, therefore, an amount payable on settlement of $117,000. After discharge of the mortgage and other disbursements Ms Symons received $19,547.58. Mr Tan received unencumbered title to the Banks property.
However, Ms Symons alleged during the proceedings that she had never received the deposit and that Mr Tan had only paid $117,000. There is no evidence that any payment of the deposit was actually made on 19 June 2001 or at any other time before settlement on 2 July 2001. Ms Symons also gave evidence that she paid stamp duty on the transfer to Mr Tan of the Banks property (about $2,000).
In an affidavit filed well into the exchange of evidence Mr Tan resiled from his earlier explanation of the purpose of the $25,000 payment made to Ms Symons on 4 June 2001 and asserted for the first time (and contrary to his pleadings and earlier evidence) that Ms Symons had agreed (in advance) that the $25,000 could be offset against the deposit and stamp duty ($13,000 and $2,000) on the Banks property, with the remaining $10,000 constituting a debt to be repaid later in the year.
That, however, was not to be Mr Tan’s last word on the subject. During his oral evidence, when challenged that his statement before the FMCA (that Ms Symons had lent him $20,000 for renovations to the Weston property) was false, Mr Tan sought temporary refuge in the $25,000 payment made on 4 June 2001, suggesting it took into account the claimed $20,000 debt. That was destructive of his story about the deposit and a short while later he said the version of events given to the FMCA was “a lie” and reverted to his story about the deposit.
I have already said that I am satisfied that Mr Tan made untruthful statements to the FMCA. I am also satisfied that his story about the deposit was a fabrication and that not only did Ms Symons pay the stamp duty on the transfer of the Banks property but she did not ever receive $13,000 deposit on that sale in any form. That leaves Mr Tan’s initial version of the reason for the $25,000 payment on 4 June 2001. It survives only because there is no other version of events available.
So far as the sale of the Banks property is concerned, the $117,000 paid by Mr Tan came from the proceeds of the sale of the Weston property. Mr Tan did not, therefore, make any additional contribution arising from this sale. Ms Symons’ interest in the property, which she therefore contributed, should be regarded as being the sum of the unpaid deposit, the net payment to her and the difference between the nominal purchase price and the value of the property at the time of sale ($13,000, $19,547.58 and $10,000), namely $42,547.58.
Contributions through income
Throughout their relationship Ms Symons worked. Mr Tan did not. Instead he applied to Centrelink for a “Newstart allowance” which was duly paid to him. It appears that he falsely claimed to be self-supporting and living alone. According to calculations provided by her counsel, which were not relevantly disputed or challenged, Ms Symons during the period of their relationship received net income of $125,875.74 and tax refunds of $15,166.39 (received during their relationship) totalling $141,042.13. During the same period Mr Tan received Centrelink payments of $32,407.32.
I am satisfied that all these amounts were applied, in one way or another, to one or other or both parties. To the extent they serviced debt they maintained the amenity the debt provided. The parties’ income also sustained them physically. It also went to feed their gambling habit, joint and several.
Ms Symons admitted that she was a regular gambler. After the payments to her on the sale of the Weston property on 4 June 2001 ($25,000) and the Banks property on 2 July 2001 ($19,547.58) she was able to discharge all her outstanding debt. Her disposable income per fortnight increased from about $360 to about $1,200. Her gambling increased to consume it.
Mr Tan accepted that he, too, gambled regularly in substantial amounts before the relationship commenced. During the relationship there is relatively little evidence of Mr Tan drawing money from his own accounts for the apparent purpose of gambling before about 9 October 2001 (when he deposited a cheque for gambling winnings of $25,000) although after that time he appeared to resume his former practices.
Ms Symons swore that she supported Mr Tan’s gambling habits by paying his personal expenses throughout their relationship. She said she also paid for his gambling. Although it is clear that, at times, Mr Tan drew money from his own accounts for gambling (chiefly in the later stages of their relationship), I see no reason to doubt that Mr Tan was, to a very substantial extent, in this and other ways, living off Ms Symons’ financial contributions.
Mr Tan accepted in his evidence that his ex-wife used to provide him with an “allowance” of $500 per week. Ms Symons said she provided him generally with $300 per fortnight from her net pay. A witness called in Ms Symons’ case testified to seeing Ms Symons provide a bundle of $50 notes to Mr Tan in response to his request of “can I get my money” and to Ms Symons telling her she provided him with $300 per fortnight. This exchange occurred, it was said, after relocation to the Banks property and so, if true, it occurred when Ms Symons had substantially more disposable income available to her.
I do not need to make detailed findings about these matters, which are difficult to assess in the light of my view that neither Ms Symons nor Mr Tan was a reliable witness. However, I am satisfied that there was no money left over at any relevant time and that they both took advantage of everything which Ms Symons, at least, provided.
There was some evidence that Ms Symons sent some money to her son, although it was not quantified and was probably not a great deal. On the other hand she gave evidence that she paid for members of Mr Tan’s family to visit from Singapore. To an extent, Mr Tan confirmed these arrangements saying they were agreed. In the circumstances no discount to reflect any payment of money to Ms Symons’ son is necessary.
Some evidence was also given about who paid for overseas holidays. It is not necessary to resolve matters at this level of detail. All the expenditure should be treated as made from the financial pool represented by their several contributions.
For the purpose of assessing Ms Symons’ financial contribution, therefore, the money she received by way of income should all be counted as going towards the relationship in one way or another. Mr Tan did not claim to make any further financial contribution apart from the amounts provided by Centrelink. If he had done so I would not have accepted it without corroboration.
During the period of their relationship each of the parties had occasional gambling wins which were paid by cheque. The largest was Mr Tan’s win, which was paid to him by cheque and deposited by him on 9 October 2001. It was a prize which resulted from an automatic entry in a promotion. Entry was automatic if a membership card was used playing poker machines. The likelihood is that Mr Tan was playing with money supplied by Ms Symons. Even if he was not he was probably involved with her in the pursuit of their mutual recreation. Ms Symons also disclosed various winnings that had been paid to her by cheque. She said that they amounted to $9,985.60. I think the best way to treat all the gambling winnings is as the fruit of the overall financial contributions which were made, and not as separate items to be credited to one party or the other. Accordingly, they require no further independent attention.
In the earlier part of their relationship, before the property sales in June and July 2001 and while Ms Symons was struggling most financially, she sold NRMA shares to the value of $2,796.81 on 30 March 2001 to obtain further funds. That should also be taken into account.
The chosen lifestyle
Ms Symons and Mr Tan chose how they wished to conduct their relationship or, at the least, accommodated themselves to each other while it lasted. They had no shared bank accounts or credit cards. They had no shared debts or borrowings. They had no shared property. Formally, at least, they kept their financial affairs separated.
During the relationship, it is clear, Ms Symons provided the great bulk of the money available for disposition. On the other hand that was her choice. Mr Tan was not working when she met him and did not work throughout the whole of their relationship. She obviously chose to support him. There was no credible evidence that either was suffering under any relevant disability. Were it a matter for me I would not rewrite their financial relations or modify their bargains.
Nor is this a case where non-financial contributions to a shared life over a substantial period of time require recognition. The relationship was short-lived. Choices were made, not imposed. I would leave the parties with the fruits of those choices if the result turned entirely on the exercise of an unfettered discretion.
However, my duty is to apply the statutory provisions under which Ms Symons’ application was made in the light of the principles and factual matters I have discussed.
The overall financial contributions
According to the findings earlier made, Ms Symons’ financial contributions over the period of the relationship, to the resources which are now available and to their joint and several welfare in the relationship, should be assessed as $186,386.52. Mr Tan’s should be assessed as $191,358.29. Their relative contribution to the total of $377,744.81 is 49.34% and 50.66% respectively.
Outcome
In the present case the percentage contributions I have found were made might as well be applied strictly to produce a final outcome. I see no basis on which an adjustment should be made in favour of one party over the other, however slight.
The total available pool of current resources ($371,869) should therefore be allocated to Ms Symons as to $183,487 and to Mr Tan as to $188,382.
When the assets currently held by them are taken into account Mr Tan should pay to Ms Symons $139,616.
How Mr Tan arranges to pay this sum to Ms Symons will, in the first instance, be a matter for him to determine. However, I note that the Banks property is unencumbered and the amount to be paid is significantly less than 50% of its current value. If Mr Tan does not pay the sum ordered, in accordance with the orders I shall make, then the Banks property will be sold to provide a fund from which the payment will be made. In that event, the fortunes of sale, and any necessary expenses will rest with Mr Tan. In accordance with the orders to be made there will be a timetable to be met and provisions for resolving any deadlock.
Ancillary orders to give effect to my findings and conclusions will be made in accordance with orders 1 to 4 sought by the statement of claim filed on 5 April 2005, adjusted as follows:
Order 1 – specify $139,616;
Order 2(a) – replace with “The listing price for the property shall be as
determined by the Defendant”;
Order 2(d)((iv) – specify $139,616.
Interest
Interest will be paid by Mr Tan on any sum outstanding from a date 30 days after orders are formally made until payment is made by him. Interest will be calculated in accordance with the relevant rule.
Costs
There is no reason why Mr Tan should not pay the costs of the application. He will pay Ms Symons’ costs as taxed if not agreed.
Orders
The plaintiff is to bring in orders to give effect to this judgment within 14 days.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Buchanan.
Associate:
Date: 23 July 2009
Counsel for the plaintiff: Mr G Brzostowski SC
Solicitor for the plaintiff: Colquhoun Murphy
Counsel for the defendant: Ms A Tonkin
Solicitor for the defendant: Pappas, J.
Date of hearing: 6, 7, 10 July 2009
Date of judgment: 23 July 2009
0
0
1