Kimpton and Kimpton and Anor
[2014] FCCA 200
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIMPTON & KIMPTON & ANOR | [2014] FCCA 200 |
| Catchwords: FAMILY LAW – Application for alteration of property interests as between husband and wife – application by wife against husband and his mother for declaration as to equitable interests in jointly owned property – whether equitable estoppel established on the evidence – application under s.118 Child Support Assessment Act 1989 in relation to education expenses. |
| Legislation: Child Support Assessment Act 1989 (Cth), ss.117, 118(1)(a), 123(1)(a) |
| Bevan & Bevan [2013] FamCAFC Stanford & Stanford [2012] HCA 52 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 Vukic v Luca Grbin & Ors (2006) NSWSC 41 |
| Applicant: | MS KIMPTON |
| First Respondent: | MR KIMPTON |
| Second Respondent: | MS DENEHEY |
| File Number: | WOC 960 of 2010 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 26 & 27 November 2013 |
| Date of Last Submission: | 23 December 2013 |
| Delivered at: | Wollongong |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Miller |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the First Respondent: | Mr Timmins |
| Solicitors for the First Respondent: | Yates Beaggi Lawyers |
| Counsel for the Second Respondent: | Mr Timmins |
| Solicitors for the Second Respondent: | Yates Beaggi Lawyers |
ORDERS
That the monies held in the trust account of Rita Thakur & Associates Pty Limited being the sale proceeds of the parties’ property at Property C, be paid to the wife in total.
That the monies held in the trust account of Rita Thakur & Associates Pty Limited being the sale proceeds of the parties property at Property L, be paid to the wife in full.
A declaration that the husband, the wife and the second respondent hold the property known as Property M, being the whole of the land contained in certificate of title folio identifier (omitted) "the Property M property" upon trust as to 50% jointly to the husband and the wife and as to 50% to the second respondent.
Within 60 days the husband pay to the wife the sum of $423,340 and discharge the mortgage secured over the property at Property M, in consideration of which the wife do all things necessary to transfer to the husband all of her right title and interest in the said property.
In default of payment to the wife in accordance with these orders interest accrue as calculated pursuant to the Family Law Act 1975, its Rules and Regulations.
If payment pursuant to the Orders has not been effected within 60 days, that each party take all necessary steps and execute all necessary documents to cause the property situated at and known as Property M, to be sold by auction at the earliest possible date at a reserve price to be agreed on between the parties and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee or his nominee and that the proceeds of the said sale be disbursed as follows:
(a)Payment of agent's commission and advertising expenses and legal expenses of the sale.
(b)Payment of one-half of net sale proceeds to the Second Respondent.
(c)Pay all monies to pay out all liabilities secured by Mortgages to (business omitted).
(d)Payment to the wife of all monies to which she is entitled to pursuant to these Orders including interest.
(e)Payment to the husband of the balance then remaining.
That both parties do all acts and sign all documents with a view to winding up the company (business omitted) and the company (business omitted).
That the Applicant be granted leave to make an application pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989, Regulation, Regulation 4.17 of the Family Law Rules 2004 and Regulation 25A.02 of the Federal Circuit Court Rules 2001.
That pursuant to s.118(1)(a) of the Child Support (Assessment) Act 1989, the husband’s annual rate of child support payable to the wife as assessed from time to time by the Child Support Registrar be increased from whatever the husband’s annual rate of child support payable to the wife would be assessed from time to time by the Child Support Registrar AND a further:
(a)$7,106.50 in 2014
(b)$7,971 in 2015
(c)$8,401.50 in 2016
That the husband and wife have the sole right title and interest in:
(a)Any chattels, goods, furnishings and other property including superannuation which are, at the date hereof, in their possession respectively.
(b)Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Kimpton & Kimpton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
WOC 960 of 2010
| MS KIMPTON |
Applicant
And
| MR KIMPTON |
First Respondent
MS DENEHEY
Second respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the orders that the Court has made in a dispute between the applicant wife, the first respondent husband and the second respondent who is the husband’s mother. The dispute between the husband and the wife is about their property settlement. The dispute between the wife and the husband’s mother relates to the identification of the husband and wife’s interest in a property that they jointly owned with the second respondent at Property M, a Sydney (omitted) suburb. In order to identify the pool of assets for division between the husband and the wife, it will be necessary to first determine the dispute involving the second respondent as the wife and husband’s interest in the Property M property will be one of the biggest assets for division between them.
Background
The wife is 44 years old and describes herself as a (occupation omitted). The husband is 46 years old and describes himself as a (occupation omitted). The second respondent is retired and is 65 years old. The husband and wife married in (omitted) 1987 and separated in July 2010 after a marriage of about 23 years. They have four children ranging in age from 23 to 10. The two youngest children, X, 15, and Y, 10, live with their mother. Currently, the husband has minimal contact and communication with the children. There was no issue relating to the children before the Court.
At the time of separation, the husband and wife had been living in the family home at Property C. On separation, the husband moved out to a property the parties owned at Property L. In the fullness of time, both properties were sold and the net sale proceeds are held in trust for the parties and represent assets for distribution between them.
One of the main issues in this case, if not indeed the main issue, is ascertaining precisely what is the interest of each of the parties in the property known as Property M. This property was purchased by the husband and wife and by the second respondent and her husband at the time, who is now deceased. There is no issue between the parties that the legal ownership of the property is three sevenths as between the husband and the wife and four sevenths to the second respondent, the husband’s mother. The issue to be determined is whether, as a result of the agreement between the parties and their subsequent actions and representations to each other, the equitable interest held in the property diverged from the legal interest.
In short, the husband and his mother contend that the legal and equitable interests coincide so that the husband and the wife own a three sevenths share subject to the mortgage on the property (which the husband and the wife agree is their liability only) and the second respondent has a four sevenths share. The wife’s primary contention, however, is that the husband and herself have a half share in the property in equity. The arguments advanced by the parties in this regard, as well as the evidence on which these arguments are based, will be discussed in the reasons below.
Another matter not in contention, however, is that if the wife is able to be paid her entitlement pursuant to these orders, the second respondent ought to be given the opportunity to remain in the Property M property.
Credit issues permeate this entire case. The wife, husband and second respondent have significantly different recollections about what they did and said after the property was purchased. It is not possible to reconcile the competing versions about this issue presented to the Court. The Court will need to decide, based on all the evidence, whose recollection of events is the more accurate one.
As between the husband and the wife, credit issues also apply with the wife contending that the husband has not made full and proper disclosure, amongst other things. There is an issue about assessing contribution between them, assessing whether there are section 75(2) considerations calling for a further adjustment and further, the wife seeks orders in relation to child support. All of these matters will be discussed in the reasons below.
Orders Sought
The orders sought by the wife are set out in her further amended application filed 29 October 2013. For ease of reference, these orders are reproduced in the first schedule to these reasons.
Doing the best the court can, the orders sought by the respondent husband are contained or described in his case outline document filed 23 August 2013. The substance of this document will be reproduced in the second schedule to these reasons.
The orders sought by the second respondent are contained in her response to amended application filed 28 June 2012. In short, the second respondent seeks a declaration that she have the sole right title and interest at law and in equity of her four sevenths share in the Property M property, that the husband and the wife reimburse her for outgoings paid by her in respect of the property and that the husband and wife otherwise discharge the mortgage over the property and indemnify her in relation to such liability.
It is important to also record the points of claim setting out the basis of the equitable relief sought by the applicant wife. This document is reproduced in its entirety in the third schedule to these reasons. In order to better understand these reasons, it is helpful to outline the basis of the applicant wife’s equitable claim. She contends that in about 1988 when the Property M property was purchased by the applicant, the respondent and the second respondent (together with her husband at the time now deceased), they contributed to the purchase price as to three sevenths: four sevenths and the property was purchased as tenants in common to reflect this.
Subsequently the wife contends the parties agreed that if the wife and the husband performed certain improvements to the property it would, in due course, be subdivided into strata title with the husband and the wife owning the top floor unit and the second respondent the ground floor unit and on the basis that they would have a 50 per cent entitlement to ownership. It was also agreed that the equal ownership would arise on completion of work which would enable the second respondent and her husband to take possession of a certain area of the property.
The wife contends that in reliance on this agreement, she and the husband undertook and funded substantial renovation and improvement works to the Property M property between 1988 and 2007 which resulted in a four bedroom, two bathroom unit being built upstairs separate to the downstairs unit. The husband and the wife contend and this does not seem to be disputed by the second respondent, that on completion of the works the husband and the wife would be entitled to occupy the top floor unit and the second respondent and her husband the ground floor unit.
The points of claim then set out the applicant’s prayer for relief based on certain declarations, the imposition of a charge, equitable accounting and if necessary, a sale of the property. It should be noted that initially, the wife’s claim was that she and her husband were entitled to a 67 per cent interest in the Property M property and the second respondent 33 per cent.
By the time of written submissions, however, her primary position was that between her husband and herself they have a half share of the property.
Representation
It is important to say something about representation in this case. The first and second respondents in particular must recognise that this Court will make its decision based on the evidence before it and not the evidence that might have been had the first and second respondent chosen to have been more consistently represented.
The applicant wife was at all times represented by her solicitor and Mr Miller of counsel appeared on her behalf at the hearing. At the final hearing, the husband and the second respondent were represented by solicitors who briefed Mr Timmins to appear for them. The history of their representation however is fragmented. He was represented by solicitors early in the proceedings. Then he was unrepresented for a considerable period.
By August 2013, both the husband and the second respondent were represented by the solicitors who appeared for them at the final hearing. The written submissions filed on behalf of the respondents relied at least in part, on absence of legal representation for some part of the proceedings to explain the deficiencies in their case which will become obvious from the reasons below. Apart from merely repeating that this Court makes its decision based on the evidence of the hearing and not what might have been in other circumstances, the strong impression is formed that the period of months immediately before the hearing during which the husband and the second respondent were represented would have been ample time to prepare this case from their perspective if instructions had been given in a diligent manner. Moreover, the Court formed the impression that Mr Timmins had been briefed very late in the proceedings.
Insofar as this matter involved the second respondent as a third party to the marriage, there was clearly an element of complexity to it that necessitated detailed consideration of the claims made. The absence of that detailed consideration is a stunning omission on the part of the respondent husband and the second respondent, his mother, who are clearly aligned on the issue in question.
The Evidence
The Applicant Wife relied upon the following documents:
a)Case outline dated 22 November 2013,
b)Further Amended Initiating Application filed 29 October 2013,
c)Financial Statement filed 23 August 2013,
d)Joint Balance Sheet filed 18 March 2013,
e)Points of Claim filed in Court on 18 July 2012,
f)Affidavit of Ms A filed 21 March 2013,
g)Affidavit of Ms Kimpton filed 23 August 2013
h)Affidavit of Ms L filed 23 August 2013,
i)Affidavit of Mr F filed 23 August 2013,
j)Affidavit of Mr A filed 23 August 2013,
k)Affidavit of Mr R filed 23 August 2013,
l)Affidavit of Mr A filed 23 August 2013
m)Affidavit of Mr K filed in court 25 November 2013,
The Respondent Husband relied on the following documents:
a)Case outline filed 23 August 2013,
b)Response filed 15 April 2011,
c)Amended Response filed 20 July 2011,
d)Financial Statement filed 15 April 2011,
e)Financial Statement filed 20 July 2011,
f)Financial Statement filed 25 November 2013,
g)Affidavit by Mr Kimpton filed 12 December 2011,
h)Affidavit of Mr Kimpton filed 2 November 2012,
i)Affidavit of Mr Kimpton filed 15 April 2013,
j)Affidavit of Mr Kimpton filed 23 August 2013,
The Second Respondent relied on the following documents:
a)Response to Amended Initiating Application filed 28 June 2012,
b)Affidavit of Ms Denehey filed 23 August 2013,affidavit filed,
c)Affidavit of Ms Denehey filed 5 November 2012 and,
d)Response to Points of Claim made by Ms E dated 17 July 2012.
In addition, a considerable volume of documents were either exhibited or tendered in evidence.
The husband, the wife and the second respondent gave oral evidence. None of the other deponents of affidavits were required to give oral evidence.
The Applicable Law
This is an application under s 79 of the Family Law Act 1975 which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s.75(2) of the Act which states:
(2)The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan [2013] FamCAFC 116 the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52 which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation and re-ordering of their financial lives since then) and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey. A problem that commonly arises and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This “disposed of property” may still be significant, however and needs to be considered as part of the history of the marriage as well as a s75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal attempting to quantify it if this is at all possible and then assessing weight whilst neither placing too much or too little weight on it. Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era after the demise of the traditional add-back.
On the wife’s behalf it was asserted that the principle of equitable estoppel operated in her favour on the facts of this case. Her counsel referred the Court to a decision of Brereton J in the NSW Supreme Court in Vukic v Luca Grbin & Ors (2006) NSWSC 41 at [48] where the Court set out the matters a plaintiff must establish in order to found an equitable estoppel:
(a) the plaintiff acted in reliance on an assumption or expectation that a particular legal relationship would exist between the parties or that the plaintiff would acquire some interest in the defendant's property;
(b) the defendant induced the plaintiff to adopt the assumption or expectation and encouraged activities by the plaintiff or failed to deny the assumption or expectation knowing that the plaintiff was relying on it to the plaintiff's potential detriment and that it could only be fulfilled by a transfer of the defendant's property;
(c) that the assumption or expectation was one which the defendant could lawfully satisfy
If an equitable estoppel is found, the submitted result was that the Court should declare the owners of the Property M property hold the same on trust in a fashion that reflects the promises made and relied on by the parties.
Credit Findings
Curiously, the husband does not challenge the credibility of his wife (paragraph 78, husband submissions, 23 December 2013). The most that is said in this regard is that in her evidence she minimised the contribution made by the husband and the second respondent and exaggerated her own contribution. The Court accepts this but does not agree that these are matters going to the wife’s credit. Indeed there were times in cross-examination when the wife was unresponsive, but these were isolated instances, more than adequately compensated by the comprehensive answers to questions she was asked. In fact, the Court accepts the wife’s evidence. The specificity and detail in her affidavit was impressive as well as was her ability to confirm that evidence in cross-examination. Indeed a significant part of the wife’s affidavit evidence was not challenged in cross-examination. Many of the matters that she deposes to are corroborated in the exhibits. At no stage did the Court form the impression that the wife was evasive during cross-examination. Indeed the Court formed the impression that the wife was an impressive witness. In particular the Court accepts her evidence over that of both the husband and the second respondent about the conversations and circumstances surrounding the purchase of the Property M property and its subsequent renovation.
It is convenient to deal with credit issues arising out of the evidence of the second respondent at this juncture. The husband did not challenge the credibility of her evidence but the wife certainly did. What became abundantly clear during the cross-examination of the second respondent is that her recollection about the relevant events was so poor. Moreover, she was clearly involved in the dispute in an emotional sense perceiving it as a threat, if not an attack, on the right to live in what she considered to be her home. Quite apart from the passage of time, therefore, it is highly likely that emotion has clouded her ability to accurately recall things that were said and done at key times. In addition, much of her affidavit evidence lacked specificity, and was internally inconsistent, particularly as regards schedules of work done and cost undertaken. This lack of specificity is particularly problematic insofar as it relates to the second respondent’s claim for reimbursement of outgoings. The Court cannot help but to record its impression that the second respondent is probably owed money by her son and daughter-in-law, but it is simply not possible on the evidence before the Court to quantify what that amount is. One wonders, moreover, whether the difficulty in the second respondent’s claim was exacerbated by her having the same solicitor as her son. In any event, whilst the Court accepts that the second respondent gave evidence honestly doing the best she could, her evidence about the issues before the Court is unreliable and cannot be preferred over that of the applicant wife.
There are significant issues in relation to the husband’s credit, which go well beyond whether his evidence was clouded by emotion or affected by fading memory. Indeed the wife raises fairly and squarely in her written submissions issues about the husband’s integrity and honesty. The meticulous and systematic attack on the husband’s credibility contained in the wife’s comprehensive written submissions were rebutted in the husband’s written submission by the assertion that as regards the husband, there were “errors made in relation to some factual matters” (paragraph 70, husband’s submissions). As it turns out, this is an understatement to say the least. Paragraphs 7-20 inclusive of the wife’s submissions deal with the husband’s credit. Whilst it is tempting to adopt the economical course and to simply say in these reasons that this Court accepts each and every contention made by the wife in relation to the husband’s credit in her written submissions, the issue deserves more fulsome attention in these reasons, together with some judicial comment.
The husband was almost a law unto himself during cross-examination. He was argumentative, evasive and unresponsive. His tendency to give speeches (that were not responsive to the question asked) would have suited him well for a vocation in politics. To say that he adopted a cavalier approach about his duty to disclose to the Court is an understatement. Were it not for the Court’s threat to the husband and those representing him that it would not commence the hearing unless the husband filed a financial statement, the inference is that the husband’s case would have quite contentedly relied on his financial statement sworn 18 July 2011. When he did prepare and swear a financial statement on 25 November 2013, the first day of the hearing, the lack of attention to truth and detail was gobsmacking. The errors and falsehoods in this document cannot possibly be explained by absence of legal representation as he had both solicitor and counsel with him that day. He could not provide any satisfactory explanation for how he could fund the very significant shortfall between income and expenses deposed to in that document. He was wrong in the document about his superannuation entitlement. He was plainly wrong in the document about the amount he was repaying to his employer by way of a loan. He was plainly indifferent and cavalier about disclosure in relation to superannuation. His claim for education expenses in relation to the children was blatantly false. Whilst he swore to entertainment expenses of $13 per week, when cross-examined he conceded the figure was wrong and should be more like $150 per week. When presented with the overwhelming evidence about his habitual expenditure at restaurants and substantial cash withdrawals from ATM in hotels, he concocted the story that this expenditure was work-related but his employer reimbursed him for the same. When confronted with the reality that his own bank statements showed no reimbursements from his employer in this manner that he said it was occurring, he conceded that he had made no claims for reimbursement for at least two years. In relation to the husband’s expenditure for entertainment, the Court is left in the dark as to how it is funded. For a man who described himself as living on “struggle street” in a financial sense, it is hard to understand why, if these expenses could be reimbursed by his employer, he has not claimed the same. It is possible this is not the truth. It is possible he has other sources of income that he has not disclosed. It was the husband’s responsibility to provide this evidence to the Court and he has manifestly failed to do so. This is notwithstanding the fact that he was confronting a claim by his wife for property settlement that included a close examination of the financial circumstances of both of them post-separation. His indifference or cavalier attitude about disclosure occurs in a context where he knew his wife was claiming an adjustment arising out of his failure to pay the mortgage on the property he occupied post separation. The husband’s failure to properly disclose his finances also occurred in the context of the wife’s claim for child support, including the possibility of a lump sum. If one just focuses on the husband’s financial circumstance, his evidence cannot be believed. Indeed, the evidence is almost overwhelming that in the post-separation period he enjoyed a lifestyle that was quite inconsistent with his stated income and expenses, which provide no explanation whatsoever for why he could not meet the expenses that he himself agreed to meet with his wife in the post-separation period.
Concerns about the husband’s credit go further. He forged his wife’s signature on an application to the local council about the Property L property. The debt that he alleges was owed to the architects is, having regard to all the evidence about this topic, a convenient pretext for him to artificially inflate liabilities payable on the basis that the wife contributes to the same.
Turning to the husband’s evidence about the purchase and subsequent development of the Property M property, the most that could be said about it is that for the most part, but certainly not in its entirety, it was consistent with his mother’s evidence. It thus shared the characteristics of lack of specificity, ambiguity and some internal inconsistency. It is interesting to note and important to record here, that both the husband and his mother during cross-examination, asserted for the first time ever in the evidence filed during the history of these proceedings that the Property M property was to be transferred into equal shares between his mother as to one part and the husband and the wife as to the other after an amount was paid by the husband and the wife to the second respondent to “top up” for land value. This potentially important assertion (if it were true) was surely a critical part of their case. It was not even put to the wife in cross-examination. It is inconsistent with their own respective cases about the mother having a share in the property. It is a fabrication, with the benefit of hindsight and regrettably suggests that there may have been some collusion between the father and his mother about this evidence.
In conclusion, the Court finds that the husband’s evidence cannot be accepted unless it is a matter of common ground, or is independently corroborated. The Court has not idea about what the husband’s true financial circumstances are.
The Property M property
The wife’s evidence about the acquisition and subsequent purchase of the Property M property is set out extensively in her affidavit of 23 August 2013, including at paragraphs 26-59. It is interesting to note that so little of this evidence was in any way systematically challenged in cross‑examination. Where it was challenged, two themes emerged. The first theme is that consistent with earlier reasons about credit, the answers the wife gave in cross‑examination were clear, consistent and convincing. The second theme, however, is about the questioning of the wife in relation to contribution towards expenses associated with the renovation. Question after question was put to the wife that expenses were shared equally between the wife and the husband on one part and the second respondent (and before he died, her husband) on the other part. The Court can only assume that the questions were put on instruction of both the husband and the second respondent. The questions and certainly the evidence given in answer, were plainly inconsistent with the case presented as to the second respondent having a four‑seventh share.
There is no doubt from the evidence of the husband, wife and the second respondent that when they completed the purchase of the Property M property on 21 December 1988, their respective shares as tenants in common reflected the money they had contributed to the purchase.
The wife asserts, but the husband and second respondent deny, that discussions about progressing to equal ownership commenced before completion of the purchase. Based on credit issues alone, the Court prefers the wife’s evidence in this regard but, as it turns out, nothing depends on this. It is apparent that post‑acquisition the parties did agree about progressing to equal shares. This agreement was certainly based on discussions between the parties but seemed to have evolved out of what they did as well as what they said. As indicated above, outgoings were shared equally. The cost of expenditure for work was shared equally. Indeed the parties’ intention to progress to equal shares is reflected by the evidence that both the husband and his mother gave (the husband in re‑examination, his mother in cross‑examination) that when they moved to equal shares, there would be the “top‑up payment” to the second respondent. Specifically, it is the evidence of the alleged “top‑up payment” that the Court does not accept. The rest of the evidence of the husband and the second respondent, about the progression to equal shares is entirely consistent with what the wife says and what they actually did.
The parties therefore agreed that the husband and the wife would become equal owners of the property with the second respondent once the renovation works had been completed. The evidence indicates that there was no distinction between the work performed by the husband and the wife for their own benefit and for the second respondent’s benefit. There was certainly no strict accounting kept between them. The absence of strict accounting is, again, consistent with an agreement about equal shares. The work that the husband and the wife did to the property is described in detail in their evidence, particularly the wife’s evidence. Whether the wife’s evidence is accepted or the expert evidence that she leads accepted about the cost of the renovations and the extent to which it improved the value of the property is actually quite irrelevant. The agreement between the parties was that they would progress to equal shares once the work was completed. It is quite possible that there may have been at least some instances where the contribution of the parties to certain works was not exactly equal. That does not detract from the agreement that they entered into.
It is no answer for the second respondent to assert as she did in cross‑examination, that an alleged agreement about equal shares could not possibly be right because “I put in $200,000 cash and they just put in a mortgage.” If the respondent receives a half‑share of the property and if she is indemnified in relation to the husband and wife’s mortgage (either implicit or explicit in both the wife and the husband’s case), then she has seen her investment multiply nearly sevenfold in circumstances where, even if her contention about expenditure were accepted (but which cannot due to specificity), she has made a considerable gain disproportionate to the efforts she put in and risk undertaken. With respect to the second respondent, it would be plainly inequitable to the husband and the wife for her to maintain a four‑sevenths interest in the face of the clear evidence of the input by the husband and the wife. There is clearly an emotional component to the second respondent’s perspective on this case. One can understand that this is her home and that she might feel that she is carrying a heavy burden of its potential loss. She might feel aggrieved that, for so many years, her equity in the property was used as security for loan advances to fund the financial activities of the wife and her son. What she seems to forget, of course, is that at any time she could have declined to provide security for the advances in question. She also forgets that the husband and the wife bear the responsibility for the mortgage in the present proceedings not her. In any event, equitable principles apply not emotional ones. The wife submits and the Court accepts having regard to all the evidence, that the parties embarked on a joint endeavour to purchase and improve the Property M property for which they made contributions to the purchase price and financial and non‑financial contributions to the improvement of the property with a view to the property eventually being converted to strata title so that they would each own one unit. As a result of the breakdown of relationships, however, this joint endeavour was not completed. Nonetheless, consistent with the joint endeavour, representations were made by the second respondent (and her husband at the time) that on completion of the work that they agreed to, the husband and the wife would attain equal ownership with them. On the evidence there can be no other explanation than reliance upon those representations as the explanation for the husband and the wife carrying out and funding the improvements to the property. There is no attributable blame for the breakdown in the relationship between the parties that has led to the joint endeavour not coming to fruition.
Unless there is an adjustment in the equitable interests in the property, the second respondent will unjustly benefit. The expert evidence of Ms A, not challenged on behalf of the respondents, indicates that the market value of the property without the renovations would be $1.55 million. In this case, however, all parties agree the property is worth $2.4 million. The expert evidence, therefore, suggests that the increase in the value of the property is attributable to the works carried out. These works benefited the husband and wife of course, but certainly also the second respondent.
The wife submits and the Court accepts, that an equitable estoppel arises in the context of the facts of this case. The husband and the wife relied on an expectation that they would become joint owners of the property, an expectation which the second respondent induced, encouraged, or allowed the husband and wife to rely on to their potential detriment. In the circumstances, it would be unconscionable for the second respondent to not be required to fulfil the expectation they all had that the property would be held in equal shares. Thus, the wife submits and the Court accepts that a declaration should be made that the husband and the wife of the one part and the second respondent of the other part, hold the Property M property on trust for themselves as tenants in common and equal shares. The Court notes that this is an outcome consistent with the agreement they themselves reached. It is for that reason that this Court believes there is no need to consider alternative equitable remedies based on the actual cost of improvements or some other basis including unconscionability. These were alternatives specifically raised in wife’s submissions. The Court believes that equity is done in this case by upholding the parties’ agreement about equal shares, notwithstanding the fact that the precise plan they had adopted was not implemented. No blame can be attributed for this. The declaration, however, needs to acknowledge the concession made by the husband and the wife that they will themselves personally bear responsibility for the mortgage secured over the Property M property.
The Balance Sheet
These reasons now proceed to examine the claim as between the husband and the wife. At the commencement of the hearing, I was presented with the following agreed balance sheet: -
ASSETS
Ownership
Description
Wife’s value
Husband’s value
1
J
Property C (sale proceeds held in trust)
74,016
74,016
2
J
Property L (sale proceeds held in trust $18,355.27)
18,355.27
18,355.27
3
J
Property M (agreed value $2,400,000, parties 3/7 share)
1,028,571
1,028,571
4
W
(business omitted)
Nil
Nil
5
W
(business omitted)
35,000
35,000
6
W
(omitted) shares at $2.52
3,528
3,528
7
W
Jewellery
2,500
2,500
8
W
(omitted) Bank account 1 account number: (omitted)
549
19,000
9
W
(omitted) Bank account 2 account number: (omitted)
26
16,000
10
W
(omitted) account 3 (wife financial statement)
Nil
6,000
11
H
(business omitted)
Nil
Nil
12
H
(business omitted)
Nil
Nil
Total
$1,162,545
$1,202,970
ADDBACKS
Ownership
Description
Wife’s value
Husband’s value
13
W
Arrears on Property C mortgage
Not agreed
52,000
14
W
Motor car Subaru (omitted)
Not agreed
34,0000
15
W
Arrears on Property L bills paid on behalf of wife’s obligation (borrowed to stop repossession)
Not agreed
32,000
16
W
obtained a mortgage over Property M for (business omitted)
Not agreed
80,000
17
W
Money withdrawn from rental account
Not agreed
8,500
18
W
(omitted) plans for Property L
Not agreed
43,299
19
H
Arrears on Property L
15,000
15,000
20
H
Sale of motor bike
13,500
13,500
21
H
Sale of Jet Ski
10,000
10,000
22
H
VW (omitted)
22,000
Not agreed
23
H
Amount withdrawn from (omitted) Bank account at the time of separation
9,500
Not agreed
24
H
Arrears and Council Rates on Property L property
7,853
7,853
25
H
Water Rates
226
Not agreed
26
H
Warren McKeon Dickson (husband’s legal costs)
6,080
6,080
27
H
Kemp Strang (legal costs)
1,677
1,677
28
H
Income derived from (business omitted) (in liquidation)
200,000
Not agreed
Total
$300,836
$303,909
LIABILITIES
Ownership
Description
Wife’s value
Husband’s value
29
J
Mortgage Property M
454,335
454,335
30
J
Mortgage Property M
175,852
175,852
31
W
Tax Assessment ((business omitted)/L)
17,309
Not agreed
Total
$647,496
$630,187
SUPERANNUATION
Member
Name of Fund
Type of Interest
Wife’s value
Husband’s value
32
W
(omitted) Superannuation
Accumulation
56,071
33
W
(omitted) Superannuation
Accumulation
89
34
H
(omitted) Superannuation
Accumulation
124,157
71,732
35
H
(omitted) Superannuation
Accumulation
1,157
1,157
36
H
(omitted) Super
Accumulation
157
157
Total
$181,631
$73,046
| FINANCIAL RESOURCES | |||||
| Ownership | Description | Wife’s value | Husband’s value | ||
| 37 | W | Charge over the 2nd Respondent’s interest in the Property M property 1/14th share | 171,428 | Not agreed | |
| Total | $171,429 | $0 | |||
NOTES
Item No
Husband Says
3
Parties have agreed to the value of the property at $2,400,000.
28
Husband does not agree because monies while married family benefitted and this was 2005 to 2010.
34
Super amount as of date of separation Ms Kimpton should not receive any further monies past this date.
37
Wife to provide evidence of value of quantum claim.
31
Husband does not agree with this liability.
Item No
Wife Says
3
Parties have agreed to the value of the property at $2,400,000.
3 & 38
Wife claims an equitable charge over the remaining 4/7 interest in respect of the alterations, additions and renovations carried out by the husband and wife to Property M .
8, 9, 10
Wife no longer has these amounts in her (omitted) Bank accounts. The wife has nominal balances.
13
The wife does not agree that the Property C mortgage was in arrears by $52,000 or that such amount should be added back against her.
14
The wife deposited the sale proceeds of the Subaru in the amount of $34,000 into the (business omitted) Business Account and the amount is accounted for in the business valuation.
15
The wife does not know of these payments sought by the husband.
16
The Wife says that she repaid the amount of $80,000.00 between the years 2004 and mid-2007.
17
The Wife agrees that she received $8,500 from the rental account but says that the money was used for the mortgage repayments.
18
The wife has no knowledge of these amounts claimed by the Husband.
22
The wife says the Husband sold the VW (omitted) post separation and did not account to her for the sale proceeds.
23
The Husband withdrew this amount from the joint account.
A number of issues arise from the balance sheet. In item 3, having regard to the Court’s findings as regards the claim involving the second respondent, the value of their interest in the Property M property is $1.2 million and the balance sheet should reflect that.
There is an issue about items 8, 9 and 10, being bank accounts of the wife. It is by no means clear where the husband gets the figures that he asserts. The onus of proof was on him to establish the values that he asserts. Exhibit A9 establishes that the balance in the account represented at item 8 is $549.76 and the balance for the account at item 9 is $23.07. In the absence of evidence to the contrary, the Court accepts the wife’s contention that there is a nil balance for the account represented at item 10. In any event, items 8, 9 and 10 represent small or nil balances in a case where there has been a long period since the date of separation. In the circumstances and in order to simplify the section 79 alteration of property interest process, these items will simply be removed from the balance sheet.
Items 13 to 18 inclusive are somewhat of an enigmatic claim by the husband for add‑backs. Putting aside for one moment the jurisprudential issue of whether should these claims be substantiated they should be treated as notional property and added back or treated in some other fashion, the real problem for the husband is firstly, the lack of evidence to support his contention and secondly, adverse findings against him anyway.
Doing the best the Court can based on what little evidence the husband gave, it appears that he is asserting at item 13 that there were arrears on the Property C mortgage of $52,000 that the wife should pay. What the evidence does indicate is that when the parties separated, the wife and children remained in Property C on the basis that she would meet the outgoings, including the mortgage and the husband would move to Property L on the basis that he would pay the outgoings and the mortgage.
In reality both fell into arrears. But on the evidence for completely different reasons, the wife struggled financially in the post-separation period. Her income was plainly less than that of the husband’s. She bore the primary responsibility for the children. The husband has not been able to establish that she had a financial capacity to meet the mortgage having regard to her other commitments and financial circumstances.
By contrast, what evidence there is about the husband’s financial circumstances in the post-separation period suggests that he lived a lifestyle quite inconsistent with the financial penury that he says he suffered. The evidence that he gives suggests that he was financially irresponsible in the post-separation period quite apart from the fact that the Court does not know the true extent of the husband’s financial circumstances because of non-disclosure on his part. In any event, the husband has failed to establish any factual or jurisprudential basis for the claim that he asserts at item 13.
The claim in relation to item 14 is plainly misconceived. The value of the Subaru motor vehicle was taken into account in the valuation of the company (business omitted). The vehicle appears in the balance sheet there. To include it at item 14 would be to duplicate item 5.
For the reasons given in the context of the claim to item 13, the claim to item 15 is not allowed.
In relation to item 16, it seems from the evidence that part of the debt represented at items 29 and 30 secured over the Property M property is attributable to a loan that benefited the business, the value of which is represented at items 4 and 5 on the balance sheet. If there is some basis for treating this item separately it is not clear to the Court.
Doing the best the Court can in relation to the husband’s claim as regards item 17, his contention is that the wife withdrew this amount from a joint amount, used the money for her own purposes and that this precipitated the default on the mortgage. The evidence he leads about this is unclear (to say the least). All the Court can conclude from what evidence there is about the financial circumstances of the wife and the husband post-separation, is that she behaved reasonably and was appropriate in the expenditure she undertook.
The claim for item 18 is plainly misconceived. The husband’s own evidence is that no amount has been paid to the architect in relation to the development application plans for Property L. Indeed the Court finds that the existence of this debt is highly questionable and may well be a sham.
The next item put in contention by the husband is item 22. The wife says this amount should be brought into account. The husband’s own evidence, vague as it is, in part M of his financial statement is that the vehicle was sold, half the sale proceeds went to pay the debt on the vehicle and the remainder went into the joint account. The existence of this alleged debt in relation to the motor vehicle was never disclosed. There is no evidence to corroborate his assertion that the money went into a joint account. The sale of this motor vehicle is referred to in the husband’s 2011 financial statement, so he has had ample opportunity to provide disclosure in relation to it.
In the circumstances and given the paucity of the husband’s evidence, the findings of non-disclosure made against him it is just and equitable that this disposition be taken into account. Item 22 should be retained on the balance sheet.
In relation to item 23, the wife contends the amount to be taken into account should be $9300. All that the husband could say about this pursuant to leave granted for him to give further evidence-in-chief on these issues on 27 November, appears to be that the amount in question was used to pay the debt against the VW motor vehicle referred to at item 22. This is plainly inconsistent with what he said in relation to the motor vehicle. The Court accepts he withdrew this amount and has used it for purposes that have not been adequately explained.
Given the Court’s adverse findings about the husband in relation to financial matters, particularly in the post-separation period, it is just and equitable to take this sum into account. In closing submissions, the wife submitted the figure should be $9300, not $9500. Item 25 will be ignored due to paucity of evidence and its inconsequential amount.
The Court will not allow the adjustment sought by the wife in relation to item 28, income that the husband purportedly derived from his company in the post-separation period. The first thing to note is that it is income not property, or notional property, or property once in existence but no longer so. It is not, therefore, something properly taken into account in the balance sheet. In any event, the husband’s evidence is that the amount in question was income derived over several years all of which went to benefit the family. He specifically asserted it was income derived between 2005 and 2010.
Given that the parties separated in 2010, there is no evidence before the Court to establish that there was something improper about the husband’s use of these funds. Concerns about the husband’s financial circumstances seem, on the evidence, to derive from the period from the date of separation, not beforehand.
The husband contests the inclusion of item 31, the tax assessment of (business omitted). The existence of the tax debt is established by exhibit A3. The value of (business omitted) is agreed at $35,000 in item 5. But nothing the husband said in his evidence or put to the wife in cross-examination would point towards the exclusion of this debt. It is plainly linked to an asset on the balance sheet.
The husband disputes the value of his superannuation at item 34. Exhibit A7, being documents produced by the trustee of the superannuation fund plainly established that the value of his superannuation entitlement is $124,157. All the husband could say in evidence when given the opportunity to deal with this issue was that the figure of $71,732 was referred to in his financial statement filed back in 2011, as if that somehow informed the decision the Court had to make. It may well be the husband’s concern about the value of the superannuation goes to assessing contribution in relation to it, but that is a separate issue.
Having regard to the manner in which the wife ultimately conducted her case as reflected in her closing submissions, there can be no basis for item 37 being the charge in relation to expenditure incurred.
Having regard to these findings, the balance sheet for present purposes should be:
ASSETS
Ownership
Item
Value
1
J
Property C (sale proceed held in trust)
74,016
2
J
Property L (sale proceeds held in trust)
18,355
3
J
Interest in Property M
1,200,000
4
W
(business omitted)
Nil
5
W
(business omitted)
35,000
6
W
(omitted) shares at $2.52
3,528
7
W
Jewellery
2,500
11
H
(business omitted)
Nil
12
H
(business omitted)
Nil
Total
$1,333,399
“DISPOSED OF” PROPERTY
Ownership
Item
Value
19
H
Arrears on Property L
15,000
20
H
Sale of motor bike
13,500
21
H
Sale of jet ski
10,000
22
H
VW (omitted) motor vehicle
22,000
23
H
Amount withdrawn from (omitted) Bank account at the time of separation
9,300
24
H
Arrears and council rates on The Property L property
7,853
26
H
Warren McKeon Dickson (Husband’s legal costs)
6,080
27
H
Kemp Strang (legal costs)
1,677
Total
$85,410
Total non-superannuation assets including “disposed of”: $1,418,809
LIABILITIES
Ownership
Item
Value
29
J
Mortgage Property M
454,335
30
J
Mortgage Property M
175,852
31
W
Tax Assessment ((business omitted)/L)
17,309
Total
$647,496
Net non-superannuation assets including “disposed of” assets: $771,313
SUPERANNUATION
Ownership
Item
Value
32
W
(omitted) Superannuation
56,071
33
W
(omitted) Superannuation
89
34
H
(omitted) Superannuation
124,157
35
H
(omitted) Superannuation
1,157
36
H
(omitted) Super
157
Total Superannuation Assets
$181,631
Total superannuation and non-superannuation assets including “disposed of” assets: $952,944
Assessing Contributions
This was a long marriage, in which both parties made substantial and diverse contributions. The husband was in constant employment. The wife also worked, but when she was not working she was caring for the children attending to homemaking or participating in the improvements and renovations to the Property M property. They purchased and sold property during the marriage. The evidence about what they both did in terms of the renovations at Property M is quite detailed. Whilst both the husband and wife in their evidence tended to minimise the contribution that each other made to the renovations of the property when all of the evidence is viewed in its entirety, it is clear they both applied their efforts assiduously but doing different things.
On behalf of the wife, it was submitted that contributions should be assessed 52.5 to 47.5 in her favour but the Court understood the additional 2.5 per cent to be attributable to the post-separation period after the husband moved out of the family home but the wife continued to have the major responsibility for the care of the children, as well as the responsibility for the outgoings in relation to their properties. The Court has already made findings about the husband’s financial situation in the post-separation period. These findings are adverse to the husband.
Whilst the Court can confidently say based on all the evidence that the wife did everything she could in a financial sense to maintain a reasonable standard of living for the family and herself, the husband did far less than he could in circumstances where he lived a lifestyle quite disproportionate to the income he has disclosed and the responsibilities he had to his family in the post-separation period. The findings of non-disclosure against the husband are also pertinent in this regard. The additional 2.5 per cent sought by the wife is in reality a modest claim and a reasonable one which the Court accepts.
Interestingly, on behalf of the husband it was submitted that the division should be 47.5 to him and 52.5 to her. Whilst it is not entirely clear from his submissions, the Court assumes this included a section 75(2) adjustment in her favour. Like much of the husband’s case regrettably, this is not entirely clear.
A Section 75(2) Adjustment?
As previously indicated it seems as if the husband has conceded a section 75(2) adjustment, but it is not clear in what amount. The wife’s case evident from her written submissions is that the final result should be one which sees her receiving 65 per cent of the net property and the husband 35 per cent. Presumably, the section 75(2) adjustment contended in her favour therefore, is 12.5 per cent. As will be seen below the Court regards this as excessive.
Both parties are comparatively young, in good health and have an earning capacity. There is nothing to suggest that there is any future impediment to that earning capacity.
The wife has the full time care of two children aged 15 and 10. The evidence indicates that the children’s father has very little contact with them. There is a separate issue before the Court about the payment of child support which will be discussed below. Subject only to whatever child support the husband does in fact pay or is ordered to pay by the Court or by the agency the mother meets their remaining financial needs.
Through the lens of the financial statements that each party has sworn, the Court is able to gain an insight about their respective lifestyles. There was no challenge to the wife’s evidence in this regard. The evidence suggests that the lifestyle the children and she enjoys is comfortable but relatively modest. There was of course a sustained attack on the husband’s sworn evidence about his finances and the finding has already been made that he led a lifestyle quite disproportionate to his stated income. From this perspective, it is possible to conclude that separation has in fact lessened the standard of living of the wife and the children but not necessarily that of the husband.
The Court has already made findings in relation to nondisclosure on the husband’s part. The assessment of section 75(2) considerations is rendered more difficult by the absence of a clear picture of the husband’s financial circumstances. The evidence is replete with examples of what appears to be the husband’s systematic refusal to provide the wife and to the Court with information of a financial nature, all of which was reasonably necessary for the purposes of this litigation. The Court simply does not know whether the husband in the fullness of a time (no doubt after the conclusion of the litigation) will in fact claim back from his employer entertainment expenses. The Court does not know whether the husband has in fact already been reimbursed but not disclosed to the Court those expenses. The Court does not know whether he has the benefit of some other source of undisclosed income that somehow renders intelligible or logical his evidence about his financial circumstances.
Whilst this uncertainty does not assist the Court, neither is it licence to engage in profligate generosity to the wife. The most compelling consideration is her additional needs as a result of the care of two children. This the Court assesses at five per cent, noting that the wife’s child support claim is yet to be considered. A further five per cent is in the circumstances of this case, an imprecise but nonetheless equitable assessment of the section 75(2) considerations arising out of the husband’s nondisclosure. Accordingly, there should be a further adjustment in the wife’s favour for 10 per cent arising out of a consideration of the matter set out in section 75(2) of the Act.
Just and Equitable Order
The approach adopted by the wife was clearly to treat all of the assets, superannuation and otherwise in the one pool. Whilst the Court received very little assistance from the husband on the approach to be adopted, there is at least an inference from his evidence that he believes the superannuation should be treated in a separate pool because he contends so much of it had accumulated since the date of separation. There is only logic in this approach if his implied contention is supported by the evidence. The evidence does not support the husband’s contention. Exhibit A7 is the only reliable evidence about the husband’s superannuation with (omitted) Superannuation and it is information presented to the Court by the wife as a result of her issuing a subpoena to the trustee of that fund. This evidence merely confirms that the husband has been a member of (omitted) Superannuation from 6 March 1988 and that the present value of his entitlement is $124,175.81. The only evidence that suggested his entitlement at the date of separation was $71,732 was his bald assertion in his financial statement from 2011. For reasons previously indicated, any evidence that the husband gives about his financial circumstances is unreliable. The curious thing is that it was entirely within the husband’s power to put the evidence before the Court to establish what his superannuation was at the date of separation. He did not do so. The only inference that can be drawn is that such evidence would not have assisted his case. In those circumstances, there is no reason to adopt an approach to this property settlement that separates superannuation assets from non-superannuation assets.
Having regard to the reasons set out above, the wife will receive 52.5 per cent for contribution and 10 per cent under section 75(2), a total percentage in her favour of 62.5 per cent of the net pool of $952,944. This equates to net assets (including “disposed of” assets) of $595,590 to the wife and $357,354 to the husband. On the assumption that the husband retains his interest in the Property M property, this means that the wife would receive the following assets: –
Item
Description
Value
1
Sale proceeds held in trust for Property C
74,016
2
Sale proceeds held in trust for Property L
18,355
4
(business omitted)
NIL
5
(business omitted)
35,000
6
(omitted) shares at $2.52
3,528
7
Jewellery
2,500
31
Tax Assessment ((business omitted))
(17,309)
32
(omitted) Superannuation
56,071
33
(omitted) Superannuation
89
Total
$172,250
The result is that the husband would have to pay the wife the sum of $423,340 as well as refinance the mortgage over the Property M property so that the wife is in no way responsible for that debt. Obviously, this will need to be done by him in conjunction with his mother the second respondent. The orders will provide a generous time frame for the implementation of these orders. The intent of the parties to this litigation and the intent of the Court is that the Property M property only be sold as a last resort to avoid the second respondent losing the home that she lives in. If the sale triggers a Capital Gains Tax liability, such liability will be where it falls.
At the end of the day the pool of assets available for distribution is not a very large one. The outcome, however, is as just and equitable as the circumstances and evidence permit, particularly given the adverse credit findings against the husband.
Child Support Issues
In the wife’s further amended application filed 29 October 2013, the wife seeks primarily, an order under section 118(1)(a) of the Child Support Assessment Act that the husband’s annual rate of child support payable to the wife as assessed from time to time be increased from the current amount of $21,424 to $50,310 per annum indexed annually pursuant to the Consumer Price Index on account of inflation. Her alternative claim of a lump sum of $120,000 in addition to ongoing payments pursuant to section 123(1)(a) of the Act, was only pursued lightly and as an alternative to what was presented as her main contention in closing submissions. The alternative claim under section 123(1)(a) can be dealt with briefly. No case has been made out for a payment for a lump sum and in any event, having regard to the relatively modest asset pool no such lump sum would be available. The focus turns to her application under section 118(1)(a) of the Act.
Section 118 of the Act states:
(1)The orders that a court may make under this Division are as
follows:
(a)an order varying the annual rate of child support payable by a parent;
(b)an order varying a parent's or non-parent carer's cost percentage for a child;
(c)an order varying a parent's child support income;
(d)an order varying the parents' combined child support income;
(e)an order that:
(i)the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is ordered to be, greater than 2.5 times the annualised MTAWE figure for the relevant June quarter, is the column headed "2 to 2.5"; and
(ii)the column is to apply as if the second dollar amount in the heading to that column did not apply;
(f)an order varying a parent's child support percentage;
(g)an order varying a parent's adjusted taxable income;
(h)an order varying a parent's relevant dependent child amount or multi-case allowance;
(i)an order varying a parent's self-support amount;
(j)an order varying the costs of the children.
(2)An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period.
(2B) A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
(2C) If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
(3)If the court makes an order under this section, the court must:
(a)give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and
(b)cause the reasons to be entered in the records of the court.
(4)Subsection (3) does not apply in relation to an order if:
(a)it is an order made by consent; and
(b)the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.
(5)A contravention of subsection (3) in relation to an order does not affect the validity of the order.
It is necessary for the wife to establish a ground of departure in section 117 of the Act, in order to succeed in her claim under section 118. Section 117 of the Act states:
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non-parent carer; and
(b) the child is younger than 12 at the start of the child support period.
(3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the parent's adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(3C) Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A) the child; or
(B) the carer entitled to child support;by the making of, or the refusal to make, the order; and
(ii)to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i)the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)the parent's caring responsibilities; or
(ii)the parent's state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
(10)For the purposes of this section, a child is a resident child of a person only if:
(a)the child normally lives with the person, but is not a child of the person; and
(b)the person is, or was, for 2 continuous years, a member of a couple; and
(c)the other member of the couple is, or was, a parent of the child; and
(d)the child is aged under 18; and
(e)the child is not a member of a couple; and
(f)one or more of the following applies in respect of each parent of the child:
(i)the parent has died;
(ii)the parent is unable to support the child due to the ill-health of the parent;
(iii)the parent is unable to support the child due to the caring responsibilities of the parent; and
(g)the court is satisfied that the resident child requires financial assistance.
It is somewhat difficult to understand the wife’s case. In written submissions the case is expressed as one based on s.117(2)(b)(ii) which relates to the education expenses of the children. What the Court could not discern, however, was how increasing the husband’s annual rate of child support by $28,706 related to the costs of education. The wife’s evidence in this regard is primarily located in her affidavit of 3 October 2013. From that affidavit the following uncontested facts emerge:
a)The husband pays child support in the sum of $411 per week, or $21,372 annually.
b)The direct education expenses pertaining to the children’s education including fees and levies is $210 weekly or $10,920 annually.
c)The projected total school fees for the children in 2014 is $14,213 annually; with the most significant increase attributable to Y.
d)Both parents desire the children to attend the private schools they will attend.
e)Whereas the husband has in the past paid half of the school fees, he no longer does so and his support is limited to the amount assessed.
f)The wife’s concern seems to be that he pay half the school fees in addition to the amount assess for periodical child support. But half the 2014 school fees is on the wife’s evidence only $7,106.50. Admittedly she projects the equivalent figure to be $7,971 in 2015 and $8,401.50 in 2016.
g)There is no proportionality or logic between the amount sought by her in the present application and the actual school fees. One possible explanation is that the wife wants him to pay all the school fees, an outcome the Court would not countenance as it is so contrary to the objects of the child support legislation and is otherwise not warranted on the facts.
Notwithstanding this for all practical purposes, the husband did not challenge the wife’s evidence in relation to child support. His own evidence about his financial circumstances suffers from the problems previously articulated in these reasons.
Having regard to all the evidence the Court is able to conclude that:
a)The ground for departure in s.117(2)(b)(ii) is established.
b)It is just and equitable as regards the children and the parents and otherwise proper, to make an order increasing the annual rate of child support payable by the father by half the projected school fees for the following calendar years:
2014
$7,106.50
2015
$7,971.00
2016
$8,401.50
c)In the special circumstances of this case the costs of maintaining the children are significantly affected because of the children being educated in the manner that was expected by their parents.
d)It is just and equitable to make the order against the liable parent having regard to that parent’s duty to the children, the needs of the children, the earning capacity, property and financial resources of each parent and the earning capacity of each parent as well as the commitments necessary to enable the parent to support themselves.
e)There is no hardship created by this order.
f)It is otherwise proper to make this order having regard to the matters set out above.
However, the order proposed by the wife is problematic in its form. It ignores the possibility, indeed the probability the husband’s income for child support purposes will fluctuate. The intent of the orders the Court will make is that whatever the Child Support Registrar assesses as the husband’s annual rate of child support (but for these orders) is to be increased by an amount which represents half of the present projection of private school fees limited to the years 2014, 2015 and 2016.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 27 February 2014
Schedule One
Final orders sought by the Wife
That the monies held in the trust account of Rita Thakur & Associates Pty Limited being the sale proceeds of the parties property at Property C be divided as follows:
(a) 70 percentum to the Wife
(b) 30 percentum to the Husband
That the monies held in the trust account of Rita Thakur & Associates Pty Limited being the sale proceeds of the parties property at Property L , be paid to the wife in full.
A declaration that the husband, the wife and the second respondent hold the property known as Property M, being the whole of the land contained in certificate of title folio identifier (omitted) "the Property M property" upon trust as to 67% jointly to the husband and the wife and as to 33% to the second respondent.
A declaration that the husband and the wife have a charge upon the Property M property for the amount expended by them by way of improvement and repairs or the amount by which the value of the property has appreciated by reason of those improvements and repairs, whichever is the lesser of the two together with interest from the date of expenditure to the date of satisfaction of the charge.
An equitable accounting between the husband and the wife and the second respondent as co-owners of the property.
That each party take all necessary steps and execute all necessary documents to cause the property situated at and known as Property M, to be sold by auction at the earliest possible date at a reserve price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be disbursed as follows:
a)Payment of agent's commission and advertising expenses and legal expenses of the sale.
b)Pay all monies to pay out all liabilities secured by Mortgages to (business omitted)
c)As provided by order 10 below, pay to the husband and the wife all monies required to satisfy the charge referred to in Order 4 above.
d)In payment of the Capital Gains Tax.
e)The nett balance to be divided as to 50 percentum to the wife and 17 percentum to the husband and 33 percentum to the second respondent.
That the husband and the wife shall do all things to cause all amounts paid in satisfaction of the charge referred to in Order 4 to be divided between them as to 70 per cent to the wife and 30 per cent to the husband.
That both parties do all acts and sign all documents with a view to winding up the company (business omitted) and the company (business omitted).
That the Applicant be granted leave to make an application pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989, Regulation 4.17 of the Family Law Rules 2004 and Regulation 25A.02 of the Federal Magistrates Court Rules 2001.
That pursuant to s.123(1)(a) of the Child Support (Assessment) Act 1989 the husband pay to the wife a lump sum of $120,000.00 in addition to ongoing payments of child support as assessed from time to time by the Child Support Registrar.
In the alternative to Order 10 above, that pursuant to s.118(1)(a) of the Child Support (Assessment) Act 1989 the husband’s annual rate of child support payable to the wife as assessed from time to time by the Child Support Registrar be increased from the current amount of $21,424.00 to $50,310.00 per year indexed annually pursuant to the Consumer Price Index on account of inflation.
That the husband and wife have the sole right title and interest in:
(a) Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
(b) Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Schedule Two
Respondent case outline dated 23 August 2013
First right of refusal to myself and my family members in buying out Ms Kimpton shares in Property M property and my mother to retain her home.
The shareholding to remain as registered on title.
I agree to a 55/45 split of all matrimonial assets. Being 55% to Ms Kimpton and 45% to myself.
The mortgage raised against Property M is recognized a debt solely to the matrimonial estate accredited to Ms Kimpton and myself and not my mother Ms Denehey.
That the mortgage raise against Property M were used to purchase and fund other investments, purchases and$ 80,000 dollars was lent to (omitted) Pty Ltd and not paid back off the mortgage.
The super contribution be calculated from the date of the first tabled financial statement for 15/4/11.
Ms Kimpton resign from (business omitted) and indemnified for past or future liabilities.
Ms Kimpton indemnified Mr Kimpton for past or future liabilities for (business omitted).
Ms Kimpton to pay legal fees given that from the initial hearing I agreed, as the respondent, to her application and she refused caused considerable cost, consumed valuable time and unnecessary stress to myself and my mother.
Schedule 3
Applicant’s Points of Claim
The applicant, the first respondent and the second respondent are the registered proprietors of the property known as Property M in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier (omitted) ("the Property M property") as tenants in common, being the applicant and first respondent as to three-sevenths and the second respondent as to four-sevenths.
In or about 1988, the Property M property was purchased by the applicant the first respondent and the second respondent for $320,000 which, together with the costs of purchase, was funded as follows - the applicant and first respondent as to $142,000, and the second respondent and her husband as to $200,000.
It was agreed between the applicant and the first respondent of the one part and the second respondent and her husband of the other part, that if the applicant and the first respondent performed certain improvements to the building standing upon the Property M property at the time of purchase that, on completion of those improvements, the parties would apply to have the Property M property subdivided and strataed so that:
a.the applicant and first respondent would own the ‘top floor unit’ (which was known as ‘(omitted)’. It was to have a unit entitlement, in addition to the dwelling area of the unit, that included 50% of the land area not occupied by either of the units); and
b.the second respondent would own the ‘ground floor unit’ (which was known as ‘(omitted)’. It was to have a unit entitlement, in addition to the dwelling area of the unit, that included 50% of the land area not occupied by either of the units); and
c.It was also agreed that the parties would own the Property M property in equal shares as to the applicant and the first respondent of the one part and the second respondent as to the other part as tenants in common, once the second respondent and her husband took possession of a certain area of the Property M property.
In reliance upon the agreement referred to in paragraph 3 above and representations to that effect made by the second respondent and her husband, the applicant and the first respondent undertook and funded substantial renovation and improvement works to the Property M property between November or December 1988 and April 2007. In summary, the works undertaken resulted in a 4 bedroom 2 bathroom unit being built (i.e. (omitted)) that was a dwelling that was separate to (omitted). The works included (but are not limited to) the works set out in the Schedule hereto.
The applicant and the first respondent spent at least $260,000 to fund the improvements to the property set out in the Schedule. In addition the applicant and the first respondent performed substantial labour themselves in carrying out some of the improvements referred to in the Schedule.
It was further agreed between the parties that upon completion of the works the applicant and the first respondent would reside in the unit on the top floor ((omitted)) of the building on the Property M property and the second respondent and her husband would reside in the unit on the ground floor of that building ((omitted)).
The relationship between the applicant on the one hand and the first and second respondents on the other has broken down with the result that the applicant now resides away from the Property M property.
The applicant claims the following relief:
a.a declaration that the applicant, the first respondent and the second respondent hold the Property M property upon trust as to 67% jointly for the applicant and the first respondent and as to 33% for the second respondent;
b.a declaration that the applicant and the first respondent have a charge upon the Property M property for the amount expended by them by way of improvement and repairs or the amount by which the value of the property has appreciated by reason of the improvements and repairs, whichever is the lesser of the two, together with interest from the date of expenditure to the date of satisfaction of the charge;
c.an equitable accounting between the applicant, the first respondent and the second respondent as co-owners of the property;
d.that the applicant, the first respondent and the second respondent take all necessary steps and execute all necessary documents to cause the Property M property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and to cause the proceeds of sale to be paid as follows:
i.payment of agent's commission, advertising expenses and legal costs of the sale;
ii.payment of all moneys required to be paid to discharge all liabilities secured by mortgages registered upon the title of the property;
iii.pay to the applicant and the first respondent, in proportions otherwise determined by the Court, all moneys required to be paid to satisfy the charge in favour of the applicant and first respondent;
iv.in payment of capital gains tax arising from the sale of the property;
v.the net balance to be divided as to 40% to the wife, 27% to the husband and 33% to the second respondent.
SCHEDULE
The applicant sanded back wooden floors, polished the floors with Estapol, performed painting work.
Removal of carpet from the property.
Demolition of one wall to create a larger room.
The applicant designed and the first respondent constructed a kitchen which the first respondent installed with the assistance of tradesmen.
The applicant painted the kitchen walls after the kitchen had been installed.
In the first floor of the property new floors were installed, new walls were constructed on the first floor, roof trusses installed and the roof structure replaced.
Plasterboards were installed in the first floor of the property, ceilings were installed and a double frame.
Special waterproofing was installed in the upstairs bathrooms which were constructed, tiling was done by a professional tiler, the applicant painted the bathrooms and searched out suitable tiles and fittings for the bathrooms and researched prices.
Outside of the building cement rendering was undertaken and new grass was purchased and laid.
The applicant designed and painted the upstairs balconies to match the Edwardian style of the building, the first respondent built the balconies.
The applicant helped in sanding walls once plasterboard was installed, then primed and sealed the walls prior to painting. The applicant primed, under‑coated, and painted 2 top coats on every ceiling, internal wall, and item of timberwork (which included architraves, skirting, and window frames and sashes). The only person who assisted the applicant with the latter tasks was her sister-in-law’s father, who did so for about three days in order to help her paint one large ceiling.
The applicant managed the payment of accounts for materials purchased and for tradesmen services.
Garages were designed and built at the property.
The applicant sanded and stained the balcony of the unit of the applicant and the first respondent and she painted the hand railings and posts of the balcony (on two occasions), as well as rafters and beams.
The applicant and first respondent paid for at least half of the cost of the flight of stairs that starts from the garden beside the second respondent’s balcony and continues up to (omitted).
The applicant cement-rendered the second respondent's sunroom. In doing so, the applicant also ‘white-set’ the render to smooth it (this involves rendering again over the cement with a second coat of plaster – it is very time consuming and physically strenuous).
The applicant undertook maintenance tasks about the property including fixing door handles and cupboard doors, installing putty around windows prior to painting them, painting timberwork throughout the building, affixing carpet to the stairs, installing filler around the tops of skirtings and architraves, sanding and installing putty in nail holes of timberwork and renovating the garage to make it suitable for an office or gym.
The applicant and first respondent built a tall double-storey brick wall, with the assistance of a brick layer, to insert a stairwell to the upstairs unit.
The applicant and first respondent installed chimneys and brick walls to enable the fire places downstairs to be used.
In early 2006 the applicant and her father spent two weeks painting doors throughout the property.
The applicant and first respondent undertook landscaping and gardening works at the property in 2006 at a cost of $12,500 to which the second respondent contributed $2,000.
The applicant obtained and installed a new clothes line and arranged the removal of the chicken coop and vegetable garden.
The applicant and first respondent paid for the cost of replacing half of the fence of the property, the cost of which was included in the landscaping cost.
The applicant also renovated a part of the garden area with her cousin in 2005. This was due to a problem that occurred when it rained; namely that the garages would become flooded with water as a soil build up (due to erosion) would temporarily block the drainage facilities that existed. The renovation consisted of the applicant and her cousin building a retaining wall (out of besser blocks, or equivalent, that had a sandstone type look). A number of plants were also planted to help stabilize the soil. This solved the flooding problem. Other garden renovations included the applicant installing lights on the garden stairs.
The applicant and first respondent also erected a large shed in the garden (about 3 meters by 3 meters that was built on a concrete slab).
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Constructive Trust
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Costs
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Remedies
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Injunction
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