Kolacek v Brezina

[1999] NSWSC 578

CITATION:	Kolacek v Brezina [1999] NSWSC 578
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1201/96
HEARING DATE(S):	3, 4 and 14 December 1998
JUDGMENT DATE:	11 June 1999
PARTIES :	Maria Kolacek (P) Vojtech Ladislav Brezina (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Ms. J. M. G. Housego (P) Mr. A. G. Jamieson (D)
SOLICITORS:	Blaxland Mawson & Rose (P) Jeffrey S. Dunn (D)
CATCHWORDS:	De Facto relationship; Application for orders adjusting interests with respect to property; Whether the parties lived in a de facto relationship for not less than two years; Dispute as to date of termination of relationship; Credit to be given to the testimony of each party; Parties lived in residences of the defendant; Respective contributions of the parties; Whether proceedings were brought within prescribed period; If not, whether leave should be granted to bring application.
ACTS CITED:	De Facto Relationships Act 1984
CASES CITED:	Roy v Sturgeon (1986) DFC 95,031
DECISION:	See Paragraph 86

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 11 June 1999

1201/96 MARIA KOLACEK -v- VOJTECH LADISLAV BREZINA

JUDGMENT

1    MASTER: These are proceedings under the De Facto Relationships Act 1984. 2 By statement of claim filed on 31 January 1996 the plaintiff Maria Kolacek seeks against the defendant Vojtech Ladislav Brezina, orders pursuant to section 20 the De Facto Relationships Act, adjusting the interests of the parties in property. 3    It was not disputed that the parties had entered into de facto relationship in about April 1987. However, there was a considerable dispute as to the date of the termination of that relationship. According to the plaintiff, the relationship continued until December 1994. According to the defendant, however, the relationship had come to an end by January 1989. No children were born to the relationship of the plaintiff and the defendant. 4    By section 17 (1) of the Act, the Court (subject to certain exceptions set forth in subsection (2) of that section) is precluded from making an order of the nature sought by the plaintiff in the present proceedings unless it is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than two years. It is appropriate therefore that, at the outset I should determine the disputed issue of the date when the de facto relationship between the parties came to an end. In doing so, I must of necessity refer to much of the evidence concerning the circumstances surrounding the commencement of the relationship and the conduct of the parties during the period whilst the relationship indisputedly continued and during the subsequent period, from January 1989 (by which time, according to the defendant, the relationship had come to an end) to December 1994 (at which time, according to the plaintiff, the relationship terminated). 5    The plaintiff was born in Czechoslovakia (as it then was) on 2 March 1947. She came to Australia in 1969. The plaintiff commenced cohabitation with the defendant in April 1987. At that time the plaintiff was married to Paul Kolacek, although separated from her husband. She was at that time not in employment. At the commencement of the relationship the plaintiff’s assets consisted of a small amount of savings, some jewellery, personal effects and an entitlement to a property settlement in the Family Court of Australia. That property settlement was ultimately effected between the plaintiff and her former husband on 28 April 1989, and the plaintiff received about $80,000. 6    During the course of the relationship the plaintiff was employed for most of the year 1987 at Colourcare Laboratory at Rose Bay (in a capacity which was not disclosed in the evidence). Thereafter, the plaintiff was not in full-time employment, but was in receipt of a part-pension. 7    The defendant also was born in Czechoslovakia (as it then was), on 25 November 1939. He arrived in Australia in 1968. The defendant also had been married before his relationship with the plaintiff. He had married Alexandra (now Mrs Vesely) in Czechoslovakia in 1965. In 1989, after they had been separated for eight years, they divorced. Mrs Vesely swore an affidavit in the present proceedings, which was filed on behalf of the defendant. 8    It ultimately emerged, from the evidence on Mrs Vesely, that (despite the assertion of the plaintiff) there was no property settlement between the defendant and his former wife in the Family Court of Australia. However, upon the sale of the Woollahra unit in July 1992, for $155,000, Mrs Vesely by agreement between herself and the defendant, received about $79,000 and the defendant received the balance (which would have consisted of about $76,000, less commission and associated costs relating to the sale). 9    The evidence was far from precise concerning the assets and liabilities of the defendant at the commencement of the relationship. It was asserted by the plaintiff in the statement of claim (paragraph 10) that at the commencement of the relationship the defendant “owned or had an interest in the following:

“A 50 percent interest in a property at Dalgety (jointly with his former wife)
A 50 percent interest in a property at Jindabyne (jointly with his former wife)
A 50 percent interest in a flat at Woollahra, Sydney (jointly with his former wife --- subject to a mortgage)”.

10    The foregoing statement (like almost the entirety of the statement in the statement of claim) was denied by paragraph 2 of the defence. In paragraph 9(d) of her affidavit sworn on July 1996 the plaintiff repeated her foregoing assertion in the statement of claim, by saying that the defendant “held with his former wife a 50 percent interest in property at Dalgety, Jindabyne and Woollahra”. The defendant in his affidavit of 10 September 1996 did not address the matter of his assets and liabilities at the time of the commencement of the relationship. 11    It eventually emerged that the property referred to by the plaintiff as being situate at Dalgety was a rural estate known as Unreachable, located at Snowy River Goldfields, to which I shall make further reference. 12    The property at Jindabyne (the location whereof was not disclosed with any greater degree of particularity than that it was situate at East Jindabyne) consisted of a block of vacant land. Although the defendant did not proffer any evidence concerning that land, it emerged from the evidence of his former wife, Mr Vesely, that that land had been owned conjointly by the defendant and Mrs Vesely and by a Mr Ruzek and his wife. 13    The land was sold in about 1989. On the settlement of that sale Mrs Vesely received about $26,800. By arrangement between her and the defendant, the defendant did not receive any part of the proceeds of the sale of that land. Apparently, it was agreed between Mrs Vesely and the defendant that in return for her receiving the entirety of the proceeds of the interest of herself and the defendant in the Jindabyne land, she would ultimately leave to the defendant all paintings and antiques and furniture and other contents in the apartment at Wallace Street, Woollahra. There was some evidence given by Mrs Vesely concerning details of those paintings (which come to the defendant from his mother in Czechoslovakia) and concerning various other objets d’art, and other items of an antique nature. 14 The property at Woollahra consisted of a home unit situate at and known as Unit 12, 100 Wallis Street, Woollahra. I shall, in due course, make further reference to the Woollahra property. 15 It would appear that the defendant had various liabilities at the time of the commencement of the relationship, and throughout the period of the relationship. However, the nature and details of those liabilities were not revealed with any clarity, let alone precision. 16 However, it did emerge that the defendant owed to Mr Peter Pokorny (a former business associate, to whom reference will shortly be made) sums of $7,500 (which was repaid in 1989) and about $24,000 (the former of those sums being in respect to a personal indebtedness, and the latter in respect to a business liability). 17 The evidence of the defendant did not address itself specifically to the details of his income throughout the period of his relationship with the plaintiff. However, under cross-examination, the defendant said that in the period from the commencement of the relationship until suffered a heart attack in August 1992 he did some work servicing motor vehicles for former clients, for whom he had been doing such work for many years, and that throughout that period his income was in the range of about $100 to about $150 a week. He did not throughout the relevant period (from the commencement of the relationship until its undoubted termination) file a tax return, because his income was less than the statutory minimum. After he suffered his heart attack the defendant commenced to receive a disability support pension. 18 As I understood it, it was the assertion of the defendant that during the period of the relationship and for some time thereafter he was subsisting upon the small income which he received from servicing motor vehicles (and after his heart attack from his disability support pension, the amount of which was not expressly stated), and that he supplemented that meagre income by selling various chattels and, as I understand it, by having resort to such funds as the insurance payment on the Lamborghini motor vehicle, and his interest in the proceeds of sale of the Wallis Street home unit. In addition, the defendant said that in about 1990 he borrowed about $20,000 from the NRMA. 19 Although the defendant was far from precise concerning his financial and material circumstances, his assets and liabilities at the time of the commencement of the relationship, it emerged from the evidence of the plaintiff under cross-examination that at the commencement of the relationship the defendant held in a bank account the sum of about $19,000 which he had received by way of a workers compensation payment in respect of an accident which he had suffered whilst working for City Motors. That amount appears to have been expended upon maintaining the lifestyle of the plaintiff and the defendant during the course of their relationship. 20 In June 1988 it would appear that the defendant borrowed $35,000 from one Jan Hochman. At least part of that sum was to be used towards the subdivision of the rural estate Unreachable. It would appear that that amount was repaid by the defendant out of the proceeds of sale of the subdivided lots of that estate. The arrangements between the defendant and Mr Hochman were set forth in a document dated 20 June 1988 (Exhibit 2). 21 The following year the defendant entered into a further agreement concerning the subdivision of Unreachable with a Mr Stanislav Petrzilka, details of which were set forth in a document dated 30 June 1989 (Exhibit 3). Also in 1989 the defendant appears to have borrowed from one Z. D. Bursak the sum of $8,200 (Exhibit 7). I gather that the indebtedness of the defendant in respect to each of those three loans was ultimately repaid. 22 Sometime before the commencement of the relationship the defendant had conducted a business known as City Motors, firstly in partnership with one Peter Pokorny; later that business was conducted through a company, of which the defendant and Mr Pokorny were the sole shareholders and directors. 23 In about 1969 (although some of the evidence gives the year as 1979) the defendant and Mr Pokorny (together with their respective wives) had acquired a rural estate known as Unreachable, located at Snowy River Goldfields near Dalgety in the Snowy River district. It is part of that property (which was subsequently subdivided) which constitutes the only substantial asset presently held by the defendant. The parties were in agreement that the present value of that property is $100,000 (that being the value ascribed to it in the valuation of John Mooney & Co. (Exhibit A)). 24 In addition to the various items of real property in which he had a half interest, the defendant also at the commencement of the relationship owned a number of chattels, details of which were not disclosed to the Court either in the defence or in the various affidavits filed by or on behalf of the defendant, or, indeed, until the latter part of the oral evidence given by the defendant at the trial. A handwritten list of chattels asserted by the defendant to be owned by him was (over the objection of the plaintiff) admitted into evidence, as Exhibit 9. 25 It should here be recorded that the defence consisted of a general denial of the entirety of the substance of the statement of claim and (in paragraph 3 of the defence) a statement that “The defendant relies on his affidavit in support sworn on 10 September 1996”. Such a statement in a defence is clearly embarrassing. Even the present system of pleadings, contemplated by Part 15 of the Supreme Court Rules, does not allow such a statement to be made in a pleading (see, for example, Part 15 rule 7). Nevertheless, the plaintiff did not seek to strike out either that paragraph in the defence, or, indeed, the entirety of the defence. 26 The defence was verified by affidavit sworn by the defendant on 10 December 1996. It is more than strange that the defendant was allowed to swear such an affidavit verifying his denial (contained in paragraph 2 of the defence) of such matters as the assertion by the plaintiff in the statement of claim that there was no child of the relationship (paragraph 4 of the statement of claim), that the defendant has two children of a former de facto relationship (paragraph 6), that the plaintiff was born on 2 March 1947 in Czechoslovakia and arrived in Australia on 2 October 1969 (paragraph 7), that the defendant was born on 25 November 1939 in Czechoslovakia and arrived in Australia in about 1968 (paragraph 8), that at the date of the commencement of the relationship the plaintiff was separated from but still married to Paul Kolacek, and that the plaintiff became divorced from Paul Kolacek on 28 April 1989 and received in 1988 $80,000 by way of property settlement arising from her marriage (paragraph 13), that at the date of the commencement of the relationship the defendant was separated from but still married to Alexandra Brezina, that the defendant became divorced from Alexander Brezina in or about 1991 - 1992 and received about $50,000 by way of property settlement arising from his marriage (paragraph 14), that at the date of commencement of the relationship the plaintiff was unemployed (paragraph 15), that the defendant did not work during the course of the relationship and was unemployed at the date of commencement of the relationship (paragraph 16). There was no dispute as to any of those matters, yet the defendant on his oath denied them. 27 During the course of the relationship the parties conducted two joint accounts with the State Building Society (opened in March 1988 and April 1988 respectively) and two joint accounts with the St. George Bank (said by the plaintiff to have been opened in May 1989, but apparently opened before that time). According to the plaintiff she deposited into those accounts the amount of $80,000 which she had received by way of property settlement from her ex-husband. According to the defendant, during the period of fifteen months from the time when he first met the plaintiff (which he asserts to have been, I gather, in late 1986), he deposited at least $70,000 into those joint accounts. It was the assertion of the defendant that throughout the undisputed period of the relationship --- that is, from April 1987 until January 1989, the parties spent a considerable amount in maintaining a lifestyle of high (not to say extravagant) standard, they ate at expensive restaurants, they purchased various antiques, the defendant purchased a Lamborghini motor car. 28 According to the defendant (and the evidence would appear to support this assertion) the defendant maintained a good and harmonious relationship with his former wife, both up to the time of his divorce and thereafter. Indeed, it the suggestion of the defendant that the plaintiff should purchase the interest of Mrs Vesely in the home unit at Wallis Street, Woollahra. 29 It would appear that Mrs Vesely was no longer residing in the Woollahra premises when in early 1987 the plaintiff and defendant commenced cohabitation therein. 30 On a visit by Mrs Vesely to the plaintiff and the defendant in the Woollahra apartment in June 1988 the plaintiff offered to purchase for $50,000 Mrs Vesely’s half interest in that property. 31 Mrs Vesely was agreeable, at least in principle, to that proposal, although it would appear that she considered that the apartment had a higher value than that reflected in the plaintiff’s offer. The parties and Mrs Vesely consulted a solicitor shortly thereafter. In that solicitor’s office the plaintiff gave to the solicitor a cheque for $10,000 representing the deposit on the Woollahra property. At the same time the defendant said to Mrs Vesely, “Can we borrow this money, $10,000 back from you, because we are a little bit short of money.” According to Mrs Vesely, the plaintiff then said, “Don’t worry. I will soon get more money from my ex-husband, Paul Kolacek, and we will pay you back the whole amount.” 32 However, after her return from overseas Mrs Vesely indicated to the plaintiff’s solicitor that she did not intend to proceed with the sale to the plaintiff of her interest in the Woollahra unit. She told the plaintiff that she had received a bill from her solicitor, and that she was not going to pay any costs for the sale to the plaintiff, and that she would not go ahead with that sale. 33 According to the defendant, he continued to reside in the Woollahra unit until it was sold at the beginning of 1992. 34 Throughout the period from the commencement of the relationship until the sale of the Woollahra premises the plaintiff and the defendant frequently visited the property Unreachable. According to the plaintiff, upon the sale of the Woollahra apartment in 1992 the parties removed to Unreachable on a permanent basis together 35 I have already recorded that Unreachable was purchased in 1969 by the defendant and his then wife, and Peter Pokorny and his wife. 36 Mrs Vesely gave evidence (both by affidavit and under cross-examination) concerning her subsequent contact with the plaintiff and the defendant, especially visits by her to the property Unreachable in the period after December 1991. 37 On 8 June 1988 the plaintiff deposited into one of the joint bank accounts amounts of $24,000 and $6,000 (totalling $30,000). Shortly thereafter, on 21 June 1988, an amount of $7,500 was paid from that joint account to Mr Pokorny to enable the defendant to purchase (for $35,000) the half interest in Unreachable then held by Mr Pokorny. On 28 June 1988 an amount of $2,168.65 was paid from that joint account, in order to discharge a mortgage of the defendant, and an amount of $117 was paid on account of the costs of the defendant’s solicitors for that purpose. 38 On 10 July 1988 the plaintiff paid $10,000 to the defendant’s former wife. Shortly thereafter, on 15 July 1988, the plaintiff deposited into the joint bank account cheques for $15,000 and $35,000 (totalling $50,000). That is, in the period from 8 June to 15 July 1988 the plaintiff deposited a total of $80,000 into the joint accounts, that total sum representing the entirety of the amount which she received by way of property settlement from her former husband. 39 From the joint accounts the defendant shortly thereafter withdrew an amount of $1,000, which he gave to his former wife, then about to depart on a trip to Europe, to use for spending money. A week later the defendant deposited into the joint account an amount of $19,270.36, being the proceeds of an insurance payment which the defendant had received in respect of the Lamborghini motor car (which apparently had been damaged in an accident). From those proceeds of the insurance payment the defendant on 6 August 1988 purchased a bulldozer for $3,150, and repaid a loan of $16,000 which he had earlier obtained from one L. Ensor for the purchase of the Lamborghini motor vehicle. 40 According to the plaintiff, on 22 December 1988 she paid an amount of $2,373.09 to the National Australia Bank, in reduction of a credit card debt of the defendant which had accrued before the commencement of the de facto relationship between the parties. 41 I have already referred to the rural estate situate at the Snowy Mountains Goldfields and known as Unreachable. In early 1990 the defendant subdivided that property into four lots. Three of those lots he sold for a total of $110,000. He retained the fourth lot, which has continued to be known as Unreachable. Upon that remaining lot stood a residence. Photographs of that residence (described, it would seem with accuracy, as a hut) were admitted into evidence (part of Exhibit A, Exhibit 4 and 5). In 1991 the construction of extensions to that residence commenced (albeit, it would appear, without any required approval from the appropriate Local Government authority). 42 I have already recorded that it was the case for the defendant that the de facto relationship ceased in January 1989. At that time, however, the plaintiff moved to Unreachable, where she resided, firstly, in the hut on that property. Upon the sale of the Woollahra unit the defendant relocated his residence from Sydney to Unreachable. According to him the plaintiff thereupon moved herself into a caravan standing upon that property. A considerable quantity of evidence was devoted to the living (and, especially, the sleeping) arrangements of the parties during the period whilst they were both residing on Unreachable. 43 On 3 August 1992 the defendant suffered a heart attack. He was admitted to the Cooma Hospital on that date. The admission form sets forth the name of the plaintiff (described thereon as “friend”) under the heading “Person for notification”. Her address is shown on that form as Lot 44 Mutton Road, Dalgety. It was not in dispute that the plaintiff visited the defendant regularly (she asserted daily) during the period of eight days whilst he was in hospital. Although at first denied by the defendant, it was the assertion of the plaintiff that upon his discharge on 11 August 1992 the plaintiff accompanied the defendant from the hospital. 44 The plaintiff was cross-examined concerning her present living arrangements in what was described as “rented accommodation” at 18 Tumut Street, Cooma. That property is owned by one Guy Proesser, who also lives in what the plaintiff described as “the other flat” in the house. The plaintiff moved into that residence in 1994. The plaintiff denied that she was in a de facto relationship with Mr Proesser, although she agreed that she had what she referred to as “occasional sex” with him. 45 As I understood it, the significance attributed by the defendant to the plaintiff’s relationship with Mr Proesser appeared to be a suggestion that the plaintiff had been having some form of relationship with Mr Proesser (who has been introduced to her by the defendant, when he had come to visit the defendant at Unreachable) during at least part of the period whilst the plaintiff was residing at Unreachable and during which she now asserts that the de facto relationship with the defendant was still in existence. In addition, the defendant relies upon the plaintiff’s evidence on this topic as going to her credit and to the reliance which the Court should place upon the evidence of the plaintiff where her evidence is in conflict with that of the defendant. 46 It is appropriate that I should here express my views concerning the credit of each of the parties. I was not favourably impressed by either the plaintiff or the defendant. I would be reluctant to accept the evidence of either of those persons where such evidence was not supported by other evidence (especially by documentary evidence or evidence of an objective nature) in relation to any matter in issue between the parties. 47 It will be appreciated that, since it is the plaintiff who is making the present claim and since there is no cross-claim brought by the defendant, it for the plaintiff to establish her case upon the evidence placed by her before the Court. Where, as here, that evidence essentially is the evidence of the plaintiff herself, I am not prepared to accept the uncorroborated oral assertions of the plaintiff where they are disputed by the defendant, either by his own evidence or by the evidence of any of the other witnesses. 48 In particular, I was most unfavourably impressed by the evidence given by the plaintiff concerning the nature and character of her domestic arrangements with Mr Proesser in the residence at Tumut Street, Cooma. I consider that she was being deliberately evasive (if not intentionally untruthful) in that regard. This plaintiff’s evidence concerning the change of her address (a matter to which I shall later return) not only reflected poorly upon her credit, but was also inconsistent with the case she was asserting. 49 It was asserted by the plaintiff that she gave considerable help and assistance to the defendant in the renovation and reconstruction of the residence upon Unreachable, and in the general improvement, care and maintenance of that property. In her affidavit evidence she said that she attended to the following matters: spraying of weeds, planting of trees, clearing of building site and collecting rocks, levelling of the site, cleaning of timbers, mixing of mortar, repairing of fences, repairing of roads, renovating and refurbishment of the property, including the establishment of an irrigation system and the construction of a dam. However, under cross-examination the plaintiff conceded that, on account of a physical disability, she was not able to perform heavy work. 50 In addition, it was the assertion of the plaintiff that throughout the period of the relationship she undertook the major part of the household duties for herself and the defendant, including: washing, cleaning, cooking, ironing, dusting, shopping, preparation of all meals, cutting and loading of firewood; skinning, cleaning, gutting of kangaroos, rabbits and goats (such activities being asserted to be for the purpose of preparation of meals); nursing and care of the defendant following his heart attack in 1992, including the performance of all chores during the convalescence of the defendant. 51 The nature and extent of the domestic and household activities alleged by the plaintiff, and the reconstruction, renovation and restoration work upon the property alleged by her were disputed by the defendant. 52 I am prepared to accept that the major part of the household and domestic activities was performed by the plaintiff, and that she had the primary role as homemaker However, I am not prepared to accept, unless it be supported by other evidence, the disputed extent of the contribution made by the plaintiff to the improvement of Unreachable. 53 The evidence of the defendant concerning the circumstances in which the parties removed from Sydney to Unreachable was very different from that of the plaintiff. According to the defendant, by January 1989 the relationship had deteriorated and the parties were no longer living as de facto partners. The defendant said that by that time the plaintiff had moved to Unreachable, whilst the defendant continued to reside in Sydney. The reason for that relocation by the plaintiff was, according to the defendant, that the plaintiff did not appear to have anywhere to go, and since Unreachable was not being occupied, except for visits by the defendant, the defendant considered that there would be no harm in allowing the plaintiff to reside there “until she re-established herself”. 54 In this regard it will be recalled that it was the case for plaintiff that she remained in residence with the defendant (and in a de facto relationship with him) in the Woollahra apartment until the sale of that property in 1992, when she and the defendant together removed to Unreachable, still in a de facto relationship. 55 According to the defendant, he and the plaintiff remained friends, just as he and his former wife, Mrs Vesely, have remained friends. The defendant denied any sexual activity with the plaintiff after January 1989. 56 The plaintiff in her evidence conceded that there was no sexual relationship between the parties after the defendant suffered his heart attack in August 1992. According to the plaintiff the reason was that, on account of his medical condition, the defendant had become impotent. The plaintiff asserted that she continued to sleep in the hut with the defendant until his heart attack, and that it was only after he returned home in mid-August 1992 that she “moved into the spare room”, because the defendant watched television until early hours of the morning and disturbed her when he came to bed. Since he slept late, whilst she rose early, she said that she then would disturb the defendant when she got up. 57 The foregoing assertion took on a somewhat different complexion when it was conceded by the plaintiff that there was, in fact, no “spare room” in the hut at the time, and that the plaintiff was sleeping in what could be described as a corner of the principal living area. 58 The plaintiff also conceded that she eventually moved into a caravan on the property. However, she asserted that that move occurred only in 1993, following her return to the property after a brief holiday. She also said that the caravan “adjoined the cabin”, and that, although residing in the caravan, she still continued to do all the domestic chores in the house. 59 There does not appear to be any adequate explanation for the removal of the plaintiff into the caravan on the property which is consistent with a continuation of the de facto relationship between the parties. I am not satisfied that it is possible to conclude that the de facto relationship (even if, contrary to the assertion of the defendant, it had subsisted to that point) continued after the plaintiff moved into the caravan. 60 In Roy v Sturgeon (1986) DFC 95,031, Powell J (as he then was) referred to the various aspects of a couple’s relationship which led to a finding that the man and woman were living together as husband and wife on a bona fide domestic basis. His Honour found that those aspects “vary from case to case” and continued,

[I]t seems to me that each case will involve the court making the value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: (1) the duration of the relationship; (2) the nature and extent of the common residence; (3) whether or not a sexual relationship existed; (4) the degree of financial interdependence, and any arrangements for support between or by the parties; (5) the ownership, use and acquisition of property; (6) the procreation of children; (7) the care and support of children; (8) the performance of household duties; (9) the degree of mutual commitment and mutual support; and (10) reputation and “public” aspects of the relationship.

61    It will be appreciated that a number of the foregoing elements are not present in the instant case, for example, those relating to the procreation and the care and support of children. 62    During the time whilst the parties resided together at Woollahra (there being an undoubted de facto relationship in existence throughout that period) a number of the foregoing elements existed, but some ceased to exist when the parties removed to Unreachable. The elements which existed whilst at Woollahra but did not exist at Unreachable were financial interdependence, a sexual relationship (at least after August 1992), performance of household duties for the defendant. 63    In determining the period of the de facto relationship, I attach considerable significance to the date when the plaintiff departed from the Woollahra home unit and moved to Unreachable. It will be recalled that the plaintiff asserted that she remained with the defendant at Woollahra in a de facto relationship until the sale of that apartment in early 1992 when she and the defendant relocated to Unreachable. The evidence of the defendant was that the plaintiff departed from the Woollahra premises some three years earlier, in January 1989, and that the defendant continued to remain in Woollahra living on his own until the sale of that property in early 1992. 64    If the version given by the plaintiff is correct, then it is possible that the de facto relationship continued at least until the parties relocated to Unreachable in early 1992, and probably for some time thereafter. If, however, the version given by the defendant is correct, and that for a period of three years he continued to reside at Woollahra (paying occasional visits to Unreachable), whilst the plaintiff was residing at Unreachable, then I am satisfied that the de facto relationship between the parties came to an end when they ceased residing full-time in a common residence. 65    I have already observed that the evidence of each of the parties is far from precise concerning the time when and the circumstances surrounding the removal by the plaintiff from Woollahra to Unreachable. I have already recorded my views concerning the unsatisfactory nature of unsupported and uncorroborated oral testimony given by each of the parties. 66    In regard to the time when the plaintiff relocated to Unreachable there is, however, some independent evidence available. That evidence relates to the changing by the plaintiff of her address from Unit 12, 100 Wallace Street, Woollahra, to Unreachable in December 1988 and January 1989 with the Roads and Traffic Authority, and in 1988 with a pistol club of which she was a member, and with all other entities with whom she maintained a mailing address. 67    I regarded the attempted explanation by the plaintiff concerning those changes of address (“because Vic advised me to do that”, “that was Vic’s advice”) as being entirely unsatisfactory. The plaintiff attempted to explain this conduct on her part (which, in the context of her assertion that she remained at Woollahra until early 1992, constituted the giving of false information to the persons and entities to whom she notified her change of address) by acknowledging that the information was untrue, “but we were there [at Unreachable] most of the time anyway”. That response is inconsistent with the assertion made by her in her affidavit and oral evidence that she remained in residence at Woollahra until early 1992. 68    I have already observed that it is for the plaintiff to establish her claim. 69    I am not satisfied that the parties resided together after January 1989. From then until early 1992 the defendant resided in Woollahra. I am satisfied that throughout that period the plaintiff resided at Unreachable. Occasional visits at weekends by the defendant (if such visits occurred) would not in my view be sufficient to constitute a continuation throughout that period of any de facto relationship between the parties which had obtained until the removal by the plaintiff to Unreachable in January 1989. 70    It follows, therefore, that I am not satisfied that the plaintiff has established that the de facto relationship existed after January 1989. 71    That being so, it follows that, since the relationship obtained for a period of less than two years, the Court is precluded from granting the relief sought by the plaintiff in the present proceedings, unless the plaintiff can establish that the exceptions set forth in subsection (2) of section 17 of the Act have application to the circumstances of the instant case. The only such exception relevant to the present proceedings is that contained in subsection (2)(b)(i) of that section,

that the applicant ----
(i) has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made.

72 For reasons which will shortly appear, I am not satisfied that the plaintiff has established that she is entitled to avail herself of the provisions of the foregoing exception. My conclusion that the relationship obtained for a period of less than two years has the consequence, therefore, that the present claim of the plaintiff must be dismissed. 73 If however, I am wrong in that conclusion, and if the plaintiff be considered to have established that the de facto relationship continued until the parties moved to Unreachable, or for some time thereafter, then it is appropriate that I should refer to the substantive merits of the plaintiff’s claim (which merits are also, it will be appreciated, relevant to the question of whether the plaintiff can avail herself of the foregoing exception provided by section 17(2)(a)(i)). 74 Even if the de facto relationship continued after the parties moved to Unreachable, it certainly came to an end no later than July 1993 (when the plaintiff moved into the caravan), and probably in August 1992 (after the defendant returned to Unreachable following his heart attack). 75 I considered the evidence given by the defendant concerning the circumstances in which he had nominated the plaintiff as the person to be notified when he was admitted into hospital in August 1992, the circumstances relating to his departure from hospital with the plaintiff some eight days later, and the constant and frequent visits by the plaintiff to him whilst he was in hospital to have been clearly evasive, if not deliberately untruthful. 76 In assessing the credibility to be given to the evidence of the defendant, it must also be appreciated that he was far from frank concerning the various chattels which were owned by him either at the commencement of the relationship or at the termination of the relationship, and that the existence of those chattels (and the respective values to be ascribed thereto) was revealed by the defendant only in the closing stages of the hearing. 77 However, if the relationship had terminated by July 1993 (the latest date by which in my conclusion, it is possible it could have terminated), then the present proceedings, which were instituted by the filing of the Statement of Claim on 31 January 1996, were not instituted within a period of two years after the parties ceased to live together (as required by section 18 of the Act). 78 It is of significance that throughout the period of the relationship (whatever be that period) the parties resided conjointly in properties each of which was brought into the relationship by the defendant. The plaintiff paid no rent or occupation fee for residing in either of those properties. 79 I am satisfied that the plaintiff contributed $80,000 to the conjoint household consisting of herself and the defendants. Further, that she made non-financial contributions to that household, by the performance of the major part of the household activities, and by the performance of some (but considerably less than asserted by her) activities for the improvement of Unreachable. 80 By the same token, it must be appreciated that for the period of almost two years whilst they were residing together in the Woollahra unit the plaintiff had the benefit of living rent free. For more than half of that period the plaintiff was not in employment, and she was largely dependent upon the income of the defendant. 81 The plaintiff whilst with the defendant also had the benefit of a very high standard of living and expensive lifestyle, at least whilst they were residing at Woollahra. 82 The defendant contributed to the joint bank accounts of the parties amounts totalling about $75,000. He also had the major responsibility for the upkeep of the parties, not only whilst they were residing at Woollahra, but also whilst they were residing at Unreachable. Throughout the period at Unreachable the plaintiff, once again, was living free of charge and at the expense of the defendant. The plaintiff by her statement of claim originally sought an order that the defendant pay to her the sum of $200,000. She subsequently reduced her claim to $170,000. At the conclusion of the hearing the amount she was seeking had diminished to $80,000. 83 The respective direct financial contributions of the parties to the relationship were more or less equal. The non-financial contributions of the defendant to the improvement of Unreachable far exceeded those of the plaintiff. The contributions by the plaintiff as homemaker were more than offset by the contributions of the defendant, firstly, in providing the residences at Woollahra and at Unreachable, and, secondly, in providing the wherewithal to maintain the high lifestyle which the parties enjoyed at least whilst they were living together at Woollahra. His income, the proceeds of his insurance claim, his workers compensation payment were all used for the living and household expenses of the parties. 84 I have reached the conclusion, therefore, that, upon the substantive merits of her claim, the plaintiff has not established any entitlement any order of the nature sought in the proceedings to adjust the interests of the parties with respect to property. My foregoing view concerning the respective contributions of the parties is also sufficient to determine the entitlement of the plaintiff to avail herself of the exception contained in section 17(2)(i). She has not established such an entitlement. 85 It follows, therefore, that, firstly, in consequence of section 17(1) of the Act, and, secondly, upon its substantive merits, the proceedings must be dismissed. 86 I have already adverted to the fact that the proceedings were not instituted within a period of two years from the time when the parties ceased to live together, (which upon my conclusion was in January 1989, but --- even contrary to that conclusion --- was no later than December 1993). In those circumstances, therefore, unless the Court is satisfied of the matters set forth in subsection (2) of section 18, the Court is precluded from making an order in favour of the plaintiff. 87 Since I have already expressed my conclusion that the proceedings must be dismissed, it is unnecessary for me to consider further the question of the failure of the plaintiff to institute the proceedings within the foregoing limitation period. If, however, it had been necessary for me to consider that question, it would be necessary for me to refer to the evidence placed before the Court concerning the present financial and material circumstances of the plaintiff. I would not have been satisfied (were it necessary for me to express a conclusion in this regard) that greater hardship would be caused to the plaintiff if leave were not granted to her to bring the present application after the expiration of the period prescribed subsection (1) of section 18, than would be caused to the defendant if leave were granted. Essentially my reason for that conclusion is that if (contrary to all the foregoing conclusions which I have herein expressed) the plaintiff had otherwise established an entitlement to relief under section 20 of the Act, the effect of any order which might be made in her favour would have been (on account of the present financial and material circumstances of the defendant) to dispossess the defendant of his home on Unreachable, in circumstances where he is in ill health, unable to work, and dependent upon a disability pension. 88 Accordingly, I make the following orders:

1. I order that the suit be dismissed.
2. I order that the plaintiff pay the costs of the defendant.

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Last Modified: 06/11/1999