Lloyd v Tedesco - [2001] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LLOYD -v- TEDESCO [2001] WASC 99

CORAM: MILLER J

HEARD: 2-5 APRIL 2001

DELIVERED : 24 APRIL 2001

FILE NO/S: CIV 1771 of 1995

BETWEEN: KATHLEEN LOUISA LLOYD
Plaintiff
AND
FRANCESCO TEDESCO
Defendant

Catchwords:

Equity - Equitable estates and interests - De facto relationship - Joint endeavour principle - Claim for compensation for increment in wealth of one party accruing during relationship - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr A J Camp
Defendant: Mr W S Martin QC & Mr G F McLeod

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: Deacons Lawyers

Case(s) referred to in judgment(s):

Lloyd v Tedesco, unreported; SCt of WA; Library No 970391; 5 August 1997
Stowe & Devereaux Holdings Pty Ltd v Stowe (No 1) (1995) 15 WAR 363
Stowe v Stowe (No 2), unreported; SCt of WA; Library No 960354; 4 July 1996
Stowe v Stowe (No 3), unreported; SCt of WA; Library No 970389; 5 August 1997

Case(s) also cited:

Baumgartner v Baumgartner (1985) 2 NSWLR 406
Baumgartner v Baumgartner (1987) 164 CLR 137
Black v Black (1991) 15 Fam LR 109
Dynasty Pty Ltd & Ors v Coombs (1995) 13 ACLS 1290
Evans v Marmont (1997) 21 Fam LR 760
Hibberson v George (1989) 12 Fam LR 725
Holt & Ors v Cox [1994] 15 ACSR 313
Holt & Ors v Cox [1997] 23 ACSR 590
Kais v Turvey (1994) 11 WAR 357
Mallett v Mallett (1984) 156 CLR 605
Mike Gaffikin Marin Pty Ltd v Princess Street Marina Pty Ltd (1995) 13 ACLC 991
Muschinski v Dodds (1985) 160 CLR 583
Richardson v Hough (1998) 24 Fam LR 94
Roberts v Walter Developments Pty Ltd (1997) 15 ACLC 882
Sanford v Sanford Courier Service Pty Ltd (1986) 5 ACLC 394
Sapir (No 2) (1989) 13 Fam LR 362
Shannon v Reid (1992) 11 ACLA 1
Turnbull v Turnbull (1990) 15 Fam LR 81

MILLER J: The plaintiff and the defendant lived in a de facto relationship between July 1981 and December 1990, although with some four separations of differing periods during that time. The plaintiff has sued the defendant for compensation for the increase in wealth which it is alleged accrued to him during the period of the relationship. The plaintiff's cause of action can best be described as one for compensation in consequence of an alleged joint endeavour between the parties for the object or purpose of providing permanent financial security and benefits to them.

The Joint Endeavour Principle

In interlocutory proceedings in this action (Lloyd v Tedesco, unreported; SCt of WA; Library No 970391; 5 August 1997 at 6) the juridical basis for the claim was summarised by Owen J in the following way:
"The way that the plaintiff advances the claim in this pleading involves six steps or elements. First, there is the existence of a joint endeavour between the parties for the object or purpose of providing permanent financial security and benefits. The second element is that the plaintiff made valuable contributions to the joint endeavour. Thirdly, there has been an increment in wealth that has accrued to the defendant as a result of the joint endeavour. The fourth proposition is that the retention of that wealth by the defendant to the exclusion of the plaintiff would be unconscionable. Fifthly, the plaintiff says that by reason of all of this she is entitled to compensation. The final element is that the Court should declare an equitable charge in favour of the plaintiff over some property as security for the compensation."
In Stowe v Stowe (No 2), unreported; SCt of WA; Library No 960354; 4 July 1996 the plaintiff framed her cause of action in the same terms. This was in consequence of the decision of the Full Court in Stowe & Devereaux Holdings Pty Ltd v Stowe (No 1) (1995) 15 WAR 363 where in similar circumstances the plaintiff had brought her action on the basis of several different causes of action. They included assertions of a constructive trust, unjust enrichment and promissory estoppel. It is unnecessary to refer to the decision of the Court in that case, save to say that the Full Court considered none of those causes of action was open to the plaintiff on the facts pleaded in her statement of claim. Following the decision, the plaintiff in that action made application to substitute an amended statement of claim and for the first time pleaded what has become to be known as the "joint endeavour principle". It was so termed by Owen J in Lloyd v Tedesco (supra).
In Stowe v Stowe (No 2) (supra), Owen J set out in some detail the basis (and the only basis) upon which compensation under the joint endeavour principle might be awarded. His Honour said (at 5 ‑ 6):
"Senior counsel for the plaintiff relied heavily on Muschinski v Dodds (1984-1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137. Those cases stand as authority for the broad proposition that equity will intervene to prevent the retention of benefits in circumstances where it would otherwise be unconscionable so to do.
This is a case in which the plaintiff and the defendant were a man and a woman living in a de facto relationship and where the man conducted business operations and the woman was, and I hope that this will not sound condescending, what might loosely be called the homemaker. It will be convenient to recite the general principles by reference to that situation. Upon the cessation of a relationship the mere fact that a woman has performed household chores and acted as a caregiver will not entitle her to seek relief from the man in the form of a proprietary interest in property owned by him. Nor will it sustain a claim for compensation: Stowe (supra); Grant v Edwards [1986] Ch 638; Green v Green (1989) 17 NSWLR 343 at 13. In Muschinski v Dodds (supra) Deane J said, at 619:
'... the principle [of equity] operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should enjoy it. The content of that principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do ... '
The principle is concerned to restore contributions made for the purpose of the now defunct joint endeavour: see Baumgartner (supra) at 148. In Stowe (supra) their Honours said at 16 that 'equity intervenes to deny the unconscionable retention of a benefit'. There must be an actual intention that the parties agreed to participate in the joint endeavour. The purpose and scope of the endeavour is a question of fact fashioned by the circumstances of the particular case. The joint endeavour here pleaded is that the parties pooled their resources for the purpose of securing 'permanent financial security and benefits': see para 4 of statement of claim. This is the same purpose as the joint endeavour successfully pleaded in Baumgartner (supra) at 149. The fact that the contributions are of a non-financial kind will not prevent the application of the equitable principle: Baumgartner (supra) at 148; Stowe (supra) at 13.
To date the reported cases in which the joint endeavour principle has been successfully invoked seem to have involved parties of modest means. For example, in Muschinski (supra) the claim was made for contributions to a prefabricated house and rundown cottage. In Baumgartner (supra) the plaintiff sought compensation for contributions made to a house. In this case the defendant is the legal or beneficial owner of an extensive assortment of assets which appear to have a significant monetary value. This may complicate the process of determining contributions said to have been made but it should not, in my opinion, necessarily preclude the application of the principle."
In Stowe v Stowe (No 3), unreported; SCt of WA; Library No 970389; 5 August 1997 Owen J (at 8 ‑ 9) set out what is required to be proven by a plaintiff asserting a claim for compensation under the joint endeavour principle:
"We are concerned here with something over and above a de facto relationship. The mere existence of a de facto relationship could not, of itself, establish a joint endeavour of the type contended for. Nor, I think, could a promise of marriage. But the relationship is the starting point from which the case emerges.
…
The mere fact that a woman has performed household chores and acted as caregiver will not entitle her to seek relief from the man in the form of proprietary interest in property owned by him and nor will it entitle her to compensation. But it may be that there was a pooling of resources for the purpose of securing permanent financial security and benefits."

The Pleadings

The plaintiff pleads in par 2 of the statement of claim the joint endeavour:
"At all material times from the commencement of cohabitation the parties applied their capacities and skill for work in their respective roles pleaded in paragraphs 2 and 4 herein in a joint endeavour, one purpose of which was the parties intention to provide the parties future financial security and benefits."
The plaintiff's pleading was carefully analysed in Lloyd v Tedesco (supra) by Owen J and I respectfully adopt his Honour's summary of the essence of it. At 4 ‑ 6 it was put this way:
"In para 2 of the statement of claim the plaintiff pleads that at all material times from the commencement of the relationship the parties applied their capacities and skills for work in their respective roles pleaded in paras 2 and 4 in a joint endeavour. One purpose of the joint endeavour reflected the parties' intention to provide for their future financial security and benefits. The plaintiff then sets out some 'particulars of intention of permanent financial security'. They are:
(a) on a number of occasions the defendant told the plaintiff that his work in the joint endeavour was for the purpose of her future and of providing for her financial security;
(b) the parties agreed that the plaintiff would not engage in full time employment but would devote herself fully to her role as pleaded in para 4;
(c) on a number of occasions the defendant repeated a promise that he had made to that plaintiff that he would marry her; and
(d) on a number of occasions the defendant told the plaintiff that she would be entitled to a one half share of the assets that resulted from the joint endeavour.
Paragraph 3 sets out the properties and the companies on and in which the defendant is said to have worked to maintain and increase his wealth. Paragraph 4 specifies the activities that the plaintiff says she contributed to the joint endeavour. They include the role of de facto wife, homemaker and mother. They also include work as a book‑keeper relating to the defendant's market garden business and as 'an assistant market gardener' doing some manual labour. Paragraph 5 contains a plea that in contemplation of the financial security and benefits that the joint endeavour would provide for her the plaintiff contributed financially to the joint endeavour. Particulars are then given.
In para 6 the plaintiff pleads that pursuant to the joint venture the defendant increased his wealth because companies and businesses owned by him improved in value.
Paragraph 7 contains the allegation that the relationship ended through no fault of the parties but that the defendant has retained the increase in wealth and has refused to account to the plaintiff for the value of her contributions as pleaded in paras 4 and 5. Paragraph 8 pleads that the plaintiff's contributions (financial and non-financial) to the joint endeavour were made in the expectation that permanent financial security and benefits would accrue to her and the children as a result of the joint endeavour. In para 9 it is asserted that the defendant's retention of wealth and failure to account to the plaintiff for it is unconscionable. Paragraph 10 then provides:
'In the premises the plaintiff is entitled to be compensated in a sum representing so much of the increase in the defendant's wealth during the relationship which reflects the value of her contribution as pleaded in paras 4 and 5.'
The prayer for relief commences with a claim for a declaration that the joint endeavour is at an end and that the plaintiff is entitled to be compensated for the value of her contributions. The plaintiff then seeks a declaration that the defendant holds his shares in certain named companies and 'such other companies as are found upon discovery to hold businesses or assets' the value of which was improved during the relationship subject to an equitable charge in favour of the plaintiff as security for the compensation due to her. The equitable charge is said to extend also to 'any other personal property or assets of the defendant which upon discovery' are found to have been acquired or improved in value during the relationship. There are other consequential claims for relief that are not material for present purposes."
The defendant admits only the existence of the de facto relationship between the plaintiff and himself for the period November 1981 to November 1990. In relation to the plaintiff's claim he makes many assertions by way of denial of the essential facts pleaded. They include the following contentions:
(a)At the commencement of the relationship the plaintiff was in a superior financial position to the defendant.
(b)There were never any discussions to the effect that work would be performed by the defendant pursuant to any joint endeavour between the parties.
(c)Nor were there ever any discussions where it was agreed that the plaintiff would not engage in full‑time employment, or otherwise seek to enhance her assets, or otherwise pursue her financial security, but would devote herself full‑time to the role she contended she performed.
(d)On numerous occasions the defendant told the plaintiff that he would not marry her, such a declaration being reduced to writing and formally notified to the plaintiff in May 1984.
(e)At no time did the defendant say that the plaintiff would be entitled to a half‑interest in any of his assets.
(f)Following the settlement of Supreme Court proceedings in which the plaintiff had sued F Tedesco & Sons and the defendant for moneys said to be owing, the defendant had through his solicitors advised the plaintiff through her solicitors that she was no longer to be involved in any of the economic activities of the defendant - this to ensure that she would have no future claim to any entitlement of a financial nature against him.
The defence otherwise joins issue with and contests the various assertions of fact contained within the statement of claim and denies that the plaintiff is entitled to the relief sought or any relief.
It is clearly accepted by the plaintiff that the mere existence of a de facto relationship cannot of itself establish a joint endeavour of the type contended for the plaintiff in this case. Upon the cessation of such a relationship the mere fact that a woman has performed household chores and acted as caregiver will not entitle her to seek relief by way of compensation. What is essential is that the plaintiff prove an actual intention to pool the resources of herself and the defendant for the purposes of the alleged joint endeavour. If she is able to do this she will recoup by way of compensation such contributions as she made to that joint endeavour. The joint endeavour must, however, be established as a matter of fact. Likewise, if established as a matter of fact, any contributions to it must also be established as a matter of fact.
Consistent with the authorities to which I have referred, the plaintiff in this case is therefore required to prove the following:
(1)The existence of a joint endeavour between herself and the defendant for the object or purpose of providing permanent financial security and benefits.
(2)Valuable contributions by the plaintiff to the joint endeavour.
(3)An increment in wealth having accrued to the defendant as a result of the joint endeavour.
(4)The unconscionability of the retention of that wealth by the defendant to the exclusion of the plaintiff.
I stress that proof of the joint endeavour requires proof of an actual intention to pool resources for the purpose of that endeavour. Such intention need not, of course, be proven by direct evidence of the declaration by both parties of such an intention. It can, in an appropriate case, be inferred from all the facts and circumstances of the case. That is the situation urged by the plaintiff in this case.

The Evidence of the Plaintiff

The plaintiff was born in January 1947 and is now 54 years of age. She gave evidence that she was a member of a farming family. She left school at the age of 15 years and appears to have worked on her parent's farm from about that time. In 1970 she had an illegitimate child, and shortly thereafter her health deteriorated as a result of skin cancer. She underwent a number of operations during the mid‑70s and at or about that time, in 1973, an uncle left to her the whole of his estate, which included two properties, one of which was named "Nardi Villa".
The plaintiff claimed to have met the defendant in the early 70s when introduced to him by her father at a clearing sale. In her signed statement she claimed that she had first commenced a close and intimate relationship with the plaintiff in or about 1974, at which time she was seriously ill and supported by the defendant who visited her regularly in hospital. When cross‑examined on the subject the plaintiff gave confusing evidence. She said that she and the defendant had become lovers as early as 1970, namely, from the first time she had met him. The defendant contended on the other hand that he first met the plaintiff in about 1975 at which time he was operating Osborne Tractor Sales and Service. He knew then that she was an unmarried mother. He was married with three children. In his signed statement he stated that he commenced a relationship with the plaintiff in about 1976, at which time he was having difficulties with his wife who had a mental illness. There was, however, no intention on his part to leave his wife.
The plaintiff testified that the defendant had first told her that he was "unmarried". This statement was made in her signed statement and reiterated in cross‑examination when she claimed that on the occasion she had first met the defendant she had asked him whether he was married and he said he was not. This answer conflicted sharply with a statement made only moments before that when she had first met the defendant he had told her he was married. In the end, it appears that the plaintiff was saying that when she first met the defendant he had claimed to have been a single man but approximately three months later had told her that he was married. The evidence was, however, on any view of it, unsatisfactory. In general terms I found the plaintiff to be an unconvincing witness. There were numerous occasions upon which when confronted with uncontradicted documentary evidence about a fact she continued to deny that fact, or quite simply avoided the issue. This was perhaps most obvious over the issue of the plaintiff having sued the defendant for the return of moneys advanced to him. A writ was issued in April 1984 in which the plaintiff sued the defendant and his son, Michael Tedesco, for the sum of $68,654 (incorrectly stated to be $68,6541.77 in the writ). When cross‑examined on the subject, the plaintiff's responses could only be described as evasive. The following extract from the transcript will suffice:
"… The document records a loan of $61,000 to Mr Tedesco from you, doesn't it? --- 100,000.
Just read the document, 'I, Frank Tedesco, hereby acknowledge receipt of loan for $61,000'? --- Yes.
That's what it was. It was a loan by you to Frank to pay off his bank debts, wasn't it? --- No, because we were both - this is how Mr Cannon wrote it.
Why did you sign it? --- Because I was so frightened, because everything Frank used to say he used to tell me to be aware of the Mafia.
You sued Frank later on the basis that this was a loan, didn't you? --- Frank used to scare me all the time bringing up about the Mafia. I would do anything.
Ms Lloyd, I wonder if you would just answer my questions and we will get through this a lot quicker if you do? You sued Frank later based on the proposition that the $61,000 was a loan to him, didn't you? --- My lawyers did.
You instructed them to do it, didn't you? They didn't do it all by themselves? --- No, because Frank's son bashed me up.
You instructed them to sue Frank for the $61,000 on the basis that you had lent it to him, didn't you? --- Look, I can't recall."

The plaintiff's evidence was that the defendant had from the outset indicated to her that his marriage to his then wife was finished and that once he had sorted out an appropriate property settlement with her, she and he would be married. It was her claim that the defendant had declared his love of her from the outset and had, from time to time, thereafter promised to marry her when he was able to do so.
This conflicted somewhat with a statement made by the plaintiff on 11 July 1995 in which she stated that the first occasion upon which the defendant had promised to marry her was when she became pregnant with his second child in September 1981. The defendant was adamant that at no time had he promised to marry the plaintiff, having told her from the commencement of their relationship that he had no intention of marrying her. Apart from the fact that he was unable to marry her in the first instance, he claimed that he had no interest in remarrying in the event of any divorce from his wife.
The question of whether or not the defendant offered to marry the plaintiff is largely irrelevant to the plaintiff's claim. As the Full Court pointed out in Stowe v Stowe (No 1) (supra), if there was any promise given by the defendant to marry the plaintiff at a time when the defendant was married, it would be contrary to public policy to give it legal force in the context of a claim for equitable compensation (see per the Court at 379).
The plaintiff's evidence in relation to this question identified approximately five occasions when she claims marriage was discussed. These occasions were said to have been in 1970; again in 1974 (when a ring was given to her by the defendant); in 1978 (when the defendant's son Francis was born); in 1981 (when the plaintiff again became pregnant to the defendant); and in 1987 (at Quinn's Rock).
In the end, I formed the view that the plaintiff had at all times hoped that the defendant would marry her, and whilst there may have been some early discussion about the future possibility of marriage (albeit during the period when the defendant was married), it is my conclusion that from the time of the defendant's divorce from his wife in December 1982 he did not undertake to marry the plaintiff, but to the contrary indicated to her on numerous occasions that marriage was not on their agenda. As early as 1984 a solicitor acting for the defendant had made it clear to the plaintiff's then solicitors, Muir Williams Nicholson, that the defendant was not disposed to marry the plaintiff. In a letter dated 15 May 1984 R W Reading wrote:
"I know that when Mr Tedesco recently went to Singapore he opened his bag to find a note from Miss Lloyd in which she swore eternal devotion and obviously requested him to marry her. It will be my client's contention that the present proceedings are in an effort to force him to marry her. We wish to place on record that Mr Tedesco does not intend to marry her. The note will be kept for Court proceedings. The whole litigation has been commenced on the basis that he has refused to marry her and she has decided to call in what were made as gifts in the first instance."
On 18 May the statement was repeated in the context of a letter from R W Reading to Muir Williams Nicholson dealing with a dispute over monetary relations between the parties. On 16 December 1986 Cannon Bowden & Co, writing to the plaintiff's then solicitors Clarke & Co, put the matter clearly and unequivocally in these terms:
"It must not be inferred in any way that there is any prospects of marriage at this particular stage or that any prospects of marriage in the future have influenced the parties in signing this particular Deed. The parties are living in a de facto basis. The de facto basis I understand they intend to continue."
The letter from Cannon Bowden & Co was answered by Clarke & Co on 30 December 1986, but no comment was made on the observation about marriage.
Perhaps the most telling statement on the topic was that of the plaintiff in a letter to her solicitor dated 5 August 1986 in which she said:
"As you would have been told by now I've gone back to Frank as he was impossible to beat life was so so hard at Dianella as Frank wouldn't leave me alone, I guess I will die as a Miss but I guess God will work my life out."
When cross‑examined on this letter the plaintiff's evidence was far from satisfactory. The following passage from the transcript illustrates this:
"The reference to you dying as a miss is a reference to this ongoing dispute that you had with Frank about whether or not you would get married. That's right, isn't it? --- No, we would get - Frank asked me to come back - look, I can only explain it in my own words. Frank asked me to come - said to me and he cried and say, 'Kathy, come back to Quinns Rock and let's get married. Forget Cannon and everybody in the past and we're going to get married.
Ms Lloyd, we are now in 1986. Quinns Rock hasn't even been bought yet. You have written to your lawyer saying, 'I guess I will die as a miss.' What I'm suggesting to you is that you wrote that as a consequence of the ongoing arguments between yourself and Frank about whether you would get married and, notwithstanding those arguments, you had accepted that you would return to him even though you weren't expecting to marry. That's the position, isn't it? --- No, I always believed we would get married.
Why then did you write to your lawyer saying, 'I guess I will die as a miss?' --- I really can't - I can't answer that because I just got so bashed up all through my life with Frank."
The plaintiff first began co‑habitation with the defendant in or about July 1981 at Bedford. She then had one child by the defendant and shortly afterwards became pregnant again. She claimed that from the time she and the defendant began living together she undertook the role of home duties, caring for the children, cooking, cleaning and generally "backing up Frank". After one of the properties left to her by her uncle had been sold she received a substantial sum of money which enabled her to purchase a property at 180 Gibbs Road, Wanneroo. This was adjacent to property owned by the defendant and where he conducted the business of a market gardener.
Shortly afterwards the plaintiff and the defendant moved into the premises at 180 Gibbs Road, Wanneroo and according to the plaintiff she received from the defendant's solicitor, Mr Cannon, a cheque for $160,000 from which she paid substantial sums of money on improving the Gibbs Road property and on acquiring items of equipment and plant for it. These moneys were estimated to have been of the order of $40,000. The plaintiff then contended that following a conversation with the defendant in early 1982 she made moneys available to pay out his debts. This she said she did at his request and on his representation that any moneys that she gave to him would "stay in the family and be an investment for both of us". In the end, it appears that the plaintiff advanced to the defendant the sum of $61,000. She claimed that overall she gave him $160,000, but I can find no evidence to substantiate payments to him of any more than the sum of $61,000. This payment was made in three instalments to reduce loan accounts or bank overdrafts and was the subject of documentation in which the defendant acknowledged receipt of the moneys as a loan, stating that in the event of his death the loan would be repaid from his estate and that interest would be paid on the moneys loaned at the bank rate applicable at the time.
The plaintiff claims that in addition to advancing the $61,000 to the defendant she used money to acquire a boat, a utility and fishing gear, the first two items amounting to $14,000 and $17,000 respectively. Later, she said that she put money into a caravan at Greenhead (at a cost of $10,000) and advanced money to the defendant to bet on a racehorse.
No documentation exists in relation to the advance of any moneys other than the $61,000 loaned. There is, however, some documentation which is inconsistent with the plaintiff's account of generally making available all of her money to the defendant on the basis that it would be used for their joint purposes. In a letter dated 20 February 1983 written by the plaintiff to Mr Cannon she stated that she needed money as she had "loaned all my cash to Frank" and warning of the necessity to take action to recover that money if need be. Later, on 13 April 1983, the plaintiff wrote to Mr Cannon asking for moneys which he was holding on her behalf and stating that "I have invested some of the other I had unknown to Frank which has left me short until June". This latter statement makes it clear that the plaintiff regarded her money as her own and was prepared to invest it on her own account and without reference to the defendant.
In 1984 when the parties separated the plaintiff took steps to recover from the defendant the moneys which she had loaned to him. The Supreme Court writ issued on her behalf was settled by a consent order. This order was preceded by a document termed "Terms of Settlement" signed by each of the plaintiff and the defendant and in the following terms:
"1.$11,000.00 is to be paid by the Defendant into a Trust Account under the names of FRANCESCO AND SHANTALENA LLOYD and the signatories to be Frank Tedesco and Kathleen Lloyd.
2.The sum of $65,000.00 together with interest calculated at bank interest rates for overdrafts of less than $100,000.00 is to be repaid by the Defendant to the Plaintiff by the 1st September, 1985. Interest to be calculated from the 1st September '84.
3.The Defendant is to make minimum monthly repayments of $1,000.00 per month the first payment to be on the 1st October, 1984 as reduction on the principal and interest owing.
4.The Defendant is to pay the sum of $5,000.00 forthwith.
6.Each party to pay their own costs.
7.Frank Tedesco only to be liable for the settlement. Micheal Tedesco not to be liable for any payment.
WE HEREBY AGREE to the above terms of settlement and instruct Solicitors to draw up the appropriate Deed to effect settlement."
The conclusion I reach from this evidence is that as at 1984 the plaintiff and the defendant were not engaged in a joint endeavour whereby they were pooling their resources for the purpose of securing permanent financial security and benefits. Everything points to the parties keeping their finances entirely separate, and in circumstances of dispute between them, the plaintiff recovering from the defendant such moneys as she had advanced to him.
Later, in 1986 the plaintiff ran into trouble in relation to mortgage payments on the property at 180 Gibbs Road, Wanneroo. The defendant, through his solicitors, put forward a proposition to the mortgagee whereby the defendant would take over the responsibility for mortgage payments on the Gibbs Road property and another property owned by the plaintiff, on condition that the plaintiff had an option to repurchase the properties within a two‑year period and paid interest on moneys expended by the defendant during that time. As it happened, this came to nothing, but it is illustrative of the fact that the plaintiff and the defendant were operating their finances quite separately.
On 19 August 1986 Cannon Bowden & Co wrote to the plaintiff's then solicitor, Mr C Clarke, in relation to difficulties which had arisen over repayment of the moneys which had been the subject of the earlier loan, enclosing a draft deed in relation thereto. In the course of that letter Cannon Bowden & Co made the following statement:
"I understand yourself and Mr Russell Reading were engaged to calculate the total monies owing by Mr Tedesco to Miss Lloyd. I understood that the matter had been finalised but it appears that there has been a miscalculation and a cheque will be paid over so that as from the date of payment of that cheque it will be the end of all financial litigation between the parties.
It will then start off on the basis that nothing is owing by Mr Tedesco to Miss Lloyd. Under the terms of the settlement certain monies arising out of the sale of a vehicle were to be paid into an account for the two children. Mr Tedesco has done this. Miss Lloyd is seeking for him to hand over this money to her. We place on record that in due of the fact that she has obviously lost all her own funds it is not his intention in any way to allow the money to be paid to her. It is for the children when they attain the age of eighteen years and we place this on record."
In my view nothing could be clearer than the fact that by late 1986 the defendant was making it quite clear to the plaintiff that their respective financial situations were their own and would remain so.
There followed further correspondence between Clarke & Co and Cannon Bowden & Co, the details of which I need not reproduce. I have already quoted from one of those letters. The essence of those letters and communications from the plaintiff to her own solicitor is that the plaintiff was determined to recover from the defendant all that was owed to her and they were to be and remain financially independent. Indeed in a letter from Cannon Bowden & Co to Clarke & Co dated 28 January 1987, Cannon Bowden & Co contended that the plaintiff had refused to sign a deed "because she insists that she is going to make a claim against Mr Tedesco if the defacto laws are changed". This statement was never contradicted by any written communication from the plaintiff or her solicitor.
The draft deed to which reference was made in the correspondence was never executed, but nor was it the subject of any written response by the plaintiff or her solicitors. In it there appear the following paragraphs:
"8.The parties acknowledge that on the payment of the sum of $2000.00 as set out herein that no other monies are owing by either party to the other party or to F & M Tedesco and that Supreme Court Writ number 1502 of 1984 has been completely finalised by F & M Tedesco and that no further liability arises out of the matters the subject of the aforesaid Writ and settlement.
…
10.The parties hereby acknowledge that by signing this Deed each party accepts that he or she must keep his or her business affairs completely independent of each other and neither has a claim on any property at present owned privately by either of the parties to this Deed.
Frank Tedesco acknowledges that he has been living on a de facto basis with Kathleen Lloyd and that there are two children of the union. He wishes to continue this relationship that now exists in that he will continue to support the children and he does not want it in any way to be implied that Kathleen Lloyd is in any way involved in his business affairs in the market gardening or in any other way so as to entitle her to claim any monies in respect of his business activities.
He acknowledges that he will continue to support her and the two children and in no way does he want her to do anything in connection with his business activities. He does not want it to be said in the future that by continuing in a de facto relationship with him she is in any way contributing to his economic advancement and that she should be entitled to any part of his property or any income other than what he pays her privately in respect of their domestic arrangements."
Counsel for the defendant submitted that failure on the part of the plaintiff or her solicitor to respond to these very clear statements of intention on the part of the defendant revealed an acceptance by her of the fact that what was written was in fact the realilty. I accept this submission and I conclude that the financial disputes between the plaintiff and the defendant illustrate very clearly that the de facto relationship between them was limited to the plaintiff performing the homemaker role, retaining such moneys as she had, and recovering from the defendant such moneys as she had advanced to him when after a separation the relationship had temporarily ended.
Although the plaintiff did contend in evidence that she had done some work in the defendant's business, the evidence is overwhelming that she worked for Centerwest Pty Ltd for a period of no longer than four weeks. During that time she was employed on a carrot packing line in a packing shed. This short period of employment within the company in which the defendant held an interest cannot be said to indicate any contribution from the plaintiff to the defendant's business affairs. Although the plaintiff contended that the defendant had worked a market garden on her property at 180 Gibbs Road, I accept the defendant's evidence that there was only a very small section of the Gibbs Road property cleared, on which for a short period of time the defendant grew some lettuce. I accept also the evidence contained within statements of witnesses who state that at no time did they see the plaintiff perform any manual work on the market garden properties of the defendant.
Between July and September 1987 the parties were separated. The plaintiff was then living in Morley Drive, Morley and in receipt of no financial support from the defendant. She claimed, however, that the defendant came down to see her every second night and enticed her to return to him on the promise that they would be married and would get on with the rest of their lives, with the plaintiff having "half of everything". The plaintiff was strenuously cross‑examined in relation to this and it was put to her that the defendant had never made any such statement. The following excerpt from the transcript reveals the plaintiff's responses:
"You say this conversation took place in 1987 at Morley Drive, do you? --- Yes.
This was ---?--- Because Frank wanted me to come back to him and forget about the past.
On your evidence this is some 17 years after your relationship had commenced with him. Is that right? --- Yes.
And some 4 years after he had divorced his first wife? --- All I can remember is Frank coming down there crying and begging me to come back to Quinns Rock with him, 'Forget about everybody.'
But he had made it abundantly clear to you since at least 1983 that he had no intention of marrying you, hadn't he? --- No, because he kept on coming back. Why did he come back if he didn't have the intentions to marry me? If you're finished, you're finished but he kept on coming back telling me, 'As soon as we can get married we will.'
After this conversation that you say took place in Morley Drive in 1987 was any engagement ring purchased? --- No. I still had my original commitment ring when he first bought it for me.
Was any ---?--- He never ever bought me a - it was a commitment ring between him and I.
After this discussion in 1987 were there any discussions about plans for a wedding, about where it might take place, when it might take place, who might be invited? --- Yes, Mr - he no, sorry. He told me as soon as his mother dies he can marry me.
But I'm talking about the plans. Was there any discussion about where it might take place, about ---?--- No, I accepted what Frank told me; when his mother dies he can marry me. That was the religion - that was - what do you call it? Italian - what do you ---
When did Frank's mother die? --- After I left - after I was kicked out of Quinns Rock.
But no plans were made to marry them, no specific plans in terms of arrangements? --- Yes. When he went down to Dianella he asked me to come back, crying and saying, 'Forget about everything. We're going to get - we'll be married.'
I suggest to you that this conversation that you say took place in 1987 would have taken place at a time when you had previously threatened him with proceedings for a claim against his property. You dispute that I take it? --- Yes, I do."
In the light of the documentary evidence to which I have referred, I am unable to accept the plaintiff's testimony that the defendant made the promises or representations to her which she claimed.

The parties did resume co‑habitation in December 1997 at Quinns Rock. It was the plaintiff's claim that whilst there the defendant promised to her half of his shares in Centerwest Pty Ltd. This fact was denied by the defendant and I accept his denial. However, whilst at Quinns Rock, from September 1987 until December 1990, I accept that the plaintiff acted as "homemaker". That, however, was the extent of her role.
Ultimately, in circumstances which do not require any specific conclusion, the plaintiff left the Quinns Rock property and went to rented premises in Cape Street, Osborne Park. There she remained for a period of about six months before moving to Scarborough Beach Road at another rented property. Her health deteriorated badly and she was unable to supervise her children by the defendant. She conceded in December 1991 that they would be better off with their father, to whom they then went.

The Evidence of the Defendant

I have made reference to some of the evidence of the defendant. He agreed that a de facto relationship with the plaintiff commenced in or about September 1981. He claimed that from that time and at all subsequent times he made it clear to the plaintiff that he had no intention of marrying her. Although I accept that there may have been some early talk about marriage, I accept the defendant's evidence that at least from the time of his divorce he made it clear to the plaintiff that marriage was out of the question.
The defendant in his signed statement detailed the circumstances in which the Gibbs Road property had been acquired by the plaintiff. He said that he had advised the plaintiff of its availability and that he did so not for the purpose of "promoting any joint endeavour". Rather, it was a prospective financial investment for her in circumstances where she had recently sold the Nardi Villa property. The defendant could recall that the purchase price was approximately $90,000 but stated that he was not involved in any of the negotiations in relation to the purchase. He also contended that there were no discussions with the plaintiff about running any market garden business in partnership, as he was then already in business with his son Michael, with whom the plaintiff did not get on. Further, the son of the de facto relationship (Francis) was only a baby and there was never any question (as the plaintiff claimed in her statement) of he becoming a market gardener. All of this I accept.
The defendant contended that he did not need the plaintiff's property for his market garden business, as he had some 50 acres under cultivation in the name of entities associated with him and any small acreage of market garden on the Gibbs Road property owned by the plaintiff would be of no assistance to him at all. I accept that some market gardening operations were carried on by the defendant at the Gibbs Road property but I accept also that there was no general arrangement between the plaintiff and the defendant to enter into any joint market garden operation.
The defendant gave evidence in relation to the loan moneys and their repayment. I need make no further detailed reference to the subject, save that it is clear that the financial position between the parties was resolved in consequence of proceedings in this Court and by subsequent settlement negotiations. I find that with the exception of housekeeping and other incidental payments the parties from that time onwards intended to and did keep their financial affairs separate and apart.
Co‑habitation between the parties resumed during 1985. According to the defendant, the plaintiff consistently raised the prospect of marriage but equally consistently he responded that he had no interest in marrying her. This I accept to be the position. It is supported by contemporaneous communications made by the solicitors for the defendant to the solicitors for the plaintiff that this was the defendant's state of mind on the subject.
The defendant conceded that the plaintiff had substantially upgraded the Gibbs Road property and that he had utilised portion of the property for some of his business, but only to a very marginal extent. On, 30 December 1986, he was directed to vacate the Gibbs Road property, which he did. He then moved to the Alvesco property which was also on Gibbs Road. It was at this time, in December 1986, that the property settlement following his divorce from his wife was finally resolved. In my view, the difficulties experienced by the defendant in relation to this property settlement support his contention that at this time he had no intention of remarriage.
The defendant conceded that by February/March 1987 there was a reconciliation between the parties, but by May 1987 there was a further separation. Thereafter, in January 1988 the parties agreed to resume co‑habitation, this time at the Quinns Road property which the defendant had by then purchased. The defendant contended that he had the house fitted out with appropriate furniture and fittings for the plaintiff and her children and took the responsibility for payment of all household bills, paying housekeeping to the plaintiff as well as all personal bills which she incurred. He said that he made it clear to her on a number of occasions that he did not intend to marry her, and I conclude that this was the case. Indeed, as early as August 1986 the plaintiff appears to have reluctantly conceded that marriage was out of the question, advising her solicitor that she would "die as a miss" but would "work her life out".
The defendant was cross‑examined fairly lightly. When it was put to him that in Family Court proceedings involving his then wife, evidence was given on his behalf by the plaintiff, he stated that he had no recollection of it. Although I found this answer to be unconvincing, generally speaking I preferred the evidence of the defendant to that of the plaintiff. In the end, however, the issue of credibility between the parties is of less importance than the existence of contemporaneous documentary evidence, which supports the defendant's case and undermines that of the plaintiff.
On the critical question of what (if any) pooling of resources there had been between the parties for the purpose of securing permanent financial security and benefits, the defendant was subjected to the following cross‑examination:
We have established that Kathleen Lloyd made a contribution to your relationship, haven't we? --- As far as cooking, washing, cleaning.
Spending money on the renovation of the home, building a shed? --- She spent money on the renovation of the homes, as I said earlier on.
Yes, that's right. Reticulation. She paid for these things? --- That's right, yes.
Sure, it improved the value of that property. There's no question about that. I'm not saying that it was to the exclusion of improving the value of the property. You made a contribution to this relationship, didn't you? --- By ways or means of looking after the children and ---
And Kathleen Lloyd? --- Yes.
You provided her with financial security throughout that relationship? --- With food, clothes.
Yes. She looked forward to you coming home at night, she looked forward to you spending time with herself and the children. It was a very loving relationship, wasn't it, in those days? --- Well ---
In the early days. Let's start with the early days? --- It was a very turbulent one anyway.
…
So your contribution to that relationship was, as you have said, a financial one and it was achieved by your work in your companies and your partnership? --- I had to look after our children. It's part of my children.
Yes, that was your source of finances for doing that? --- That's right.
Was working in the companies and working in the partnership which clearly you have done very well, and the purpose of that relationship or one purpose of it was to provide for yourself and for Kathleen Lloyd financial security which you did. You brought money home? --- Yes.
You gave her money? --- Yes.
And benefits? --- Right, yes."
The third last question contained several ingredients, and the defendant's answer was consistent with being an answer to the last proposition. Although the plaintiff sought to make from this answer a case that the defendant had conceded a joint endeavour for the purpose of providing for the plaintiff's future financial security, I cannot agree that the defendant was making that admission. He was re‑examined about the subject and the following passage in the transcript reveals the true position.
"You were also asked questions about your provision of money to Ms Lloyd for the housekeeping. It was put in terms of financial security but the question was directed to you giving her money from time to time with which to meet the housekeeping? --- That's right.
My question is did you ever say to her that you were going to provide for her permanent security? --- Definitely no.
Did you ever have any intention in relation to providing for her permanent security? --- Definitely no."
In an attempt to ascertain precisely what the defendant's position was in relation to future financial security, I asked the following questions and received these answers:
"MILLER J: Just to sum it up, have I got this correctly? Your position is this: you met her sometime in the seventies. There's a bit of dispute about that. You say 1975. You began living together in 1981 and apart from some separations, you lived together until 1990. All that is clear. Correct? --- 90, yes.
The end of 1990? --- Yes.
That she had money when the de facto relationship, if I can call it that, started. Correct? --- Well, I think she did. Yes, she got paid ---
Some of that money was a loan from (sic to) you? --- She got some money, yes.
And you repaid it? --- The loan, yes.
There was a monetary transaction between you where a substantial sum of money, about $68,000 ---?--- That's right.
--- she loaned to you, advanced to you, whatever phrase you like to use, and you repaid it to her? --- Yes, correct.
All right. You maintained her and the children whilst you lived together. Correct? --- That's right.
But at the end of the day when she left and when you parted company, as far as you were concerned, you owed her nothing, that was it? --- That was right, yes."
There was extensive expert accounting evidence led at the hearing in relation to the valuation of the defendant's assets and liabilities as at July 1981 when co‑habitation between the parties first began, and at December 1990 when co‑habitation finally ceased. For reasons which will become apparent, it is unnecessary for me to resolve the difference of opinion between the accountant called for the plaintiff and the accountant called for the defendant. The two accountants had a number of points of difference in the methodology to be applied to the valuation of the defendant's assets and liabilities in the respective years in question. After consultation they were able to reach mid‑point valuations in respect of some of the defendant's interests, but in the end there remained $272,000 difference between the respective valuations of the net financial position of the defendant as at December 1990 when compared with his financial position as at July 1981. The plaintiff's accountant considered the defendant's increment in wealth to have been $440,612, whereas the defendant's considered that increment to have been $168,612.
In general terms, I preferred the approach taken by the defendant's accountant to that taken by the plaintiff's accountant. Were it necessary to do so, I would conclude that the defendant's accountants, were correct in the valuation they made of the defendant's interest in December 1990 in Centerwest Pty Ltd, Virgis Pty Ltd and the property development at Bayswater. In summary, I conclude:
(i)the defendant's accountant properly valued the defendant's interest in Centerwest Pty Ltd and Virgis Pty Ltd by the use of capitalisation of future maintainable dividends rather than capitalisation of future maintainable earnings;
(ii)the discount of 50 per cent applied to the pro rata valuation of the defendant's interest in both Centerwest Pty Ltd and Virgis Pty Ltd properly reflected his minority shareholding and was a more accurate and acceptable discount than the 10 per cent adopted by the plaintiff's accountant.
(iv)the methodology used by the defendant's account to calculate the value at December 1990 of the Bayswater building project was, in the absence of any alternative calculation from the plaintiff's accountant, acceptable.
Counsel for the plaintiff made a written submission after trial in relation to moneys held in trust from the sale of the defendant's property at 55 Quinns Road. This property had been purchased in 1987 at a cost of $65,000 and was sold in 1995 for $120,000. The sum of $136,891 has been held in trust since that time pending the outcome of this litigation. The submission for the appellant is that as the property at 55 Quinns Road was purchased during the de facto relationship and "was a product of the relationship" the sum held in trust following its sale is a relevant consideration in the formulation of any compensation to which the plaintiff is entitled in consequence of her contribution to the relationship. There is no suggestion of any contribution to the property which would entitle the plaintiff to a proprietary interest in it and the submission simply is that in assessing a global sum by way of compensation the amount so held in trust is a relevant consideration. However, in light of the conclusion I have reached on the question whether there was a joint endeavour between the parties, it is unnecessary to further consider this submission.

Conclusions

The first question to be determined is whether there is evidence of the existence of a joint endeavour between the plaintiff and the defendant for the object or purpose of providing permanent financial security and benefits. For the reasons which I have already set out, I am of the view that the plaintiff has failed to prove the existence of any such joint endeavour. I do not believe that at any time the parties had an actual intention of pooling their resources for the purpose of any joint endeavour.
It is true that the plaintiff contributed the role of homemaker to the de facto relationship whilst it was on foot. She also advanced a substantial sum of money to the defendant at one time. However, that money was recovered in circumstances which I consider illustrated a very clear intention on her part to keep the financial resources of the parties separate. That intention was demonstrated on both sides.
Leaving aside the question of financial contribution, I am unable to find any evidence of an actual intention that the plaintiff's home‑making role would be pooled by way of a resource with the resources of the defendant in his market gardening business with a view to the establishment of a joint endeavour. At best, it seems to me that there was a loose arrangement whereby the plaintiff performed the role of homemaker whilst the defendant went out and performed that of bread‑winner. There was no intention of pooling those respective contributions by way of a joint endeavour for the object or purpose of providing permanent financial security and benefits. It was simply a de facto relationship of the ordinary kind, in which no thought was given to the long‑term consequences. The plaintiff undoubtedly harboured a deep desire to be married to the defendant, but her wishes in that regard came to nothing. They were refuted by the defendant. The plaintiff may have hoped for long‑term financial security and benefit herself, but I am unable to find that the defendant had any corresponding desire or intention.
I therefore conclude that at no time was any joint endeavour between the parties to provide for that permanent financial security and benefits. The statement of claim actually pleads that there was a joint endeavour "one purpose of which was the parties intention to provide the parties future financial security and benefits". This plea does not in terms refer to permanent financial security and benefits, but authority makes it clear that it is permanent financial security and benefits which are required.
In view of the finding I have made in relation to the lack of evidence of any actual intention to pool resources for the purpose of a joint endeavour for the purpose of providing permanent financial security and benefits, it is unnecessary for me to answer any further questions. Because there was no joint endeavour, no question arises as to whether or not the plaintiff made valuable contributions to it. All that can be said is that the plaintiff's role as homemaker was a contribution, and a valuable one, to the de facto relationship. Likewise, because I have found that there was no joint endeavour, it is unnecessary to consider the question of incremental value in the defendant's wealth. That is because there has been no increment in wealth as a result of any joint endeavour with the plaintiff. All that can be said is that his financial position improved between July 1981 and December 1990. Accepting as I do the views of the defendant's accountant this was by about $170,000. This I find to have been due entirely to his own efforts in the business of market gardening. Given the period of time in question, it cannot be said to have been a substantial financial increment in any event. It follows that the question whether there would be any unconscionability by the defendant retaining his increased wealth to the exclusion of the plaintiff does not arise. For these reasons, I am of the view that the plaintiff's claim should be dismissed.