Maroti v Ristic

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2014 1676

VALERIA MAROTI	Plaintiff
v
STEVE RISTIC	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 16 December 2014
DATE OF JUDGMENT:	16 January 2015
CASE MAY BE CITED AS:	Maroti v Ristic
MEDIUM NEUTRAL CITATION:	[2015] VSC 3

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DOMESTIC RELATIONSHIP – Application to extend time to bring claim for adjustment of property interests – Whether jurisdiction of the Supreme Court excluded by Family Law Act 1975 (Cth) – Domestic relationship ended before commencement of the Relationships Act 2008 (Vic) – Consideration as to whether applicant has a claim under that Act – Nature and duration of the relationship and contribution to it determined in a prior proceeding – Issue estoppel – Poor prospects of success if time extended – Application for extension of time refused – Application for declaration as to an existing interest – Same claim in the prior proceeding – Res judicata – Proceeding dismissed – Family Law Act 1975 (Cth), ss 4(1), 4AA, 39A, 90RC, 90SB, 90SM, 90SK – Property Law Act 1958 (Vic), s 281 – Relationships Act 2008 (Vic), ss 35(2), 39, 41, 43, 74.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	In person

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

This proceeding............................................................................................................................. 2
Related proceedings..................................................................................................................... 4
Does this Court have jurisdiction?............................................................................................. 6
Which law must this Court apply?........................................................................................... 10
Did Ms Maroti have a claim for adjustment of property interests under the Property Law Act?.................................................................................................................................. 11

Relevant legal principles................................................................................................................ 15

Leave out of time to commence a proceeding for adjustment of property interests....... 15
Adjustment of property interests under the Relationships Act 2008 (Vic)............................ 19
Issue estoppel and res judicata................................................................................................... 21

Evidence and findings.................................................................................................................... 25

Issues necessarily determined in the funds in Court case.................................................... 25
Evidence and findings made in the funds in Court case...................................................... 27
Nature and duration of the relationship........................................................................ 27
Contribution....................................................................................................................... 35

Other issues in this proceeding................................................................................................ 37
Conclusion as to prospects of success..................................................................................... 40

Consideration of extension of time............................................................................................... 40

Hardship to the plaintiff if leave is refused............................................................................ 40
Hardship to the defendant if leave is granted........................................................................ 41
Conclusion as to relative hardship........................................................................................... 44
Discretion..................................................................................................................................... 45

Conclusion and orders.................................................................................................................... 46

Extension of time......................................................................................................................... 46
Application for declaration....................................................................................................... 46

SCHEDULE......................................................................................................................................... 1

HER HONOUR:

Introduction
This proceeding

By originating motion filed 10 April 2014 the plaintiff, Ms Valeria Maroti, seeks a declaration pursuant to s 40 of the Relationships Act 2008 (Vic) (‘the Relationships Act’ or ‘the Act’) that she has an interest in funds held in Court in the name of the defendant, Mr Steve Ristic; what is described as a ‘consequential’ adjustment in respect of those funds in her favour pursuant to s 41 of the Act; and leave to bring the proceeding out of time pursuant to s 43(2) of the Act.

Leave is necessary because s 43(1) of the Act provides that an application for adjustment of property interests pursuant to s 41(1) must be brought within two years after the day on which the relationship ended. The plaintiff asserts in the originating motion that she and the defendant were in a de facto relationship ‘from 2005 until May 2011’. In her evidence filed in a related proceeding (‘the funds in Court case’), to which I will come shortly, the plaintiff has deposed that she and the defendant separated on 12 May 2011. The defendant disputes that date, and I have made findings in relation to the relationship between the parties in the funds in Court case that do not assist the plaintiff in maintaining it. However, for the purposes of the application for extension of time it is significant that, even on her own best case, the time for the plaintiff to bring any application for adjustment of property interests against the defendant arising from their relationship ended on 13 May 2013. The plaintiff did not bring her application until 11 months after that time had expired.

Section 43(2) allows the Court to grant leave to a former domestic partner to bring an application for adjustment of property interests after the two year period has expired if the Court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted. The plaintiff’s application for extension of time was listed for hearing on 8 December 2014. The plaintiff sought an adjournment to obtain further evidence. I granted a short adjournment only, with a view to each party obtaining some pro bono legal assistance, if available, in relation to the applicability of the doctrine of issue estoppel to the further evidence the plaintiff sought to obtain.

On the adjourned date, 16 December 2014, the plaintiff was represented by pro bono counsel obtained through the VicBar scheme. The defendant had declined assistance through that scheme and remained unrepresented. Unfortunately, the pro bono counsel for the plaintiff was not able to be of much assistance to the plaintiff or the Court in relation to the issue estoppel question, and the plaintiff then continued unrepresented. She sought a further adjournment to obtain further evidence. I declined that application for reasons given orally, which I now summarise.

In short, I considered that there was no likely utility in granting the adjournment because the plaintiff could not demonstrate that the further evidence she wished to obtain on the nature of her relationship with the defendant and the contributions she alleges she made to that relationship would be admissible given that I made findings on those matters in the funds in Court case. I will discuss the doctrine of issue estoppel in more detail shortly, but in summary I consider that its effect in this case is that the parties are bound in this proceeding by my findings on the nature of their relationship and contributions made by the plaintiff to it in the funds in Court case, and neither can adduce further evidence on those matters unless that evidence was not obtainable at the time of that earlier proceeding by the exercise of reasonable diligence. I was not persuaded that the further evidence which Ms Maroti sought time to obtain was not obtainable by her at the time of the earlier proceeding. Accordingly, it would not be admissible in this proceeding.

The application for further adjournment having been refused, I then heard the plaintiff’s application for extension of time to commence her application for adjustment of property interests under the Act. What follows are my reasons for refusing that application and dismissing her proceeding under the Act in its entirety.

Related proceedings

It is first helpful to refer briefly to the sources of law in relation to declaration of existing interests and adjustment of property interests following the breakdown of a domestic or de facto relationship, and to the three distinct proceedings commenced by these parties in that regard. All those proceedings relate to the relatively modest sum of $136,000, which were deposited into Court as the balance of the proceeds of sale of a property at 14 Waranga Road, Bayswater (‘the property’), of which Mr Ristic was the sole registered proprietor.

The first proceeding (‘the funds in Court case’) concerning those funds was commenced by Mr Ristic by originating motion filed 16 August 2013 seeking payment out to him of the whole of the funds in Court. The funds in Court case concerned only existing legal and equitable interests in 14 Waranga Road, Bayswater at the time of its sale. As Mr Ristic was the sole registered proprietor of the property, he had the sole legal interest in the funds, and, subject to any equitable interests claimed, the whole of the equitable interest. Ms Maroti was not a registered proprietor of the real estate. Accordingly, to claim any amount of the funds in Court, she was required to prove an equitable interest.

Ms Maroti had lodged a caveat over the property shortly after what she says was the end of the de facto relationship with Mr Ristic in May 2011, claiming an equitable interest by way of ‘resulting, constructive and implied trusts’ arising from direct and indirect financial contributions by her to the ‘acquisition, conservation and improvement’ of the property.[1]
[1]The caveat was exhibited as JM 15 to the affidavit of Steve Ristic sworn 14 August 2013 in the funds in Court case.

I added Ms Maroti as the defendant to the funds in Court case in September 2013 and she made her own application for payment out from the funds. She was then represented. Her case was that by virtue of her contributions to the relationship she had acquired an equitable interest in the property and thus in the funds in Court. The trial of the parties’ competing applications was heard on 13 March 2014 and 29 April 2014 before me, and I gave judgment on 24 October 2014.[2]
[2]Ristic v Maroti(No 2) [2014] VSC 540.

At trial Ms Maroti relied only on a constructive trust arising from financial and non-financial contributions to Mr Ristic that allowed him to retain the property. It was admitted on her behalf that she had made no contribution to its acquisition and there was no issue about improvement of the property. I found that Ms Maroti had failed to prove that she made a contribution to Mr Ristic by reason of which he was able to retain the property, such that she should be held to have an interest in the balance of funds after its sale.[3] In simple terms, I found in that case that Ms Maroti had no existing interest in the property.
[3]Ristic v Maroti (No 2) [2014] VSC 540 at [91].

Prior to the trial of the funds in Court case, Ms Maroti commenced a proceeding in the Family Court for alteration of property interests. By that application, which was filed on 27 November 2013, Ms Maroti seeks orders under the Family Law Act 1975 (Cth) (‘Family Law Act’) as it applies on the termination of a de facto relationship. She seeks a declaration that a de facto relationship existed between her and Mr Ristic from 2006 to 12 May 2011 and orders for alteration of property interests between them in respect of the funds in Court.[4] That application is yet to be heard. I am informed that it is next listed for directions on 21 January 2015.
[4]Exhibit JEM-1 to the affidavit of James Edward McIntyre sworn 8 January 2014 in Ristic v Maroti S CI 2013 4246.

The third proceeding between the parties is the proceeding now before me, for orders under the Relationships Act arising from the end of a domestic relationship between the parties. This proceeding was commenced by Ms Maroti on 10 April 2014, i.e. in between the two days of trial of the funds in Court case. On the second of those days, Ms Maroti through her then counsel sought that the two proceedings be heard together. Mr Ristic opposed that course. I refused the application, for reasons summarised in my subsequent judgment in the funds in Court case,[5] and adjourned the application for extension of time in this proceeding for later hearing.
[5]Ristic v Maroti (No 2) [2014] VSC 540 at [13].

Does this Court have jurisdiction?

A court with jurisdiction under the Family Law Act may make an order for alteration of property interests consequent on the breakdown of a de facto relationship pursuant to s 90SM of that Act. Ms Maroti has made such an application to the Family Court, as well as her application to this Court. If the Family Court has power to make an order for alteration of property interests on her application, then the jurisdiction of this Court under the Relationships Act is excluded.[6] Accordingly, my first task must be to determine if the jurisdiction of this Court has been excluded.[7]
[6]See the definition of ‘de facto financial cause’ in s 4(1) and ss 39A and 90RC of the Family Law Act.
[7]This must be determined before the application in this Court can proceed, but the Family Court will be required to make its own determination as to its jurisdiction.

Power to make an order under s 90SM of the Family Law Act depends on a number of matters. The relationship must fall within the definition of ‘de facto relationship’ in s 4AA; the relationship must have ended on or after 1 March 2009; and certain conditions relating to residence and the nature of the relationship must be met.

De facto relationship is defined by s 4AA which relevantly provides as follows:

Meaning of de facto relationship
(1)       A person is in a de facto relationship with another person if:
(a)       the persons are not legally married to each other; and
(b)       the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple

(2)       Those circumstances may include any or all of the following:
(a)       the duration of the relationship;
(b)       the nature and extent of their common residence;
(c)       whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5) [Not relevant]
(6) [Not relevant].

The residential requirements are specified by s 90SK which is most simply satisfied by ordinary residence in Australia at the time of the application and for at least a third of the relationship. For the purposes of considering whether this Court’s jurisdiction has been excluded, and without seeking to finally determine the jurisdiction of the Family Court, I will assume that Ms Maroti would be able to establish that her relationship with Mr Ristic fell within the definition of de facto relationship. There is no dispute that both parties have resided in Australia at all relevant times.

1 March 2009 is relevant because it was the day on which the amendments to the Family Law Act that introduced the provisions in relation to financial provision consequent on the breakdown of a de facto relationship commenced.[8] The amendments were not generally retrospective i.e. except for one situation a party to a de facto relationship that broke down prior to the commencement day cannot seek relief under the Family Law Act.[9] The exception is where both parties to the relationship agree in writing that the Family Law Act applies. The agreement must be in writing and each party must have obtained independent legal advice about his or her choice.[10] There is no evidence before me that the parties to this proceeding made an election within that section. I find that they did not.
[8]Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 2.
[9]Ibid s 86.
[10]Ibid s 86A.

The timing requirement is specified by s 90SB which provides that a court may make an order under, inter alia, s 90SM only if the court is satisfied:

(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or

(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions (as otherwise defined); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or

(d)that the relationship is or was registered under a prescribed law of a State or Territory.

A ‘child’ for the purposes of this section must be a child of both parties.[11] The parties do not have any joint children. Their relationship was not registered. Accordingly, assuming that the parties were in a ‘de facto relationship’ within the meaning of the Family Law Act at least for a period and that the residential requirements for the exercise of power under the Family Law Act are satisfied, the question of whether the jurisdiction of this Court has been excluded turns on whether their ‘de facto relationship’ was at least two years in length in total and whether it ended after 1 March 2009.
[11]Section 90RB of the Family Law Act.

The plaintiff contends in this proceeding that the parties were in a ‘domestic relationship’ within the meaning of the Relationships Act that did not end until May 2011. In the funds in Court case, I concluded that the parties did not have a ‘shared life as a couple’ after March 2008, although an intimate relationship continued between them until at least December 2010.[12] I made findings in relation to various aspects of their relationship that lead me to this conclusion. As I will discuss in more detail shortly, unless those findings are overturned on appeal, the parties are bound them. My conclusion in the funds in Court case as to the end date of the parties’ ‘shared life as a couple’ was not expressed in the statutory language of either the Family Law Act or the Relationships Act, as to whether or not the parties were in a ‘de facto relationship’ (Family Law Act) or a ‘domestic relationship’ (Relationships Act). This was deliberate, as those Acts were not then before me. It is, however, now necessary to determine in respect of the extension of time application whether or not a ‘de facto’ relationship continued after 1 March 2009, because if it did, then this Court has no jurisdiction at all.
[12]Ristic v Maroti (No 2) [2014] VSC 540 at [76].

On the basis of my findings in the funds in Court case, which I will elaborate shortly, I conclude that the parties were in a ‘de facto relationship’ within the meaning of the Family Law Act, but Ms Maroti has not proved that that relationship continued beyond March 2008. The parties continued an intimate personal relationship in 2009 and 2010, but I do not consider that that relationship constituted a continuation of their earlier de facto relationship, or a new de facto relationship. I consider that the effect of that conclusion is that, in the terms of s 4AA of the Family Law Act, the parties ceased to be in a ‘de facto relationship’ i.e. ceased to be in a ‘relationship as a couple living together on a genuine domestic basis’ in March 2008. Accordingly, the jurisdiction of this Court in respect of the claim for alteration of property interests is not excluded by the Family Law Act.

I will return to the question of the length of the relationship in the context of the exercise of power by this Court under the Relationships Act. That Act, as will be seen, contains a similar requirement for a relationship of at least two years before an order may be made for adjustment of property interests.

Which law must this Court apply?

The plaintiff brings her claim for declaration and adjustment of property interests under the Relationships Act. Under that Act she must prove that she and the defendant were in a ‘domestic’ relationship. That is relevantly defined to be a ‘relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)’.[13] The Relationships Act commenced on 1 December 2008. Accordingly, the next question that arises is whether the Act applies, given my conclusion in the funds in Court case that the parties did not have a ‘shared life as a couple’ after March 2008.
[13]Relationships Act s 39.

As I will later elaborate, I consider the effect of this conclusion and my findings as to the nature of the relationship between the parties in the funds in Court case to be that their ‘domestic relationship’ within the meaning of the Relationships Act ended no later than March 2008. The Victorian law that applied to adjustment of property interests consequent on the termination of a ‘domestic relationship’ prior to 1 December 2008 was Part IX of the Property Law Act 1958 (Vic) (‘Property Law Act’). That Part contained the same definition of ‘domestic relationship’ as was later adopted by the Relationships Act (save that the later Act also included registered relationships- here not relevant), and the same list of factors that the Court was required to take into account in determining if the parties had been in such a relationship (although differently ordered).[14] Part IX of the Property Law Act was repealed by the Relationships Act, but accrued rights and entitlements survived. Section 74 of the Relationships Act provides that (subject to an exception not here relevant):

…any right or entitlement that a person had under Part IX of the Property Law Act 1958 immediately before the commencement day [the day the Part was repealed i.e. 1 December 2008] is taken, on and after that day, to be a right or entitlement of the person under this Act.

[14]Compare the definitions and lists of relevant factors within s 275 of the Property Law Act, as it then applied, and ss 39 and 35(2) of the Relationships Act.

Accordingly, if the plaintiff had, arising from the end of the ‘domestic relationship’ a right to claim adjustment of property interests under the Property Law Act, but did not do so until after the commencement of the Relationships Act, the effect of s 74 is that her claim is to be determined under the Relationships Act. This would have a beneficial impact for the plaintiff, because the Relationships Act expanded the range of factors that the Court is required to consider in determining whether or not to make an order for adjustment of property interests on the breakdown of a ‘domestic relationship’. On an application for adjustment of property interests under Part IX of the Property Law Act, the Court was only permitted to take into account the respective contributions of the parties to the property, financial resources or welfare of each party or the family unit, and any written agreement between the domestic partners.[15] The Court under the Relationships Act, is, by contrast, required to consider a broader range of matters, including the length and duration of the relationship, and the respective financial positions and needs of the parties.[16]
[15]Section 285 of the Property Law Act, as it then applied.
[16]Section 45 of the Relationships Act.

Did Ms Maroti have a claim for adjustment of property interests under the Property Law Act?

The question then becomes- did Ms Maroti have such a claim under the Property Law Act? Part IX of the Property Law Act contained preconditions in relation to length of the relationship and connection to Victoria similar to, but not identical to, those later stipulated by the Relationships Act.[17] A court could only make an order for adjustment of property interests if both pre-conditions were met. There is no issue in this case about the sufficiency of the geographical connection to Victoria. Both parties have lived in Victoria at all relevant times. There is, however, significant issue about the length of the relationship. Under s 281 of the Property Law Act, the Court could only make an order for adjustment of property interests if the domestic partners had ‘lived together in a domestic relationship’ for at least two years, unless there was ‘a child of the domestic partners’ or the failure to make an order would result in serious injustice to the applicant partner and that partner had made substantial contributions to the relationship, or had the care and control of a child of the other partner.[18] ‘Child’ was defined to mean only a child born as a result of sexual relations between the partners, a child of one of whom the other is presumed to be the father, or a child adopted by them.[19]
[17]Compare ss 281 and 280 of the Property Law Act, as they then applied, and s 42 of the Relationships Act.
[18]Section 281 Property Law Act.
[19]Section 275 Property Law Act.

This exception relating to children was liberalised in the Relationships Act, to allow an order to be made where the partners had not lived in a domestic relationship for two years but had either a child of both, or a child of one ‘accepted by the domestic partners as one of the family’ or the applicant had made substantial contributions and the failure to make the order would result in serious injustice to her.[20]
[20]Section 42(2)(c) and 42(3) Relationships Act.

This difference may be significant. The parties do not have a child born to them both. Ms Maroti has children, and at least her daughter Eszter was living with her during the agreed periods of cohabitation with Mr Ristic in 2006 and 2008 and also during periods in which he spent time at her home. I cannot on the current evidence exclude the possibility that Eszter was ‘accepted’ by her mother and Mr Ristic as ‘one of (their) family’. There is some suggestion that Ms Maroti at least considered that Mr Ristic was in the position of step father to her.[21] This issue was not the subject of any consideration in the funds in Court case.
[21]Transcript of 16.12.14 at pp 63-65. I refused the tender of the Anglicare report there under consideration because of issue estoppel. The issue of the relationship between Mr Ristic and Eszter had not been determined in the funds in Court proceeding, and so the report is not inadmissible to the extent it speaks about that by reason of issue estoppel. However, because I conclude that the child exception to the two year requirement for the domestic relationship under the Property Law Act applies, and not the more liberal child exception under the Relationships Act, the report is inadmissible on that issue because it is irrelevant.

If the test that applies as to the length of the relationship is the test under the Relationships Act, with its more liberal child exception, then the plaintiff may be able to seek an order for adjustment of property interests (assuming time was extended) even if the relationship was not a domestic relationship for two years, if Eszter was ‘a child accepted by the domestic partners as one of the family’. If, however, the test is that under Part IX, because Ms Maroti must show she had a ‘right or entitlement’ under that Act given my finding as to the end date of the domestic relationship, then she cannot rely on Eszter’s presence in the household as she is not also Mr Ristic’s daughter.

As on most legal issues, there is no submission from either party (both unrepresented) on the question as to which law applies. In my view, the effect of s 74 of the Relationships Act is that the pre-conditions under Part IX of the Property Law Act must be satisfied for Ms Maroti to bring her case under the Relationships Act. I consider that she cannot show a ‘right or entitlement …under Part IX of the Property Law Act’ within the meaning of s 74 of the Relationships Act if the Court could not have made an order in her favour for want of satisfaction of the pre-conditions under the Property Law Act.

If this is correct then to obtain an order for adjustment of property interests under the Relationships Act Ms Maroti must prove that she and Mr Ristic ‘lived together in a domestic relationship’ for two years before March 2008. The child exception does not apply and nor do I consider it arguable that the ‘substantial contributions’ exception could apply. That exception requires ‘substantial’ contributions, either financial or to the welfare of the partners, to have been made. The contributions that Ms Maroti asserts in this proceeding were the subject of evidence and findings in the funds in Court case. The plaintiff did not establish in the funds in Court case contributions that could be properly described as ‘substantial’.

I found in the funds in Court case that the parties did not have a shared life as a couple after March 2008. In this proceeding I conclude that means that their ‘domestic relationship’ ended at that time. Accordingly, Ms Maroti would, immediately before the repeal of the Property Law Act provisions, not have been able to obtain an order for adjustment of property interests as between her and Mr Ristic, unless their ‘domestic relationship’ commenced by March 2006. This is because if the domestic relationship ended in March 2008 and only began when they commenced to live together in July 2006, then it was not of two years’ duration.

In the course of the hearing on 16 December 2014 I expressed what could appear to have been a concluded view that Ms Maroti would be unable to show that their domestic relationship was of two years duration.[22] That was not a concluded view as to the length of the relationship, although it was as to its end date. I do not consider that Ms Maroti has any real prospect of establishing that the domestic relationship continued or resumed after March 2008. However, I made no finding in the funds in Court case as to when the domestic relationship commenced, only that they commenced living together in July 2006.
[22]See, for example, transcript 16.12.14 at pp 5, 10, 12, 73.

The parties both rely in this application for extension of time on all the evidence already given in the funds in Court case. There was evidence in that proceeding about the commencement of the parties’ relationship, including the undisputed fact that they first lived together in July 2006, but it was not necessary in that proceeding to make any express finding as to whether or not their relationship before that time also constituted a ‘domestic relationship’ and I did not do so. Accordingly, the parties are at liberty to adduce further evidence in this proceeding as to the nature of their relationship prior to July 2006. They have not done so in this application for extension of time, but would be able to do so in the substantive application for adjustment of property interests if time is extended. In this application for extension of time it is necessary to consider if Ms Maroti has an arguable case that the ‘domestic relationship’ between her and Mr Ristic was of at least two years duration, because if she does not, then she had no claim under the Property Law Act and so no claim that she can now bring under the Relationships Act. It is not appropriate, however, to seek to make a final determination on that point.If time is extended, that issue should be determined only after full hearing at trial.

As will be later seen, on the current evidence I do consider it arguable that Ms Maroti would be able to establish that a domestic relationship existed between the parties by March 2006. Accordingly, I will proceed on the assumption that Ms Maroti would be able to show she had a claim for adjustment of property interests under the Property Law Act, and so may now proceed (if time is extended), on the repeal of those provisions, under the Relationships Act.

I now turn to the legal principles that apply to this application, commencing with the power to extend time to bring an application for adjustment of property interests under the Relationships Act. As the application was not made until after the repeal of the Property Law Act provisions, it is the power to extend time in the Relationships Act that applies. The same time limit for bringing an application (two years after the end of the domestic relationship) applied under the Property Law Act and the Court also had power under those provisions to extend time.[23] The test for extension of time under the Relationships Act[24] is in the same terms as the test under the repealed provisions , and accordingly the authorities on the test under the repealed provisions remain relevant.
[23]Section 282 of the Property Law Act, as it then applied.
[24]Section 43 of the Relationships Act.

Relevant legal principles
Leave out of time to commence a proceeding for adjustment of property interests

Section 43 of the Relationships Act provides as follows:

43 Time limit for making applications
(1)If domestic partners or caring partners have ended their domestic relationship or registered caring relationship, an application to a court for an order referred to in section 41(1) must be made within 2 years after the day on which the relationship ended.
(2)A court may grant leave to a domestic partner or a caring partner to apply for an order at any time after the end of the period referred to in subsection (1) if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.

In Harris v Harris (‘Harris’),[25] Gillard J held that the identical section in Part IX of the Property Law Act imposed a two stage test. He held that the plaintiff on such an application must prove :
[25]22 Fam LR 263.

(a)That, if the court refused leave she would suffer a greater hardship than the defendant would, if leave were granted;

(b) That the court should exercise its discretion in her favour.
In other words, the first question is to consider the respective hardships to the parties and where the balance lies and secondly, if in favour of the plaintiff whether in all the circumstances the court should exercise its discretion to grant leave…
In determining the respective hardships, it is necessary for the court to make some assessment of the likely outcome of the proceeding pursuant to the Act….[26]

[26]Ibid, at 265.

Gillard J declined to define ‘hardship’. He expressly adopted the view of two judges of the Family Court in a case on extension of time to bring a proceeding under the Family Law Act that:

… hardship is caused by the inability of a person to pursue a claim which in the circumstances of the case appears on the prima facie evidence to be substantive and not merely trifling.[27]

[27]Fogarty and Nygh JJ in In the Marriage of Neocleous (1993) 16 Fam LR 557 at 561, adopted by Gillard J in Harris at 268.

In the case before him, the parties had lived together for nearly 14 years during which two children were born of the union. The plaintiff in that case contended that in fact the domestic relationship had existed for a number of years before they began to live together continuously. The plaintiff received a very small proportion of the parties’ joint assets on termination of the relationship. Her counsel contended that she had good prospects of successfully prosecuting a claim for more, if extension of time was granted, and Gillard J agreed, even taking a view of the contested facts most favourable to the defendant.[28] He concluded that to deny the plaintiff the opportunity to bring a proceeding in which on the probabilities she would succeed ‘would be a grave hardship to her’.
[28]Harris, at 268.

Gillard J also considered the hardship to the defendant if leave to bring the proceeding out of time were granted. That hardship was asserted to arise because the parties had reached an agreement as to the distribution of assets shortly after the separation and the defendant had ordered his affairs on the basis of that agreement. The defendant also relied on the nearly two year delay after expiration of the time limit for the commencement of proceedings had been brought.

His Honour accepted that on an application for extension of time substantial weight should be accorded to a party who has relied upon the occurrence of an event and changed his position accordingly. He considered, however, that any prejudice thereby occasioned to the defendant in the case before him if extension of time was granted could be alleviated by consideration of the appropriate quantum to be granted to the plaintiff by way of adjustment of property interests. He concluded that greater hardship would be afforded to the plaintiff if leave was refused, than to the defendant if leave was granted.[29]
[29]Harris, at 271.

While accepting that the second stage of the test required consideration of discretionary factors as to whether or not extension of time should be granted, Gillard J held that it was not a discretionary bar to granting leave that no, or no adequate, explanation had been given for the delay. In fact, he robustly rejected the relevance of explanation for delay entirely, given that the ‘primary concern is to do justice between the parties’.[30]
[30]Ibid, at 273.

In Joyce v Delany and anor,[31] Williams J accepted that the test required a two stage approach and in that respect followed Gillard J in Harris. In relation to the first stage in that case, Her Honour held that the plaintiff would establish hardship if leave to proceed out of time was refused because she had established a ‘substantive prima facie case for relief’ under Part IX of the Property Law Act.[32] The defendant alleged hardship arising from the death of witnesses. Her Honour concluded that the plaintiff would sustain greater hardship if denied the opportunity to bring her claim than the defendant would suffer if leave were granted.
[31][2004] VSC 338.
[32]Ibid, at [41].

In relation to the relevance of explanation for delay to the exercise of the discretion to extend time, Williams J took a different approach to that of Gillard J. Her Honour preferred the approach of Warren J (as she then was) in McGibbon v Marriot[33] and Bryson J in the New South Wales case of Beavan v Fallshaw[34] to the effect that explanation for delay was relevant to the exercise of the discretion to grant relief. On the facts of the case before her, she did not consider that a delay of over two years disqualified the plaintiff from the grant of an extension of time. She also rejected the defendant’s contentions that the availability of other relief and benefits already received by the plaintiff should lead to refusal of an extension of time.
[33][1999] VSC 381.
[34](1992) 15 Fam LR 686.

The question as to which approach should be taken to explanation for delay given this divergence of views at first instance was settled in the Court of Appeal decision Giller v Procopets,[35] which also dealt with extension of time under the Part IX provision. In that case, Ashley JA expressly preferred the approach of Warren J (as she then was) in McGibbon v Marriot. He added that:

In my opinion, in the event that a balance of hardship has been shown in favour of the applicant, a Court is entitled to take into account, as a factor bearing upon the exercise of discretion whether to grant leave, the presence or absence of an explanation for the delay; but failure to adequately explain the delay does not preclude a favourable exercise of discretion. …because it will simply be one of a number of potentially relevant considerations, the weight attaching to the presence or absence of a satisfactory explanation for delay is likely to vary from one case to another.[36]

[35](2008) 24 VR 1.

[36]Ibid, at [58]-[59].

In White v Hume[37] Daly AsJ expressed the view, with which I respectively agree, that the provision for extension of time in s 43(2) of the Relationships Act should be interpreted liberally. I agree with her comment that:

The more liberal approach also recognises the peculiar features of the family law jurisdiction which might affect a party’s ability or willingness to bring a claim: emotional distress, an imbalance of power within the relationship, financial incapacity, or, as in the current case, some degree of ambiguity in the nature of the relationship post-separation.[38]

[37][2013] VSC 95.

[38]Ibid, at [60].

The thrust of these authorities is that hardship to the plaintiff is to be assessed having regard to her prospects of success in the substantive claim. I turn now to the relevant provisions for adjustment of property interests under the Relationships Act.

Adjustment of property interests under the Relationships Act 2008 (Vic)

The plaintiff makes her application for adjustment of property interests under s 41 of the Relationships Act. That section relevantly provides as follows:

41 Application for adjustment or maintenance
(1)A domestic partner or a caring partner may apply to a court for either or both of the following—
(a)an order for the adjustment of interests with respect to the property of one or both of the domestic partners or caring partners;

(b) [not here relevant]
(2)An application may be made whether or not any other application for any remedy or relief has been or may be made under this Act or any other Act or any other law.

The plaintiff contends that she was the ‘domestic partner’ of the defendant. ‘Domestic partner’ of a person is defined by s 39 of the Relationships Act to mean ‘a person with whom the person is or has been in a domestic relationship.’ ‘Domestic relationship’ is in turn defined by s 39 to relevantly mean ‘a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender)’.

From the usual meaning of ‘living together’ it might initially be thought that what an applicant for adjustment of property interests arising from a domestic relationship must show is physical cohabitation for at least two years. This is the usual circumstance on which an applicant relies, but it is not essential. The Act does not necessarily require physical cohabitation. Section 39(2) of the Act provides that ‘in determining whether a domestic relationship… exists or has existed’ the Court must take into account all the circumstances of the relationship, including any relevant matter referred to in s 35(2). Section 35(2) provides as follows:

35 (2)In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(a)       the degree of mutual commitment to a shared life;
(b)       the duration of the relationship;
(c)       the nature and extent of common residence;
(d)      whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f)       the ownership, use and acquisition of property;
(g)       the care and support of children;
(h)      the reputation and public aspects of the relationship.

This section makes it clear that a common residence is not the only element of the relationship that the Court must consider, and is not necessarily an essential element for an applicant to prove.

If the preconditions for the exercise of power as to geographical connection to Victoria and length of the relationship are met (which as discussed earlier here must be met as they applied under the Property Law Act), the Court has power pursuant to s 45 of the Act to make an order for adjustment of property interests. In exercising this discretion the Court must consider:

·the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners;
·the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and their children (provided the children are accepted as part of the family);
·the nature and duration of the domestic relationship; and
·matters relating to their respective financial positions and needs, including earning capacity, responsibilities to support others, age and state of health and so on.[39]

[39]Relationships Act ss 45(1) and 51.

Thus, the enquiry as to whether an order should be made, and, if so, in what amount, is a broad one. Critical factors in that enquiry are, however, the nature and extent of contributions made by the applicant to the property or welfare of the other domestic partner, and the nature and duration of the relationship. These factors also arose in the determination of Ms Maroti’s assertion in the funds in Court case that she had an equitable interest by virtue of a constructive trust in the funds in Court. Before I set out my findings on those issues in that case, it is necessary to discuss the doctrines of issue estoppel and res judicata.

Issue estoppel and res judicata

It is a fundamental principle of the law that, subject to successful appeal, a party may not re-litigate the same cause of action (i.e. a legal right or entitlement) once it has been heard and determined by a court of competent jurisdiction. The purpose of this principle is to confer finality to the first judgment for the benefit of the parties, and to prevent further proceedings that may contradict a judgment already given and so bring the administration of justice into disrepute. This principle is expressed in the doctrine of res judicata.

The claim that Ms Maroti now seeks to bring (if extension of time is granted) for adjustment of property interests is not the same cause of action that she prosecuted in the funds in Court proceeding. In that proceeding she claimed to have an existing equitable right to a portion of the funds in Court. In the adjustment of property interests claim she seeks adjustment of existing rights in her favour. Accordingly, the doctrine of res judicata does not apply to her claim for adjustment of property interests.

What does apply is the doctrine of issue estoppel, which applies to issues of fact or law determined in an earlier proceeding that also arise in a subsequent proceeding between the same parties. The classic statement of this doctrine appears in the judgment of Dixon J (as he then was) in Blair v Curran.[40] His Honour stated it thus (citations omitted):

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.
Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of anyone of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[41]

[40](1939) 62 CLR 464.

[41]Ibid, at 531-532.

His Honour noted in a later passage in his judgment that the difficulty in the application of the doctrine lies in distinguishing between those matters that were ‘fundamental’ or ‘cardinal’ to the prior decision, or ‘necessarily involved in it as its legal justification or foundation’ from matters ‘which though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment’.[42] In this case, I must determine which of my earlier findings of fact in the funds in Court case were in respect of ‘ultimate facts’ that ‘form the ingredients’ of the cause of action there asserted. If those facts are ‘cardinal’ to the proposed claim for adjustment of property interests, then the parties are bound by the earlier findings and cannot adduce evidence that would seek to assert that the earlier judgment was erroneous.
[42]Ibid, at 533.

There is English authority that there is an exception to this general principle that further evidence in the subsequent proceeding on a matter of fact necessarily determined in the earlier proceeding may not be adduced. That exception applies if the further evidence could not by reasonable diligence have been adduced in the earlier proceeding.[43] The rationale of this exception has been expressed to be that the purpose of the estoppel is to work justice between the parties, and so the severity of the rule is tempered by a discretion to allow the issue to be reopened in subsequent proceedings ‘when there are special circumstances in which it would cause injustice not to do so’.[44]
[43]Arnold v National Westminster Bank plc [1991] 2 AC 93, at 109.
[44]Watt v Ahsan [2008] 1 AC 696 at 708 [34].

Ms Maroti has sought in this proceeding to adduce considerable further evidence on matters determined in the funds in Court case relating to the length of the domestic relationship between her and Mr Ristic, its nature, and the contributions to it that she asserted in that proceeding. Assuming favourably to Ms Maroti that the exception to the doctrine of issue estoppel also applies in Australian law, she is required to show that the further evidence that she now seeks to adduce in relation to matters necessarily determined in the funds in Court case was not available to her to use in the funds in Court case with the exercise of reasonable diligence.

Most of this evidence was plainly available to her at the time of that proceeding, by reason of the date or source of its origin. In broad terms, she says that she made much of this evidence known to her then legal representatives, or indicated how they could obtain it, but they did not obtain it or use it in the proceeding. There could be many explanations for this, even assuming it to be the case that the evidence was supplied by Ms Maroti to her legal representatives, or could have been obtained by them with the exercise of reasonable diligence. Ms Maroti says that the explanation is that she was poorly represented. She also asserts that Mr Ristic lied in his evidence in the funds in Court proceeding, leading to wrong conclusions being drawn in the judgment.

It is not possible to determine Ms Maroti’s claim that she was poorly represented without hearing from those representatives, nor is it appropriate to do so in this proceeding. This is because, even if the explanation for the evidence not being adduced in the earlier proceeding is negligence by her solicitors, that does not mean that the evidence was not available to her (her lawyers being her agents for this purpose) at the time of the earlier proceeding. By definition it was. Her remedy is suit against her former representatives, not to allow the evidence to now be adduced. That would occasion an injustice to Mr Ristic, who defended Ms Maroti’s claim on the basis of the evidence adduced.

To speak of the remedy being suit against her former lawyers is not to encourage Ms Maroti to take that course. As noted, there could be many explanations as to why evidence she believes to be relevant was not used, and many of those explanations are consistent with the exercise of reasonable professional skill.

If it is the case that Mr Ristic lied, and this caused errors to be made in the judgment in the funds in Court case, then the remedy for Ms Maroti is appeal or prosecution for perjury. Again, to note this is not to encourage or discourage Ms Maroti from these remedies. She should obtain legal advice if considering either. It is simply to note that an allegation of perjury is not sufficient to allow other evidence to be adduced on a matter necessarily decided in the earlier proceeding. Even where it is not a mere allegation of perjury, but is said to be supported by evidence to show that he lied (as is the case in respect of some of the further evidence Ms Maroti seeks to adduce), if that evidence was available to Ms Maroti at the time of the earlier proceeding, then it was open to her through her legal representatives use it in that proceeding, for example to cross examine Mr Ristic on the basis of it so as to cast doubt on his credibility.

I now apply these legal principles to the evidence in this case.

Evidence and findings
Issues necessarily determined in the funds in Court case

The cause of action on which Ms Maroti sought payment out from the funds in Court in that case had as its constituent elements that she and Mr Ristic had been in a domestic relationship which had broken down, and that by reason of her contributions to that relationship she had acquired an equitable interest in the property of which he was the sole registered proprietor, the balance proceeds of sale of which were deposited into Court.[45] The principles of constructive trust on which she relied allowed for both financial and non-financial contributions to be considered, and Ms Maroti alleged both. She asserted she had made financial contributions in the sum of $14,000 over the period November 2006 to June 2008 and non-financial contributions by means of driving Mr Ristic in his work car after he became unlicensed. She alleges broadly the same contributions in this proceeding.
[45]I set out these principles and the submissions of the parties in respect of them in my judgment in the funds in Court case Ristic v Maroti (No 2) [2014] VSC 540 at [19]-[26].

In addition, Ms Maroti has sought in this proceeding to raise specific sums that she paid on Mr Ristic’s behalf, and specific sums that she says he utilised from their joint funds.[46] Those specific allegations were not expressly made in the funds in Court case, and I do not know whether or not they fall within the sum of $14,000 that she there asserted. However, as these payments are said to have been made during the same period during which she asserted in that proceeding that she had made financial contributions, I consider that these specific allegations are also encompassed within the doctrine of issue estoppel.
[46]See items 1-5 in the attached table headed ‘Rulings on Additional Evidence’.

The authorities establishing this cause of action do not require proof of a domestic relationship of any particular length, although they do require that it have broken down.[47] In my view, however, determination of the length and nature of the relationship is a necessary factual element of the cause of action because of the impact these factors have on the assessment of contribution. In the funds in Court case this connection was of particular significance because the financial contributions on which Ms Maroti relied all occurred in the early part of the relationship, and the contributions on which she relied relating to the latter period of the relationship in 2009 to 2011 (driving Mr Ristic’s work car) related to her assertion that Mr Ristic was living with her for large periods of time during those years.
[47]National Australia Bank Ltd v Maher and anor [1995] 1 VR 318.

The length of the domestic relationship between the parties was hotly in contest between the parties in the funds in Court case, and I made detailed findings in relation to its nature and end date. I did not make any specific finding as to when a ‘domestic relationship’ between them commenced, referring in passing only to the fact that the relationship commenced as an ‘affair’ and they first lived together in July 2006.

In my view, the cause of action on which Ms Maroti relied in the funds in Court case necessarily required findings on the following issues of fact:

·the nature and duration of their relationship;
·that it had broken down;
·the extent of contributions made by Ms Maroti to that relationship (both financial and non-financial);
·whether as a consequence it would be unconscionable for Mr Ristic in the light of those contributions to deny her an equitable interest in the proceeds of sale of his property.

I made findings on all those matters. All but the last of them also arise as necessary elements in the current claim for adjustment of property interests, including other matters that only arise on that claim or on the application to extend time to make it.

I now set out the findings made on those matters in the funds in Court case. By virtue of the doctrine of issue estoppel, I consider that the parties are also bound by those findings in this proceeding and cannot adduce further evidence in relation to those matters unless that evidence was not obtainable at the time of the funds in Court case by the exercise of reasonable diligence.

I also set out the evidence on some matters, in particular the commencement of their relationship, on which I did not make findings in that case, but now am required to consider for the purpose of considering if Ms Maroti’s had a claim under the Property Law Act, and so may bring a claim under the Relationships Act. As noted, both parties have relied on their earlier evidence in the funds in Court case in this proceeding.

Evidence and findings made in the funds in Court case
Nature and duration of the relationship

Ms Maroti’s contention in the funds in Court case is that she and Mr Ristic were in a de facto, by which it is clear she means domestic, relationship from ‘as early as mid-2005 until mid-May 2011’.[48] She contended in the funds in Court case that their relationship commenced in February 2005, at that time as friends, but it ‘quickly’ developed into an ‘affair’.[49] She contended that they physically lived together on four occasions- for five months between July and November 2006 in her home at Roxburgh Park (this was admitted); on a second occasion from October/November 2007 to March 2008 at her home at Roxburgh Park (only three weeks to March 2008 was admitted); for a third period in 2009 at her then home in Rye; and on a final occasion from a time in 2010 to 12 May 2011 at her then home at Kealba. Mr Ristic denied that the parties cohabited during the latter two periods.
[48]Outline of Submissions for the Defendant (the Ms Maroti) dated 26 February 2014 in S CI 2013 4246 (‘the funds in Court case’) at [1].
[49]Affidavit of Valeria Maroti sworn 16 October 2013 in the funds in Court case at [2].

In the funds in Court case Ms Maroti did not specify the dates on which the alleged period of cohabitation in 2009 started or ended, or when the period said to have ended on 12 May 2011 began. It was not possible to determine on her evidence in that case how long she contended that the parties physically lived together, and so whether or not it was for two years from July 2006. As noted, however, physical cohabitation for two years is not necessarily required to establish a ‘domestic relationship’ of two years under the Relationships Act.

Mr Ristic’s evidence in that case was to the effect that the parties only lived together on two occasions, being the initial five months and for three weeks ending in early March 2008. He agreed that he had spent time at Ms Maroti’s home in 2007 in between these two occasions of cohabitation and that there was some contact between them thereafter, but was adamant that they were not in a domestic relationship at any time, even when cohabiting. He described their relationship after November 2006 as being that of mere acquaintances.

In relation to periods of physical cohabitation, I accepted the evidence of Mr Ristic that he and Ms Maroti lived together in the one home, without retaining separate homes, for two periods only, being the five months between July and November 2006, and for a period which ended as Ms Maroti alleged on 3 March 2008, but began only three weeks earlier. I found that they continued a personal relationship when not cohabiting, which included spending time at each other’s houses and going on trips together until December 2010, and remained friends at least until 30 April 2011.[50]
[50]Ristic v Maroti (No 2) [2014] VSC 540 at [36], [49]-[51].

In relation to the nature of the relationship, I found that it was one of intense emotion and volatility, and that emotional relationship continued beyond November 2006.[51] I found that each party had been so distressed because of the relationship that he or she had required medical assistance on occasion (Mr Ristic in April 2007, and Ms Maroti in March 2008);[52] that Mr Ristic reported harassment by Ms Maroti to the police in June 2011 (after, on Ms Maroti’s account, the end of the relationship);[53] and that it was evident from Ms Maroti’s oral evidence that ‘emotional distress arising from the relationship continues for her’.[54]
[51]Ibid at [55], [65].
[52]Ibid at [61]-[62].
[53]Ibid at [63].
[54]Ibid at [66].

Ms Maroti contended in the funds in Court case and in her evidence in this proceeding that the relationship did not end until 12 May 2011. In relation to her evidence as to when the relationship ended I found in the funds in Court case as follows:

There is no explanation in her evidence for the precision of this date. I cannot on the evidence make any exact finding as to when the relationship came to an end, save that the last occasion on which it is proved that the parties socialised together by agreement was on 30 April 2011, when the defendant and her daughter stayed at the plaintiff’s home at Bayswater following his sister’s 60^th birthday party. I infer that they were at least still on cordial terms at that time, but given that the plaintiff had commenced his current relationship with Ms Korondy in October 2010 it may be that his emotional engagement with the defendant had ended.[55]

[55]Ibid at [65].

I summarised my conclusions as to the length of the relationship as follows (footnotes omitted):

I find that what started as an affair, developed to a period of five months living together in 2006 and a further short period of three weeks in 2008. The parties had separate residences in 2007 in between these two periods of cohabitation, but an emotional relationship between them continued, in which the plaintiff spent time at the defendant’s home, and they went on a holiday together. There is no evidence as to the nature of the relationship, if any, between the parties in 2008 after the incident at Ruzica’s house. Some feelings between them presumably continued, however, because in 2009 and 2010 they went on trips to Albury together and stayed at each other’s houses. Accordingly, I find that a personal relationship continued between them after March 2008, although possibly not continuously, which was at least an affectionate, and probably an intimate, friendship. This relationship continued until at least December 2010, which is the date of the last overnight stay at Albury in evidence. Cordial relations continued until 30 April 2011.
The defendant contends that the relationship ended on 12 May 2011 when the plaintiff moved out of her home. The plaintiff denies this. They agree, however, that the defendant rang the plaintiff’s employer on 30 May 2011 and had a discussion with the employer to the effect that the plaintiff, employed as a travelling salesman, had lost his licence. The plaintiff was dismissed shortly thereafter. As set out earlier, he called the police in late June 2011 to complain of harassment by the defendant. I find that a consensual relationship between them ended entirely after 30 April 2011 and no later than 30 May 2011 i.e. at some point in May 2011.[56]

[56]Ibid at [67]-[68].

As is evident in this quote, I made no finding as to the commencement date of a ‘domestic relationship’ between the parties. In response to Ms Maroti’s contention that they became friends in February 2005, Mr Ristic claimed that she was merely an acquaintance at that time. Evidence was adduced in the course of his cross examination by Ms Maroti’s then legal representative that his wife became concerned that he was having an affair by December 2005 and they then separated under the one roof from 5 February 2006.[57] Mr Ristic and Ms Maroti commenced to live together in July 2006 after the property settlement between Mr Ristic and his wife was completed and he moved out of their former matrimonial home. The date asserted by Ms Maroti as being the commencement of their ‘de facto’ relationship in her Family Law Act application is ‘during 2006’, with no specification of the exact date.[58]
[57]Police report dated 21 December 2005 and separation declaration between Matilda and Steven Ristic dated 29 March 2006, being Exhibits 4 and 5 in the defendant’s case in Ristic v Maroti (No 2).
[58]Exhibit JEM-1 to the affidavit of James Edward McIntyre sworn 8 January 2014 in S CI 2013 4246.

As no finding was made by me in the funds in Court case on the commencement date of a ‘domestic relationship’ between the parties, and in particular, whether it commenced earlier than their physical cohabitation, further evidence on that issue would be admissible in the adjustment of property interests claim. Neither party has given any further evidence on that issue in the application to extend time. However, on the basis of the evidence already given in the funds in Court case as set out above, I consider it arguable that the parties were in a ‘domestic relationship’, although not physically living together, at least by early March 2006 and so were in a ‘domestic relationship’ for the necessary two years. Accordingly, the date I have determined as being the end date of their ‘domestic relationship’ is not necessarily a barrier to the adjustment of property interests claim, and so not an automatic barrier to the extension of time to bring that claim. If time is extended, the commencement date of the ‘domestic relationship’, and so whether or not it was of two years duration and an order for adjustment of property interests may be made, would be determined on the basis of all the evidence given at the trial of the claim.

I turn now to other aspects of the relationship, on which I made findings in the funds in Court case.

Ms Maroti asserted that Mr Ristic had physically assaulted her in the course of the relationship, but I found that she had not proved that assertion, with two exceptions.[59] The first was in relation to an event that occurred in late 2006 when Ms Maroti went uninvited to Mr Ristic’s home and became upset on seeing him there with a female friend. In relation to that event I found that if Mr Ristic did assault Ms Maroti (which I did not find proved), then ‘it was in response to an emotional scene generated by (Ms Maroti)’ which occasioned such upset that the police were called.[60] The second exception was an occasion in 2008 when Ms Maroti went uninvited to the home of one of Mr Ristic’s sisters, where he was then living. In relation to that incident, I accepted the evidence of Mr Ristic’s sister that Mr Ristic pushed Ms Maroti out of his room, but found that this was because she would not leave when requested.[61]
[59]Ibid at [60].
[60]Ibid at [57] and [59].
[61]Ibid at [58] and [59].

I found that the parties did not present themselves to the outside world socially as a couple, even during the period that they lived together in 2006. In particular, I found that Mr Ristic did not present Ms Maroti to his family as his partner, and neither presented themselves to their broader community as a couple.[62] I found that the relationship was not sexually exclusive as far as Ms Maroti was concerned throughout, and at least from October 2010 was not sexually exclusive as far as Mr Ristic was concerned.[63] I found that they did not pool their finances, even when living together.[64]
[62]Ibid at [69]-[70].
[63]Ibid at [73].
[64]Ibid at [75].

My conclusion as to the nature of the relationship, having regard to all of the above, was that:

…notwithstanding that the parties continued an intimate relationship in 2009 and 2010, they did not have a shared life as a couple after March 2008, when (Mr Ristic) moved out of (Ms Maroti’s) Roxburgh Park home for the second time.[65]

[65]Ibid at [76].

I now apply these factual findings to the statutory criteria in the Relationships Act for the determination as to whether a ‘relationship’ between two persons was a ‘domestic relationship’. I do so for the purpose of assessment of Ms Maroti’s prospects of success in establishing that the parties were in a ‘domestic relationship’ and for two years.

Section 35(2) (a) of the Relationships Act requires the Court to consider ‘the degree of mutual commitment to a shared life’. I consider that my finding that the parties ‘did not have a shared life as a couple after March 2008’ means that their ‘mutual commitment to a shared life’ ended in early March 2008, notwithstanding that a personal relationship between them continued until May 2011. I am unable to say on the current evidence when that commitment began, but cannot exclude the possibility that Ms Maroti could prove that it did so by March 2006.

Section 35(2)(b) requires the Court to consider the ‘duration of the relationship’ i.e. the duration of the whole relationship, of whatever kind. On the evidence and findings in the funds in Court case I consider that Ms Maroti could show that an intimate personal relationship more than that of mere acquaintances or friends commenced by late 2005 and continued until at least December 2010. She is prevented by the doctrine of issue estoppel from now seeking to prove[66] that in fact an intimate relationship continued until May 2011.
[66]As she sought to do by items 15 and 51 in the annexed table ‘Rulings on Additional Evidence’.

Section 35(2)(c) requires the Court to consider ‘the nature and extent of common residence’. I found that the parties shared a residence for two periods only, being in total just under six months and ending in early March 2008. I found that they did spend time at each other’s homes in 2007, 2009 and 2010 but Mr Ristic retained his own home during these periods. Ms Maroti did not prove her contentions that Mr Ristic lived with her i.e. that they had a common residence in 2009 and from a period in 2010 to May 2011. The parties are bound by these findings.

Section 35(2)(d) requires the Court to consider ‘whether or not a sexual relationship exists’. I found that an ‘affectionate, and probably an intimate’ relationship existed between the parties at least from the commencement of their ‘affair’ (date undetermined but on the evidence arguably by December 2005) until at least December 2010. I found that the relationship was not sexually exclusive.

Section 35(2)(e) requires the Court to assess the ‘degree of financial dependence or interdependence, and any arrangements for financial support, between the parties’. I found that the parties did not pool their finances, even when living together.

Section 35(2)(f) requires the Court to consider ‘the ownership, use and acquisition of property’. There was no evidence in the funds in Court case that the parties acquired any property of any type together. The real estate there in question, 14 Waranga Road, Bayswater, had been acquired by Mr Ristic and his then wife well before his relationship with Ms Maroti commenced, and was transferred to his sole name as a result of the property settlement with his wife. It was rented out until June 2008 when it became Mr Ristic’s home.[67] Ms Maroti may have spent time there, but it was never her home.
[67]Ristic v Maroti (No2) [2014] VSC 540 at [35]-[36].

In this proceeding, Ms Maroti has sought to prove that she and Mr Ristic intended to buy a home together and obtained pre-approval for a home loan to do so in January 2007. No evidence to this effect was adduced by her in the funds in Court case. The documents on which she now relies to support that contention, being the application form the parties each signed and the approval letter, clearly in point of time existed well before the commencement and hearing of the funds in Court case. I have allowed them to be admitted in this proceeding,[68] because I am satisfied that unsuccessful attempts were made by Ms Maroti’s lawyers to obtain the documents at the time of the funds in Court case and so they were not available to her by the exercise of reasonable diligence at that time. Accordingly, they fall within the exception to the doctrine of issue estoppel.
[68]See item 48 in the attached table ‘Rulings on Additional Evidence’.

Mr Ristic contends that he intended to be only a guarantor for the purchase. If time is extended to enable Ms Maroti to bring her proceeding for adjustment of property interests he would of course have the opportunity to give that evidence. I make no finding as to whether or not the parties did intend to buy a house together in early 2007. It is only necessary and appropriate for current purposes to take the contention, and the documents that support it, into account in assessing Ms Maroti’s prospects of success in establishing a domestic relationship for two years, and obtaining an order for adjustment of property interests. For that limited purpose, the documents bolster Ms Maroti’s case and provide evidence as to the parties’ intentions in 2007 in between their two periods of cohabitation. They make it more likely that Ms Maroti could establish a continuing ‘domestic relationship’ between them in that period, but my other findings in the funds in Court case already support the continued existence of a ‘domestic relationship’ in that period. The loan documents do not add to Ms Maroti’s case in relation to the critical issue of the commencement of their ‘domestic relationship’ i.e. whether it commenced prior to July 2006.

Section 35(2)(g) requires the Court to consider the relevance of ‘the care and support of children’. I made no finding in relation to this issue in the funds in Court case, and so the parties would be at liberty to adduce further evidence in relation to it in the Relationships Act case, if time is extended. It was plain on the evidence in the funds in Court case that Ms Maroti’s daughter, Eszter, was living with her throughout the period of the parties’ relationship, including in 2009 and 2010 when Mr Ristic was spending time at her house. I am unable to reach a conclusion on the current evidence as to the possible significance of this factor.

Section 35(2)(h) requires the Court to consider ‘the reputation and public aspects of the relationship’. I found that the parties did not present themselves socially to the outside world as a couple, even during the period that they lived together in 2006. Ms Maroti has sought in this proceeding to adduce further evidence that would tend to contradict this finding.[69] She is unable to do so by reason of the doctrine of issue estoppel.
[69]For example, items 6, 15 and 52 in the table ‘Rulings on Additional Evidence’.

I conclude from this application of the findings about the nature and duration of the relationship in the funds in Court case to the statutory criteria as to when a relationship is a ‘domestic relationship’ in the Relationships Act, that Ms Maroti would be able to establish a domestic relationship at least during the periods the parties lived together, and throughout 2007 as well. She would have difficulty doing so for the period after March 2008, but as a mutual commitment to a shared life is only one of the statutory criteria I cannot exclude the possibility that she could do so on the findings already made. It does seem to me, however, unlikely because she was unable to prove in the funds in Court case even within broad parameters how much time the parties spent at each other’ homes in 2009 and 2010 and she is prevented by the doctrine of issue estoppel from seeking to supplement that evidence now. Accordingly, I consider that Ms Maroti has poor prospects of establishing a continued or renewed domestic relationship after March 2008.

It follows that she could only obtain an order for adjustment of property interests if the ‘domestic relationship’ that ended in early March 2008 had commenced by early March 2006. I consider that arguable on the current evidence.

Contribution

I now turn to the findings made in the funds in Court case on contribution.

Ms Maroti asserted in the funds in Court case that she had made two contributions by reason of which Mr Ristic was able to maintain his ownership of 14 Waranga Road. The cause of action on which she relied in that case required her to prove that by reason of contributions she had made to the retention of that property, it would be unconscionable for Mr Ristic to deny her an interest in the balance of the sale proceeds. Those two forms of contribution were the sum of $14,000 that she alleged she had given to Mr Ristic or paid on his behalf in a series of cash withdrawals in the period November 2006 to June 2008, and assistance that she alleges that she gave him from Easter 2009 (when he agrees he lost his driving licence) to May 2011 by way of driving his work car, thus allowing him to retain his job and so pay the mortgage.

In this proceeding under the Relationships Act Ms Maroti relies on broadly the same contributions, in this case for the purposes of the Court determining an appropriate adjustment in her favour.

I found in the funds in Court case that Ms Maroti had not proved that she provided routine or regular assistance to Mr Ristic by driving him for work purposes when he could not legally do so due to the loss of his licence. Her case in that regard was significantly weakened by the paucity of evidence to support her contention that he lived with her in 2009 and 2010-May 2011. To the extent that she had proved that she did on occasion drive his work car, I found that she had not proved that this made a substantial contribution to Mr Ristic being able to retain his job.[70]
[70]Ibid at [80].

In relation to her contention that she had provided $14,000 to Mr Ristic, I found as follows:

…I find that the plaintiff was able to pay the mortgage (although it may be his indebtedness had increased) until he lost his job. It follows that any payments made to him by the defendant were not material to retention of that property. It is possible on the evidence that the defendant made some payments to or for the plaintiff, but I am unable to make any finding as to how much. As against this, the plaintiff has shown that it is possible that the defendant was responsible for substantial withdrawals for gambling from his funds, and so made a negative contribution. Due largely to the failure of the parties, the plaintiff unrepresented but the defendant represented, to ensure their competing accounts were put to each other in cross examination, I cannot make any findings as to the amount of financial contribution made either way. The defendant bears the onus of proof on the issue of contribution, because it is she who seeks to establish a constructive trust, and she has failed to discharge it.[71]

[71]Ibid at [92].

Contribution is a critical element of the claim Ms Maroti wishes to bring for adjustment of property interests, although not the only matter to be considered by the Court in determining whether or not to make an order. On the question of contribution, Ms Maroti is bound by the findings I have already made. Those findings were essentially negative i.e. I was unable to determine on her evidence what she had paid or what driving assistance she had given. It followed that she failed to prove the contributions she alleged. The doctrine of issue estoppel applies to failure to prove an issue, just as it does to a positive finding. If it were otherwise, a party would be able to litigate the same point endlessly. Accordingly, Ms Maroti cannot now in this proceeding adduce other evidence of contribution to the relationship that was reasonably available to her at the time of the funds in Court case, and she is bound by the finding that she made no appreciable contribution to the relationship by way of payment to Mr Ristic or in his interests, or by driving his work car.

Other issues in this proceeding

Other issues arise in this proceeding, and in the application for extension of time that were not the subject of necessary findings in the funds in Court case. The parties are at liberty to adduce further evidence in relation to those issues, and have done so. I attach a table showing the rulings made by me in relation to their additional evidence in this proceeding. I indicated in my ruling on the further adjournment sought by Ms Maroti on 16 December 2014 that I would do so.

The fundamental issues on the extension of time application are the relative hardships to the parties if time is not extended, or if it is. Matters relating to the discretion to grant relief, if the balance of hardship would favour the plaintiff and so tend towards extension of time, are also relevant. Explanation by Ms Maroti for her delay would be relevant in this regard.

In relation to hardship to the plaintiff if time is not extended, the fundamental question is assessment of her prospects of success in the proposed substantive application for adjustment of property interests. That in turn requires an assessment not just of whether or not she can establish a domestic relationship of more than two years, but also an assessment of the factors the Court would be required to consider under s 45 of the Relationships Act in determining what would be a just and equitable order by way of adjustment of property interests. These factors include direct and indirect financial and non-financial contributions to the property and financial resources of the parties, and contributions to the welfare of the parties (s 45(1)(a) and (b)). As these matters were also critical elements of the cause of action on which Ms Maroti relied in the funds in Court case, the parties are bound by my findings on them in that case.

Section 45(1) also requires the Court to consider the ‘nature and duration of the domestic relationship’ (s 45(1)(c)) and ‘any relevant matter referred to in section 51’ (s 45(1)(d)). As the nature and duration of the domestic relationship also was a critical element in the funds in Court case, the parties are bound by my findings in relation to that in that proceeding.

It follows that the only factors under s 45 that have not already been determined in the funds in Court case, are those referred to in s 51. These factors broadly relate to parties’ comparative financial positions, including their future needs and obligations, and the impact of the domestic relationship on their financial positions and earning capacity. Some limited evidence was given by the parties on these matters in the funds in Court proceeding, although it was not necessary to make any findings in relation to it to determine that proceeding. The thrust of that evidence was that both parties are currently unemployed and on a pension or a benefit, and each have health issues that may occasion expense and impact on their ability to work. Neither currently owns any real estate, although Mr Ristic has indicated an intention to purchase a property with his current partner, Ms Korondy, utilising the funds now paid out to him following judgment in his favour in the funds in Court proceeding. Ms Maroti became bankrupt in 2008, which bankruptcy came to an end in 2011.

Ms Maroti has adduced substantial further evidence as to her parlous financial circumstances and state of health in this proceeding. The effect of that evidence is that she has been in very poor physical and mental health since 2011 and remains so. She has substantial health problems relating to her knees and spine. She has been diagnosed with depression and attempted suicide in 2011. Her prospects of obtaining employment given her age and state of health must be regarded as very limited. She has had periods of homelessness. She recently became a tenant of state housing, which may have mitigated her difficult financial circumstances to some degree, but it would appear that she has no prospect of purchasing her own home.

Mr Ristic has not sought in this application to adduce detailed evidence as to his current financial and personal circumstances, but it would appear on the current evidence that he is in a better situation than Ms Maroti in both respects. He has indicated he has some health difficulties and as far as I am aware he remains unemployed. He has, however, the benefit of the personal support and financial resources of his partner, Ms Korondy, and they plan to purchase a home.

The thrust of the psychological reports on which Ms Maroti relies is that her mental health has been very adversely affected by the relationship with Mr Ristic and the court proceedings which have followed. She has been diagnosed as suffering post -traumatic stress syndrome arising from the relationship. She has sought to adduce further evidence in this proceeding to support the contention that she also advanced in the funds in Court case that Mr Ristic was physically abusive to her. I found against her in relation to that contention in the funds in Court case and the parties are bound by those findings. Accordingly the only evidence of this sort which is admissible in this proceeding is that related to events that occurred after the trial of the funds in Court case, as that evidence was not obtainable for that trial.

I have admitted evidence of this type as to the outcome of her proceeding under the victims of crime legislation against Mr Ristic and his prosecution for breach of an intervention order in her favour against him.[72] The breach occurred prior to the funds in Court trial, but the prosecution has only just concluded. That evidence may have some limited relevance to a s 51 factor and so the making of an order for adjustment of property interests, if time is extended to make that application.
[72]Items 8 and 9 in the table ‘Rulings on Additional Evidence’.

Conclusion as to prospects of success

As noted, I consider that Ms Maroti would only be able to obtain an order for adjustment of property interests if she could establish that her ‘domestic relationship’ with Mr Ristic had commenced by early March 2006. If she cannot establish this then in my view she will be unable to establish the necessary two year domestic relationship. As noted, on the current evidence, I consider it arguable that she will be able to do so.

Even if she does so, however, I consider that, in light of the findings made against her in the funds in Court case on contribution, her prospects of obtaining any appreciable adjustment in property interests are poor. Contribution is not the only factor that the Court must take into account in determining what is ‘just and equitable’ but it is a very significant one. Certainly it appears likely that she could establish that she is in a substantially poorer financial position than Mr Ristic, but that alone is unlikely to be sufficient to justify an adjustment in her favour in the absence of appreciable contribution by her or proof that it was Mr Ristic’s actions in the relationship that have occasioned her current circumstances. Again, she would have difficulty in establishing that connection in light of the findings made against her contention in the funds in Court case that he was violent to her.

In summary, I do not consider Ms Maroti’s prospects of success in her claim for adjustment of property interests if time is extended to make the claim to be nil, but I consider them to be poor.

Consideration of extension of time

I now consider the application for extension of time in the light of the evidence and findings.

Hardship to the plaintiff if leave is refused

I accept that Ms Maroti has suffered very considerable hardship since 2011, when she says that the relationship ended. Hardship in this general sense is not, however, the subject of the test for extension of time. As the authorities earlier discussed show, ‘hardship’ to the applicant for an extension of time is to be assessed having regard to her prospects of success in the substantive application. It follows from my conclusion on those prospects, that while she would suffer hardship if leave was refused, because she would be denied the opportunity to at least attempt to obtain an order, that hardship is mitigated by the very real prospect that that attempt would fail.

I accept that Ms Maroti has a profound desire to be vindicated in relation to her assertion that the relationship continued to be one of de facto partners until May 2011 and that it was an abusive relationship as far as she was concerned.[73] She had that opportunity in the funds in Court proceeding and failed. That judgment has not been overturned on appeal. In the absence of successful appeal, the law does not give a party multiple opportunities to try and prove the same contention, because that would be unfair to the other party who succeeded in the earlier litigation, and could lead to endless disputation.
[73]See, for example, her closing submissions in reply at transcript 16.12.14 pp 80-81.

Hardship to the defendant if leave is granted

Mr Ristic opposes the application for extension of time on a number of grounds. He says that Ms Maroti has had ample time to bring proceedings under the Relationships Act, and has failed to supply a ‘genuine’ reason for her delay.[74] I discuss this issue further below. He says that her claim that it was her lawyers who failed to adduce relevant evidence is doubtful as she was present at every hearing and had plenty of opportunity to instruct her lawyers.[75] This relates to the admission of further evidence on issues of fact already necessarily determined in the funds in Court proceeding. As discussed earlier, if she provided evidence to her lawyers then it is deemed available to her, and if they were negligent (which is not to be determined in this proceeding) then her remedy lies against them.
[74]Transcript 16.12.14 p 75.
[75]Ibid.

Mr Ristic seeks summary dismissal of Ms Maroti’s claim on the basis that it has no real prospect of success.[76] As discussed earlier, I do not consider that Ms Maroti’s claim for adjustment of property interests has no real prospects of success, but I consider her prospects of success to be poor.
[76]Ibid.

In relation to hardship to him if the extension of time were granted, Mr Ristic asserts that the delay to date has caused him hardship because the proceeds of sale that were in dispute in the funds in Court case lost value over that time and house prices have gone up. He has not adduced evidence in support of this contention, but I consider that I can accept as a matter of common knowledge that house prices have increased substantially in recent years. He also contends that the litigation and delay have put a strain on his current relationship and on Ms Korondy.[77] Again, he has not adduced evidence to support this contention, but I accept that as a matter of common knowledge litigation is stressful and so multiple litigation magnifies that stress.
[77]Ibid, pp 76-77.

In his affidavit in opposition to the application for extension of time, Mr Ristic mistakenly relied on the provisions as to necessary length of the relationship in the Family Law Act, rather than the Relationships Act. I take the matters there asserted, that are additional to those already mentioned above, to be (under the Relationships Act) that the delay since the right of action arose has been considerable; and in any event the relationship was not a ‘domestic relationship’ and was not of two years duration. In relation to the latter two of these, I refer to my earlier discussion and conclusions.

In relation to the first, the length of time since the cause of action arose is relevant to hardship, as well as to discretion, if the balance of hardship would otherwise justify the extension of time. I have found that the parties ceased to have a shared life as a couple after March 2008, and that it would be difficult for the plaintiff to establish that a domestic relationship continued or resumed after this date in light of this finding. If that is correct, then the right of action to seek adjustment of property interests arose in March 2008, initially under Part IX of the Property Law Act. Ms Maroti did not commence her proceeding until April 2014 i.e. more than six years later, and more than four years out of time.

As noted earlier, I agree with the comment by Daly AsJ in White v Hume[78] that ambiguity as the nature of the relationship after the date that the Court finds the domestic relationship came to an end may be relevant to extension of time. Here there was considerable ambiguity, given that Mr Ristic and Ms Maroti continued to spend time together and continued a personal and probably intimate relationship until December 2010, and remained on cordial terms until April 2011. Accordingly, had Ms Maroti commenced a proceeding under the Relationships Act shortly after she says the parties separated, in May 2011, it is likely that time would have been extended, even if the Court concluded that the domestic relationship had concluded more than two years earlier.She did not do so, however. The proceeding was not commenced until after the first day of trial of the proceeding Mr Ristic had commenced, to gain access to what he had contended throughout were his funds.
[78][2013] VSC 95 at [60].

The parties had attempted to resolve their dispute in that time. The correspondence exhibited to Mr Ristic’s first affidavit in the funds in Court case and the further correspondence admitted in this proceeding shows that each at different times offered a settlement, in an amount similar to what Ms Maroti ultimately sought in the funds in Court case. Each of those offers was declined. Each of the parties incurred the cost of lawyers at that time, and the emotional stress of the negotiations. Each has had to wait a number of years for an outcome to the dispute. However, it is Mr Ristic’s position that was subsequently vindicated by the judgment in the funds in Court case. Accordingly, while each party would incur the stress and delay of further litigation if the extension of time is granted, in my view the hardship to Mr Ristic would be greater, because Ms Maroti’s claim has already failed once, and does not have strong prospects of success in its current incarnation.

Mr Ristic was required to incur the cost of lawyers in the course of negotiations from May 2011 to September 2012, when he commenced to act for himself,[79] to oppose a claim that ultimately failed. He was required to wait a period of three years from the completion of the sale of the property in September 2011 to some time after the judgment in late October 2014 to obtain the full balance proceeds of sale. Ms Maroti claimed an interest in the property immediately after she says the relationship ended, in May 2011, but she did not take any step in litigation in relation to that claim until given notice of Mr Ristic’s funds in Court proceeding, and she did not commence this proceeding until the trial of that proceeding had commenced. This is despite frequent reference having been made by her then lawyers to a claim under the Relationships Act in the early stages of the funds in Court proceeding.[80] Through her then counsel Ms Maroti made application for a stay on the judgment subsequently given in the funds in Court proceeding, and I granted that application, further delaying the payment out to Mr Ristic for a short time.
[79]Exhibit A 16.12.14.
[80]Ristic v Maroti (No 2) [2014] VSC 540 at [9]-[13].

In summary, Mr Ristic has already incurred the hardship of being deprived of funds subsequently found to be rightly his for over three years. If leave is granted to Ms Maroti to commence out of time a proceeding for adjustment of property interests in respect of the same funds, now paid out to him, he will incur the hardship of further delay and uncertainty before he can utilise those funds with confidence, with consequent strain on his current relationship.

Conclusion as to relative hardship

For these reasons, I consider that the balance of hardship lies in favour of Mr Ristic. In other words, I consider that greater hardship would be caused to him if the extension of time were granted, than would be caused to Ms Maroti if it were refused.

In short, I reach this conclusion because the parties have already litigated many of the issues that would arise in the Relationships Act proceeding. The findings necessarily made to determine that earlier litigation mean that Ms Maroti has poor prospects of success in the claim she wishes to bring for adjustment of property interests under the Relationships Act. It is a hardship to her to deny her the opportunity to bring that claim, but a limited one given that her prospects of success are poor. By contrast, those poor prospects mean that if time was extended Mr Ristic would be required to suffer the further stress and delay of further litigation, in which in all probability he would again be successful.

Discretion

The Court has a discretion in relation to the grant of an extension of time, but that discretion only arises once the Court has concluded that the balance of hardship favours the applicant for the extension. In other words, it does not allow the grant of extension even if the balance of hardship is against the applicant for the extension.

As I have found that the balance of hardship does not favour Ms Maroti it is not necessary for me to express any view about the adequacy of the explanations given by Ms Maroti for her delay. However, the issue was addressed by both parties and so in fairness to them, and for completion, I say the following. While the delay from 2008 to 2014 is substantial, as noted earlier, I consider it is sufficiently explained until May 2011 by the continuation of a personal relationship, although not a domestic one. The period thereafter would be more problematic for Ms Maroti, if she was required to explain it, because she was legally represented throughout the negotiations in 2011 and 2012 and again when she was joined to the funds in Court proceeding. She has, however, adduced evidence that she has suffered very considerable ill health, poverty and homelessness in that period. Had the balance of hardship otherwise favoured the grant of the extension of time, I would not have refused that relief because of the length of her delay in the commencement of proceedings, or because I considered her explanations for that delay to be insufficient.

Conclusion and orders
Extension of time

I will refuse the application for extension of time to commence proceedings for adjustment of property interests.

Application for declaration

Ms Maroti also seeks in this proceeding a declaration pursuant to s 40 of the Relationships Act. The time limit imposed by s 43(1) of the Act does not apply to that application. Section 40 provides as follows:

40 Declaration of interests in property
(1)In a proceeding between domestic partners or caring partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a domestic partner or caring partner has in respect of the property.
(2)The court may make orders to give effect to the declaration, including orders about possession.

Section 40 relates to declarations as to ‘existing rights’, and not to adjustment of existing rights, as provided for by s 41. I have, however, already decided the position in relation to the existing rights of the parties to the funds in Court in the funds in Court case. Ms Maroti’s application for a declaration that she has an existing interest in those funds is in my view the same cause of action that she sought to advance in the funds in Court case, in each case being an assertion of an equitable interest arising from her contributions to the relationship. Accordingly, the doctrine of res judicata applies to the application for a declaration.

If her application for a declaration is more accurately expressed as a different cause of action to that she advanced in the funds in Court case, precisely the same issues arose between the parties in that case as arise in this in relation to existing interests in the property. On that view, the doctrine of issue estoppel would apply to prevent the same issues being litigated again. Accordingly, under either the doctrines of res judicata or issue estoppel, the parties are bound in this proceeding by my judgment on Ms Maroti’s claim of an equitable interest in the funds in Court case. As I found in that case that Ms Maroti had no existing equitable interest in the funds, and it was common ground that she had no legal interest, it follows that the same result must apply to her application for a declaration in this proceeding.

It follows that, as leave will be refused to Ms Maroti to make application for adjustment of property interests out of time, that refusal will end the whole of her proceeding under the Relationships Act. I will dismiss her originating motion.

SCHEDULE

MAROTI V RISTIC S CI 2014 1676
RULINGS ON ADDITIONAL EVIDENCE
(In addition to that adduced in the trial of Ristic v Maroti S CI 2013 4246)

Item no.	Nature of evidence	Where identified	Issue to which it relates	*Was this issue determined in Ristic v Maroti* (No 2) [2014] VSC 540?**	Admitted in this proceeding	Reason or Comment
P affidavit sworn and filed 5.11.14 in 2013 4246
1	Business and bank account in both names 2007	[4] and transcript (T’) 16.12.14 at p28	Nature of the relationship	Yes	No	Issue estoppel
2	Withdrawal of $5000 and $2000 by Mr Ristic from a business account June 2007	[5] Also T 8.12.14 at p13	Relationship /Contribution by Maroti/ or claim for debt	Yes as to relationship/contribution; No as to debt	No	As to relationship and contribution- issue estoppel. As to debt- relevance. There is no claim for debt in this proceeding.
3	Payment of Mr Ristic’s rent May 2007	[6], T 8.12.14 at pp13 and 14; T 16.12.14 at p 28	As in 2 above	As in 2 above	No	As in 2 above.
4	Payment in June 2007 for wall heater at rented property owned by Mr Ristic	[7], T 8.12.14 at p14; T 16.12.14 at p28	As in 2 above	As in 2 above	No	As in 2 above
5	Apparent claim that Mr Ristic used her account to pay bills in 2007	[8]	As in 2 above	As in 2 above	No	As in 2 above
6	Invitation by Mr Ristic’s sister Vera to daughter’s wedding anniversary in October 2010	[9]-[10]	Relationship	Yes	No	Issue estoppel. Vera Zdimirovic was a witness in the trial.
7	Evidence from new witness Kathy Roka	[11]; T 16.12.14 at p34-35	Relationship	Yes	No	Issue estoppel. ‘Lost each other’ and alleged threat from Mr Ristic prior to trial are insufficient explanations to show that this evidence was not obtainable for the first trial.
8	Claim for victim’s compensation arising from assaults by Mr Ristic	[12]	Relationship /assaults	Yes	No as to the occurrence of violence. Yes as to quantum. Ex D 8.12.14	Issue estoppel. If this case proceeds, the quantum of compensation may be relevant.
9	Breach of intervention order by Mr Ristic during the trial	[13] and T 16.12.14 pp70-72	Unclear	No	Yes Ex F 16.12.14	Possible relevance to extension of time.
10	Breach of intervention order by Ms Korondy during the trial	[14] and T 16.12.14 at p77	Unclear	No	Yes	As in 9 above
11	Date on which Mr Ristic moved into Ms Maroti’s home in 2010 with explanation.	[15]	Cohabitation	Yes. I found that the date could not be identified due to omissions in Ms Maroti’s evidence-judgment at [44].	No	Issue estoppel
12	Detail as to what occurred on the day Ms Maroti claimed that they separated in May 2011 and admission by Mr Ristic	[15] and T 8.12.14 p5	Date of separation	Yes	No	Issue estoppel
13	Explanation as to why Ms Maroti called Mr Ristic’s employer causing his dismissal	[16]	Relationship /Contribution	Yes	No	Issue estoppel
14	Poor health after breakup	[17]	Unclear	No	Yes Exs D, E, G and H 16.12.14	Relates to hardship and explanation for delay in commencing proceedings and would relate to amount of any adjustment if case proceeds that far.
15	Mr Ristic lied when said he was not in Cobram with me on 23.4.11	[18]	Perjury Relationship	Yes as to relationship. Allegation of perjury is for the police.	No	Issue estoppel. Response to enquiry of hotel is dated 20.11.13 ie. before trial. Vera Zdimirovic on whose Facebook page the photograph apparently appears was a witness in the trial.
16	Driving Mr Ristic regularly for work	[19]	Relationship /Contribution	Yes	No	Issue estoppel
17	Submissions as to the relationship	‘Conclusion’	Relationship /Contribution	Yes	No	Issue estoppel
18	Not advised by lawyer that only two years to bring claim	P affidavit sworn 10.11.14 in 2013 4246	Extension of time	No	Yes	Relevant to explanation for delay
P affidavit sworn 23.11.14 in 2014 1676
19	Request for further time to adduce evidence re paras [12], [13], [14], [15], [17] and [19] of affidavit sworn 5.11.14	[2]	Requests for adjournment made 8.12.14 and 16.12.14	Yes	Determined by rulings on adjournment on 8.12.14 and 16.12.14
20	Request for further time to adduce further proof of certain matters asserted in affidavit sworn 16 October 2013	[3]	As above.	Yes	As above
21	Decline in health after judgment in funds in Court case	[4]	As above	Yes Ex A 8.12.14 Ex H 16.12.14	As above
22	Allegation that Mr Ristic lied in funds in Court case	[4]	Admission of further evidence	Yes	No	Issue of estoppel. Matters of credit were determined in the funds in Court case.
23	Opposes extension of time	D affidavit sworn 27.11.14 in 2014 1676 Submissions T 16.12.14 pp75-79	Extension of time	No	Yes	Mr Ristic mistakenly addressed the criteria under the Family Law Act in this affidavit, but addressed the Relationships Act criteria orally. T34
P list of proposed further evidence dated 10.12.14
24	Involvement with police and lawyer Patrick Cash in May 2011	[2]-[5] and T 16.12.14 pp33,39-42	Further adjournment sought 16.12.14 Extension of time	No	Yes	(1) Further adjournment was refused. (2) For the purposes of the extension of time application, I will treat these statements as though sworn. Letters between the lawyers exhibited to Mr Ristic’s first affidavit were admitted in the funds in Court trial-T 16.12.14 pp43, 57.
25	Hospitalised in September 2011	[6] and T 16.12.14 p39-42	Extension of time	No	Yes	As (2) above
26	Attempted suicide Oct 2011	[7] and T 16.12.14 p39-42	Extension of time	No	Yes	As (2) above
27	Engagement of new lawyer Nov 2011	[8] and T 16.12.14 p41-42	Extension of time	No	Yes	As (2) above
28	Contact with police in 2011 and 2012 re abuse in the relationship	[9]	Further adjournment sought 16.12.14 to provide evidence re abuse in the relationship Extension of time	Yes as to abuse in the relationship No as to extension of time	No re abuse Yes re extension of time	Re abuse-issue estoppel. As (2) above re extension of time
29	Reason for ceasing retainer of new lawyer	[10]	Extension of time	No	Yes	As (2) above
30	Homeless in 2012	[11]	Extension of time	No	Yes	As (2) above
31	Surgery in 2012	[12]	Extension of time	No	Yes	As (2) above
32	Lawyer’s letter 14.11.11 to Mr Ristic	[13]; T 16.12.14 pp41,44	Extension of time	No	Yes Ex JM 21 to Ristic first affidavit	As (2) above
33	Letter from Mr Ristic to lawyer 21.11.11	[14] and T 16.12.14 pp54-56	Extension of time	No	Yes Ex B 16.12.14	As (2) above
34	Illness and care for daughter	[15]	Extension of time	No	Yes	As (2) above
35	Lump in lung Dec 2011	[16]	Extension of time	No	Yes	As (2) above
36	Summary as to why could not concentrate on the case	[17]	Extension of time	No	Yes	As (2) above
37	Statement from Constable Apps 16.11.12	[18]	Relationship	Yes	No	Issue estoppel
38	Comment on statement by Katherina Osmond and reference to approved loan	[19] and T 16.12.14 at p40	Relationship	Yes	Yes only as to loan Otherwise no	Issue estoppel, but loan documents not earlier available
39	Statement by Arpad Maroti	[20] and T 16.12.14 p69	Relationship and contribution	Yes	No	Issue estoppel
40	Statement by Michael Maroti	[21] and T 16.12.14 p69	Relationship and contribution	Yes	No	Issue estoppel
41	Statement by Gabor Maroti	[22]	Relationship	Yes	No	Issue estoppel
42	Denial of transfer of funds to Ms Maroti by Mr Ristic in 2006	[23] and T 8.12.14 at p 10	Contribution	Yes	No	Issue estoppel
43	Admissions by Ristic as to end date of relationship and violence	[24]	Relationship	Yes	No	Issue estoppel
44	Evidence of Kathy Roka	[25]. See also item 7 above.	Relationship	Yes	No	Issue estoppel
45	Affidavit of Frank Losonski	[26] and T 16.12.14 pp69-	Relationship Contribution	Yes	No	Issue estoppel
46	Photos of Gypsy Ball 2010	[27]	Relationship	Yes	No	Issue estoppel
47	Caveat removed without her consent	[28]	Unclear	No	No	Not relevant
48	Bank approved home loan with Mr Ristic Jan 2007	[29] and [32]. T 8.12.14 pp2-5; T 16.12.14 at pp57-63, 72 See also item 38	Relationship	Yes	Yes Ex B 8.12.14 Ex C 16.12.14	Loan documents not earlier available
49	Hospitalised 21.11.14	[30] and T 8.12.14 p8	Adjournment	No	Yes Ex H 16.12.14	Further adjournment refused 16.12.14.
50	Breach by Mr Ristic of IVO finalised after judgment in funds in Court case	[31] and T 8.12.14 p9	Unclear	No	Yes
51	Hotel invoice showing spent the night together 6-7.5.11	[33]	Relationship-end date	Yes	No	Issue estoppel
52	Text messages from Vera Zdimirovic	[34]	Relationship	Yes	No	Issue estoppel
53	Admission by Mr Ristic	[35]	Contribution	Yes	No	Issue estoppel
54	Surprise by witnesses in 2011 at Mr Ristic’s new relationship	[36]	Relationship-end date	Yes	No	Issue estoppel
55	Intervention orders	[37] and T 8.12.14 p6; T 16.12.14 p34; p38	Relationship Alleged breach by Mr Ristic of current order	Yes No	No No	Issue estoppel Order not available
56	Letter to Constable Apps	[38]	Relationship	Yes	No	Issue estoppel
57	Letters from psychologists	[39] and T 16.12.14 pp66-68	Relationship State of health	Yes No	No Yes Ex D 16.12.14	Issue estoppel Admitted only as to extension of time application
58	Report from Anglicare	[40] and T 16.12.14 pp63-65	Relationship	Yes	No	Issue estoppel
59	Evidence from Sordi	[41]	Relationship Contribution	Yes	No	Issue estoppel
60	Evidence from daughter Eszter	[42]	Relationship Contribution	Yes	No	Issue estoppel
61	Investigation by police of truthfulness of Mr Ristic’s evidence	[43] and T 8.12.14 at p11-12; T 16.12.14 at p29-32	Allegation of perjury in Mr Ristic’s affidavit of 29.10.13	As to content of Mr Ristic’s evidence-yes	No	Issue estoppel Remedy for false evidence is prosecution for perjury or appeal
62	Complaint against trial lawyer	[44]	Alleged negligence of trial lawyer	No	No	Negligence of trial lawyer is not a basis for the admission of further evidence on issues already determined
63	Statement by Ms Korondy as to start of her relationship with Mr Ristic	[45]	Relationship	Yes	No	Issue estoppel
64	Overseas travel by Mr Ristic in 2012	[46]	Unclear	Yes if relates to interim distributions from the funds in Court. No if relates to financial resources	No	Issue estoppel Limited relevance
65	Contact by Ms Korondy prior to trial	[47]	Unclear	No	No	Not relevant
66	Submissions	Conclusion	Relationship Contribution Poor representation by lawyers Current poor health	Yes No No	No No Yes- as per exhibits	Issue estoppel Not a basis for the admission of further evidence Relevant to extension of time
Additional in oral submissions or tendered documents
68	Application by Mr Ristic for intervention order 2011	T 8.12.14 at p8	Relationship-end date	Yes	No Appln marked Ex C 8.12.14 in error	Issue estoppel
70	Report from psychologist dated 17.11.14	T 8.12.14 at p12	Application for adjournment	No	Yes Ex A 8.12.14
71	Letter from Mr Ristic to Patrick Cash dated 31 May 2011	T 16.12.14 p49-52	Relationship	Yes	No	Does not relate to relationship If it does, issue estoppel
72	Letter from Mr Ristic dated 17.9.12 to Lily Safarewicz	T 16.12.14 pp52-53	Relationship	Yes	No	Issue estoppel
73	Letter 18.9.12 from Ryan Carlisle Thomas to Ms Safarewicz	T 16.12.14 pp53-54	Extension of time-hardship	No	Yes Ex A 16.12.14
74	Medical reports	T 16.12.14	Extension of time	No	Yes Ex E 16.12.14

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16 January 2015