Moss -v- Burgess

[2009] NSWDC 138

CITATION:	Moss -v- Burgess [2009] NSWDC 138
HEARING DATE(S):	10/03/2009-11/03/2009, 16/04/2009-17/04/2009
JUDGMENT DATE:	19 June 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 - Verdict and judgment for the plaintiff in the sum of $195,000. 2 - The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for argument, if required. 3 - The exhibits are returned. 4 - My reasons are published.
CATCHWORDS:	Term of relationship - Nature of relationship and whether it changed during its term - Credit - Assessment of asset pool when a party fails to disclose - Adjustment to recognise homemaker role
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Sarah Moss (Plaintiff) Garry Burgess (Defendant)
FILE NUMBER(S):	114/08
COUNSEL:	Mr W. Tregilgas (Plaintiff) Mr Greenaway (Defendant)
SOLICITORS:	Braye Cragg Solicitors (Plaintiff) G J Harris & Co (Defendant)

JUDGMENT

1 Sarah Dawn Moss brought proceedings under s 20 of the Property (Relationships) Act 1984 seeking an adjustment of the interests in the property of herself and her former de facto partner, Gary William Burgess. The issues were:

1 The term of their relationship.

2 The assets available for adjustment.

3 Their respective contributions, direct and indirect, during the course of the relationship.

4 The adjustment of interests, if any, to be made.

ISSUE 1 – THE TERM OF THE RELATIONSHIP

2 It was agreed that the relationship commenced in 1990. The plaintiff claimed that it continued until September 2006. The defendant claimed that it continued until February 1997 and that the parties continued thereafter to live under the same roof but were no longer in either a de facto or a close personal relationship.

3 The parties commenced cohabitation in 1990. In 1991 they moved to the property Hollydene Park where they shared a bedroom until 1996. They continued to live at Hollydene Park until the plaintiff moved out in September 2006.

4 They disagreed on the reasons why they no longer occupied the same bedroom. The plaintiff said it was because the defendant suffered from sleep apnoea and snored. The defendant said it was because of the deterioration in their relationship resulting from the plaintiff’s menopausal mood swings. He denied that he suffered from sleep apnoea.

5 As to when the relationship ceased, the plaintiff said that in late 2005 the defendant first said to her:

There is something that you did in February 1997 that I will never be able to forgive you for.

6 The plaintiff said that the relationship thereafter deteriorated to the point where in August 2006 she realised that it could not be salvaged and she made arrangements to move out of Hollydene Park. Until that point she believed they were in a permanent and long term relationship. She denied that the defendant asked her to leave on many occasions.

7 The defendant said that In February 1997 in the course of an argument the plaintiff screamed words of abuse at him. The next day he said to the plaintiff:

Sharon and Shane heard everything you said yesterday. It’s finished between us. You’ve got to leave. I want you to go.

8 Sharon and Shane conducted a business in premises about 200 metres from Hollydene Park. Sharon has died since the time of these alleged events. Shane was not called to give evidence.

9 The defendant said the plaintiff told him that she had nowhere to go, had no full time job and no money. Feeling sorry for her, he suggested that she stay on as a boarder, paying $150 per week. When the plaintiff responded that she could not afford this arrangement, he agreed to allow her to stay on provided she cooked him an evening meal and shopped for groceries with money that he gave her. He also asked her to cease her practice of charging expenses to his various accounts.

10 The defendant said that from this point in 1997 they rarely spoke to each other. He claimed that from February 1997 to September 2006 they lived separately in the house. He referred to a number of instances that supported this contention.

11 The defendant said between 1997 and 2006 the plaintiff went away for short periods without telling him where she was going or when she would return and that he did the same. The plaintiff’s diaries recorded a number of occasions when she travelled without the defendant for her horse photography business. The plaintiff denied that she did this without telling the defendant. She said she travelled only once without telling the defendant the details of her trip. This occurred shortly before she moved out of Hollydene Park.

12 The defendant and the plaintiff differed in their recollections of the injury he suffered to a finger on his right hand in 1999. They agreed that the injury required treatment at Muswellbrook Hospital. The defendant said he went to the hospital alone and was admitted overnight. He left a message for the plaintiff on the answering machine but she did not contact him and on his return the following day she offered him no assistance.

13 The plaintiff’s version was that she drove the defendant to the hospital and drove him home after he was treated. She knew nothing of a message on the answering machine.

14 The production of hospital and medical records would have assisted in determining this conflict in the evidence. Without that information I was unable to do so.

15 The plaintiff agreed that she was unaware that the defendant suffered a slight stroke in 2001.

16 She agreed that she did not discuss with the defendant the treatment she received to deal with her menopausal symptoms.

17 The defendant relied on the entries in the plaintiff’s diaries indicating that she attended a number of concerts without the defendant in 1995, 2001, 2002 and 2004.

18 It was suggested to the plaintiff that certain conversations she reported with the defendant did not take place because they were not recorded in her diaries. She pointed out that the diaries recorded appointments and events and were not personal diaries. Perusal of the diaries indicated that this was correct.

19 The defendant attached to his affidavit a Will Formⁱ dated June 2000. He said he made the Will and gave it to his brother Robert Burgess in a sealed envelope. It was returned to him in 2008 still in the sealed envelope. Mr Burgess said that the defendant gave him the Will four to six years before asking for its return in 2008 and that he also held other documents for the defendant. The will contained the following provision:

I declare that less provision in my will is made for Sarah Moss as I have taken into account the following. 1/ Our Relationship as defacto partners ended in February 1997. 2/ From start of cohabitation I have never asked or accepted any contribution from Sarah towards running my household or Business. 3/ Sarah has received considerable financial benefit from myself. 4/ I estimate this benefit to Sarah to be more than $15,000 per year.

Taking this into account I wish to leave Sarah Moss my former defacto $25,000 (TWENTYFIVE THOUSAND DOLLARS). This as a gesture of my fairness.

20 The persons named as witnesses to the Will were the same Sharon and Shane who were alleged to have overheard the 1997 argument. Shane was not called as to the date and circumstances of his witnessing the Will.

21 The plaintiff recalled no particular argument in 1997. She accepted that the parties argued from time to time and that their arguments were sometimes heated but they usually resolved their differences. She said that until late 2005 they maintained a reasonably peaceful and companionable existence that she regarded as a close relationship.

22 The plaintiff pointed to a number of events that suggested that the relationship continued.

23 After the alleged termination of the relationship in February 1997, the plaintiff purchased a book for the defendant’s birthday, in June 1997, at a cost of $210. The defendant denied that an expenditure of this magnitude by the plaintiff on a gift for him was inconsistent with the ending of their relationship. He said it was an expression of guilt by the plaintiff to atone for her major explosion in February 1997.

24 In July 1998 the plaintiff’s mother died in England. The defendant paid her airfare so that she might visit her father at that time. The plaintiff said that the defendant kissed her goodbye and that they communicated by telephone while she was in England. On her return in August 1998 the relationship, as far as the plaintiff was concerned, was good. The plaintiff again travelled to England in August 1999 at her own expense and staying for about one month. She said she spoke to the defendant a number of times by telephone while there. She said that the defendant banked proceeds from her horse photography business on her behalf while she was in England.

25 The defendant denied any show of affection when the plaintiff left and stated that there was no contact or communication between them while the plaintiff was in England. Telephone accountsⁱⁱ produced by the plaintiff indicated that the plaintiff rang the defendant from England three times in July and August 1998. The defendant said he had forgotten these telephone calls.

26 He denied that, with the exception of one cheque in 1998, he attended to any banking on her behalf while she was away. He accepted that a bundle of seven deposit slipsⁱⁱⁱ completed in his handwriting during July and August 1998 suggested that this evidence was wrong. The slips listed more than 30 cheques or money orders. He agreed that the cheques and money orders were received by mail while the plaintiff was away but denied having the authority to open her mail and attending to her banking was consistent with an ongoing relationship.

27 The plaintiff said she spent each Christmas Day with the defendant’s family until 2002. She did not go in 2003 and 2004 because she was working at the Ken Duncan Gallery. In 2005 she spent Christmas with her family in Perth. She also stated that she purchased Christmas gifts for the defendant’s family. The defendant denied that the plaintiff attended Christmas with his family after 1996. Presented with a copy of the plaintiff’s telephone account^iv for 25 December 2000 showing that a number of telephone calls were made from her mobile telephone in the vicinity of his mother’s home, he accepted that he was wrong in this evidence. He agreed that the plaintiff was present at the Burgess family Christmas in 2000 and that they travelled in the same car.

28 The defendant agreed that the plaintiff purchased gifts for his family and said that until 1997 they were purchased with money he gave to her. He accepted that the plaintiff might have purchased gifts in 1999 but claimed that there was no discussion between them after that date concerning the purchase of gifts for his family.

29 The defendant’s brother, Robert Burgess, said that the defendant himself gave gifts of lottery tickets to him and their parents at Christmas and on birthdays, suggesting that the plaintiff’s claim to have purchased gifts for the family was incorrect. His partner, Penelope Parkes, however, agreed that the plaintiff and the defendant gave gifts to her and her two daughters at Christmas time until 2003. The defendant was unable to explain this evidence.

30 The defendant accompanied the plaintiff to the ceremony at which she took Australian citizenship in October 2000. He said he attended out of interest, that they travelled in separate cars and he did not speak with the plaintiff while he was at the venue.

31 The plaintiff said they spent a weekend together at Star City in December 2000. The defendant denied that any such event took place. He denied that he made a call to his mother’s telephone number recorded on the plaintiff’s telephone account^v as having been made from Glebe Bridge on 17 December 2000. He said he did not know how to use a mobile telephone.

32 He agreed that they both attended a friend’s fortieth birthday party in 2002 but denied that they attended as a couple.

33 He agreed that the plaintiff drove him to his father’s funeral in December 2000. He said she was not invited but that she volunteered to go.

34 He agreed that he assisted the plaintiff with an exhibition of her photographs at Denman in November 2004. He said he did not, as stated by the plaintiff, volunteer to assist but that he did so at her request. His assistance, he said, was limited to removing photographs at the conclusion of the exhibition. He denied that he helped the plaintiff to unload and hang the photographs.

35 The defendant said he told the plaintiff not to charge items to his various accounts after 1997. The plaintiff denied this. He also said that he told her to cease charging veterinary fees and feed for her cats to his accounts after he gave her $10,000 for a car on October 2003. Notwithstanding these instructions, the plaintiff, apparently with his acquiescence, continued to charge expenses to these accounts.

36 The defendant agreed that the $10,000 he gave the plaintiff in October 2003 was part of the proceeds of sale of a block in a subdivision of Hollydene Park. He denied that generosity of this scale was inconsistent with his claim that the parties were no longer in a relationship. He said the money was provided in return for the plaintiff’s agreement to cease charging motor vehicle expenses to his account. This was inconsistent with the defendant’s evidence that he told the plaintiff in 1997 that she should no longer use these accounts.

37 The defendant relied on the evidence of a number of witnesses to support his claim that the relationship ceased in 1997.

38 His brother, Robert, related his observations that, after the parties occupied separate bedrooms, they rarely spoke to each other and the plaintiff said little to him when he visited the property. He observed that the plaintiff prepared her own lunch and ate separately from him and the defendant. He said he felt uncomfortable and unwelcome when the plaintiff was present. Mr Burgess denied that he was biased in favour of his brother and said that his only purpose was to tell the truth. Unfortunately, he did not in fact tell the truth. He stated that he kept one cat at his home and that he loved the cat. His partner, Penelope Parkes, who gave the same address as Mr Burgess said that she would not have cats in her home.

39 Ms Parkes said that the plaintiff told her in 1997 that she and the defendant had gone their separate ways. This was denied by the plaintiff who expressed surprise at this piece of evidence.

40 Mr Kerry Ian Heap said he visited Hollydene Park from time to time for a minimum of two days. He said the plaintiff ate separately, rarely eating with him and the defendant. In 1998 the defendant told him that the plaintiff was still living in the house because she had nowhere to do. Mr Heap was cross examined about the limited opportunities he had to observe the nature of the relationship between the parties. He agreed that the plaintiff cooked a meal, including dessert, for him and the defendant in 2004 at the time of the photographic exhibition at Denman. The plaintiff said that Mr Heap came to the property only two or three times when she was there, occasionally with his wife.

41 Mr Heap’s wife, Kerry Lynette, said that they stayed at the property from time to time up to 2006. In 1998 she observed that the parties rarely spoke and usually ate separately. In cross examination she said that plaintiff had a few meals with them when they stayed, although she noticed tension between the plaintiff and the defendant.

42 The evidence of Mr Petar Sormaz was that the plaintiff told him in about 2002 that she and the defendant were no longer together and that she was staying at Hollydene Park only until she could find somewhere to go. This was alleged to have been said to him when he visited the house in response to an advertisement placed in the local produce store of a border collie for sale. The plaintiff denied having met Mr Sormaz. She denied that she ever had a border collie for sale although she did advertise a lost dog that was collected by its owner. She denied she made the statement alleged by Mr Sormaz, stating that she would not say such a thing to a complete stranger.

43 Mr Sormaz said he had known the defendant for eight or nine years as a friend. He did not keep a copy of the advertisement. He remembered the conversation six to seven years after it occurred, although he made no note of it. He could not remember other details of the event. He could not remember where the conversation took place, stating that perhaps it was at the front of the house. He thought it might have taken place in the afternoon and that the weather might have been fine. Asked what the plaintiff was wearing at the time, his response was: How can I remember that far back?

44 Ms Isis Hallett said the plaintiff and the defendant rarely spoke when she visited the home between 1998 and 2003. The plaintiff told her that they slept in separate bedroom because the defendant snored. She invited the parties to her home from time to time. There was no direct personal conversation between them on these occasions. They arrived in separate cars and went home separately. The plaintiff told her in about 2003 that she wanted to leave but had no where to go. The plaintiff denied having made such statements or that the parties travelled in separate cars when visiting Ms Hallett.

45 Ms Hallett agreed that she was a friend of the defendant and that their friendship was based on a joint interest in horses. She said that in 2002 or 2003 the plaintiff told her a couple of times that she wanted to go. She agreed that she did not remember the exact dates and that she could be mistaken concerning the dates but not the terms of the plaintiff’s statements. She agreed that she had an amicable relationship with the plaintiff who prepared coffee and meals at times for her.

46 In December 2006 the plaintiff received a letter^vi from the defendant’s solicitor enclosing a cheque for $45,000. The plaintiff said that when she moved out in September 2006 the defendant asked for her address so that he could send on her share of the proceeds of the sale of another block in the subdivision of Hollydene Park. The defendant denied that the payment was for this purpose or that it was consistent with a relationship that continued until September 2006. He said that he used money received from his mother’s estate to make the payment and that it related to the period of the relationship up to February 1997. Before December 2006 he had no money with which to make the payment. He agreed he was aware that, on his case, the plaintiff’s rights to bring a claim for adjustment of property interests expired in February 1999.

Issue 1 - Findings

47 Each party pointed to the failure by the other to call relevant witnesses. The plaintiff did not explain why she did not obtain affidavit evidence from a number of friends she said had witnessed the ongoing social activities of herself and the defendant as a couple.

48 The defendant offered no explanation for the failure to obtain evidence from Shane Hall to confirm the incident in February 1997 that was central to his claim that the relationship ceased at that date or to confirm the execution of the Will.

49 In deciding the effect that the failure to call these witnesses had on my assessment of the conflicting claims of the parties, I noted that the plaintiff generally produced other evidence that supported her claims or negatived the allegations of the defendant. On the other hand, the defendant’s contentions were substantially weakened by evidence of events he claimed to have forgotten, by inconsistencies in the evidence of those called in support of his case and the obvious lack of credit of his brother, Robert Burgess. In those circumstances, the absence of the evidence of Shane Hall must be regarded as unlikely to have assisted him.

50 The problems with the defendant’s evidence referred to in relation to this issue and to those dealt with later in these Reasons indicated to me that the defendant made a determined effort to avoid the plaintiff’s claim. I have already indicated that I did not regard Robert Burgess as a reliable witness. He was clearly biased in favour of the defendant and he deliberately lied in stating that he kept a cat at his home. His partner, Ms Parkes, was more open with the court but I considered she was also likely to have been biased in favour of the defendant.

51 The evidence of Mr Sormaz was rejected. I considered it improbable, having had the opportunity to observe the plaintiff over almost two days of cross examination, that she would tell a complete stranger who knocked at her front door details of her personal life.

52 I considered the evidence concerning the Will allegedly made in 2000 to be the product of collusion on the part of the defendant and Robert Burgess. Their evidence concerning its whereabouts was given after an overnight break in the proceedings. No explanation was given to explain why this evidence was not contained in the affidavit of the defendant to which the copy of the Will was attached or in Mr Burgess’ affidavit. Further, its terms were inconsistent with the proposition that the defendant would never forgive the plaintiff for what he alleged occurred in February 1997 that was so upsetting to him that he terminated their relationship.

53 There were many other aspects of the defendant’s assetion that from February 1997 the parties merely occupied the same house and rarely spoke to each other that were inconsistent with objective evidence. They included the following instances when there must have been considerable discussion between the parties:

1 The defendant’s funding of the plaintiff’s trip to England in July 1998.

2 The telephone communications between the parties while the plaintiff was in England in 1998 and the defendant’s conduct in opening the plaintiff’s mail and attending to her banking at that time. These were matters denied by the defendant until he was presented with evidence that confirmed the plaintiff’s evidence.

3 The plaintiff’s attendance at the funeral of the defendant’s father and her driving the defendant to that event.

4 The plaintiff’s presence at his mother’s home on Christmas Day in 2002, again denied by the defendant until proof was presented to him.

5 The evidence that the plaintiff continued to charge expenses to the defendant’s accounts after 1997 and 2003 when she was allegedly instructed to cease this practice.

6 The payment of $10,000 in 2003 was a gesture that one would scarcely expect of a person who rarely spoke to the recipient of the payment and whose presence in the home was barely tolerated.

7 The continuing payment of a weekly amount to meet the grocery needs of both parties.

54 It was apparent that the opportunities for the defendant’s witnesses to observe the nature of the relationship between the parties were limited. Further, that evidence was inconsistent concerning the extent to which the plaintiff was involved with them when they visited Hollydene Park. I accepted that Ms Hallett was basically an honest witness but that she was mistaken about the time at which the plaintiff made the statements of which she gave evidence.

55 The payment to the plaintiff in 2006 of $45,000 was entirely inconsistent with the defendant’s contention that the relationship ended in 1997. It was inconsistent with the provision of $25,000 contained in the Will alleged to have been written in 2000. It was made at a time when the defendant was aware that the plaintiff’s rights were statute barred if the relationship ended in 1997. It could not be claimed that at the time of the payment he was without legal advice since the cheque was accompanied by a letter from the defendant’s solicitor.

56 In the circumstances, on this issue, I preferred the evidence of the plaintiff to that of the defendant concerning the period of the relationship.

57 I find that there existed a domestic relationship between the plaintiff and the defendant between 1990 and September 2006. I find that the nature of the relationship was initially that of a de facto relationship and that between 1996, after they ceased sharing a bedroom, and 2006 it developed into a close personal relationship.

ISSUE 2 – THE DIVISIBLE POOL OF PROPERTY

58 The plaintiff was without substantial assets at the commencement and termination of the relationship and at the time of the hearing. The plaintiff worked in various part time positions during the course of the relationship. For a period of time she operated a business of photographing horses. Her income throughout the relationship was modest. At the time of the hearing she was employed, earning $35,000 gross.

59 At the commencement of cohabitation in 1990 the defendant’s assets had a value of $340,000. During the period of the relationship up to December 2005 he was employed full time. Since that date he operated a broodmare farm. No details were provided of his income from that business.

60 It was difficult to assess the defendant’s asset position at the time of the hearing because he appeared to overlook some assets and in respect of others he nominated no values. Those assets he disclosed and the values he attributed to them in his affidavit were:

The remaining part of Hollydene Park $627,000
Squires Road, Wootten 720,000
Improvement to Squires Road ­ 250,000 $ 1,597,000

61 The defendant stated that at the time of the hearing he owed about $300,000, so that his net asset position was $1,297,000.

62 There were a number of difficulties with this evidence.

63 The defendant did not bring into account the following:

The proceeds of sale of other lots in the subdivision of Hollydene Park amounting to $472,500.
Assets listed in the defence valued in 2008 at $109,000.
The proceeds of his mother’s estate of $1,176,000

64 The assets that were listed in the defence were thoroughbred horses, farm equipment, superannuation and shareholdings. He said the horses, although thoroughbreds, were currently of little value. His superannuation was cashed in and the proceeds applied to the improvements made to the property at Wootten. The value of his shares was substantially reduced. His utility, tractor and its accessories were of minimal value and he owned little else of value in the nature of farm equipment.

65 The defence was prepared in September 2008. It disclosed that the defendant was a beneficiary of his mother’s estate to the extent of $1,176,000. Assuming that this was the source of the $970,000 expended on the property at Wootten, the balance of $206,000 was unaccounted for as were the proceeds of the sale of land at Hollydene Park in the sum of $472,500 and the superannuation of $75,000. I did not accept the claim that the horses and farm equipment were without value and, in the absence of details of their worth, I adopted the amounts attributed to them in the defence, namely $34,500. These sums totalled $788,000.

66 It could not be said that these sums were applied to reduce debt because there was little change in the level of the defendant’s debt between the date of the defence and the date of hearing. His evidence was that he reduced debt by about $30,000, leaving him with debts outstanding of about $300,000. Part of this sum comprised loans from his brother of $220,000 and J & G Squires of $54,000.

67 No evidence was provided to support this part of the defendant’s evidence. He said there was no document evidencing the loan from his brother. It was not referred to in Robert Burgess’ affidavit, nor was it mentioned in his evidence, although Mr Burgess supplemented his affidavit evidence with information concerning the defendant’s Will. At the time that Robert Burgess gave this evidence it was clear to the defendant that his claimed assets and liabilities were under challenge.

68 The defendant claimed that he had been without income since leaving his employment in December 1995 and that he applied assets to his living expenses.

Issue 2 - Findings

69 It would have been a simple matter to obtain confirmation of the alleged loan from Mr Burgess. The evidentiary burden for this part of the claim was with the defendant. It was not for the plaintiff to prove, particularly in the absence of documentation of the loan.

70 In the absence of evidence confirming the defendant’s debt position, I allowed a notional sum of $100,000.

71 In the light of the evidence that the defendant operated a broodmare farm, I rejected his claim that he was without income. I did not regard as credible his evidence that, having spent close to $1m on the property at Wootten, the defendant had no idea if he would earn income from it because he had no business plan or projections of the anticipated return from his investment.

72 I was satisfied that the defendant deliberately understated his asset position and failed to disclose income.

73 Doing the best that I could with the estimates of values that he provided and without adequate explanation of the failure to disclose substantial assets I arrived at the following:

Assets disclosed $1,597,000
Assets not disclosed 788,000
2,385,000
Liabilities 100,000
$ 2,285,000

74 From this figure must be deducted the proceeds of the estate of the defendant’s mother of $1,176,000 since it could not be argued that the plaintiff contributed to the production of this part of the asset pool.

75 The result was that I estimated the divisible pool of assets available for adjustment at the time of the hearing to be $1,109,000.

ISSUE 3 – THE CONTRIBUTIONS OF THE PARTIES

76 There was no doubt that the defendant was at all times during the relationship in a superior financial position. He brought cash assets into the relationship that were applied to the purchase of Hollydene Park. He worked full time until the end of 1995 and undertook work on Hollydene Park that permitted its subdivision and sale in separate parcels and increased its value.

77 There was evidence that the defendant’s income was applied to support the parties, the property and their animals. He paid the plaintiff’s removal expenses when she moved from Perth to join him. In addition, he paid for holidays that, in the early stages, they took together. He funded the plaintiff’s trip to England in 1998. He paid for the plaintiff to take a holiday with her parents in Tasmania. He purchased a camera for her in 1996 at a cost of $1,500. He gave her $10,000 in 2003 and $45,000 in 2006.

78 Throughout the course of the relationship, until March 2006, the defendant gave the plaintiff between $100 and $130 per week with which she purchased groceries, some household items and the defendant’s working clothes. The defendant also permitted the plaintiff to charge expenses to a number of accounts that he maintained.

79 The defendant purchased a cheap car in 1990 that the plaintiff used. Another car was purchased for the plaintiff’s use in 2003, registered in their joint names, partly funded from the sum of $10,000 that he gave the plaintiff at that time.

80 The plaintiff brought assets of minimal value into the relationship and worked part time. Her taxation records indicated that her income was also modest.

81 The plaintiff claimed that her major contribution to the relationship was as the homemaker for the couple. She claimed that she took on this role at the express request of the defendant. Until March 2006, those contributions included:

1 All house cleaning tasks, washing, cooking and shopping as well as performing minor repairs and attending to the maintenance of the house.

2 Assisting the defendant with the horses on the property.

3 On the days when she was not working, organising the work on significant renovations that were necessary when they first occupied Hollydene Park.

4 Painting all the rooms of the house except that a local builder painted the ceilings.

5 Providing bookkeeping services for the defendant.

6 Teaching the defendant to use a computer and the internet.

7 Establishing gardens on the property in which she tended to almost daily. The gardens provided fruit and vegetables for the parties.

8 Caring for the chickens kept on the property.

9 Buying clothes for the defendant and groceries for the household

10 Cooking meals.

82 The plaintiff said she applied her limited income to the needs of the relationship, including household items, furniture, minor items required as a result of the renovations, Christmas gifts for the defendant’s family and trees, plants and seeds for the garden.

83 The defendant denied a substantial part of this evidence. He denied that he encouraged the plaintiff not to work full time so that she was available to keep house for him, that she assisted him with the horses at any stage and that she undertook any renovation work. He denied that she purchased clothing for him from the weekly sum that he gave her or that she carried out any bookkeeping work for him.

84 He said that from 1990 to February 1997 they shared the housework which was minimal. From February 1997, he claimed that the plaintiff refused to undertake housework and that he was solely responsible for keeping the house clean. The plaintiff’s only contribution after that date, he said, was to cook the evening meal and shop for groceries.

85 The defendant said that he found it necessary to vacuum clean the house frequently because the plaintiff’s cats left the carpets dirty with hair, food, urine and vomit. He complained that the house was frequently very dirty and unkempt.

86 If the defendant did clean the house after 1997, his efforts were not successful according to a number of witnesses called to support his case. Mr Robert Burgess, Ms Parkes, Mr Heap and Mrs Heap gave evidence of their observations of several cats occupying the house, of cat hair on the carpets in the living room, of the smell of cat urine and stained carpets and of the presence of old or stale cat food in the living room and kitchen. Mr Burgess said this problem was present throughout the period of occupation of Hollydene Park although it became worse after the parties occupied separate bedrooms. According to Ms Parkes the problem was constant from 1991 to 2006. Mrs Heap said that from 1998 the plaintiff stopped attending to housekeeping and general household duties.

87 Mr Burgess made particular reference to the condition of the defendant’s bedroom, describing it as filthy and appearing as if it was never cleaned. He said it was untidy with paperwork strewn around it. Mrs Heap referred to an occasion when she noted the presence of mice droppings in the cupboards. On the same occasion she said she cleaned the refrigerator of spilled and stale food. She agreed that the plaintiff was not present at the property during this particular visit and that she was unaware of any prevailing mice plague.

88 As to the frequency of the visits during which these various observations were made, Mr Burgess said he and Ms Parkes visited two to three times a year for about two to three hours. Ms Parkes said they visited one to two times a year for one to two hours.

89 Mr Heap said he visited the defendant with Mrs Heap about 10 times between 1990 and 2006 and stayed for one to two nights. Mrs Heap put the number of visits at three times a year between 1990 and 2002, but only once per year between 2003 and 2006.

90 Ms Hallett was aware that there were cats in the house but, unlike the other witnesses called for the defendant, she made no particular observations of the consequences of their presence or of the condition of the house. She described it as lived in.

91 The defendant agreed that the plaintiff looked after the chickens but challenged the plaintiff’s claim to have carried out significant work in the garden. This was because she suffered from a back condition that prevented her from undertaking work of this nature.

92 The plaintiff agreed that she had back problems but denied that it prevented her from gardening. Her diaries^vii contained a significant number of entries indicating appointments with a chiropractor or masseur. The plaintiff said that some of these entries related to dates upon which she worked on a casual basis for the chiropractor. Some related to treatment that was directed to the maintenance of her back to minimise her discomfort.

93 Mr Robert Burgess said that the condition of the yard surrounding the house was such that it appeared that virtually no gardening was done. Mr Heap saw the plaintiff tending to strawberries in the garden bed at the front of the house. He did not see vegetables of any quantity being grown. Mrs Heap also saw the plaintiff gardening although she said the garden did not appear to be well cared for.

94 Ms Hallett was again in the minority. She said the plaintiff had a good garden in which she grew herbs, vegetables and flowers. She observed the plaintiff working in the garden, planting and weeding. The plaintiff from time to time gave Ms Hallett produce from the garden that included tomatoes, carrots, pumpkin and many herbs.

Issue 3 - Findings

95 Once more the evidence of the defendant and his witnesses was weakened by inconsistencies. Some suggested that the condition of the house was unchanged before and after 1997. Others indicated that its condition deteriorated only after 1997.

96 The defendant claimed that he cleaned his house. His efforts were not apparent to his witnesses.

97 Evidence of Mr Heap and Ms Hallett that the plaintiff prepared and shared meals and other food with them was inconsistent with that of Robert Burgess and Ms Parkes.

98 Most significant was the evidence of Ms Hallett that entirely confirmed the plaintiff’s evidence concerning her work in the garden and the produce that resulted in sufficient quantities that the plaintiff was able to share with her. This evidence persuaded me that the evidence of the defendant and his witnesses concerning the plaintiff’s gardening activities was designed to diminish her claimed contributions, not only in respect of gardening, but generally.

99 Once more I preferred the evidence of the plaintiff. I rejected the evidence of the condition of the house, except that of Ms Hallett to the effect that it had the appearance of a home that was lived in.

100 I find that plaintiff performed the role of homemaker for the parties between 1990 and 2006.

ISSUE 4 - ADJUSTMENT

101 It was argued for the defendant that the payments of $10,000 in 2003 and $45,000 in 2006 were adequate to adjust the interests of the parties.

102 I did not accept that the amount of $55,000 was an adequate valuation of the plaintiff’s contributions to a relationship extending over 16 years.

103 Her homemaking contributions allowed the defendant the opportunity to work full time and to undertake the tasks necessary to subdivide Hollydene Park and thereby increase his assets substantially. At the same time, the plaintiff was limited to part time work and denied the opportunity to build up her own independent asset position.

104 Taking account of the contribution of the defendant at the commencement of the relationship and, as noted, leaving out of account the proceeds of his mothers’ estate, I assessed the plaintiff’s contribution to the current asset pool at $250,000. From that sum I deducted the amounts already paid of $55,000.

105 I find that a reasonable and fair adjustment of the current asset pool required the allocation to the plaintiff of the sum of $195,000.

ORDERS

106 Verdict and judgment for the plaintiff in the sum of $195,000.

107 The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for argument, if required.

108 The exhibits are returned.

109 My reasons are published.

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i

- Annexure K

ii

- Exhibit K

iii

- Exhibit J

iv

- Exhibit L

v

- Exhibit L

vi

- Exhibit M

vii

- Exhibits 1 and F

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