Nguyen v Scheiff

[2003] NSWSC 253

CITATION:	Nguyen v Scheiff [2003] NSWSC 253
HEARING DATE(S):	17-18 December 2002
JUDGMENT DATE:	7 April 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Acting Master Berecry
DECISION:	I make the following declarations and orders:; On the Amended Statement of Claim:; A) I declare that the plaintiff and the defendant hold the property known as 20 Valleyview Crescent, Greenwich, on trust for the plaintiff.; B) I order that the defendant transfer her interest in 20 Valleyview Crescent, Greenwich, to the plaintiff forthwith.; C) I declare that the contents of the property known as 20 Valleyview Crescent, Greenwich, excepting the defendant's personal possessions and contents owned by the defendant, be the sole property of the plaintiff.; D) I declare that the plaintiff and the defendant have the sole right, title and interest in:; i all chattels, goods, furnishings and property which stand in their sole name respectively at the date hereof;; ii any money, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.; E) The defendant pay the plaintiff's costs of the proceedings, including the costs of the Cross-Claim.; On the Cross-Claim:; A) I order that the Cross-Claim be dismissed.
CATCHWORDS:	De facto relationship - commencement of relationship - factors determining - nature of relationship - significant financial contributions by one party - both parties employed during relationship - no children of relationship - non-financial contributions - whether defendant worked for plaintiff's company - post separation contributions - exclusive occupation by one party - whether a contribution by other party - resulting trust - whether common intention established to rebut the presumption
LEGISLATION CITED:	Property (Relationships) Act 1984, ss4,20,38,53
CASES CITED:	Biviano v Natoli (1998) 43 NSWLR 695 Brown & Anor v Brown & Anor (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 Cowcher v Cowcher [1972] 1 WLR 425 Gazzard v Winders (1998) 23 Fam LR 716 Muschinski v Dodds (1985) 160 CLR 583 Wallace v Stanford (1995) 37 NSWLR 1 Nguyen v Schieff [2002] NSWSC 151
PARTIES :	Philip Kim Nguyen (Plaintiff) v Jitka Maree Scheiff (Defendant)
FILE NUMBER(S):	SC 1296/02
COUNSEL:	P - Ms A Rees D - Mr T Hodgson
SOLICITORS:	P - Keddies Solicitors D - Neil Lawson & Co. Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Acting Master Berecry

7 APRIL 2003

1296/02 - PHILIP KIM NGUYEN v JITKA MAREE SCHEIFF

JUDGMENT

1 MASTER: The plaintiff seeks the following declarations:

a) that the plaintiff and the defendant hold the property located at 20 Valleyview Crescent, Greenwich, on trust for the plaintiff;

b) that the contents of the property at 20 Valleyview Crescent, Greenwich, excepting the defendant’s personal possessions and contents owned by the defendant prior to the commencement of the parties’ relationship be declared the sole property of the plaintiff; and

c) that the parties be declared to have the sole right, title and interest in any property etc standing solely in their name, respectively.

The plaintiff also seeks an order that the defendant transfer her interest in the property to him forthwith.

2 By way of Cross-Claim, the defendant seeks orders for the sale of the property and for the net proceeds to be divided equally between the parties. The defendant also seeks a declaration of a similar nature to the one sought by the plaintiff in respect of property that is currently in their sole possession.

3 The parties commenced going out together in about February 1997. At that time, the plaintiff was residing in a house at Randwick. He was the sole owner of the house. The defendant rented a unit in Cremorne with another person. There is no issue between the parties that from June 1998 until 25 July 2001 they lived in a de facto relationship. However, there is an issue between the parties as to when precisely the de facto relationship commenced.

4 The plaintiff asserts that the relationship started when they moved to the Greenwich property. Prior to that date, it is conceded by the plaintiff, that he would spend two to three nights a week at the Cremorne property. He also conceded that he left articles of clothing such as shirts, at the Cremorne property. However, his evidence is that they maintained separate bank accounts, did not hold joint credit cards and the plaintiff made no contribution towards the rent other than to assist the plaintiff on two occasions to meet her rental commitment. His evidence is that she did all the housework at the unit simply because she regarded the unit as hers and he was not a part of the household.

5 The plaintiff’s evidence is that on the two or three nights that he stayed at the Cremorne unit, they would generally eat out. His evidence is that the defendant did not provide him with a meal on a regular basis whilst she was residing at Cremorne. He conceded that she did some washing for him but that, by and large, both parties maintained their separate households, he at Randwick and she at Cremorne. His evidence is that, during this period, he had access to his son, Matthew, on Thursdays and Fridays and then, at some stage, Saturday through to Sunday afternoon. During the time Matthew was with the plaintiff, he resided at Randwick. His evidence is that the Randwick property was convenient for him because he was practicing at a sleep diagnostic centre in Wollongong and it was more convenient to drive from Randwick to Wollongong than it was from Cremorne. The defendant’s evidence was that the plaintiff saw his son on Thursday and one day during the weekend and occasionally over the weekend when she was working.

6 He also had a business known as PKN Pty Limited (“PKN”). The company was incorporated in 1994 and it was through this company that he provided consulting services. The shareholders of PKN are the plaintiff and his brother. PKN appears to be, primarily, a company providing computer services. The plaintiff’s evidence is that the computer he used for this business was located at the Randwick property. He also had a computer notebook which he would take with him on the nights that he stayed at Cremorne but most of the functions of the company were carried out from the Randwick property. There was some evidence that the plaintiff in 1997 and early 1998 owned two cats. The plaintiff’s evidence is that one cat died in January 1997 and the other went missing in July 1997. The plaintiff asserted that the cats were another reason why Randwick was a permanent address for him because of the need to feed the cats. His brother’s evidence was that, from time to time, he was required to feed the cats and he would either speak to his brother on the phone or see him at the Randwick property once or twice a month. On the occasions when the brother attended the property, he saw no signs that anybody, other than the plaintiff, was residing permanently there.

7 The plaintiff concedes that, in late October 1997, he purchased a Mitsubishi Mirage and provided that vehicle to the defendant for her absolute use. The plaintiff made all lease payments on the vehicle and provided payment for all running expenses including toll fees associated with the vehicle. The defendant denied that the plaintiff paid the tolls. However, “PKN8” of Exhibit A indicates that in 1999 and 2000 the plaintiff incurred expenses in relation to the toll fees. In December 1997, the plaintiff purchased an engagement ring for the defendant after they became engaged.

8 The defendant asserts that the relationship commenced sometime in or about June 1997. Her evidence is that the plaintiff spent most of his time at the Cremorne residence. On the occasions when the plaintiff saw Matthew, he usually had Matthew at the Randwick property. Matthew visited the Cremorne property, usually when the defendant was at work. According to the defendant, Matthew sometimes stayed overnight on the couch at Cremorne. The defendant’s evidence was that the plaintiff was spending the majority of the week living at the Cremorne unit and that she was providing meals for both of them on a regular basis and also performing household tasks such as cleaning, cooking and washing. Evidence was also given by Clare Calvert who also resided at the Cremorne unit during the period February 1997 to June 1998, except for a period of about three months from June to September of 1997. Her evidence was that the plaintiff resided permanently at the Cremorne unit and that he rarely stayed anywhere else and that, to her knowledge, he did not stay at Randwick with his son. It was pointed out to Ms Calvert that her evidence directly conflicted with that of the defendant, but she maintained that she was correct. In my view, it is difficult to accept the evidence of Ms Calvert.

9 The defendant conceded that the plaintiff did not move any furniture other than a video unit into the Cremorne unit and that both parties maintained their own furniture at their respective properties.

10 The plaintiff maintained that he had an emotional commitment to the defendant and the regular stays at the Cremorne unit, the provision of a motor vehicle for her in October 1997 and their engagement in December 1997 evidence this. However, he maintained that there was not a de facto relationship until the parties moved into the Greenwich property.

11 The plaintiff also conceded that he had discussed with the defendant the possibility of children. It was also conceded by the plaintiff that they attended fertility clinics.

12 Although neither party has specifically sought relief pursuant to s 20 of the Property (Relationships) Act 1984 (“the Act”) the Amended Statement of Claim and Defence & Cross-Claim have been pleaded as a matter under the Act. In fact, Campbell J has made orders pursuant to s 53 of the Act. In any event, the parties rely on s 38 of the Act for either the transfer of interest in the property or the sale of the property and the distribution of the proceeds of the sale. Therefore, it would appear that, whilst the relief sought by the plaintiff is in the nature of a resulting or constructive trust, the intention of the parties, having regard to the pleadings and the evidence, is that the proceedings are to be determined as an application under the Act.

13 Section 4 of the Act provides as follows:

“(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and
(b) who are not married to one another or related by family.
(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2)(a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a 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.
(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

14 In order to establish when the relationship started it is not necessary for there to be a finding in respect of all the matters set out in s 4(2)(a)–(i). All or some of those matters may establish whether or not a de facto relationship existed at the relevant time or there may be other factors which can be permitted to be taken into account to determine whether or not a de facto relationship existed.

15 The period in dispute is the period from June 1997 to June 1998. The plaintiff says that he stayed no more than two to three nights, only kept a few clothes at the unit and that they invariably ate out at his expense. The defendant’s evidence is that the plaintiff spent most of his time at the unit, although, at least two days a week, the plaintiff resided at Randwick. The plaintiff didn’t change his address from Randwick to Cremorne. There is evidence that when he entered into the lease for the Mitsubishi Mirage, he gave his residential address as the Randwick address. There is nothing to suggest, in the evidence of either party, that during this period there was financial interdependence by either on the other. Both parties worked during this period. The defendant continued to make her contributions to the rent for Cremorne, however, on two occasions, she sought assistance from the plaintiff in relation to rent payment. There is no evidence which suggests that the plaintiff supported the defendant during this period of time nor that the defendant relied on the plaintiff for support. During this period there is no evidence that the parties acquired ownership of any property.

16 The evidence in relation to Matthew is that the person who was primarily responsible for Matthew on the days when he visited the plaintiff was in fact the plaintiff. The plaintiff’s evidence is that Matthew only attended Cremorne on one or two occasions, the rest of the time when he was with Matthew they stayed at the Randwick property. The defendant concedes that, generally, when the plaintiff spent the weekend with Matthew, she was at work. Therefore, it follows that she could not have been providing care or support for Matthew during those periods. The evidence is that the defendant continued to maintain the unit as she had done before the plaintiff stayed at Cremorne. There is no evidence of any public aspect of their relationship other than the evidence given by Ms Calvert. There is, however, some evidence of mutual commitment to one another. The plaintiff provided the defendant with a motor vehicle and then proposed to her in December of 1997 and there was also discussion concerning children.

17 In my view, considering all matters raised in s 4(2) of the Act, it has not been demonstrated that the parties were in a de facto relationship in the period June 1997 to June 1998. Sometime between October and December of 1997 there is evidence of a commitment by the plaintiff to the defendant. However, it does not necessarily follow that the parties were in a de facto relationship. It is common practice that parties get engaged before they get married, however, it does not mean that they are regarded as married from the date of the engagement.

18 Similarly, the engagement didn’t, per se, change the nature of the pattern of their relationship from one of convenience to a de facto relationship. In my view, the parties maintained separate finances, did not have a reliance on each other financially, did not acquire property during this period and shared a common residence for, at the most, four days a week. Therefore, I do not accept the defendant’s assertion that the relationship commenced in June 1997. In my view, the relationship commenced when the parties moved into the Greenwich property.

Parties’ assets

19 At the commencement of the cohabitation, the plaintiff had the following assets:

Equity in Randwick property	$258,000
Savings	$25,000
Items of household furniture	$45,000

20 At the commencement of the cohabitation, the defendant had items of household furniture - no value was given. The defendant had savings of about $2,500.

21 The evidence disclosed that the combined assets at the end of the relationship were as follows:

Greenwich property	$950,000
Passat	$20,000
Mitsubishi Mirage	$3,000
Shares of the plaintiff in PKN Pty Limited	$5,000
Plaintiff’s savings (after separation the plaintiff lent to his current partner $30,000)	$8,000
Furniture	$17,000
Defendant’s savings	$10,000

22 In addition, the defendant had an engagement ring valued at $5,000 and earrings at $3,000.

23 During the course of the relationship, namely, from June 1998 until July 2001, the plaintiff earned about $270,000. PKN earned about $110,000. Therefore, income used by the plaintiff from those two sources during the period of three years amounted to about $380,000.

24 During the same period the defendant estimated her income at $80,000.

Contributions

25 It was not disputed by the defendant that the plaintiff made significant contributions to the relationship. The defendant conceded that she had made no financial contribution towards the acquisition of the Greenwich property. Her evidence was that the only financial contribution she made during the three year period was towards the purchase of food and household goods to the extent of approximately $90.00 per week. Therefore, her contribution in this respect amounted to about $14,000. The defendant also asserted that she paid a few thousand dollars towards holidays that she and the plaintiff had, however, there is no evidence of this contribution. The defendant’s evidence was that whilst she had the use of various credit cards in the plaintiff’s name and whilst she made no contributions towards either depositing moneys into those accounts or paying money towards any debit in those accounts, she regarded the funds in the accounts and the cards as jointly held assets. The defendant’s evidence seems to be that because the plaintiff was able to gain user points or a discount purchase price by using certain cards, the defendant, by using those cards on a regular basis, provided a contribution to the plaintiff by enabling greater use of the discount provisions or the bonus provisions of the various cards.

26 I do not accept that this use of credit cards, in any way, can be regarded as any form of contribution made by the defendant to the relationship. It seems to me that she was given a facility by the plaintiff which was totally funded by the plaintiff. There was no contribution of whatever kind made by the defendant. In my view, therefore, her assertion that she made some sort of financial contribution towards the credit cards is misconceived.

27 The plaintiff asserted that he provided all financial contributions to the relationship. The contributions range from the deposit for the purchase of the Greenwich property, renovations to that property, paying motor vehicle expenses, entertainment expenses, vet fees and providing holidays and gifts to the defendant. It was clear that the contributions claimed by the plaintiff were not solely contributions made by him personally. Some of those contributions came from the assets of PKN.

28 The funds for the purchase of the Greenwich property were provided solely by the plaintiff. The plaintiff used the proceeds of sale of his Randwick property as a deposit for the Greenwich property. The defendant’s evidence was that she contributed towards the stamp duty. However, on production of documents it was established quite clearly that she had made no contribution towards the stamp duty and, in fact, attempted to mislead the Court by the evidence she gave prior to the production of the documents.

29 In the period 22 June 1998 to 31 December 2001 the plaintiff made mortgage repayments in the sum of $168,519.21. The plaintiff in his evidence claims repayments to the extent of $161,000. During the period from 18 January 1999 to 31 December 2001 there were draw downs on that account in the amount of $133,918.55. This money was used to fund some of the renovations carried out on the said property.

30 The figures for the renovations are as follows:

Costs of renovations	$281,806.32
Drawn down	$133,918.55
Sub total	$147,887.77
Less home loan repayment	$30,000.00
Total	$117,887.77*


* The total figure is arrived at because of a miscalculation by $30,000 in “PKN3” of Exhibit A.

31 Included in Exhibit A are lists of expenses compiled from statements in respect of all accounts, including account No 2275 1002 4340, which was an account of PKN. Therefore, the contributions made by PKN and the plaintiff are as follows:

A Sources of finance for renovations:

$117,887.77 representing moneys paid other than by way of draw down on the mortgage, less $106,267.63 representing payment by PKN, leaving a balance of $11,620.14 being personal contribution made by the plaintiff.

B Household contents:

Exhibit A shows that $58,922.82 was spent on household contents, of that amount $2,504.96 was met by PKN, leaving a balance of $56,417.86 being the contribution made personally by the plaintiff.

C Motor vehicles - expenses:

Exhibit A shows that during the relevant period an amount of $17,567.82 was spent on items such as petrol, car parking, car servicing and toll fees. Both motor vehicles were in the name of the plaintiff and all those expenses were met from the plaintiff’s credit cards.

D Motor vehicles - leases:

Both motor vehicles were leased in the plaintiff’s name. The Mitsubishi Mirage was given to the defendant in October 1997. The Passat was used exclusively by the plaintiff. The evidence shows that the monthly lease rental on the Mitsubishi Mirage was $429.82, rounded over three years that comes to about $15,500. The Passat monthly rental figure was $982.34, rounded over a three year period that comes to about $35,500. Once again, the evidence is that all amounts in respect of the two motor vehicles were provided by the plaintiff. Over that period he, therefore, contributed about $51,000.

E Holidays:


The plaintiff’s evidence is that he contributed the funding for their holidays both before and during their cohabitation. However, the evidence shows that the holidays were paid for as follows:

PKN Pty Limited	$7,330.00
Plaintiff	$50,531.78
Total	$57,861.78

F Gifts and expenses:


The plaintiff also asserted that he purchased gifts for the defendant and met her expenses during the course of the relationship and for a short time after separation. The figures in relation to gifts and expenses are as follows:

Gifts (paid for personally by the plaintiff)	$7,274.13
Expenses (paid for personally by the plaintiff)	$15,074.71
Expenses (paid for by PKN Pty Limited)	$17,671.80
Total	$40,020.64

32 Also during this period the plaintiff made repayments to his mother of $1,000 a month in respect of monies that she had lent him to purchase the Randwick property. His evidence was that his mother lent him $90,000. During the course of the relationship he paid her $1,000 per month to reduce that debt, therefore, his evidence is that, during the relevant period, he paid $36,000 to his mother.

33 It can be seen from the figures that the payments and contributions that have been made by either the plaintiff or PKN exceed the income earned from those two sources by approximately $175,000. There was no evidence before me of a repayment made by the plaintiff to his mother. I, therefore, do not accept that he made payments on the basis that he asserted during cross-examination. However, there is an unexplained amount in excess of $130,000. It would seem to me that the plaintiff has either understated his income or that of PKN during the relevant period. The defendant conceded that all of these payments were made by or on behalf of the plaintiff. The defendant has conceded that her financial contribution was no more than $90.00 per week for household expenses and the payment of a few thousand dollars towards a holiday. Of course, that does not account for the shortfall.

34 The plaintiff’s evidence is that during the period of the relationship he made the following payments:

Renovations	$108,000
Mortgage repayments	$161,000
Household contents	$64,000
Holidays	$58,000
Living expenses	$24,000
Motor Vehicles	$66,000
Total	$481,000

35 It is clear when one looks at the financial contributions made by both parties that the plaintiff made the significant contribution to the relationship, either from his own funds or from the funds of his company.

36 Therefore, when one looks at the financial contributions of both parties, the plaintiff’s contribution was approximately 97 per cent of the sums expended. The defendant’s contribution was about 3 per cent.

37 The defendant asserted that she was employed by PKN on a part-time basis. Her evidence was that she did work for the company and attended social functions with the plaintiff as a representative of the company. However, her evidence, in my view, should not be given very much weight. The plaintiff’s evidence was that the company was really his “altar-ego”. He was the only one who worked for the company and it was his ideas and his skill which developed and promoted the company. The company, it would appear, is involved in the marketing of IT programs for the medical profession. It seems that his brother has some limited involvement in the business but, by and large, it is the exertions and skill of the plaintiff which creates the income of the company. His evidence was that the defendant did nothing in respect of the operations of the company. The defendant, however, contends that she did assist in the business and was to be paid an income, however, she never received the income so that both the plaintiff and the company received some tax benefit. She gave evidence that she not only attended the occasional function but answered telephone calls and took mail to the post office. The plaintiff’s evidence was that the defendant had no typing skills, had no understanding of computers and that, in any event, the business was run by and large by himself from a computer at the Greenwich property. The only work, according to the plaintiff, that the defendant did was that, when she cleaned the house, she would also clean the room which was his study for the purposes of the business. The plaintiff also disputed that the defendant took mail or picked up mail from the post office as, in the plaintiff’s evidence, most of the mail of the company was generated by email.

Non-financial contributions

38 Throughout the course of the relationship both parties worked. The plaintiff’s evidence is that he worked around ten hours most weekdays. The evidence was that he left home at 8.00am every morning and returned home somewhere between 7.30 and 8.00pm. His evidence was that the defendant worked approximately 25 to 30 hours per week. The defendant agreed with the plaintiff’s assessment. There were no children of the relationship, there is evidence that they frequently ate out at restaurants and there is evidence that occasionally he cooked. However, the evidence would suggest that the majority of the cooking was done by the defendant. Both parties assert that they did other household chores. The defendant says that she did the majority of the cleaning, the plaintiff also said that he assisted with the cleaning and recognised in his evidence that the defendant did, in fact, make a contribution to this aspect of the relationship. It would seem to me that, on balance, as both parties were working and as the defendant’s working hours were not as long as the plaintiff’s, she therefore would have made a slightly greater contribution to the relationship in relation to cooking, cleaning and household duties than the plaintiff.

39 There were no children of the relationship although the plaintiff’s son attended the Greenwich property. I do not think it is seriously contested by the defendant that she cared for the plaintiff’s son during this time. It would appear from the evidence that the defendant and the plaintiff’s son did not get along. In fact, there is some evidence which suggests that the defendant’s attitude towards the plaintiff’s son was, in part, a cause of the breakdown of the relationship. There was evidence, which was not contested by the defendant, that, on weekends when the plaintiff’s son attended the Greenwich property, she would usually go to work. This meant that there was a minimum amount of contact by her with the plaintiff’s son and thus, of course, limited scope for her to provide any non-financial contributions to the plaintiff in relation to his son.

40 The defendant asserted that she played a significant role in the renovations of the Greenwich property. Her evidence is that she made significant contributions in two particular areas. Firstly, in the design of the renovations and, secondly, in the day to day supervision of the workmen.

41 However, it is clear from Exhibit A that the contractors regarded the plaintiff as the person who had the over-riding supervision of the project. There is correspondence which clearly shows that the builders corresponded with the plaintiff and not with the defendant when seeking instructions concerning certain aspects of the work. The plaintiff’s evidence was that, every morning, he would speak with the project managers between 7.00 and 8.00 o’clock before heading off for work and that, as a result of those conversations, the day’s program was put in place. He readily conceded that the defendant no doubt did things from time to time but he was unaware of any contribution that she made. His evidence was that she usually arose after he left but conceded that she may have talked to the builders during the course of the day. Her evidence is that the builders would take instructions from her about what needed to be done. In my view, I tend to accept the plaintiff’s evidence over the defendant’s evidence. It may well be that the defendant did some things occasionally during the course of the day, such as cleaning up or getting things for the builders, but I do not accept that she had a major input into the renovations.

42 The defendant also asserted that she made significant contributions towards the design of the renovations, particularly the kitchen. However, the plans that were tendered during the course of the hearing had notes on them made by the plaintiff. It, therefore, would appear that, once again, the significant contribution was made by the plaintiff. The defendant conceded that an architect was used for the renovations. There was evidence that a fee of some $8,000 was paid to the architect for the design and architectural planning of the project. In my view, the defendant probably made some contribution towards the design and layout, but the major contribution was made by the architect in consultation with the plaintiff. Contributions made by the defendant would appear to have been of a less significant nature than either the plaintiff or the architect. Therefore, in my view, the major contribution in respect of the design and layout was made by persons other than the defendant.

43 The defendant’s evidence was that she was instrumental in visiting showrooms and tile shops for fabrics, tiles and materials. The plaintiff agrees that the defendant accompanied him on weekends when they were looking for tiles and fabrics and the like for the renovations. It would seem to me that it may be said in respect of this aspect of the renovations that the defendant’s contribution in time and effort was equal to that of the plaintiff.

44 The defendant gave evidence in relation to PKN which seemed to infer that she made some business decisions. However, the plaintiff’s evidence was that, at the end of the day, he would discuss what went on during the course of that day and that involved what he was doing with PKN. It would seem to me that this would be a normal conversation carried on by couples at the end of a day in the context of what they did during the course of that day. The defendant had no computer expertise and, whilst there was a suggestion that she helped him in relation to human resources, the plaintiff’s evidence was that, as the business employed just him, that issue just didn’t arise. Further, the plaintiff has no recollection of the defendant attending business functions with him in 1999 or 2000.

Contributions after separation

45 The plaintiff’s evidence is that he moved out of the Greenwich property on or about 27 July 2001. The defendant continued to reside at the property and, in fact, continues to reside there. The background as to what followed is set out in the judgment of Justice Campbell in Nguyen v Schieff [2002] NSWSC 151. The matter was before His Honour on 27 February 2002 as a result of an application under s 53 of the Act, made by the defendant.

46 Between late July and late October 2001, the plaintiff had attended the premises on a number of occasions. However, on 26 October 2001, the defendant changed the locks and did not give the plaintiff a key. The plaintiff subsequently requested that the defendant allow him to move back into the property. She refused the request. Thereafter, she continued to reside at the property to the exclusion of the plaintiff until the hearing before Campbell J and, as a result of his Honour’s decision, continues to reside in the property. During this period, the plaintiff continued to make all mortgage repayments and paid the rates, electricity and water accounts. In Campbell J’s judgment, at [107]-[110], his Honour says as follows:

“107 In Green v Robinson (1995) 36 NSWLR 96 Cole JA said at 115-116:
"Further, in assessing whether it will exercise the s20 power to adjust regard is to be had to contributions made to the date of the application. The underlying presumption of s20 is that the defacto relationship has ceased, the parties have joint or several property, and it may be just and equitable to adjust those existing property entitlements having regard to past contributions of the type described so that the financial relationship between the parties may be finalised: see s19."

108. While neither of the other Judges of Appeal in Green v Robinson agreed or disagreed with this proposition I find it, with respect, persuasive. It is a logical corollary of the Court of Appeal in Jones v Grech rejecting the limitation that Powell J had found and permitting pre-relationship contributions to be taken into account, that post relationship contributions can also be taken into account.
109. Further, when s 19 of the Act provides:

"In proceedings for an order under this Part, a Court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them."

there is good reason to take any post-relationship contributions into account.

110. If it turns out that, during the period that she is in the property, Ms Scheiff is paying less than she should to occupy it, that will, it seems to me, amount to the conferring on her of a contribution towards her welfare, which will be able to be taken into account by the Court in making any adjustment of financial interests under s 20.”

47 Evidence was given by Mr Brook, a registered valuer, concerning the likely rent a comparable property would attract. His evidence was that, based on comparable properties in Greenwich, Wollstonecraft and St Leonards, it is likely that the Greenwich property would attract a rent of $750.00 per week. The properties that the valuer relied on ranged from a fibro cottage at Greenwich Point to units and townhouses in Greenwich, St Leonards and Wollstonecraft. The Greenwich Point property was, at the time of the valuation, available for rent at $620.00 per week. In the valuer’s opinion, a figure of $750.00, therefore, would not be unreasonable in respect of the Greenwich property. It would seem to me that there are property swings and roundabouts involved in such an assessment. A fibro weatherboard property, as opposed to a double brick property, generally, is of less value. However, in this particular instance, the location of the fibro property is in a far more desirable location in Greenwich than the subject property. In the absence of any other material, it is difficult to assess whether or not $750.00 would be the going rate for the Greenwich property. In my view, it is probably a figure closer to the $620.00 that is being sought for the Greenwich Point property. Therefore, for the purposes of these proceedings, a figure of approximately $680.00 would not be an unreasonable amount for a weekly rental of the Greenwich property.

48 Until late October 2001, the defendant had not excluded the plaintiff from the property, however, on changing the locks, she refused access to the property to the plaintiff and thus obtained exclusive occupancy of the property. In the earlier interlocutory application, Campbell J made the following comments at [100]-[101]:

“100. Notwithstanding that general law rule, Biviano v Natoli held that there was no ouster or exclusion of the type referred to in that rule where one co-owner obtains an order excluding the other from the property under an express statutory power like an apprehended violence order made under s 562 of the Crimes Act 1900 - see Biviano v Natoli at 702-703. That reasoning would apply if an injunction were to be granted under s 53 in the present case.

101. Here, however, Ms Scheiff has done more than merely apply for a Court order. As well, she has changed the locks. That is something which, in some circumstances, can amount to an exclusion, of a kind which requires, under general law principles, an occupation rent to be paid (see Beresford v Booth [1999] SASC 166.”

49 In my view, the defendant’s act of changing the locks of the premises excluded the plaintiff from the property. That act took place prior to the injunctive relief granted on 27 February this year. It would follow that, at least for the period 26 October 2001 to 27 February 2002, the plaintiff is entitled to an occupation rent from the defendant.

50 In my view, the plaintiff would be entitled to an occupation fee in respect of the property from 26 October 2001 until the defendant gives up exclusive occupation. By changing the locks on the doors of the premises in late October 2001, the defendant denied the plaintiff access to the property and created an exclusive occupancy for herself. The injunctive relief granted by Campbell J on 27 February 2002 maintained the status quo concerning occupancy as between the parties. However, the defendant already had exclusive occupancy before the making of the order. Therefore, in my view, the order cannot be seen in the same light as the example his Honour quoted from Biviano v Natoli (1998) 43 NSWLR 695.

Resulting trust

51 The plaintiff’s claim seeks a declaration that the Greenwich property is held in trust for him. There does not seem to be any dispute between the parties that the purchase moneys were provided by the plaintiff; firstly, by way of the deposit and, secondly, by way of mortgage repayments up until the orders made by Campbell J. It also does not appear to be in dispute that the plaintiff originally intended to purchase the property in his own name.

52 The plaintiff’s evidence is that, at the time of purchasing the Greenwich property, it was his intention to put it in his name as he was making all the financial contributions. However, the following conversation then ensued (see paragraph 24 of the affidavit of the plaintiff dated 28 June 2002):

“She said: ‘Why are you buying the property in your name only? If we are in a relationship we should be buying it together.’
I said: ‘It’s just that you are not putting any money into it so I thought it was appropriate that it be in my name.’

She said: ‘Well I am not happy about it.’
I said: ‘OK I’ll put it in joint names then, but you must realise I’ve made all the contributions.’
She said: ‘Yes I know it’s all coming from you and if we split up you can prove everything’ “

53 The defendant denied that conversation and, as set out in paragraph 64 of her affidavit of 22 August 2002, her evidence is as follows:

“The contract to purchase the property originally was only in the name of the Plaintiff. At this time the Plaintiff and I were engaged to be married. The Plaintiff said to me words to the effect ‘ This is our house .’ I said ‘ Phil, it is not. It is yours. The house is in your name. ’ He replied ‘ Well, to prove my love and commitment to you so that we are equal partners, I will go to the solicitor and have the name changed to yours as the other joint owner. This is my gift to you .’ “

54 The defendant’s evidence given on 18 December 2002, at pp 41-42 of the transcript, denied that she raised with the plaintiff a desire for her name to be on the title of the property. Her evidence is that the plaintiff transferred a half-interest in the property to her to give her some security. Her affidavit evidence is that the transfer was a gift to her. The plaintiff’s evidence given on 17 December 2002 is consistent with his affidavit evidence. The inference from the plaintiff’s evidence, both written and oral, is that the defendant’s interest was created in contemplation of marriage.

55 It would appear from the evidence that there was not a common intention, at the time of purchase, that the property was to be a gift by the plaintiff to the defendant.

56 A resulting trust arises between the parties when the legal title on the property does not reflect the parties’ respective contributions to its purchase. There is a presumption of a resulting trust for the contributors in the proportion of their contributions (see Calverley v Green (1984) 155 CLR 242). In Cowcher v Cowcher [1972] 1 WLR 425 at 431, the Court said that a “resulting trust arises where a person acquires a legal estate but has not provided the consideration or the whole of the consideration for its acquisition, unless a contrary intention is proved”. In Calverley v Green [supra] at p 246, the Court said that a resulting trust would not arise in favour of a contributor to the purchase price, unless he made the contribution in the character of a purchaser. In the present matter, that is precisely what the plaintiff did.

57 In the present case, the defendant made no contribution whatsoever towards the purchase price of the Greenwich property. The affidavit evidence discloses that, at the time of purchase, there was no common intention that the property be put in the names of both parties. The evidence is that the property was purchased by the plaintiff and was to be in his name. The defendant’s evidence is that, when the plaintiff approached her with a view to having the title to the property in both their names, she did not accept that it was their property. Her evidence is that she said to him, “It is yours”. In my view, it cannot be inferred from the defendant’s affidavit evidence that there was such a common intention of the parties at the time that the property was purchased. The defendant’s evidence appears to be that, at the time of purchase, it was not her intention to have a legal interest in the property. It was put to the defendant in cross-examination that she wanted the property to be purchased in both names. Her response was that she didn’t (see p 41 of transcript of 18 December 2002). In my view, therefore, the defendant’s interest in the property is held on trust for the plaintiff, there being no common intention that the plaintiff would gift half his interest in the property to the defendant at the time of purchase and, similarly, there being no intention by the defendant that such a gift should be made.

58 At the time the property was purchased the parties were engaged to be married. However, whilst it may be argued that the plaintiff intended the defendant’s interest in the property to be a gift as an expression of his love and commitment, the circumstances ultimately changed and the relationship broke down. Therefore, if it is argued on behalf of the defendant that the intention was based on one of proposed marriage, the marriage never came to fruition. A resulting trust on the breakdown of that intention would apply in respect of the interest held by the defendant (see Muschinski v Dodds (1985) 160 CLR 583).

59 Whilst it has not been submitted by the defendant that the presumption of advancement applies to the purchase of the property, it would seem to me that, on the authorities, the parties were not in a requisite relationship which would enable the Court to apply a presumption of advancement (see Calverley v Green [supra] and Brown & Anor v Brown & Anor (1993) 31 NSWLR 582).

60 Therefore, in my view, there is a resulting trust in respect of the defendant’s interest in the Greenwich property in favour of the plaintiff.

Adjustment of interest with respect to the property

61 In Gazzard v Winders (1998) 23 Fam LR 716, Beazley JA found that other matters can be relevant to s 20 proceedings provided that there is a link with contributions. This seems to be a broader approach than taken by Mahoney JA in Wallace v Stanford (1995) 37 NSWLR 1, where it was held that the powers conferred on the Court by s 20 are not powers “at large”. Beazley JA identified the following as relevant factors:

a. length of the relationship;

b. nature of employment of each during the relationship;

c. manner in which each dealt with their individual income during the relationship;

d. manner in which the parties considered themselves entitled to deal with their combined earnings; and

e. manner in which the parties dealt with their assets.

62 The length of the de facto relationship was one of approximately three years. The defendant asserted that the relationship was one of approximately four years. In either case, it was not a long relationship.

63 During the course of the relationship, both parties remained in employment. The plaintiff earned a greater income than the defendant and when one combines his income with funds through PKN, it can be seen that he contributed by far and away the greater financial resources to the relationship. The combined resources provided by the plaintiff were approximately $380,000. His evidence was that he worked approximately ten hours a day. The defendant’s evidence is that she worked twenty-five to thirty hours per week. This appears to be a work pattern that she has followed for a number of years. Her income, during the relevant period, was approximately $80,000. Therefore her income was approximately 21 per cent of the income generated by the plaintiff. There was evidence that the defendant had no intention, during the relationship, to cease working. She wanted to remain in the workforce and continue her employment. Therefore, the relationship was one where both parties were in employment although their hours of employment were different and the income generated was different.

64 Each party dealt with their individual income during the relationship in a different way. The plaintiff contributed all his income together with a significant fund of money from PKN to the relationship. The evidence is, in fact, that the contribution made by or on behalf of the plaintiff was in excess of the income generated during the relevant period. There has been no serious challenge to the plaintiff’s evidence nor, in particular, to various statements that have been provided as part of Exhibit A. In total, the contributions made by or on behalf of the plaintiff to the relationship amounted to approximately $481,000.

65 Conversely, the defendant made a minimal financial contribution to the relationship. Her evidence was that she provided an amount of approximately $90.00 per week in relation to food and household requirements. There was also evidence, although not supported by any independent source, that she provided a few thousand dollars for a holiday. The financial contributions for the three year period by the defendant, therefore, totals approximately $17,000. When one compares this sum to the contributions made by or on behalf of the plaintiff, it can be seen that it is a small percentage of the overall contributions during the course of the relationship. The defendant’s contribution is approximately 3 per cent of all financial contributions made during the relationship.

66 The manner in which the parties considered themselves entitled to deal with their combined earnings is also significant. The plaintiff not only provided the bulk of financial contributions to the relationship but he also made available various credit cards for the defendant to use. He provided the use of a motor vehicle and paid for not only their combined holidays but also for a holiday that the defendant made to Europe by herself.

67 In contrast, there is no evidence from the defendant concerning the use of her income by both parties other than for the payment of food and household items. In cross-examination, she was vague about the way in which the balance of her income was disposed. However, there was no suggestion that, by and large, it was shared with the plaintiff. It would seem from the defendant’s evidence that, beyond the $90.00 per week, the balance of her income was spent by her on her own needs. Therefore, in respect of the pooling of their combined earnings, it is clear that the plaintiff has made significant contributions, contributions which involve access to the defendant of his financial resources. However, the same cannot be said for the defendant. She merely made a contribution to the weekly food bill. The balance of her income appears to have been spent on her own needs or saved. There is evidence that, at the end of the relationship, she had savings of approximately $10,000.

68 The manner in which the parties dealt with their assets also demonstrates that the plaintiff made a significant contribution. His financial assets were used by both parties not only for the acquisition of the furniture, fittings and fixtures for the Greenwich property but also, through use of the credit cards, the defendant was able to purchase clothes, holidays, pay medical bills, veterinarian bills and, in general, used his resources for her needs. However, except to the extent already mentioned, there is no evidence of any of the defendant’s assets being used during the course of the relationship. The assets that the defendant had at the commencement of the relationship were a number of items of furniture and savings of about $2,500. There is no evidence that any of the furniture was used at the Greenwich property. There is no evidence that the savings were used by both parties during the course of the relationship. Throughout the course of the relationship, the defendant was not required to make any contributions towards the mortgage, insurance on the property, council rates, water rates, electricity bills or any other household accounts.

69 On separation, the defendant remained in the property and continues to reside in the property. The evidence is that until December 2001 she not only continued to use the motor vehicle provided to her and the credit cards but also made no contributions to the mortgage or any of the expenses associated with running the Greenwich property. During this time, all expenses were met by the plaintiff.

70 In my view, the defendant has received a significant benefit out of the relationship during this period.

Post separation contributions

71 The relationship ceased in July 2001. The defendant remained at the Greenwich property and continues to do so. The plaintiff has rented accommodation since that time. There was a request by the plaintiff in October 2001 to move back into the property, however, that request was denied by the defendant. At about that time, the defendant changed the locks to the doors of the premises thus preventing the plaintiff from gaining access to the property. The most recent statement from the Commonwealth Bank in relation to the mortgage shows that the required repayments are $2,149 per month. The evidence, therefore, is that between August and November, inclusive, the plaintiff made all mortgage repayments. The plaintiff also made all payments on credit cards, lease payments on the motor vehicles together with running costs of the motor vehicles and paid all other outgoings associated with the property. Since December 2001, the defendant has contributed half of the monthly mortgage repayments.

72 The evidence of the valuer was that the property would attract a rent of approximately $750.00 per week. The nearest comparable property was a property in nearby Greenwich Point but that is a fibro cottage. The rental for that property was $620.00 per week. It would seem to me that, in the absence of any direct comparable property to the subject property, a conservative value of rent for the property would be $680.00 per week.

73 The defendant, therefore, obtained use of the property for the period August to November 2001 without having to contribute towards any costs or expenses associated with the property. Since December 2001, she has made contributions towards the mortgage by paying half the monthly mortgage. The rent that the property would have attracted, in all probability, since the date of separation is an amount of $680.00 per week, which equals $2,720 per four week period. The defendant, therefore, has gained an advantage by residing at the property until December 2001 without making any contributions. During the period December 2001 until December 2002, she has made contributions to the mortgage. However, as the rent is likely to be greater than the mortgage repayments, she has gained a benefit by paying the lesser of the two amounts, as, under the mortgage repayments, her monthly repayment is $1,073.50, whereas the rent she would have been liable to pay on a monthly basis is $1,360.00.

74 In determining whether or not there should be an adjustment pursuant to s 20 of the Act it is necessary to weigh various matters. First of all, in relation to the financial contributions made by each party, it is clear on the evidence that the contributions made by the defendant were miniscule. Conversely, the contributions made by the plaintiff were overwhelming. The plaintiff not only provided the deposit for the Greenwich property but also has made all mortgage repayments up until December 2001. Since December 2001, the mortgage repayments have been shared. However, the defendant enjoyed living in the property since August 2001 without making any contribution towards the mortgage repayments or any other outgoings or expenses associated with the property. Since December 2001 she has made a contribution by meeting half the monthly mortgage repayments. However, the mortgage repayments amount to less than what the rent of that property would be. The defendant received a benefit in respect of the use of the premises during that period.

75 Both parties worked throughout the period of the relationship. Neither had any intention to leave work or to reduce their hours of work. Each, therefore, continued as wage earners in the workforce and were able to contribute to the relationship through their financial resources. The evidence is, however, that the defendant made very little by way of financial contribution to the relationship. There were no children of the relationship, therefore neither party had the duty of caring for children and thus restricting the ability to earn an income. There is no evidence which would suggest that the non-financial contributions made by the defendant are of such significance that an adjustment is required. The evidence is that, whilst she did more of the household chores and the cooking, the plaintiff also provided some assistance of a non-financial nature.

76 Throughout the relationship, the financial contributions made by the plaintiff not only provided the defendant with rent free and mortgage free accommodation during the period and for a significant period post separation but also provided, during both periods, access to credit cards which enabled the defendant to purchase clothes and the like.

77 In my view, there has not been a contribution either of a financial or a non-financial nature made by the defendant which would allow orders to be made in accordance with paragraphs 1 and 2 of the Cross-Claim. Therefore, the Cross-Claim, to the extent of paragraphs 1 and 2 should be dismissed.

78 In my view, the plaintiff has established that the defendant’s interest in the property known as 20 Valleyview Crescent, Greenwich is held on trust for him.

79 In my view, having regard to the contributions made by the plaintiff in respect to the contents of the Greenwich property, I would make an order in accordance with paragraph 3 of the Amended Statement of Claim.

80 I make the following declarations and orders:

On the Amended Statement of Claim:

A) I declare that the plaintiff and the defendant hold the property known as 20 Valleyview Crescent, Greenwich, on trust for the plaintiff.

B) I order that the defendant transfer her interest in 20 Valleyview Crescent, Greenwich, to the plaintiff forthwith.

C) I declare that the contents of the property known as 20 Valleyview Crescent, Greenwich, excepting the defendant’s personal possessions and contents owned by the defendant, be the sole property of the plaintiff.

D) I declare that the plaintiff and the defendant have the sole right, title and interest in:

i all chattels, goods, furnishings and property which stand in their sole name respectively at the date hereof;
ii any money, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.


E) The defendant pay the plaintiff’s costs of the proceedings, including the costs of the Cross-Claim.

On the Cross-Claim:

A) I order that the Cross-Claim be dismissed.

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Last Modified: 04/16/2003