Paino v Paino - [2006] NSWSC 218

No judgment structure available for this case.

CITATION: Paino v Paino [2006] NSWSC 218

HEARING DATE(S): 07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 01/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05, 14/12/05

JUDGMENT DATE :
5 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Defendant to pay plaintiff $2,046,575.90 subject to adjustment

CATCHWORDS: FAMILY LAW - de facto relationships - application by one party for orders adjusting property interests - determination of when relationship began - determination of when relationship ended - determination of dates at which property to be valued - all property owned by defendant - values at various dates agreed - no agreement as to value of land in Queensland - consideration of different views of valuers called by the parties - no agreement as to value of land in Italy - no evidence from which court can decide value of land in Italy - such land left out of account - consideration of parties' respective welfare/homemaker contributions - consideration of plaintiff's claims to have made significant non-financial contribuitions to various businesses owned and operated by defendant - assessment of contributions - decision of what is just and equitable according to holistic value judgment

LEGISLATION CITED: Property (Relationships) Act 1984, ss.4, 5(1), 15(1), 17(1), 18(1), 18(2), 20

CASES CITED: Black v Black (1991) 15 Fam LR 109
Chanter v Catts [2005] NSWCA 411
Dwyer v Kaljo (1987) 11 Fam LR 785
Evans v Marmont (1997) 42 NSWLR 70
Green v Robinson (1995) 36 NSWLR 96
Howlett v Neilson (2005) 33 Fam LR 402
Jones v Grech (2001) 27 Fam LR 711
Kardos v Sarbutt [2006] NSWCA 11
Kelly v Clarke [2001] NSWSC 1010
Livesey v Jenkins [1985] AC 424
Paino v Paino [2005] NSWSC 1313
Paino v Paino [2005] NSWSC 1336
Parker v Parker (1993) 16 Fam LR 863
Parks v Thompson (1997) DFC 95-1
Powell v Supresencia (2003) 30 Fam LR 463
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Sullman v Sullman [2002] NSWSC 169
Wallace v Stanford (1995) 37 NSWLR 1
White v White [2004] NSWSC 208
Wilson v Vine [2003] NSWSC 341

PARTIES: Angela Paino - Plaintiff
Salvatore Paino - Defendant

FILE NUMBER(S): SC 5612/01

COUNSEL: Mr I.G. Harrison SC/ Mrs M.T. Bridger - Plaintiff
Mr P. Hallen SC/Mr J.J. Millar - Defendant

SOLICITORS: Kells The Lawyers - Plaintiff
Meyer Pigdon - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 5 APRIL 2006

5612/01 ANGELA PAINO v SALVATORE PAINO

JUDGMENT

Preliminary

1 By her amended statement of claim filed on 16 December 2003 (the original statement of claim having been filed on 21 November 2001), the plaintiff claims orders adjusting the interests of the plaintiff and the defendant with respect to property. The claim is made under Part 3 of the Property (Relationships) Act 1984.

2 As to jurisdictional prerequisites, it is accepted by the parties that they were both resident within New South Wales at relevant times (s.15(1)) and that they lived together in a domestic relationship for a period of not less than two years (s.17(1)). The question whether the application filed on 21 November 2001 was made within the time allowed by s.18(1) (that is, within the period of two years after the date on which the relationship ceased) or whether a grant of leave under s.18(2) is necessary in relation to the plaintiff’s application will be determined by the result of consideration of the duration of the relationship. I shall return to this.

3 Section 20 of the Property (Relationships) Act empowers the court to make such orders adjusting the interests of the parties to the relationship in the property of those parties “as to it seems just and equitable having regard to” enumerated matters. The section allows an application to be made by “a party to a domestic relationship”. It requires the court to have regard to contributions made by each of the parties to “the relationship”. An essential aspect of the inquiry involves ascertaining the duration of the relationship, that is, when it began and when it ended. (The present case raises no question about distinct and separated periods.)

4 By virtue of s.5(1), “domestic relationship” includes a “de facto relationship”. It is that aspect of the definition on which the plaintiff relies. The meaning of “de facto relationship” comes from s.4:

“ De facto relationships

(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.

5 I shall have more to say about this s.20 jurisdiction. It is convenient to begin by referring to certain matters which are not disputed or which, on the preponderance of the evidence, cannot be disputed.

The parties and their background

6 The plaintiff was born in Italy on 22 April 1954. She is now aged 51. She arrived in Australia with her parents at the age of 17 and, after completing her schooling, had several jobs (all of them secretarial or, in one case, “executive trainee” for about six months) up to March 1981 when the defendant responded to an advertisement she had placed in a newspaper. She thereafter became the defendant’s secretary. The plaintiff has never married and has no children. Her name was originally Angela La Camera. Some time after her relationship with the defendant began, the plaintiff changed her name to Angela Paino.

7 The defendant was born in Italy on 14 June 1929. He is now 76 years old. He arrived in Australia at the age of 19. He married in 1958 but he and his wife separated in about 1967. There were two children of that marriage – a daughter Corina (born 12 May 1960) and a son Stefano, or Steven (born 2 March 1962). Fairly soon after arriving in Australia, the defendant began to invest in real estate. He started a real estate agency in about 1958 and later branched out into property development. He bought and sold many properties. Among those he bought was a site at Randwick on which the Gemini Hotel was subsequently built. That hotel has for many years been owned by the defendant (or, more precisely, by companies owned by him) and has been the headquarters of his business. He maintains his main office there. The defendant bought the vacant residential land at 106 Wolseley Road, Point Piper in about 1975. Construction of a house on that site began in about 1978. The defendant and his two children moved into that house in 1980 or 1981 and it has remained his home since then. His daughter Corina lived there until about May 1987 following her marriage in December 1986. It was also the home of his son Steven until 1992. The house is a substantial waterfront property with extensive harbour views.

8 Certain business ventures of the defendant, apart from the Gemini Hotel, should be mentioned. He (or a company he owns) is the proprietor and operator of a Mitre 10 hardware store at Randwick. He controls a company called Gemini Industries which imports and sells bathroom ware and related products. He owns a tract of vacant land at Smithfield (just outside Cairns in Queensland) part of which is the site of a palm plantation. Until relatively recently, the defendant owned a hotel/motel at Griffith. He also owns a number of properties on the island of Filicudi in the Aeolian Archipelago off the coast of Sicily. He has purchased these progressively since the early 1970’s. It was from Filicudi that the defendant came to Australia.

The relationship – matters agreed and matters in dispute

9 The plaintiff and the defendant met in or around March 1981 when she attended a job interview. As I have said, she became his secretary. Her functions were initially typing, filing documents, answering the telephone and organising the defendant’s personal and business appointments. The duties were later expanded to include work in relation to properties at Filicudi. There is a dispute as to the nature and extent of this work. The plaintiff says that she also came to perform other functions in the defendant’s various businesses. These are matters that will require exploration.

10 The parties agree that the de facto relationship has ended. There is a dispute about when it ended. The plaintiff maintains that it ended in January 2001. The defendant’s position is that the relationship ended in late 1999.

11 There can be no doubt that a de facto relationship existed after the plaintiff went to live at the defendant’s home at Point Piper. There is a dispute as to when she went to live there. There is also a dispute about whether a de facto relationship began before the plaintiff’s move to Point Piper, at a time when she occupied a suite at the Gemini Hotel set aside for the defendant’s use.

When did the de facto relationship begin? – Suite 620

12 It is common ground that a romantic attachment began in 1981 or 1982 and that a sexual relationship existed from some time in 1982. It is also common ground that, as the relationship between the defendant and the plaintiff developed from that of employer and secretary and became also a personal and romantic relationship, the defendant gave the plaintiff the use of Suite 620 at the Gemini Hotel that was reserved for his personal purposes. It had been his habit to rest in the suite during the day. He installed the plaintiff there and they spent time together there. With occupation of Suite 620 came enjoyment by the plaintiff of the other facilities of the hotel, including meals both in the restaurant and from room service.

13 The plaintiff says that she left her parents’ home and went to live in Suite 620 at the Gemini Hotel on 1 January 1982, at which time the de facto relationship began (although she did say in cross-examination that a “full de facto relationship” began when she went to live at Point Piper, which she says occurred in 1984). It is the defendant’s contention that there was no de facto relationship until the plaintiff began living at Point Piper, an event he says occurred in about mid-1989.

14 Although the defendant (through companies) owned the Gemini Hotel at all material times, he was not the operator of it in 1981-82. At that time, the business was operated by a Mr Hofbauer, the principal of a company which held a lease from the defendant or his companies. The defendant took over operation from Mr Hofbauer in or about March 1984. Suite 620 was reserved for the defendant’s use both during and after Mr Hofbauer’s management.

15 There is a body of evidence that lends some support to the proposition that the plaintiff occupied Suite 620 from 1981 or perhaps somewhat later. The plaintiff’s mother says that she moved from the family home to the hotel at the end of 1981. Ms Barraza, a house maid at the hotel, testified that the plaintiff was installed in Suite 620 when Ms Barraza commenced employment at the hotel in January 1982. Ms Winchester started working at the hotel in late 1984. She had known the plaintiff since 1982. She had visited the plaintiff in the suite “on a few occasions during 1984/1985”. Ms Bonanno met the plaintiff and the defendant soon after she and her husband bought a house at Terrigal. Using that purchase as a timing reference point, she was able to say that the plaintiff lived at the hotel in 1981/1982. Mr Rando, who worked at the hotel from 1980, said that the plaintiff moved in there in 1982.

16 Mr Soghomonian, with whom the plaintiff was in a romantic relationship when she met the defendant, said in his affidavit that that relationship ended in mid 1981. He tied the event, as to timing, with a return of the plaintiff and her parents from an overseas trip. He also said in cross-examination that he had begun a relationship with another woman (who is now his wife) some six or twelve months after the end of his relationship with the plaintiff. There is clear evidence that the plaintiff and her parents returned from overseas in October 1982. Also, Mr Soghomonian said that his relationship with his now wife began in 1983. Both these aspects would lend support to the contention that his relationship with the plaintiff ended in the second half of 1982, rather than in mid 1981.

17 In the end, I do not consider it necessary to put a date (or even year) to the plaintiff’s taking up occupation of Suite 620 at the Gemini Hotel. This is because I do not consider that the plaintiff and the defendant ever lived together at the hotel. One of the essential elements of a de facto relationship is, in the words of s.4(1)(a) of the Property (Relationships) Act, that the parties “live together as a couple”. The defendant provided Suite 620 to the plaintiff. He installed her there. She regularly slept there overnight. The plaintiff’s evidence is that, during her first year in Suite 620, the defendant would “on occasions” stay the whole night there with her. The defendant agrees that he spent time with the plaintiff in the suite on a regular basis but says he slept there overnight only once – when he fell asleep and failed to leave late at night as was otherwise his practice. He made the point that, until 1987, he had both his children living with him at Point Piper. His daughter Corina lived there continuously from completion of the house in late 1980 or early 1981 (when she was 20 or 21) until about May 1987. She was married in December 1986 and she and her husband then lived at the defendant’s house for some months until their own home was ready. The defendant’s son Steven lived at Point Piper continuously from 1980 or 1981 (when he was 18 or 19) until mid 1992 when he left home to live in a rented apartment. He was a full time student between 1983 and 1985. The defendant says, and I accept, that he saw himself as having a responsibility to his children which caused him to live at home with them at Point Piper; and that he did so during the period that the plaintiff occupied Suite 620.

18 I accept that the defendant installed the plaintiff in Suite 620 and that she slept there on a regular basis and had access to the hotel facilities. I also accept that the parties went on outings together and were regular companions during the time the plaintiff spent in Suite 620; furthermore, that they took overseas trips together in the course of which she helped him select artworks and other items for his Point Piper home (as shown by the evidence of Mr Berlini) and that she acted as his consort on some occasions when he entertained. Ms Messina, among others, gave evidence to that effect. Ms Essex referred to a function at the Gemini Hotel at which each of them was a “charming host”.

19 In addition, however, I am satisfied that it was the defendant’s practice to return home to Point Piper every night (with the sole exception to which he referred) and that, while he did spend time in Suite 620 with the plaintiff on many nights (perhaps into the early hours of the morning), he did not live there. He lived with his children at Point Piper and visited the plaintiff at the hotel. The plaintiff accepted in cross-examination that, while her “home” was at the hotel, the defendant’s “home” was at Point Piper. On that basis, there was no de facto relationship before the plaintiff too began living at Point Piper.

20 There was no household at Suite 620. While the plaintiff was installed there, she and the defendant went out together and there is evidence to suggest that their demeanour was such that some people assumed them to be husband and wife. But they did not, at that time, have shared domestic activities and responsibilities. The plaintiff continued as the defendant’s secretary through the time she remained in Suite 620. The hotel was where he maintained his office and was thus her place of work. There was no mutual commitment to a shared life because, as I have said, the defendant took particular care to maintain his home life at Point Piper with his children. He had the plaintiff to the Point Piper home as a visitor only.

21 I should add that it is not necessarily clear that the plaintiff ever “lived” in Suite 620. It may well be that, during her occupation of Suite 620, her home continued to be at her parents’ house. Ms Nathan, an employee at the hotel, gave evidence that on several occasions in 1984 and 1985, she drove the plaintiff to a house in Sylvania Waters. The plaintiff told Ms Nathan that she lived there. On one occasion, the plaintiff took Ms Nathan into the house and introduced her to her parents. On another occasion, she invited Ms Nathan in to look at changes she was making to her bedroom. On an evening in 1985, the plaintiff asked if she could stay overnight at Ms Nathan’s home as she did not want to travel “all the way home to Sylvania Waters”. Ms Nathan was able to position these events by reference to the defendant’s resuming management of the hotel in 1984 after the departure of Mr Hofbauer. Ms Nathan’s evidence is consistent with the proposition that the plaintiff maintained her home at Sylvania Waters but spent most of her time at Suite 620. Evidence about mail being addressed to her at the hotel is not particularly relevant to this issue: the hotel was, after all, her place of work and it is not at all unusual for people to have some mail sent to them at their places of employment. But it is pertinent to note that, in October 1983, she gave a hospital she attended not only the Sylvania Waters address but also the Sylvania Waters telephone number.

When did the de facto relationship begin? – Point Piper

22 It then becomes necessary to decide when the plaintiff left the hotel suite and went to live at Point Piper. In approaching that question, I regard as uncontroversial the proposition that commencement of the plaintiff’s living at Point Piper occurred virtually immediately after she ceased to occupy Suite 620 on a regular basis. As I have said, the plaintiff had been a visitor to Point Piper before she moved there and had also become the defendant’s companion on social and similar occasions. Neither party would contend that there was no de facto relationship from and after the time at which the plaintiff went to live at Point Piper.

23 Ms Barraza, who did housework at both the hotel and the house, said she saw the plaintiff’s clothes in a wardrobe in the main bedroom of the house when she first started cleaning there in 1983. She cannot remember exactly when the plaintiff moved to Point Piper but says it was about 1984. Ms Winchester, a friend of the plaintiff, says that the plaintiff was living at Point Piper in 1985 and 1986. Ms Graziani said that the plaintiff was living at Point Piper when she met her in 1986.

24 Ms Langen, who was the housekeeper at the Gemini Hotel from 1973 to 1977, from 1979 to July 1983 from October 1986 to September 1988 and again for a period in 1997-98, says that the plaintiff was living at the hotel in October 1986 and stayed until late September 1988, that is, at the end of Ms Langen’s third period of employment there.

25 Ms Nathan, the hotel employee already mentioned, worked in the restaurant at the hotel and also did housekeeping work at Point Piper. In early 1984, she saw no women’s clothing or articles in the main bedroom or the guest room at Point Piper.

26 Mr Riccio was the restaurant manager at the hotel from May 1986 to May 1988. He says the plaintiff occupied Suite 620 throughout that time. Mr Ruggeri worked in the restaurant from early 1987 to May 1988. He attended to breakfasts, including room service. During the period mentioned, he took breakfast to the plaintiff in Suite 620 on at least four mornings a week. Another employee did so on other days.

27 Ms Unterberger became the live-in housekeeper at Point Piper in July or August 1986. She remained there until September 1987. She says that during that period, the plaintiff sometimes stayed overnight on Friday or Sunday. The plaintiff used the guest room. The witness saw that the bed in the guest room had been used and saw the plaintiff’s clothes and effects in the guest room; but she sayus the plaintiff never left clothes in the house and never left laundry to be done.

28 Ms Wehbe worked as a receptionist at the hotel from April 1988 to April 1991. She became aware soon after she arrived that the plaintiff was occupying Suite 620 and that that was the reason why it was not available for bookings. Ms Wehbe went on holiday for six weeks in late 1988 to early 1989. When she returned, the plaintiff was no longer in occupation.

29 Particularly pertinent to this part of the inquiry is the evidence of the defendant’s two children who, as young adults, had taken up residence with him in the newly-built house at Point Piper in 1980 or 1981. His daughter Corina said, quite simply, that the plaintiff did not live at the Point Piper house before Corina left the home in about May 1987 following her marriage. Corina slept in the house every night. She regularly went to her father’s bedroom for early morning coffee and a chat. She never saw the plaintiff there. There was (and is) animosity between Corina and the plaintiff. Corina would certainly have been aware if the plaintiff had taken up residence in the family home while she was living there. She would have objected strenuously. Steven testified that the plaintiff moved into the Point Piper house in late 1988 when either the defendant or the defendant’s mother became ill and the plaintiff wished to care for the ill person. She stayed initially in the guest room which was opposite Steven’s bedroom. After some weeks, the plaintiff began sleeping in the defendant’s bed. Steven saw them in bed together. Steven observed the continuation of that situation until he went to live in the rented apartment in 1992.

30 Steven brings an additional perspective to the inquiry. He worked full time at the Gemini Hotel from early 1986. He took over operational management in late 1986. It was a matter of constant frustration to him that Suite 620 was permanently unavailable for use by paying guests because it was occupied by the plaintiff.

When did the de facto relationship begin? - Conclusion

31 Having regard to the whole of this evidence, I conclude that the plaintiff continued to occupy Suite 620 until late 1988, at which point she moved into the defendant’s house at Point Piper where the two of them began living together as a couple. Their sexual relationship was by then well established. This conclusion about the timing of the move to Point Piper relies upon the evidence of those witnesses who are able to tie the plaintiff’s whereabouts to particular events – in the case of Ms Langen, the end of her second period of employment at the hotel; in the case of Mr Riccio, Mr Ruggeri and Ms Unterberger, the whole period of employment; in the case of Ms Wehbe, the end of her six weeks holiday; in the case of Corina, her leaving home after her marriage; and, in the case of Steven, the illness of his father or grandmother. Evidence based on landmarks of that kind is inherently more reliable, after an interval of the order of twenty years, than evidence which purports to identify the period or date of some relevant state or event without any such extrinsic aid.

32 I accordingly find that the de facto relationship between the parties began in late 1988.

When did the de facto relationship end?

33 I turn now to the matter of identifying the time at which the de facto relationship ended. The defendant’s stated position is that it ended in 1999. The plaintiff says that it continued until January 2001. In approaching this question, I consider first some documentary evidence.

34 Hospital records related to the defendant’s admissions in June and November 1998 record the plaintiff as his wife. He gave that information to the hospital. Date stamped photographs taken at Point Piper on 26 December 1998 show the two of them together in affectionate poses at the Point Piper house.

35 A large party took place at the Point Piper house a year later, on 31 December 1999. It was a charity event involving an invitation reading:

“Mr & Mrs Paino have great pleasure in inviting you to attend [the charity function] at their house in 106, Wolseley Road, Point Piper …..”

36 That relationships were strained by early 1999 is borne out by the fact that the plaintiff had written in March 1999:

“No more praying. No more talking. I am so hurt. I can’t breathe. I will ask Sam to leave this house, our home, whilst he needs to prepare himself for the divorce. I will die, but so what? Happy Easter Angela. You are all alone now.”

37 After she was taken to that document, the plaintiff’s cross-examination continued as follows:

“Q. In mid 1999 the defendant regarded the relationship as having ended. Do you agree or disagree?
A. I disagree.

Q. In any event, by January 2000 had you come to the conclusion that the relationship was at an end?
A. Possibly I could have.

Q. Well, there's no possibly about it. You did, didn't you?
A. As many other times before.

Q. Please, listen to my question. In January 2000 did you consider that the relationship between you and the defendant was at an end?
A. Yes.

Q. And that demonstrated itself, didn't it, by your suggestion to him, in January 2000, that he ought to start thinking about the way in which the matter should be settled. Do you agree with that?
A. Yes.

38 In January 2000, the plaintiff wrote to the defendant saying that he had broken her heart and “I want a divorce”; also, “if and when there will be money coming in, I will expect my rightful share just as I took my share of worries and sacrifices”. It is this letter that is referred to in the cross-examination.

39 Letters from the defendant’s solicitors, written in August 2000 and April 2001 about a motor accident claim, refer to him as “married” and “married to Mrs Angela Paino”’ but whether those statements were made by the solicitors on express and contemporaneous instructions from the defendant does not appear from the evidence. The defendant could not recall having given any such instructions and surmised that the solicitors assumed that the plaintiff was his wife.

40 In a will dated 9 November 2001, the defendant referred to “my former de facto wife Angela Maria Paino”, with the word “former” interlined in handwriting between the typewritten “my” and “de facto”.

41 In a letter written some months earlier (on 24 March 2001) to a psychologist, the plaintiff had said:

“Sam and I are now both living in our hotel, but in separate rooms. Since I last saw you, things have deteriorated but I think and hope soon I will be able to reach an agreement with Sam as far as the settlement.”

42 There is evidence from Ms Graziani that the plaintiff and the defendant attended social events together in September and November 2001. But, as the plaintiff herself confirmed, they were, at that time, occupying separate rooms at the Gemini Hotel and, on returning from Ms Graziani’s birthday party, they went separately to their respective rooms.

43 The defendant celebrated his 71st birthday at a party in Melbourne. That was in June 2000. He and the plaintiff stayed with friends in Melbourne. The plaintiff says they shared a room. The defendant says they slept in separate rooms. The plaintiff and the defendant attended the opening of the Sydney Olympics together in September 2000. The plaintiff had cosmetic surgery towards the end of 2000 and, according to the defendant’s evidence, returned to Point Piper on 6 October 2000 after that surgery. It is relevant to quote from cross-examination of the defendant as to subsequent events:

“Q. I can tell you I am reading from what you have sworn to. You go on to say and ‘on 6 October 2000 she returned to the Point Piper home’. Do you remember saying that?
A. Yes.

Q. You go on to say, ‘On the following day, after more arguments, she said, “I can't stay here, I am going”. She went to the Gemini Hotel and occupied the penthouse suite.’ You remained at Point Piper. ‘Shortly thereafter the remainder of her own personal effects and clothing were collected and taken to the penthouse suite’. You then say, ‘At that time I considered our relationship to be over’. Do you remember saying that?
A. Yes.

44 The Point Piper property underwent renovations during 2000. In the middle of that year, Mr Antonelli, an estate agent, showed the plaintiff and the defendant together a home unit that was for sale in Wolseley Road, Point Piper. He says that they later attended the auction together but did not bid. He reports one of them as having said:

“We are looking to purchase the home unit as we are intending to renovate our house in Wolseley Road. We are home hunting because we would like to move out while we are undertaking the renovations.”

45 Mr Loudjani was employed on the catering and restaurant side of the Gemini Hotel. Having worked there for two periods in earlier years, he rejoined on 6 November 2000. At that point, the plaintiff was staying at the hotel. The defendant was living at Point Piper and had interviewed Mr Loudjani there. After Mr Loudjani started work, meals were sent to the defendant at Point Piper. About a month after Mr Loudjani rejoined the staff, the plaintiff told him that she had moved back into the house and wanted evening meals sent to her from the hotel because there was no kitchen at the house. At about the same time, the defendant moved into the hotel. The plaintiff returned to the hotel after about a month.

46 My conclusion is that estrangement began to develop before 1999 and that by March of that year the relationship was in serious difficulties. The parties nevertheless remained together in increasingly strained circumstances. The contact with Mr Antonelli in mid-2000 may have been really for the purpose of finding an alternative home for the plaintiff (the defendant says that he had said that he would buy her a home for up to $1.2 million but would not countenance her living close to the Point Piper property). Although the plaintiff returned to the Point Piper home in very strained circumstances later in 2001, the end of the relationship came soon after a point in late 2000 when renovations at Point Piper served as a catalyst for a series of events which saw the parties go separately to stay at the Gemini Hotel. The plaintiff went there first. Then, when the defendant moved to the hotel, the plaintiff went back to Point Piper (still under renovation) but returned to the hotel after about a month. The two of them then stayed there contemporaneously but not together. They had separate rooms and took meals in the restaurant separately. They never again lived in the way they had previously. These matters lead me to hold that the relationship ended in January 2001. It was at that point that the domestic relationship ceased to exist and the parties no longer lived together.

47 The plaintiff’s claims under the Property (Relationships) Act must accordingly be approached on the footing that the relationship was of a little more than twelve years, having begun in late 1988 and ended in January 2001. The finding as to the time at which the relationship ended means that the application filed on 21 November 2001 was filed within the two year period allowed by s.18(1). There is accordingly no need to pursue the question of leave under s.18(2).

The approach to the plaintiff’s claim – s.20 of the Act

48 Having concluded that a domestic relationship within the meaning of the Act existed and determined its duration, I must, in considering the plaintiff’s application, proceed in accordance with s.20 of the Act:

“ Application for adjustment

49 There is no statutory definition or elaboration of the expression “contributions”, but its meaning – and the s.20 process generally – have been extensively explored in case law. The matter has been considered by the Court of Appeal in three matters within the last year: Howlett v Neilson (2005) 33 Fam LR 402; Chanter v Catts [2005] NSWCA 411; Kardos v Sarbutt [2006] NSWCA 11. Those cases, in line with earlier authority (particularly Evans v Marmont (1997) 42 NSWLR 70) make it clear that the court must undertake a three-step process: first, identify and value the property of the parties; second, identify and value the respective contributions of the parties of the type referred to in s.20; and, third, determine what order is just and equitable having regard to those contributions.

50 In approaching and determining an application of this kind, the court’s attention must be focused on contributions of the kind identified in s.20 as determinants of what is just and equitable. Because of the central role played by contributions, it is, as Hodgson JA said in Howlett v Neilson (above) at [28], “particularly important in the reasons for making or refusing an order to identify and evaluate these contributions”. And, as his Honour also noted at [30], not only contributions during the course of the relationship but also contributions brought to it initially need to be considered.

51 Section 20 says that the court may make an order which it considers just and equitable “having regard to” the contributions mentioned in s.20(1)(a) and (b). The words “having regard to”, used in relation to particular considerations, often indicate no more than that the decision maker is “to give weight to them as a fundamental element”: R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at p.333 per Gibbs CJ. It was suggested by Bryson JA in his dissenting judgment in Chanter v Catts (above) at [66] that factors other than s.20(1)(a) and (b) contributions “can have no independent bearing on what is just and equitable” but may have relevance to the question “what is just and equitable having regard to the contributions of the parties”. His Honour said that factors other than such contributions may be relevant in deciding whether contributions have been sufficiently compensated. He made special mention of the needs and means of the parties:

“The needs and means of the parties have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of parties; but otherwise the needs and means of the parties have no relevance, and a disproportion in their assets is not a reason why it is just and equitable to make an adjustment.”

52 Contrary indications may come from the subsequent decision of the Court of Appeal in Kardos v Sarbutt (above) (Brereton J; Basten JA and Hunt AJA agreeing) at [38]:

Family Law Act

Property (Relationships) Act

Report on De Facto Relationships

Wallace v Stanford

Evans v Marmont

53 The message here seems to be that, in addressing the question of what is just and equitable, as contemplated by s.20, the court must pay attention to the identified contributions and must not pay any attention to other factors such as the parties’ respective means and needs. That approach is supported by the views expressed in Wallace v Stanford (1995) 37 NSWLR 1 at pp.9-10 by Mahoney JA (Sheller JA agreeing; Handley JA contra). It seems to me, however, to put things in much more black and white terms than those contemplated by the three judges who made up the majority in Evans v Marmont (above) (Gleeson CJ and McLelland CJ in Eq, Meagher JA agreeing; Mason P and Priestley JA contra). The majority said (at p.81) that Wallace v Stanford “should be approved” but gave its own description of the role to be played by the s.20(1)(a) and (b) contributions at [79]:

“Most importantly, s 20 specifies, in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by

Dwyer v Kaljo

54 In Powell v Supresencia (2003) 30 Fam LR 463, Sheller JA (with whom Tobias JA agreed) said (at [25]):

In the Marriage Farmer and Bramley

Family Law Act

55 Sheller JA later said (at [27]):

“The task of identification and valuation complete, the Court comes to consider whether it should adjust the interests of the parties in the property in such manner as to the Court seems just and equitable having regard to the contributions identified within paras (a) and (b) and other factors of the kind identified by Hodgson J.”

Dwyer v Kaljo

Evans v Marmont

56 Now, however, the Court of Appeal has said quite clearly in Kardos v Sarbutt (above) at [38] that in “the determination of what order is required in order sufficiently to recognise and compensate the applicant’s contributions … there is no warrant for regard to other factors [that is, factors other than the respective contributions of the s.20(1)(a) and (b) kind] such as the respective means and needs of the parties” [emphasis added]. This appears to mean that, in determining what order is required in order sufficiently to recognise and compensate the applicant’s contributions, the respective contributions of the parties are the only matter to be taken into account and the court must not give any weight to any other matter. This being the most recent pronouncement of the Court of Appeal – and a unanimous pronouncement at that – I must proceed in accordance with it, although it is obvious that I can only judge the significance of the contributions and the expectations generated by them, in terms of justice and equity, in the light of the context in which the parties find themselves. Matters such as needs and means make up part of that context.

57 In Kardos v Sarbutt (above) at [29] to [38], the Court of Appeal also referred to three particular points to be remembered at the second of the steps in the three-step process (that is, identification and valuation of the parties’ contributions): first, that where there is a division of roles in the relationship between homemakers and breadwinner, the intangible contributions of the first kind are in no way inferior to the material and financial contributions of the second kind; second (and as noted by Hodgson JA in Howlett v Neilson), contributions brought to the relationship at inception are relevant; so too are contributions made after separation and before trial. Third (at [36]):

Davey v Lee

58 The second of these matters requires some elaboration. It is now, I think, sufficiently established that the court may have regard to contributions made before the relationship began, but only in a subsidiary or contextual way. In that respect, I note what was said in Jones v Grech (2001) 27

Fam LR 711 by Davies AJA at [24] and by Ipp AJA at [77] to [82].

At which date should the property be valued?

59 As will be seen, the parties have reached a substantial measure of agreement on matters of valuation, as at various times which include not only those I have identified as the beginning and end of the de facto relationship but also the time of the hearing. It is accepted that an assessment of value as at the commencement of the relationship is necessary. But there is a question whether, for the purposes of the necessary assessment of contributions, regard should be had to values as at the end of the relationship or present values.

60 The plaintiff contends that the extent and value of the parties’ property should be determined as at the date of the hearing. It is said that this is the usual approach. That is no doubt true. In Kardos v Sarbutt (above) at [30], the Court of Appeal said:

Parker v Parker

Wells v Wells

Cozanitis v Cozanitis

Williams & Williams

Hauff & Hauff

Woodland & Todd

61 The Court of Appeal went on, however, to recognise as legitimate an approach that has regard to the value of the property at the date of separation:

Family Law Act

Property (Relationships) Act

Omacini & Omacini

62 In contending that property should be identified and valued at the date of the hearing, the plaintiff says that there is nothing in the evidence to suggest that the defendant has done anything to increase the value of any property that existed at the date of separation and the date of the hearing. Any increase is said to have resulted from market forces.

63 The defendant’s contention is that the property should be identified and valued as at the end of the relationship. This is because, according to the defendant’s submissions, he has made significant contributions relevant to the property pool since the end of the relationship and the plaintiff has made none.

64 These competing contentions can only be addressed after the matter of contributions generally has been considered. For the moment, therefore, I shall record such agreed matters as there are as to identification and valuation of property, note aspects of those matters that are not agreed and then move to the general issue of contributions before returning to deal with the question of the appropriate date for identifying and valuing property.

The parties’ property

65 The plaintiff had very little property at the start of the relationship in 1988. She owned a table and six chairs, some jewellery, clothing and personal effects; also some shares in a proprietary company. The defendant accepts that, in the context of this case, these items were of negligible value.

66 The defendant, by contrast, had substantial assets as at 1988. An agreed statement of the defendant’s property at that time has been furnished to the court by the parties. The agreed items, the agreed values and the agreed realisation costs are as follows:

Property Value Realisation Costs

Point Piper house $6,250,000 --

Paino Holdings Pty Ltd
(as trustee) – loan accounts 563,000 --

Gemini Sydney Hotel
Partnership 2,749,000 142,000

Heavey Lex No 64 Pty Ltd 725,000 32,000
(includes property at
Smithfield, Qld)

Randwick Developments Pty 566,000 18,000
Ltd (includes property at
Narooma)

Kylor Pty Ltd (includes 50,000 1,000
Property at Manyana) -
7.1% interest only

Smithfield plantation business 249,000 52,000
(including palm trees)

Paino Enterprises Pty Ltd 267,000 10,000

Gemini Travel 36,000 --

Bank accounts 63,368 --

Thirlmere real estate 1,400,000 --

12-14 Belmore Rd, Randwick 1,465,000 --

Unit 13, The Esplanade, Cairns 200,000 --

15 Soudan St, Randwick 205,000 --

11 Soudan St, Randwick 195,000 --

13 Soudan St, Randwick 70,000 --

Motor vehicles $ 50,000 ________

$15,378,368

$255,000

67 In addition, however, the defendant owned properties on the island of Filicudi in 1988. The parties have not agreed on the value of the Filicudi properties.

68 The parties have also reached a measure of agreement about the extent and value of their respective property as at 2001. Again, the plaintiff’s property was of negligible value. The defendant’s property was as follows:

Property Value Realisation Costs

Point Piper house $12,125,000 --

Partnership 8,438,000 204,000

Randwick Mitre 10
Partnership 1,266,000 21,000

Heavey Lex No 64 Pty Ltd 3,869,000 1,247,000
(includes property at
Smithfield, Qld)

Randwick Developments Pty Ltd 1,529,000 219,000

Kylor Pty Ltd 295,000 9,000

Febri Pty Ltd 306,000 --

Gemini Industries Pty Ltd 249,000 --

Smithfield plantation business 593,000 52,000
(including palm trees)

Bank accounts 166,819 --

Motor vehicles 85,000 --

Mercedes (with plaintiff) 15,000 --

Loan to G. Wilson $ 254,000 __________

$29,190,819

$ 1,752,000

69 Again, it is agreed that the defendant also owned properties on Filicudi as at 2001 but there is no agreement as to value. Also, there is agreement that there were liabilities of $8,774,000 (Paino Holdings Pty Ltd loan account) as at 2001 so that, disregarding the Filicudi properties, there were net assets, after realisation costs, of $18,664,819 (that is, $29,190,819 less the aggregate of $8,774,000 and $1,752,000).

70 In relation to the position at the time of the hearing, the parties were agreed that the plaintiff had negligible property and that defendant’s property was as follows (with such values as are agreed also shown):

Property

Value

Realisation Cost

Point Piper house $18,500,000 --

Gemini Sydney Hotel
Partnership 9,299,000 281,500

Randwick Mitre 10 Partnership 1,567,000 64,000

Heavey Lex No 64 Pty Ltd Not agreed
(includes property at
Smithfield, Qld)

Randwick Developments 2,193,000 444,000

Kylor Pty Ltd 406,000 25,000

Febri Pty Ltd N/A

Gemini Industries Pty Ltd 262,000 --

Smithfield plantation business
(including palm trees) 500,000

1977 Rolls Royce 5,000 --

Jaguar XKS 90,000 --

Mercedes 15,000 --

Painore Pty Ltd 50,000 --

Furniture at Point Piper 205,000 --

Loan to G. Wilson $ 254,000 ________

$33,346,000

$814,500

71 Again, it is agreed that the defendant owned properties in Filicudi at the time of the hearing but there is no agreement as to value. Lack of agreement as to value extends also to Heavey Lex No 64 Pty Ltd (the owner of the Smithfield land). The agreement on value of the palm plantation was arrived at on 6 July 2005 (Exhibit AE).

72 There is also agreement as to liabilities at the date of trial. These are quantified at $10,606,380.

Contributions – preliminary matters

73 In approaching the matter of the parties’ contributions, I begin with some observations which I consider uncontroversial. First, the plaintiff acquired no property of consequence during the relationship. Second, there was no joint ownership or co-ownership of property by the parties at any time, although the plaintiff was given by the defendant an 8.35% shareholding interest in the company Gemini Industries Pty Ltd. Third, the plaintiff did not make any financial outlay by way of contribution to the acquisition, conservation and improvement of any of the defendant’s property or (except perhaps incidentally) to their domestic life, her case being that she made non-financial contributions to the defendant’s business and homemaker contributions. Fourth, the only skills and experience the plaintiff had when she became the defendant’s secretary were in that field, that is, stenography, typing, filing, telephone answering and basic office administration – plus proficiency in both English and Italian.

74 The plaintiff was employed as the defendant’s secretary in 1981. Payment of wages continued until late 1993 or early 1994. The defendant provided the plaintiff with accommodation and meals at the Gemini Hotel as previously described. He later took her into his home at Point Piper at no cost or expense to her and provided everything she needed, again at no cost or expense to her. He maintained her in an extremely comfortable lifestyle. The plaintiff said (and it was not disputed in cross-examination) that before the separation her own sole weekly expenses totalled $1,960, being $800 for clothes and shoes, $600 for hairdressing, toiletries and personal care and $560 for holidays. Her total weekly expenditure, as estimated by her, including household expenses, was $3,965. The defendant paid all this. Her total credit card expenditure in 1999 and 2000 (wholly met by the defendant) was $50,220.64 and $62,283.22. The defendant also took the plaintiff on overseas trips (which she described as “luxurious”) at least once a year between 1983 and 1999 at a cost per trip estimated by the plaintiff to be between $35,000 and $65,000. The defendant paid for all these. The defendant, according to the plaintiff, gave her gifts of a mink coat ($30,000), a watch ($20,000) and a bracelet ($18,000) and other jewellery. She has returned the watch, says the bracelet was lost and has retained the rest. The plaintiff had unlimited access to cash and credit cards provided by the defendant. The plaintiff gave the defendant some gifts but there is no evidence of their value. The funds to buy these must have come from the defendant.

75 While the plaintiff lived at Point Piper, there was usually a full-time housekeeper and a part-time gardener. Staff from the Gemini Hotel also helped with housekeeping particularly between housekeepers. Meals were often brought to the house from the hotel restaurant. The plaintiff made no financial contribution to any of this.

76 It is, however, clear (and not disputed by the defendant) that the plaintiff made non-financial contributions of the kind contemplated by the Property (Relationships) Act. There is, however, a dispute as to whether those non-financial contributions were confined to domestic and homemaker contributions or extended also to contributions related to the business and property assets and activities of the defendant.

Welfare/homemaker contributions

77 The defendant concedes that the plaintiff made contributions to his welfare and that of the domestic unit. The plaintiff looked after the home, albeit in a context where housekeeping, gardening and other staff were employed. She cooked and cleaned, but not to the same extent as a woman in a household not employing domestic staff. She concerned herself with the upkeep and decoration of the home. She had good taste and attended to these matters with skill and flair. She brought the same qualities to bear when acting as hostess at what appear to have been relatively frequent parties and social events at the Point Piper house. The evidence of Ms Desiree Berry, Ms Coratella and Ms Moretti, among others, makes it clear that the plaintiff took a hands-on role on such occasions.

78 Both the plaintiff and the defendant suffered major illnesses during the relationship. Each supported and comforted the other during those times. The plaintiff devoted herself to the defendant’s welfare in matters of health care and made it her business to make sure that he received the best medical attention and treatment. When he was in hospital, she was a constant visitor. The defendant appreciated her care in these respects and readily acknowledged her contribution to his welfare. He, for his part, acted in precisely the same way and with the same devotion when the plaintiff was ill.

79 From some time in 1989 until her death in November 1991, the defendant’s mother lived with the parties at Point Piper. She was old, ill and bed-ridden and needed virtually constant attention and care. The plaintiff played a role in this – again, however, in a context where domestic staff were employed. The defendant says that the plaintiff’s role was small, since nurses were employed in shifts at all relevant times and were with the mother 24 hours a day. One of them, Ms Dunn who lived in at Point Piper during 1991, testified to the affectionate way in which the plaintiff dealt with the defendant’s mother and the reliance the mother placed on the plaintiff. There is also evidence, however (particularly from the defendant and his daughter Corina), that the mother did not like the plaintiff. Whether she liked the plaintiff or not is beside the point. The evidence shows that the plaintiff not only cared for various needs of a sick old lady as part of the household at Point Piper but did so willingly and out of regard for both the defendant and his mother.

80 Although the plaintiff attended to her homemaker role with diligence, her activities in that arena were sometimes the cause of dissension and stress. There is evidence from several sources of a perfectionist attitude that caused domestic staff and visiting tradesmen to be put to unnecessary effort and trouble in doing things again when she did not like them. For example, Mr Rando, an elderly handyman/gardener, spoke of having to move heavy pot plants up and down the same flight of stairs to and from the same spots repeatedly at the plaintiff’s direction.

81 In the later stages of the relationship, there was an episode in which the defendant had to rush home during the day when he received a message indicating that the plaintiff may have harmed herself or intended doing so. Mrs Durotovic, who held a domestic appointment at Point Piper, gave evidence of this and analogous episodes in the period 1997 to 1999. I put little weight on these matters. The plaintiff and the defendant, as a couple, had good times and bad times. That she may have engaged in attention-seeking behaviour on certain occasions does not detract from the proposition that the plaintiff was attentive to the needs and interests of the defendant and of the couple in a way warranting the conclusion that she made appreciable homemaker contributions.

82 One matter of a family or domestic kind assumed undue proportions in the case. It involves the acquisition of a site in Waverley Cemetery for a family vault. The plaintiff says that she located the site, designed the tomb and composed a two-word Latin inscription. Mr Finn, an architect, was retained to design the vault. He says he never had any discussions with the plaintiff about the matter and never took any instructions from her. It is the defendant’s case that he played the major role in this matter. This isolated matter of the tomb is, of itself, insignificant. Whatever the plaintiff did (and my impression is that it was minor) was part and parcel of the domestic support she afforded to the plaintiff.

83 I should make particular comment about another matter. Submissions made on behalf of the defendant emphasised the level of comfort to which the plaintiff was introduced by the defendant and which she enjoyed throughout the de facto relationship – with domestic staff, nurses to care for the defendant’s mother, meals delivered from the hotel and other similar facilities which, for most people, would represent luxuries. (Mr Cox, the airconditioning repairer, says he was usually let into the house by a domestic worker.) I am not persuaded that these matters deserve much weight in assessing the plaintiff’s contributions. A partner who washes up by hand in the sink and goes to the supermarket by bus does not, because of those factors, make a contribution superior to that of a partner who has a dishwasher and orders groceries online for delivery to the home. Domestic or homemaker contribution, in the sense of committed pursuit of the domestic happiness of the other party and the couple, has an intangible quality that does not lend itself to measurement by reference to the relative ease or hardship of the surrounding circumstances. The nature of the kind of homemaker contribution referred to in s.20(1)(b) was described by Cole JA in Green v Robinson (1995) 36 NSWLR 96 at p.119:

“The concept of ‘homemaker’ or ‘making a home’ has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability.”

84 As Clarke JA observed in Black v Black (1991) 15 Fam LR 109 at p.117, a homemaker may perform domestic services “but her contribution to the family unit will usually be infinitely greater than that”.

85 Although, particularly in the later stages of the relationship, there existed dissension and stress to which I have referred, there was, by and large, a significant degree of emotional ambience of stability in the parties’ domestic arrangements. And the plaintiff was obviously a contributor to that.

86 So, too, it must be emphasised, was the defendant. It was his wealth that allowed the employment of domestic staff and the other expenditures on which the parties’ expensive lifestyle depended. He appears to have been unstinting in his financial generosity to the plaintiff and in his financial commitment to the maintenance of the way of life they shared together. He made non-financial contributions as well. I have already mentioned his support for and attention to the plaintiff when she was ill. And just as she was a good hostess, so he was a generous and attentive host at the relatively frequent parties and social events at Point Piper. He was permanently engaged in business activities. He went to his office each day, or, at all events, on all or most working days, after allowing for holidays. He had less time than the plaintiff for domestic and homemaking matters of a direct kind.

Business contributions - introduction

87 It is the contention of the plaintiff that she made non-financial but nevertheless substantial contributions to the defendant’s various businesses. Those contributions are said to have been contributions within s.20(1)(a), that is, “non-financial contributions made directly or indirectly by … [the plaintiff] … to the acquisition, conservation or improvement of … property of … [the defendant] … or to the financial resources of … [the defendant].”

88 The amended statement of claim pleads that the plaintiff performed a number of functions and provided various forms of support and assistance in relation to numerous aspects of the defendant’s business activities. The particular areas in which contributions were made are said to have been the properties on the island of Filicudi in Italy, the Gemini Hotel (where her efforts, as claimed, are substantial), the hotel at Griffith, the Mitre 10 hardware business at Randwick, the development site at Smithfield near Cairns and the related palm plantation and nursery, and the Gemini Industries business. The defendant also operated a travel agency business at the Gemini Hotel for about six years from 1988.

89 It will be necessary to traverse each of the areas of activity separately.

Business contributions - Gemini Hotel

90 The defendant, in his defence, admits that, from the mid 1980’s, the plaintiff began work assisting the defendant to improve the Gemini Hotel at Randwick. This obviously relates to the period after the defendant resumed management following Mr Hofbauer’s departure in about March 1984. The defendant also admits that the plaintiff carried out certain tasks as particularised in the amended statement of claim, but says that she worked at his direction to restore existing customers and contacts that he had established before the intervention of Mr Hofbauer’s management. The areas covered by the admissions are: the selling of rooms to various customers; the employment of staff; reconstruction and redesign of halls and lifts in the lobbies on five floors and the reconstruction and redesigning of interiors of certain areas; negotiating with an airport manager to encourage airlines or travel agencies to resume business with the hotel (but, the defendant says, at his direction); liaising with airline officials as a source of business (although the defendant says that this was for only two or three months and was only a restoration or continuation of something that had pre-dated Mr Hofbauer’s management); offering of inspection visits to managers and staff of private companies and airlines; designing and choosing colours for brochures (albeit, says the defendant, in conjunction with others). The plaintiff’s claim that she personally attended to decorations, including flowers, each week, that she set tables in the banquet rooms, set menus and prepared menu options and pricing packages for potential clients is admitted by the defendant to a minor extent only. He admits that she served food to guests on one occasion because staff had left; that she attended to decorations for two or three days every three or four months up to the mid 1990’s but only very occasionally thereafter; that she set tables once in twelve years; and that she prepared menu options on some occasions but not many.

91 It must thus be accepted that the plaintiff did perform some useful functions in relation to the Gemini Hotel business. She was, after all, the defendant’s employee. The dispute is as to the extent of the plaintiff’s contributions. Each of the several fields of activity needs to be considered.

92 In relation to renovation and refurbishment of the hotel, the plaintiff says in her affidavit in chief that she was “directly involved” in such matters between 1989 and 2001. She refers to various areas that were renovated and refurbished. She says that she prepared detailed drawings and specifications. She says that she started work at 7 am on these matters, that there was no budget and that the defendant would leave expenditure up to her, although she would always get his final approval.

93 In relation to sales, the plaintiff says that she arranged to see the airport manager of Qantas and acquainted him with the fact that the defendant had resumed management of the hotel (although she says this was in 1983, it must have been after March 1984); also that she visited the airport “on an almost daily basis” and had contact with that person and others there. The plaintiff says that she arranged with the airport contacts for guests to be brought to the hotel in its own minibus. She also established and maintained relationships with staff at the airport’s travellers’ information desk to further these connections.

94 Regarding establishment of an “English style club” (or gambling room) within the hotel, the plaintiff says that this was suggested by the defendant and then pursued by her. She converted a storage area for the purpose and arranged decoration. She also arranged for staff members to be taught by a croupier. In early 1985, she arranged what she calls “a grand opening of the club”.

95 Also in about 1985, the plaintiff says, she began organising fashion parades at the hotel for Barbara Leovois who operated a dress shop nearby.

96 The plaintiff says that, in about 1986, she renovated the restaurant. She says that she took plans to the local council and obtained approval of them. She arranged for builders to carry out work. She named the restaurant “Don Turiddu”. She made up menus, conferred with the chef and did other things.

97 In about 1990, the plaintiff says, she prepared design plans to close one of the kitchen doors and to construct an extra wall which improved the appearance of the restaurant. She “again personally attended at the Council and obtained approval for these changes”.

98 The plaintiff gave evidence that she went to Canberra in about 1987 to visit the Minister for Tourism with a view to obtaining some form of Government approval for an Inbound Tour Operation. In the same period, she gathered information from travel agents by way of market research.

99 The defendant takes issue with much of this evidence of the plaintiff. He says that when he took over management in 1984, he employed a manager, Allen Wade, who remained in the position for only a few months. When Mr Wade left, the defendant decided to send the plaintiff to Italy. This was because he needed to give close attention to the business and did not want her in the way. As will be seen in the discussion of the plaintiff’s Filicudi activities, she did go to Italy alone in 1984.

100 The defendant says that the plaintiff assisted for only four to six weeks with promotional work at the airport. As for refurbishment in the period 1989 to 2001, the defendant says that this occurred in 1995 and that the plaintiff assisted only in relation to the design of restructuring of rooms and bathrooms on the fourth floor. He says that some of the work to which the plaintiff refers was never done; also that she started at 7 am on only one or two days. As to budgeting for renovations, the defendant says that he obtained costings from tradespersons. Regarding the scheme for the use of the hotel by airline passengers during the day, the defendant says that he directed her in relation to the re-commencement of that system which had previously applied at the hotel, that is, before Mr Hofbauer’s time. He says that this occurred in 1984 but that the plaintiff was not involved because she was in Italy for most of that year.

101 In relation to the approach to the Tourism Minister and the market research activities, the defendant says that these were undertaken by the plaintiff at his initiative and direction.

102 There is evidence from other witnesses in relation to the matters relied upon by the plaintiff as showing her contribution to the Gemini Hotel business. It is to that evidence that I now turn.

103 Mr McCleary was a consultant to the hotel in the early 1990s and became manager on 17 February 1993. He resigned in December 1995. He testified that the defendant came to the office most days, usually accompanied by the plaintiff. While the defendant took a close interest in the business and often spoke to Mr McCleary about operations and marketing, the plaintiff had no direct involvement in the operation of the hotel. She was, however, involved in renovations which were nearing completion when Mr McCleary started. Mr Nava was, from about 1988 to 1994, the manager of the travel agency that operated within the Gemini Hotel. He did not see the plaintiff there on a daily basis; only perhaps three or four times a week.

104 Mr Taranto was the marketing manager of the hotel from January 1995 to October 1997. He worked for the first year of this period with Mr McCleary and was not aware of any involvement by the plaintiff in the business. For the whole of the period, he reported to the defendant. At a later point, the plaintiff began to take an interest in marketing, which was Mr Taranto’s responsibility. She did not discuss with him any specific role or what their working relationship and respective responsibilities were to be. Nor did the defendant discuss with him any role that the plaintiff was to have in marketing. Mr Taranto found the plaintiff’s efforts unhelpful. He says that she was disorganised, erratic and intrusive and that, as it seemed to him, she had no real knowledge of what she was doing. She did not follow through with initiatives of her own. The plaintiff called a staff meeting at which she raised marketing matters in a way Mr Taranto considered critical of him. He wanted to speak to the defendant about his concerns but the defendant was away. He spoke instead to Steven Paino, who offered him a position at the Griffith hotel which he accepted.

105 Mr Aloe did joinery work at the hotel at various times. He dealt mainly with the plaintiff. He saw her draw sketches of what was to be done. He discussed her ideas with her. In cross-examination, he said he understood the defendant to be “the boss” and it was the defendant who was to approve the work and the pricing; also that he was aware of discussions between the plaintiff and the defendant as to what was to be done. Mr Bonanno did carpentry work at the hotel. He saw the plaintiff make sketches of work to be done but noticed that she discussed her ideas with the defendant. Mr Fazio (plasterboard installer), Mr Pacetta (plasterer) and Mr Smith (blinds and drapes) gave evidence of the plaintiff having given them instructions in relation to work at the hotel. Mr Tonetto (who supplied tiles) said he dealt with the plaintiff and the defendant on an equal basis but it was normally the plaintiff who chose colours and designs. Mr Dinsdale, a builder, received sketches from the plaintiff but obtained confirmatory instructions from the defendant. Mr Rando, the hotel bus driver (who also did handyman work at Point Piper), saw the plaintiff directing tradesmen in relation to renovation work in 1998.

106 Mr Cipolla testified that the plaintiff bought lights and lampshades for the hotel from his shop. Mr Eishou gave like evidence about picture framing, as did Ms Joseph in relation to flowers.

107 Mr Hunt, a carpenter and joiner, did renovation work on the function rooms at the hotel in 1998. He met first with the plaintiff who took him around the relevant area and described what was needed. He prepared an estimate and a timetable which he gave to the plaintiff, who said that she would speak to the defendant and get back to him. She later told him that the defendant was happy with the quote. Work then began. He met with the plaintiff almost daily to discuss the job. She frequently asked for variations and additions. She required some parts of the work to be done again several times. Her requirements, says Mr Hunt, caused a relatively small and straightforward job to be significantly extended in both time and cost at every stage.

108 Mr Ingrisano, a painter, also spoke of the plaintiff frequently changing her mind in relation to work at the hotel. He says the defendant said to him, “For the sake of peace, please do what Angela is asking”.

109 Mr Loudjani, food and beverage manager at the hotel, refers to renovation work during the second period of his employment between June 1996 and April 1999. He observed the plaintiff, the defendant and both of them together talking with tradesmen. In late 1996 when there was renovation of the restaurant’s kitchen, he dealt solely with the defendant. They went together to buy the appliances and Mr Loudjani organised the tradesmen and arranged the fit-out.

110 Mr Ozdirik was retained to re-design the reception area and a small staff area in early 1997. The plaintiff showed him the areas but he took instructions throughout mainly from the defendant and, to a minor extent only from the plaintiff. On only one of four other occasions on which Mr Ozdirik was retained to do work did the plaintiff give him any instructions. On the three other occasions, he was given instructions by the defendant. In all matters, the defendant had the final say.

111 Mr Hage, head receptionist, from early 1985 to early 1986, saw the plaintiff setting up the function room, arranging tables, arranging flowers, hanging decorations and organising staff. He recalls her having participated in setting up the gaming club.

112 Mr Lauricella worked at the hotel as a part-time handyman from about 1994 to 1997. He saw the plaintiff directing employees on what to do and how to do it. Ms Markantonatos, another hotel employee, gave similar evidence.

113 Ms Winchester was a receptionist for about ten months in 1984-85. She was restaurant manager for eight months in 1999. She saw the plaintiff involved in arranging a Christmas party and, in the later period, worked with the plaintiff arranging menus.

114 Mr Cogan worked as the hotel manager from about September 1985 to May 1987. The plaintiff was introduced to him as the defendant’s “secretary and girlfriend”. He did not see her do much secretarial work. Nor does he recall her attending staff meetings. He does recall her involvement in the design of new staff uniforms which were phased out after a few months of use. (Ms Langen testified that the uniforms were uncomfortable and impractical.) Mr Cogan saw the defendant working at the hotel from 9 am to 5 pm or 6 pm daily.

115 Ms Constanti was employed by the hotel as a sales representative from 1990 to 1992. She rejoined in 1997. She had been aware of the hotel’s airport transfer system from 1984 when she began working as a travel consultant with East West Airlines. During her first period of employment, her office was next door to the offices of the plaintiff and the defendant but she saw the plaintiff at the hotel only about once a week on average and never saw her do any work. During her second period of employment, she saw the plaintiff in an office at the hotel for a maximum of about one hour a day or, as she put it in cross-examination, “a couple of hours on a daily basis two or three times a week”. She was required to take the plaintiff shopping at Leichhardt and Double Bay.

The position after termination

167 I have found that the de facto relationship ended in January 2001. At that point, the plaintiff’s contributions ceased: they were exclusively non-financial contributions produced by her personal exertion. As regards relevant property, however, the defendant’s contributions did not cease and continued until trial. The various businesses owned by the defendant to the exclusion of the plaintiff continued to be conducted, particularly the Gemini Hotel, the Mitre 10 store, Gemini Industries, the palm nursery and, until 2003, the Griffith hotel. It is not as if any of these was in the nature of a passive investment such as a piece of property the value of which would vary solely according to market forces and regardless of work and attention by way of a concentrated and organised human input. And that input has, since termination of the de facto relationship, come exclusively from (or been procured exclusively by) the defendant. The Point Piper house and the undeveloped Smithfield land (also owned by the defendant to the exclusion of the plaintiff) stand in a different light: they, from a value perspective, do not entail continuing human effort and will have appreciated (or, less likely, declined) in accordance with generally prevailing market conditions only.

168 The factors I have just mentioned regarding on-going input by the defendant - coupled with evidence about other matters of post-termination contribution by the defendant – form the basis for the submission on behalf of the defendant that the s.20 question, as it relates to property, should be answered by reference to values at the time of the end of the de facto relationship. The plaintiff acknowledges that, since that termination, she has made no relevant contributions. The defendant, on the other hand, has provided, since commencement of the proceedings in November 2001, amounts of $164,221.58, $65,000.00, $2,750.00 and $59,133.05 for legal expenses incurred by the plaintiff, $97,433.84 towards accountants’ fees and $55,000.00 towards valuers’ fees – a total of $388,538.47. The defendant has also given the plaintiff the use of a Mercedes Benz car and paid $15,340.00 on motor vehicle expenses (the defendant’s claim to have spent an additional $24,147.31 on such expenses is not admitted by the plaintiff). Furthermore, the defendant had, at the time of trial, paid the plaintiff $275,100.00 by way of weekly payments. These were made voluntarily until February 2002 and thereafter pursuant to orders made by the court. All the post-termination items just mentioned to which specific figures attach account for $733,978.47. Also, from termination of the relationship until about February 2002, the defendant provided the plaintiff with rent-free accommodation at the Gemini Hotel and the Point Piper home.

The appropriate valuation date

169 Bearing in mind the post-termination matters just mentioned, I return to the question of the appropriate end date for the valuation of property.

170 As was stated by the Court of Appeal in Kardos v Sarbutt (see paragraphs [60] and [61] above), the preferable approach is generally to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial. But as the Court of Appeal also recognised, the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing property.

171 In Parker v Parker (1993) 16 Fam LR 863 at p.874, Young J gave three examples of factors which might militate against identification and valuation at the date of trial and in favour of recognition of the position at the date of separation. These are, first, “where a party had won the lottery between separation and hearing”; second, where the parties had agreed to adjust their interests as at the date of separation; and, third, where there has been a deliberate wasting of assets after separation. In Kelly v Clarke [2001] NSWSC 1010, Hamilton J chose the date of separation which was close to the point at which the parties had reached an agreement regarding property.

172 In the present case, the parties reached an interim agreement which saw the plaintiff receive, after separation, the use of the serviced car and the weekly payments for her living expenses and maintenance. Following separation, therefore, the parties themselves put in place financial arrangements to cover matters pending resolution of the plaintiff’s claim. That, to my mind, is an indicator in favour of the date of separation as the date for identifying and valuing property. There is the further consideration that, in relation to the defendant’s businesses (as well as the upkeep and maintenance of the Point Piper and Smithfield properties), all inputs have been by the defendant alone – there having been, during the relationship, only minimal inputs by the plaintiff into those assets as such. As I have said, the situation is certainly not one where passive accretion can be said to have been the main factor at work since separation.

173 While these factors tend to support the appropriateness of the date of separation as the date for valuation, there is, in my view, a stronger case for adherence to the generally accepted approach which has regard to values at the date of trial. The present case is not one in which the parties have themselves adopted some form of consensual cut-off as at the time of separation. Nor has there been any obvious windfall of a potentially distorting nature, so far as the pool of property is concerned. Rather, the pool of property as it existed at the date of separation (being exclusively property of the defendant) has continued to grow through a combination of effort and natural economic forces, with the effort, since separation, being exclusively that of the defendant. These factors, to my mind, make it appropriate to adopt the generally accepted approach of valuation at the date of trial, although with recognition of the fact that the plaintiff has made no contributions since separation and that the defendant has made financial contributions to the plaintiff’s financial upkeep since separation.

174 Whichever approach is adopted, there will be a gap regarding the Filicudi properties. This is because there is no agreed value of those properties as at either the end of the relationship or the time of trial; nor is there evidence from which such value can be determined by the court. As regards the parties’ agreements as to value, there is also a gap in relation to the Smithfield property as at the date of trial. But in that instance, the court does have before it evidence on which a decision on value can be made.

The Filicudi properties

175 It is clear that the defendant owned properties on Filicudi at the commencement of the relationship, at its end and at the date of trial. The defendant, in his affidavit, gives details of various properties and their acquisition. I do not, however, have any evidence of the value of the Filicudi properties. The plaintiff wished to tender valuation evidence and was afforded a special opportunity to do so; but she was unsuccessful in her attempt: see Paino v Paino [2005] NSWSC 1313; Paino v Paino [2005] NSWSC 1336. The defendant thereafter did not seek to tender any evidence of the value of the Filicudi properties.

176 In the course of argument on the admissibility of valuation evidence the plaintiff sought to tender, it was suggested that the defendant had, in this respect, failed in the discharge of the duty of frank disclosure of assets that applies in proceedings of this kind: White v White [2004] NSWSC 208; Wilson v Vine [2003] NSWSC 341; Parks v Thompson (1997) DFC

95-182; cf Livesey v Jenkins [1985] AC 424. But no such suggestion was ever put to the defendant in cross-examination. Nor, as I see things, can a failure of someone in the present defendant’s position to give evidence of the value of property (as distinct from its existence and ownership) amount to a failure to discharge the duty of disclosure. People can reasonably be expected to know what they own. That is in the realm of fact. They cannot reasonably be expected to know the value of each item they own (a matter of expert opinion), so if there is no agreement, the question of value must be determined by the court in the usual way, that is, by reference to evidence properly adduced and admitted. In the present case, there is no such evidence about the value of the Filicudi properties and the court can come to no concluded view about the value of them.

177 In these circumstances, there is no alternative but to leave the Filicudi properties out of account in the valuation tasks that the court must undertake.

The Smithfield property

178 The parties have agreed the values of the Smithfield property and the palm nursery as at the commencement of the relationship and its end. There is also agreement of the value of the nursery, but not the Smithfield property, as at the date of trial. It is to the question of the value of the Smithfield property at the date of trial that I now turn.

179 Valuation evidence with respect to the Smithfield property was given in the plaintiff’s case by Mr Quinn of Heron Todd White, Cairns. Mr Quinn’s report expresses an opinion as to value at 10 June 2005. Applying a valuation of $350,000 per hectare to 30.66 hectares, Mr Quinn ascribes a value of $10,750,000 to the Smithfield land. The valuer called by the defendant was Mr Eales of Collins & Eales, Townsville. Mr Eales expresses an opinion as to value at 12 June 2005. Applying a figure of $200,000 per hectare to 8.46 hectares and a figure of $240,000 per hectare to 22.199 hectares, Mr Eales is of the opinion that the land had, on that date, a value of $7,150,000.

180 Mr Quinn had previously prepared a report as at 3 March 2004. That report referred to a value of $5,365,000. The factor of particular importance in his decision as at June 2005 that the value had doubled in a little over a year was a then recently exchanged contract for the sale and purchases of adjoining land (which was referred to in cross-examination as “the contract land”).

181 Both valuers were cross-examined. Before turning to the cross-examination, I should record some uncontentious matters about the land.

182 The land has frontages to two roads: Captain Cook Highway, which is the main road north from Cairns to Mossman and beyond; and McGregor Road which runs towards the coast at right angles to the highway. The land is on the eastern side of the highway and the southern side of McGregor Road. The site of a proposed new road (being land the subject of the resumption that gave rise to the court proceedings already mentioned) runs across the land from the junction of the two roads in a south easterly direction. This cuts the land into two distinct areas. One of these, fronting the highway, has a commercial zoning. The other, which is larger and has a frontage to McGregor Road, has a residential zoning. These are the two distinct areas separately treated in Mr Eales’ valuation.

183 In the course of cross-examination, Mr Quinn referred to information recently to hand from the Main Roads Department as to the existence of plans to build a link road underpass to service the commercial zoned area. There is also to be an overpass. He accepted that if they eventuate, these will adversely affect the value of the land, adding, however, that it is a ten or twenty year plan. There will be an adverse visual and noise effect from the perspective of that part of the land.

184 Mr Quinn accepted in cross-examination that the land, at its western frontage, is below the level of the highway and slopes towards the resumed site. The slope continues to two creeks within the property. He agreed that the land is well drained and free from flooding except along the creek.

185 Mr Quinn also accepted that the larger of the two parcels is zoned Residential 3 (allowing high density residential development). He conceded that none of the sales he had treated as comparable sales related to Residential 3 land, there being no other land so zoned in the northern satellite dormitory of Cairns. He agreed that it would not be appropriate to develop the site wholly with high density development of the Residential 3 type, even though to do so would be theoretically permissible; also that less concentrated development would require rezoning to Residential 1 or Residential 2 or a mixture of both, a combination of areas of the three zonings being the highest and best potential use. (Residential 1 permits a density of 70 persons per hectare, Residential 2 permits 100 persons per hectare and Residential 3 permits 400 persons per hectare.)

186 When taken to the allegedly comparable sale of the “contract land” (“Comparable Sale 1” in his report), Mr Quinn accepted that the two sites differed in that a development approval attached to the contract land but none attached to the subject land; that the grant of an operational works permit was imminent for the contract land but not for the subject land; that obtaining of such a permit and development approval for the subject land could be expected to take some twelve months and perhaps 24 months; that such a two year delay would indicate a reduction in value of 12 percent to 15 percent; that the subject land was almost eleven hectares smaller than the contract land; that the zoning of the contract land was “quite different” (being Residential 1, Residential 2, partly Residential 3 and Commercial); that the part of the contract land with Commercial zoning was smaller; that a buyer of the contract land would have compensation rights because of road resumption affectation whereas such rights have been realised and exhausted in respect of the subject land; that, as regards the commercial section of the contract land, there is uncertainty about aspects of available development in the light of further road works; that the creeks on the subject land and the potential for flooding represent a constraint to which the contract land is not subject; and that the subject land, but not the contract land, will require a sound buffer near the roadway.

187 Mr Quinn accepted that his valuation made no allowance for loss of usable land in future by reason of the creeks, buffering and a future public transport corridor.

188 Mr Quinn further accepted that existing high density residential developments of the Residential 3 kind are near the beach, whereas the subject land is at quite some distance from the beach. He estimated the distance at five or six kilometres. The existing Residential 3 developments are, he estimated, within one kilometre of the beach. Some Residential 3 land closer to the beach is being rezoned, at owners’ request, as Residential 1 and Residential 2, to his knowledge.

189 At page 783 line 36 to page 784 line 27 of the transcript and again at page 786 line 39 to page 788 line 29, Mr Quinn conceded material differences between the subject land and other parcels (over and above the contract land) he had treated as comparable. Also, his valuation does not differentiate between the residential and commercial segments of the subject land.

190 Mr Eales, the defendant’s valuation witness, gave brief oral evidence in chief, by leave. I quote part of it irrelevant to the impact of the creeks:

“Q. (BY LEAVE) Having done that, are there any constraints on the development of the land caused by the position of the creeks on the subject land?
A. Yes.

Q. What are they?
A. The physical constraint is by a drainage channel that runs under the Captain Cook Highway on its frontage of the triangular piece. It is approximately towards the bottom section of the southern section of the parcel, and runs as a straight line down to the drainage path which eventually crosses into the south eastern corner of the subject land.

Q. And what would that result in?
A. The drainage path, it's a confined channel that has been dug accommodating a water draining gully, I assume. It is 2 to 3 metres deep. It is approximately 3 to 5 metres, in places up to 5 metres wide, and obviously takes the run-off from the residential land and other lands to the west of the Captain Cook Highway under a set of culverts which are underneath the roadway at that point.

191 Dealing with the particularly alleged comparable sale (of the contract land) on which Mr Quinn was extensively cross-examined, Mr Eales said in cross-examination:

“A. If I can answer this way, there are no two parcels that are absolutely comparable. In a sense, out of all the evidence, this is the most comparable sale. However, there are significant differences between the two which I have outlined in my valuation report. One of them is that there's a drainage channel on this land as opposed to a lesser drainage channel on the comparable site. So, in that sense, and then when developing the land, there are some constraints due to what is called commercial land, that wouldn't be necessarily a constraint on the sale land.”

192 Mr Eales also said that the impact of noise buffering on the supposedly comparable land would be greater than on the subject land because the subject land was to have bypasses.

193 Mr Eales fundamental departure from Mr Quinn is that he does not accept that there would be demand to support development of the density upon which Mr Quinn’s opinions are based. Full utilisation of the Residential 3 zoning would involve 3,000 home units. Mr Eales does not see that demand as supported by the Cairns population trends. The highest and best use is accordingly a mix of Residential 1, Residential 2 and Residential 3.

194 Having regard to the whole of the valuation evidence including, in particular, the point about demand emphasised by Mr Eales and the several demonstrated discrepancies between the subject land and the adjoining comparable sale land upon which Mr Quinn put particular emphasis in reaching his revised valuation, I am of the opinion that Mr Eales’ opinion provides a more reliable indicator of the value of the Smithfield land than does Mr Quinn’s. I therefore accept $7,150,000 as the value of the Smithfield land at the date of the hearing.

Conclusions as to value at the date of trial

195 As I have already said, the plaintiff’s separate property is accepted as having had no appreciable value at any relevant time. Nor is there any jointly owned property. Enquiries as to property and its value are therefore confined to the defendant’s property.

196 At the commencement of the de facto relationship, the defendant’s property must be taken to have had a value of $15,123,368, being the agreed total of $15,378,368 at paragraph [66] above, less the agreed realisation costs of $255,000 there mentioned. For reasons explained at paragraph [177], no component can be taken into account for the Filicudi properties.

197 The corresponding value figure at the end of the parties’ relationship is $18,664,819 (see paragraph [69] above), again taking no account of any value for the Filicudi properties. On the approach outlined at paragraph [173] above, however, values at the end of the relationship will play no direct part in the result.

198 At the date of trial, the value of the defendant’s property must be taken to have been the aggregate of the agreed $33,346,000 referred to at paragraph [70] above and the $7,150,000 attributed to the Smithfield land by Mr Eales’ valuation (see paragraph [194] above), less the aggregate of the agreed realisation costs of $814,500 (paragraph [70] above) and the agreed liabilities of $10,606,380 (paragraph [72] above) – a final figure of $29,075,120. In this case also, the Filicudi properties are excluded.

Assessment of contributions

199 As is emphasised in the judgment of Campbell J in Sullman v Sullman [2002] NSWSC 169 at [246], s.20(1)(a) requires account to be taken of the contributions of both the parties to the acquisition, conservation or improvement of property and financial resources. In the present case, the contributions of this kind were virtually confined to those of the defendant. He was the successful businessman who, at the commencement of the relationship, had assets (apart from the Filicudi properties) of more than $15 million, being a home valued at $6.25 million and business assets with a value of some $9 million. During the relationship, the defendant continued to operate his businesses and to expand his business interests. The capital he deployed and the personal exertion he expended in planning, managing and supervising were the dual forces that enhanced business value both before and after the commencement of the relationship. The plaintiff made no financial contribution. She can be said to have made some very minor non-financial contribution to the improvement of the Gemini Hotel business but otherwise made negligible non-financial contributions to the acquisition, conservation or improvement of the defendant’s business assets and other property. Although she interested herself in some aspects of the business, she did so in a way that really involved no more than personal support for the defendant as her domestic partner.

200 In relation to the Point Piper home, it was the defendant who provided financial inputs both before and after the commencement of the parties’ relationship. The financial contributions to the conservation and improvement of that property came from him alone. Both parties made non-financial contributions to the home life, but I do not regard the plaintiff as having contributed to the conservation and improvement of the building and contents as physical items. She did devote time and effort to matters of decoration and upkeep at times when the defendant was involved in business matters but that, in my view, is relevant under s.20(1)(b) rather than s.20(1)(a).

201 The only area in which the plaintiff made relevant contributions of any significance is that comprehended by s.20(1)(b). She made appreciable non-financial contributions to both the domestic unit constituted by the defendant and herself (and thereby to the welfare of the defendant) and directly and separately to the welfare of the defendant, including by way of providing him with personal support in matters of business. But the defendant likewise made appreciable non-financial contributions – as well as very significant financial contributions – to the domestic unit (and thereby to the welfare of the plaintiff) and directly and separately to the welfare of the plaintiff.

202 Looking at property and the s.20(1)(a) inquiry, the only element of adjustment in favour of the plaintiff I would consider to be just and equitable is a very small proportion of the increase in the value of the Gemini Hotel. Having regard to the findings at paragraphs [119] to [121] above and the fact the successful and profitable operation of the hotel business was overwhelmingly the achievement of the defendant, I would regard, say, two per cent of the accretion in value as attributable to the plaintiff’s contribution.

203 As to the homemaker and domestic (or personal welfare) aspects within s.20(1)(b), the defendant’s contributions considerably outweighed those of the plaintiff. It was his pre-existing wealth and his willingness to be generous to the point of lavishness in the expenditure of his fortune that was the main factor in the maintenance of the way of life the parties enjoyed. All s.20(1)(b) contributions of a direct financial kind came from the defendant. It was he who provided the large and well-appointed home, the extensive home comforts, the holidays and the amenities generally that the parties enjoyed in material terms. As for the intangibles of mutual support, comfort and assistance, I am of the opinion that, subject to one qualification, each party contributed to generally the same extent as the other.

204 As regards the intangibles, the plaintiff spent more time than the defendant in actually attending to domestic, household and lifestyle matters. This raises an issue that can be of significance in cases of this kind. The valuation of contributions under s.20 may take account of the cost of each contribution to the person making it. In Howlett v Neilson (above), there is, in relation to s.20(1)(b) contributions, reference at paragraph [36] of Hodgson JA’s judgment to the hypothetical example of a woman who spends ten years as a homemaker rather than in developing skills and advancing a career. The cost to the woman in terms of loss of opportunity for development of skills and advancement of a carer is then a factor to be taken into account in valuation contributions.

205 The factor I have just mentioned is relevant to the plaintiff’s case. She was, at the beginning of the relationship, someone with secretarial skills. Had she not committed herself to the relationship, she may, over the twelve year period, have undertaken education or training and, by those means or simply by experience in employment, have acquired greater and higher level skills. There is, of course, no evidence that she would or could have done so. But the potentiality is, I accept, an intangible to be taken into account in valuation.

206 In relation to s.20(1)(b) contributions, the direct financial inputs by the defendant are the predominant element. There is no ultimately reliable way of quantifying them but, given the very high quality of life the parties enjoyed and the extent of the material comforts provided by the defendant alone, I am of the opinion that the direct financial elements substantially outweighed the intangible elements of emotional support and application of time and effort in homemaking and the like. I would put the material financial elements at 75% of the total. It is to the remaining 25% that both parties contributed in the way I have described, with the plaintiff’s contribution slightly outweighing the defendant’s because of the cost factor suffered by her. That division should, I think, be regarded as 55% to the plaintiff and 45% to the defendant. In overall terms, therefore, the s.20(1)(b) contributions should be regarded as provided as to 86.25% (that is, 75% plus 45% of 25%) by the defendant and 13.75% (that is 55% of 25%) by the plaintiff.

What order is just and equitable?

207 The parties shared a relationship of slightly more than twelve years. The net value of the pool of property, so far as it can be ascertained by the court, increased from $15,123,368 at commencement of the relationship to $29,075,120 at the date of trial (an increase of $13,951,752).

208 It is just and equitable that the plaintiff’s wholly non-financial contributions – being a very modest s.20(1)(a) contribution in relation to the Gemini Hotel business and more significant s.20(1)(b) contributions – be recognised by an order that transfers to her some part of that accretion in value. Except as regards the Gemini Hotel, the case is not one that warrants any item by item approach. This is because the contributions of the plaintiff were otherwise welfare contributions unrelated to particular assets and referable to her support of the defendant in the undissected combination of his personal, domestic and business welfare.

209 Making the kind of “holistic value judgment” to which reference was made most recently in Kardos v Sarbutt (see paragraph [57] above), I am of the opinion that the plaintiff should be awarded an appropriate proportion of the $13,951,752 increase. In view of what is said at paragraph [206] above, I regard the appropriate proportion as 13.75% across the board – that is, 13.75% of the increase in value of the whole of the property pool owned solely by the defendant. Applied to the increment of $13,951,752 between the commencement of the relationship and the date of trial, the 13.75% factor produces a sum of $1,918,365.90.

210 In addition to this sum of $1,918,365.90, the plaintiff should, in accordance with the finding at paragraph [204] above, be awarded two per cent of the increase in the value of the Gemini Hotel business over the period from commencement of the relationship to the time of trial – that is, the increase from $2,607,000 (being $2,749,000 less realisation costs of $142,000 – see paragraph [66] above) to $9,017,500 (being $9,299,000 less realisation costs of $281,500 – see paragraph [70] above). That increase being $6,410,500, the two per cent factor to be included in the award to the plaintiff is $128,210. The aggregate award to the plaintiff should therefore be $2,046,575.90.

211 I have considered whether there should be an adjustment to the aggregate award of $2,046,575.90 to take account of the fact that the trial began in June 2005 and the agreements as to value (as well as the valuations of the Smithfield land) were as at June 2005, but the trial did not end until 15 December 2005. The prolonged period to conclusion was attributable to the fact that the plaintiff was given an opportunity to adduce evidence of the value of the Filicudi properties. The delay was of the plaintiff’s making. I therefore consider it inappropriate that the sum of $2,046,575.90 be increased by any interest factor covering the period since the trial.

212 It may also be thought that there is a question whether there should be an adjustment for the defendant’s post-termination contributions by way of weekly maintenance payments, provision of a motor vehicle and the meeting of motor vehicle expenses plus, in the earlier post-separation phase, provision of housing and accommodation. I should record, however, that, with property valued at the date of trial, I have regarded those aspects as forming part of the defendant’s financial contributions of the s.20(1)(b) kind in striking the figure of 75% at paragraph [206] above. No such adjustment is accordingly required, at least for payments up to the date of trial (for these purposes, June 2005). Payments thereafter should, however, be brought to account (together with interest at Supreme Court rates) by way of deduction from the award of $2,046,575.90.

213 At this stage, I exclude from what I have said in the immediately preceding paragraph sums outlaid by the defendant to assist the plaintiff with legal fees and outgoings directly related to these proceedings (including accountancy fees and valuation fees). This is because I regard these as relevant to the costs of the proceedings, being a matter on which submissions will be required.

Disposition

214 I shall hear the parties as to the precise order that should be made to give effect to these reasons and on the question of costs.

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Citations

Paino v Paino [2006] NSWSC 218

Most Recent Citation

Cases Citing This Decision

6

Paino v Paino [2008] NSWCA 276

Hayes v Marquis [2008] NSWCA 10

Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692

Cases Cited

16

Statutory Material Cited

1

Chanter v Catts [2005] NSWCA 411

Kardos v Sarbutt [2006] NSWCA 11

R v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32

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CITATION:	Paino v Paino [2006] NSWSC 218
HEARING DATE(S):	07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 01/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05, 14/12/05
JUDGMENT DATE :	5 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Defendant to pay plaintiff $2,046,575.90 subject to adjustment
CATCHWORDS:	FAMILY LAW - de facto relationships - application by one party for orders adjusting property interests - determination of when relationship began - determination of when relationship ended - determination of dates at which property to be valued - all property owned by defendant - values at various dates agreed - no agreement as to value of land in Queensland - consideration of different views of valuers called by the parties - no agreement as to value of land in Italy - no evidence from which court can decide value of land in Italy - such land left out of account - consideration of parties' respective welfare/homemaker contributions - consideration of plaintiff's claims to have made significant non-financial contribuitions to various businesses owned and operated by defendant - assessment of contributions - decision of what is just and equitable according to holistic value judgment
LEGISLATION CITED:	Property (Relationships) Act 1984, ss.4, 5(1), 15(1), 17(1), 18(1), 18(2), 20
CASES CITED:	Black v Black (1991) 15 Fam LR 109 Chanter v Catts [2005] NSWCA 411 Dwyer v Kaljo (1987) 11 Fam LR 785 Evans v Marmont (1997) 42 NSWLR 70 Green v Robinson (1995) 36 NSWLR 96 Howlett v Neilson (2005) 33 Fam LR 402 Jones v Grech (2001) 27 Fam LR 711 Kardos v Sarbutt [2006] NSWCA 11 Kelly v Clarke [2001] NSWSC 1010 Livesey v Jenkins [1985] AC 424 Paino v Paino [2005] NSWSC 1313 Paino v Paino [2005] NSWSC 1336 Parker v Parker (1993) 16 Fam LR 863 Parks v Thompson (1997) DFC 95-1 Powell v Supresencia (2003) 30 Fam LR 463 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Sullman v Sullman [2002] NSWSC 169 Wallace v Stanford (1995) 37 NSWLR 1 White v White [2004] NSWSC 208 Wilson v Vine [2003] NSWSC 341
PARTIES:	Angela Paino - Plaintiff Salvatore Paino - Defendant
FILE NUMBER(S):	SC 5612/01
COUNSEL:	Mr I.G. Harrison SC/ Mrs M.T. Bridger - Plaintiff Mr P. Hallen SC/Mr J.J. Millar - Defendant
SOLICITORS:	Kells The Lawyers - Plaintiff Meyer Pigdon - Defendant