Parsons v Storm

[2009] NSWCA 288

New South Wales

Court of Appeal

CITATION:	Parsons v Storm [2009] NSWCA 288
HEARING DATE(S):	25 August 2009
JUDGMENT DATE:	16 September 2009
JUDGMENT OF:	Giles JA at 1; Tobias JA at 53; Macfarlan JA at 54
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	De facto relationship - claim under Property (Relationships) Act 1984 for adjustment of interests after relationship ceased - equality as at cessation - jointly held land - thereafter both parties acquired land in part using resources from their jointly held land - one party realised capital profit - other party's land increased in value - judge held no injustice or inequity calling for adjustment of interests - no error in exercise of discretion - cross-claim for half proceeds of sale of jointly held land therefore succeeded - whether interest on relevant amount properly included in judgment - again no error in exercise of discretion.
CASES CITED:	Davey v Lee (1990) 13 Fam LR 688; House v The King (1936) 55 CLR 499; Kardos v Sarbutt [2006] NSWCA 11; (2006) Fam LR 550; Manns v Kennedy [2007] NSWCA 217; Ross v Elderfield [2006] NSWCA 192.
PARTIES:	Christopher Leo Parsons - Appellant Ann Louise Storm - Respondent
FILE NUMBER(S):	CA 40120/09
COUNSEL:	P G Maiden SC & A D B Fox - Appellant M J Watts - Respondent
SOLICITORS:	Blanchfield Nicholls Partners - Appellant Mark Ireland Lawyers, Bathurst - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 1027/06
LOWER COURT JUDICIAL OFFICER:	Palmer J
LOWER COURT DATE OF DECISION:	12 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Parsons v Storm [2009] NSWSC 166

CA 40120/09
SC 1027/06

GILES JA
TOBIAS JA
MACFARLAN JA

Wednesday 16 September 2009

PARSONS v STORM

Judgment

1 GILES JA: The appellant and the respondent were in a de facto relationship from May 1995 to January 2000. They brought to their relationship assets of about equal value. They were both employed and had about the same income. They contributed equally to their living expenses. After the relationship began they purchased as joint tenants a property at Botany (“the Botany property”) for $435,000, in which they lived. They borrowed jointly on mortgage to finance the purchase, and by the time the relationship came to an end they had contributed equally to the mortgage repayments and other expenses relating to the Botany property.

2 The appellant claimed an adjustment of interests in property pursuant to s 20 of the Property (Relationships) Act 1984 (“the Act”). The respondent cross-claimed in substance to recover the value of her half-share in the Botany property. The proceedings were principally concerned with what happened after the relationship ended.

Events after the relationship ended

3 In January 2000 the respondent accepted an offer of employment in Melbourne. She vacated the Botany property and left Sydney. The appellant remained in occupation of the Botany property, part of which was rented out, until it was later sold.

4 In February 2000 the respondent entered into a contract to purchase a property at Mont Albert (“the Melbourne property”) for $373,000. A net amount of $26,800 was taken by her from joint loan accounts and used for the deposit on the purchase. The balance of the purchase price was borrowed by the respondent on the security of the Melbourne property, and in small part obtained elsewhere. The purchase was completed in April 2000.

5 There were discussions between the parties towards division of their property. They included discussions in relation to the Botany property, with a view to the appellant purchasing the respondent’s half share in the property. That did not happen.

6 In June 2000 the original borrowing to purchase the Botany property was re-financed and further funds were borrowed on the security of the property. There was a joint borrowing of $320,000 and a borrowing by the appellant of $130,000 guaranteed by the respondent. From the total sum of $450,000 the original borrowing, then standing at approximately $141,000, was repaid; the joint loan accounts, then standing at approximately $56,000, were repaid and the accounts were put approximately $60,000 in credit; and $190,000 was paid to the respondent. She used the $190,000 to reduce the borrowing for the purchase of the Melbourne property.

7 The appellant made the mortgage repayments, but in part from the joint loan accounts into which he paid rent received from the Botany property and money of his own. The respondent also withdrew money from and deposited money to the joint loan account, over time a net withdrawal of about $35,000.

8 In July 2002 contracts were exchanged for the sale of the Botany property for $1,210,000.

9 In October 2002 the appellant purchased a property at Vacy (“the Vacy property”) for $245,000. The deposit of $62,500 paid on the sale of the Botany property was released to him and used towards the purchase. The appellant borrowed $255,000 on the security of the Vacy property and a second mortgage of the Botany property, the borrowing also being guaranteed by the respondent. The money was used to pay the balance of the purchase price and expenses, with approximately $31,000 left over and paid to the appellant.

10 In May 2003 the sale of the Botany property was completed. The proceeds of sale were used to pay off the refinanced borrowings of $320,000 and $130,000, then standing at approximately $283,000 and $121,000; to pay off the joint loan accounts, then standing at approximately $10,000; and to pay off the appellant’s borrowing secured on the Vacy property, then standing at approximately $256,000. $250,000 was paid to the appellant. A balance of the proceeds of sale of $228,337 was held in the trust account of the solicitors acting for the parties on the sale.

11 There was soon dispute over the parties’ entitlements to the balance of the proceeds of sale of the Botany property.

12 The appellant maintained that an informal agreement had been reached in the discussions in 2000, to the effect that he would purchase the respondent’s half share in the Botany property for $260,000 (being a little more than half the equity in the property according to a valuation obtained at that time). He maintained that the respondent had been paid or had received more than this sum (although in the proceedings the relevant amount was about $251,000), and that he was entitled to the whole of the balance of the proceeds of sale.

13 The respondent denied that the agreement had been made. She claimed that she retained a half share in the Botany property and that, allowing for an accounting between the parties of the various financial dealings since the relationship ended, she was entitled to the balance of the proceeds of sale and payment of a further amount to her by the appellant.

14 In the result, after payment of some expenses of the sale $197,817.51 was paid into a controlled moneys account (“the fund”) pending resolution of the dispute. There were negotiations to resolve the dispute over some time, but without success.

15 In August 2003 the respondent sold the Melbourne property for $500,000. The appellant retained the Vacy property, and still owned it at the date of the hearing. In an amended statement of claim filed in June 2008, verified on oath, he alleged that its then value was $450,000.

The proceedings

16 In January 2006 the appellant brought proceedings against the respondent claiming, by way of adjustment of interests in property pursuant to s 20 of the Act, orders whereby the fund would be paid to him and otherwise the parties would remain possessed of and responsible for their respective assets and liabilities.

17 The respondent cross-claimed for a declaration of her entitlement to half the net proceeds of the sale of the Botany property, and orders requiring that the fund be paid to her and that the appellant pay to her $57,000 to make up her entitlement to a half share in the property. She asserted an entitlement of $254,941.98.

18 Palmer J dismissed the appellant’s claim to an adjustment of interests. His Honour declared that the appellant and the respondent were each entitled to half the gross proceeds from the sale of the Botany property. He gave judgment for the respondent against the appellant for $254,941.98 and interest of $139,259.16, the amounts being calculated by the parties, and ordered that the fund be paid to the respondent in partial satisfaction of the judgment debt.

The trial judge’s reasons

19 The trial judge described the appellant’s claim and the respondent’s response to it -

“15 The Plaintiff concedes that the circumstances of the parties since their separation in 2000 have not changed and neither one is more necessitous than the other. The Plaintiff says, however, that while the contributions of the parties to the acquisition of the Botany property were equal, so that their interests in the property were equal as at the date of their separation, the Court may have regard to all relevant circumstances in determining whether it is just and equitable to adjust those interests under s 20(1).

16 The principal relevant circumstance in the present case, says the Plaintiff, is that in early 2000 the parties themselves made and acted upon an agreement that the Defendant would sell her half interest in the property to the Plaintiff for approximately $260,000. A subsidiary circumstance, says the Plaintiff, is that the Defendant used money from the sale of her share of the Botany property to the Plaintiff to purchase a property in her sole name in Victoria. She has subsequently sold that property at a profit.

17 The Plaintiff says that if the Defendant is to retain her fifty percent interest in the Botany property (now in the proceeds of its sale), as well as having been paid $251,000 for the sale of her interest, and is to retain as well the profit which she has made from the acquisition of her Victorian property, she would have a windfall at the expense of the Plaintiff: an adjustment of interests under s 20 is, therefore, warranted.

18 As I have said, the Defendant denies that she made the agreement which the Plaintiff alleges. She denies that the money which she has received on account of the proceeds of sale and out of the proceeds of sale of the Botany property had the character alleged by the Plaintiff. However, she says that even if such an agreement were made, the Court cannot have regard to it for the purposes of s 20(1).

19 The only relevant factor in the starkly simple facts of the present case, says the Defendant, arises under s 20((1)(a); that is, what financial contribution was directly made by the parties to the acquisition of the Botany property. As the parties agree that their contributions to the acquisition were equal and as their equal interests were reflected in their joint tenancy of the property and in equity, there is no warrant for any order under s 20.”

20 His Honour considered it “not entirely settled” (at [21]) how far regard could be had to matters other than the contributions of the parties to the relationship. It was not necessary for him to resolve the question. He thought that in this case there was “nothing else in what the parties have done subsequently which could have affected the justice of their case for the purposes of s 20” (at [23]). This was a reference to the parties’ discussions in 2000, since his Honour explained -

“24 The Plaintiff concedes that there is no legally binding agreement between the parties. The Plaintiff nevertheless says that there was in fact a common understanding between them and it would be contrary to justice now for the Defendant to depart from it. The Plaintiff says that Court may, by means of s 20, enforce the Defendant’s moral obligation to honour the common intention.

25 I do not see that a common intention or understanding, which the Plaintiff did not act upon to his detriment, nevertheless affects the justice of the case to a degree that the Court will, in exercise of the power under s 20 of the Act, give a remedy where one would not otherwise be available. Nevertheless, in case I am wrong in this conclusion, I turn to the critical question, was there a common understanding or a common intention between the parties formed in early 2000, as the Plaintiff alleges. I should say at once that I have come to the firm conclusion that there was no such common understanding or intention.”

21 His Honour was not satisfied that there was the common understanding or intention that the respondent would sell her half interest in the Botany property to the appellant. With an examination of the evidence, he concluded that there had been continuing discussion but that any arrangements “were not clearly understood but were regarded by them as remaining inchoate from the time they were first discussed in January 2000 until the present time” (at [36]). He said that the lack of agreement “was brought into sharp focus in May 2003” when the Botany property was sold, and that even then the appellant was not asserting that the respondent had agreed outright to a simple sale to him of a 50 per cent interest in the property for $260,000 (at [37]). His Honour said -

“38 In short, the evidence shows that while the parties discussed frequently and in great detail the various mechanisms by which they could extract themselves from their joint ownership of the Botany property, they never reached any clear understanding or agreement as to what was to be done. They made arrangements to extract money from the property for their own separate purposes on the basis of borrowings, relying upon an adjustment to be made later when the property was sold or when final agreement as to their adjustment of their rights was achieved. That remained the position as at May 2003, and it remains the position to this day.

39 There is nothing in the way in which the parties sought to achieve a temporary solution to their problems after January 2000 which requires the Court to adjust their rights, as established by their contributions to the acquisition of the property, under s 20 of the Act. The parties acknowledged that they each had a half interest in the property and in the proceeds of its sale. On that basis they incurred additional liabilities by way of borrowings against the property. They paid themselves separately part of the proceeds of those borrowings and there must now be an accounting as between them for what they have received.”

22 There was no appeal in relation to the trial judge’s disposal of what he had described as the principal relevant circumstance.

23 The trial judge then turned to what he had described as the subsidiary circumstance. He said -

“40 The subsidiary point raised by the Plaintiff is that unless an adjustment of property rights is made the Defendant will gain a windfall at the Plaintiff’s expense. I do not think this is factually correct because both parties have drawn upon the financial resource represented by the Botany property to acquire their own separate property: the Defendant a property in Victoria; the Plaintiff a property in Vacy.

41 The parties stand to benefit from those acquisitions for their own account according to the particular circumstances of those separate acquisitions. They also stand to benefit from the increase in value of the Botany property. There is no injustice or inequity arising from that situation. There is no warrant for deducting from the amount which the Defendant is entitled to receive from the sale of the Botany property any profit realised by her on the sale of her Victorian property.”

24 The appeal was concerned with the trial judge’s disposal of the subsidiary circumstance.

25 The trial judge referred at [42] to a necessary accounting between the parties. He did not expound the respondent’s entitlement to half the net proceeds of the sale of the Botany property, but that entitlement followed from the absence of an agreement for sale and the refusal to make an order adjusting interests. It was recognised in the reference at [41] to the amount the respondent was entitled to receive from the sale of the Botany property, the amount payable to the respondent to be ascertained in the accounting. His Honour said (at [48]) that he would make the declaration claimed by the respondent, and left it to the parties to make calculations and bring in short minutes.

26 The trial judge then dealt with a dispute over interest. He said -

“43 The next question is as to the rate of interest which should be payable upon any money found by the accounting to be due by the Plaintiff to the Defendant. The Defendant says, rightly, that her claim is essentially a money claim and it always has been a money claim since the property was converted into money in May 2003. The Defendant says that she should have interest on the money due to her as from the settlement of the property in May 2003 at the Supreme Court rate. That rate is higher than the rate which was earned on the balance of the funds retained in a controlled moneys account pending resolution of this dispute.

44 The Plaintiff, on the other hand, says that the delay in resolving the dispute is the fault of the Defendant and the Defendant should not have interest on the funds at all and certainly not at a rate higher than that which the funds actually earned.

45 Both parties have been dilatory in bringing these proceedings to Court. The Defendant made known very shortly after settlement of the sale of the property in May 2003 that she made the claim which she now presses. The Plaintiff delayed for some two and a half years before bringing that claim to Court and the Defendant has been kept out of her money in the meantime. It is true that during that time the Plaintiff sought elucidation of the Defendant's claim and the Defendant delayed in responding to that request for some eight months. The Plaintiff points the finger of blame at the Defendant in that regard but I find it surprising that the Plaintiff should have waited eight months before complaining about the Defendant’s delay.

46 In the result, both sides have been equally at fault in bringing the dispute to a resolution. The Defendant probably will be found on the accounting to be entitled to additional money from the Plaintiff. It seems to me that the Defendant, having asserted in 2003 a just claim to a sum of money and the matter not having been brought diligently to the Court by the Plaintiff thereafter, the Plaintiff should pay interest at Supreme Court rates on the money found to be due to the Defendant.”

27 The appellant appealed also in relation to his Honour’s decision concerning interest.

The appeal – the subsidiary circumstance

28 The appellant submitted that, in dealing with the subsidiary circumstance, the trial judge failed to take the Melbourne property into account in considering whether or not there should be an adjustment of interests. In his submission, the Melbourne property had been acquired using funds obtained from mortgages secured against the Botany property; the trial judge addressed making an adjustment of interests as at May 2003, at a time when the capital value of the Melbourne property had increased; and the increase in value should have been taken into account and half the increase in its value should have gone to the appellant as an adjustment of interests. He submitted that the increase in value was from $373,000 to $500,000, on the basis that the $500,000 in August 2003 should be taken as the value in May 2003, hence the $63,500 later mentioned.

29 The relevant grounds of appeal were rather diffuse: the submissions were specific to failure to take the Melbourne property into account. The order sought in the notice of appeal was that the respondent pay $70,000 to the appellant, although that failed to recognise the entitlement to $254,941.98 against which the $70,000 would be credited. (A notice of motion was filed applying for leave to amend the notice of appeal, apparently to correct this but the figures differed. The appellant did not move on the notice of motion.) In his written submissions the appellant said that he should receive $63,500 ($67,500 was asserted in oral submissions it seems as a slip) “so as to reflect the error made by the trial judge in not taking the Mont Albert property into account in the pool for division at May 2003.”

30 There is force in the respondent’s submission that the appellant’s case at trial did not include that there should be an adjustment of interests in respect of an increase in value of the Melbourne property.

31 As I have noted, the appellant claimed an order that the fund be paid to him. The claim was specific, as the order by way of adjustment of interests, and there was no claim to an adjustment of interests in respect of an increase in value of the Melbourne property. From the transcript, the appellant’s counsel opened that the parties’ current asset positions was not a matter with which the trial judge needed to be concerned. The trial judge was told that the appellant’s case was that there had been an agreement for the transfer of the respondent’s half share in the Botany property to the appellant which, although not enforceable, “should be given effect in the exercise of discretion under section 20”. The appellant’s counsel agreed that that was “the essence of” his case.

32 There was reference in opening to the purchase and sale of the Melbourne property, and an observation by counsel for the appellant that the appellant got half the increase in value of the Botany property but the respondent got the increase in capital value of the Melbourne property as well as half the increase in the value of the Botany property, but that was by way of history and an aside. Although counsel for the appellant said in submissions to the trial judge that the Melbourne property was “the only one we wish to bring into the equation in order to bring justice and equity between the parties” and “what happened in respect of Mont Albert is relevant to [the] exercise”, counsel for the respondent said that the Melbourne property was not relevant “the way the case has been framed and conducted”.

33 However, the trial judge saw the subsidiary circumstance in the appellant’s submissions. He referred at [40] to a windfall, apparently having in mind a submission made by the appellant which included that the respondent had used money from the sale of the Botany property to purchase the Melbourne property and -

“The point is that she has utilised the property settlement, informal property settlement monies in order to buy a new home. That home has gone up in capital growth. It has appreciated considerably about 25 per cent growth in a limited period because when she sells it in August 2003 – just a matter of a couple of months after the second time period – that is my alternative position. We know that it is crystallised at $127,000 growth so the double dipping potential in that matter, the potential of the obvious windfall of a distorting nature is to ignore what she did with the monies she received by way of this informal property settlement.”

34 Given the order claimed and the conduct of the case, the trial judge was kind to the appellant. Notwithstanding doubt that it was and is open to the appellant to claim an adjustment of interests in respect of an increase in value of the Melbourne property, I will deal with the appellant’s submissions. They should not be accepted.

35 If the appellant’s submissions otherwise had substance, an adjustment representing half the increase in the value of the Melbourne property was unlikely to be appropriate. The contribution to the purchase of the Melbourne property of money drawn from the joint account was small. The respondent subsequently received $190,000 from the re-financing of the Botany property, which went to reduce her borrowing to purchase the Melbourne property, but even so she contributed substantially from her own funds.

36 The appellant attributed to the trial judge that he addressed making an adjustment of interests as at May 2003. It appears that the appellant did so in order further to submit that, while the increase in value of the Melbourne property should have been taken into account, any increase in value in the Vacy property (which had been acquired using funds coming from the sale of the Botany property) should not. As I understand the submission, it was said that regard should not have been had to the Vacy property because there was no evidence of its value as at May 2003.

37 It is not correct that the trial judge addressed making an adjustment of interests as at May 2003. An adjustment of interests pursuant to s 20 of the Act is to be made with regard to property as the date of the hearing, although ordinarily the evidence will not fully be up to date; often it is incomplete and the judge has to do his or her best on the evidence as it stands: see Manns v Kennedy [2007] NSWCA 217 at [87] per Campbell JA, Santow JA and Bryson AJA agreeing. Although not referred to in the trial judge’s reasons, this case was cited to his Honour and there is no reason to think that he overlooked the material time. The appellant submitted that restriction to May 2003 was seen in the last sentence of para [38] set out above. His submission did not pay regard to the second part of that sentence.

38 The trial judge’s consideration was moulded by the manner in which the case had been presented before him. As presented, it did not require an inventory by him of all property as at the time of the hearing, or even as at an earlier time or times. Indeed, the transcript shows common ground in not reading an affidavit of the respondent “updating the asset position”. The appellant’s case was concerned with the fund coming into existence in May 2003, and hence the focus was on May 2003. When it came to the subsidiary circumstance the trial judge correctly had regard to both the Melbourne property and the Vacy property, absent evidence material to other property requiring consideration.

39 It is not correct that the trial judge failed to take the Melbourne property into account. His Honour clearly addressed the profit on the sale of the Melbourne property, being the “windfall” to which he referred ay [40].

40 The appellant’s submissions misapprehended the trial judge’s reasoning. His Honour recognised the capital profit on the sale of the Melbourne property, and that the Melbourne property had been purchased using the financial resource represented by the Botany property. He recognised also that the appellant had purchased the Vacy property, again using that financial resource. He did not undertake a mathematical accounting as between the acquisitions and the subsequent values of the properties. Rather, he considered that in the circumstances there was no occasion for an adjustment of interests, because the parties “stand to benefit from those acquisitions for their own account according to the particular circumstances of those separate acquisitions” (at [41]). In his Honour’s view, there was “no injustice or inequity arising from that situation” (ibid). This was an exercise of the discretion conferred by s 20 of the Act.

41 If an increase in value of the Melbourne property was to be taken into account, so also an increase in value of the Vacy property was to be taken into account. The trial judge’s point was that there was no inequity or injustice in leaving whatever gains were made for the parties’ respective accounts, and precise figures did not matter. But the appellant had alleged, and verified on oath, a current value of the Vacy property; the increase in value broadly matched the increase in value of the Melbourne property.

42 The trial judge was required “to make a holistic value judgment in the exercise of a discretionary power of a very general kind”: Davey v Lee (1990) 13 Fam LR 688 at 689 per McLelland J, approved in Kardos v Sarbutt [2006] NSWCA 11; (2006) Fam LR 550 at [36]; Ross v Elderfield [2006] NSWCA 192 at [135]; and Manns v Kennedy at [62]. An accounting exercise may be helpful, but the task is not one of accounting but of determining what order is just and equitable having regard to the parties’ contributions, So far as the case as conducted at trial went beyond an adjustment of interests by reason of the principal circumstance, and the justice and equity was concerned with increases in value of the Melbourne and Vacy properties, in my opinion no error in the exercise of the trial judge’s discretion has been shown.

The appeal - interest

43 The respondent obtained judgment for $254,941.98 “together with interest thereon to this date of judgment agreed at $139,259.16”. As I have said, the $254,941.98 was calculated by the parties; it happened to be the amount asserted by the respondent as her entitlement, and represented her half share in the balance of the proceeds of sale of the Botany property, adjusted by the necessary accounting.

44 The appellant initially submitted that no interest as all should have been ordered, because the $254,941.98 represented an adjustment of interests pursuant to s 20 of the Act and until the order for adjustment was made interest was not payable under s 100 of the Civil Procedure Act 2005: Manns v Kennedy at [128]-[132]. It appeared to be common ground that the trial judge had included interest in the judgment pursuant to s 100 of the Civil Procedure Act. Accepting the common ground, the submission was misconceived. While the appellant claimed an adjustment of interests under s 20 of the Act, the respondent cross-claimed as joint owner entitled to half the net proceeds of sale of the Botany property. The trial judge correctly described this as a money claim; the respondent was entitled to the money from May 2003.

45 Although this was not raised by the appellant, it could be asked whether it was wholly a money claim against the appellant. The amount of $197,817.51 had remained in the controlled moneys account. The respondent had claimed an order that the fund be paid to her and that the appellant pay her an additional $57,000. It may be that, when the fund had not been received by the appellant, it was incorrect to order judgment against him for the full $254,941.98, and that interest should not have been included on the full amount. (It may be noted that in the cross-claim the respondent also claimed the $254,941.98 as damages for breach of fiduciary duty in not releasing the fund to her; this does not seem to have been litigated).

46 However, even if not received by the appellant, the $197,817.51 was not paid to the respondent because he refused to allow it to be paid to her. The parties framed the orders following delivery of the trial judge’s reasons, and the appellant must have accepted that his exercise of control over the fund was such that he was properly a judgment debtor for the full amount, with the benefit of the accompanying order for payment out of the fund in partial satisfaction of the judgment debt. It not having been raised by the appellant, there is no occasion to go behind the acceptance or to question that the judgment was properly for the full $254,941.98.

47 The appellant then submitted that interest should not have been ordered from May 2003 because, although the $254,941.98 had been payable to the respondent from May 2003, the respondent had delayed in bringing her claim. He said that interest should have been ordered only from when the cross-claim was filed, because only then did the respondent formally institute her claim. (The appeal papers, however, did not indicate what that date was – presumably in early 2006.)

48 The appellant did not take issue with interest being at Supreme Court rates.

49 An order for interest pursuant to s 100 of the Civil Procedure Act will not be refused as a penalty for delay: Bennett v Jones (1977) 2 NSWLR 355 and many subsequent cases. Delay is a relevant consideration in the exercise of the discretion, but inclusion of interest in a judgment is to compensate the claimant from being held out of the claimant’s money, and so the passage of time is the occasion for interest, not a bar to its inclusion in the judgment. The reason for the delay, and any advantage to the claimant or particular disadvantage to the respondent beyond arriving at proper compensation, may arise for consideration in the exercise of the discretion.

50 The respondent was kept out of her money. The appellant did not have the use of it, because it was in the controlled moneys account, but the trial judge was well aware of that. The issue before him was delay. The trial judge was alive to delay, but noted that the respondent had asserted her entitlement shortly after the settlement of the sale of the Botany property and that the appellant had himself delayed when he could have brought the dispute to a resolution by diligently coming to court.

51 The trial judge was exercising a discretion. The appellant submitted that the exercise of the discretion miscarried because the money was in the controlled moneys account (which is not wholly correct, but most of it was) and because the respondent delayed in bringing proceedings. The trial judge was well aware of those matters. I do not consider that his exercise of discretion was unreasonable or plainly unjust so that it should be inferred it miscarried. House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ applies. No error in the exercise of the discretion has been shown.

Orders

52 I propose that the appeal be dismissed with costs.

53 TOBIAS JA: I agree with Giles JA.

: I agree with Giles JA.

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