Rowe v Dassios
[2007] VSC 218
•21 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4622 of 2007
| SAMANTHA JANE ROWE | Plaintiff |
| v | |
| CONSTANTINE DASSIOS | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 MAY 2007 | |
DATE OF JUDGMENT: | 21 JUNE 2007 | |
CASE MAY BE CITED AS: | ROWE v DASSIOS | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 218 | |
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Property of domestic partners – Part IX of the Property Law Act1958 (Vic) – Express trust created by Cohabitation Agreement – effect of s.285 Property Law Act 1958 (Vic) upon express trust - Financial and non financial contributions – Special value – independent relevance of written agreement – no adjustment of property interests demonstrated to be just and equitable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Staindl | Clancy & Triado |
| For the Defendant | Mr Davis | Maria Barbayannis & Co |
HIS HONOUR:
The plaintiff sues pursuant to the terms of a “Cohabitation Agreement” entered into on 15 May 2001 to enforce an interest in land comprising a residential property at 12 Victory Street, Murrumbeena (“Victory Street”) and in the alternative seeks an adjustment pursuant to Part IX of the Property Law Act1958 (“the PLA”) of the interest held by the defendant as registered proprietor of Victory Street.
The Cohabitation Agreement was executed under seal and provides as follows:
WHEREAS
1.Samantha is 32 years of age and has not previously been married. Samantha is a florist by trade working for wages as well as conducting a florist business from home known as “Flowers of Gondwana”.
2.Con is 29 years of age and has not previously been married. Con is a wholesale florist also conducting a florist business from home known as “Flowers of Gondwana”.
3.Con’s father, Mr Dimitrios Dassios of 15 Ivy Street Prahran has gifted to Con the property more particularly described in Certificate of Title Volume 8503 Folio 367 being the property at 12 Victory Street Murrumbeena (“Victory Street”), a three bedroom brick veneer home.
4. Con has been the sole owner of Victory Street since November 1995.
5. Samantha has the following assets:
(a) 1989 Mitsubishi Magna car valued at approximately $2,000.
(b) A modest amount of superannuation.
6. Con has the following assets:
(a)The ownership of the property at 12 Victory Street Murrumbeena.
(b) Superannuation of an unknown amount.
7.Insofar as legal advice has been sought or a party has rejected the availability of legal advice each party, independently, before executing this agreement has considered the following issues:
(a)The effect of the agreement on the rights of each party to apply for an Order under Part IX of the Property Law Act 1957 or any other rights or remedies available through Common Law or Equitable Relief.
(b)Whether or not, at that time, it was to the advantage, financially or otherwise, of each party to enter into this agreement.
THE PARTIES AGREE AS FOLLOWS:
A.That Samantha has made no contribution to the acquisition of Victory Street.
B.That Samantha and Con intend to move into Victory Street shortly and to thereafter expend funds and labour in renovating, improving and extending the property.
C. That the current value of Victory Street is agreed at $250,000.
D.That in the event of death or a breakdown of the relationship between Con and Samantha, the amount of $250,000 will be repaid to Con’s father, Mr Dimitrios Dassios.
E.That any improvement in value of the property either by way of renovation or extension or otherwise, shall be to the benefit of Con and Samantha and shall be divided equally between them.
F.That Samantha and Con shall retain the business “Flowers of Gondwana”, as equal partners.
G.That otherwise Samantha and Con shall retain the assets that they held as at the date of this agreement.
H.That Samantha and Con shall equally divide any other assets which have been acquired by them since the making of this agreement and prior to their separation.
It can be seen that clause E of the agreement expressly provides that any improvement in the value of Victory Street shall be to the benefit of both the plaintiff and the defendant and shall be divided equally between them. Mr Davis, who appeared for the defendant, did not dispute that the effect of the deed was to create an express trust for the benefit of the plaintiff in respect of any such improvement in value of property.[1]
[1]It is clear the defendant did intend to convey a beneficial interest to the plaintiff. Cf Calverley v Green (1984) 155 CLR 242 at 251 per Gibbs CJ.
By an amended defence and counterclaim, the defendant admits that he entered into the Cohabitation Agreement but does not admit that he has failed and refused to make payment to the plaintiff in accordance with it. Nevertheless, there was no contest at the trial that no payment had been made to the plaintiff pursuant to the agreement. Save for some particularly unconvincing evidence from the defendant that at the time of separation he paid the plaintiff a cash amount, said first to be $2,000, then $1,800, then $1,250.
The defendant further sought an adjustment of property interests pursuant to Part IX of the PLA, and counterclaimed with respect to the assets of the jointly owned florist business known as “Flowers of Gondwana”, and with respect to items of personal property. Neither of these counterclaims were pursued on the trial of the action.
Prima facie the Cohabitation Agreement vested enforceable rights in the parties:
(a) with respect to Victory Street;
(b) with respect to the florist business; and
(c) with respect to personal property.
Accordingly, the plaintiff will succeed in her claim to an interest in Victory Street in accordance with the terms of the Cohabitation Agreement, unless the defendant succeeds in adjusting such interest pursuant to the PLA.
No basis for avoiding the apparent effect of the Cohabitation Agreement was pleaded or identified on behalf of the defendant other than the provisions of the PLA and in particular s.285 which raises the issue whether such adjustment in favour of the defendant would be just and equitable.
The Facts
The plaintiff was born on 9 June 1968 and is now aged 38 years.
The defendant was born on 26 November 1971 and is now aged 35 years.
The plaintiff and defendant met in 1999 and shortly thereafter the defendant moved into the one bedroom flat previously occupied by the plaintiff at 59A Clyde Street, St. Kilda, and fitted out with her furniture.
In 2001, the parties decided to seek alternative accommodation together and after some initial investigation of alternatives, the defendant advised the plaintiff that he was the owner of Victory Street, premises of which he had become sole registered proprietor in 1995.
Victory Street had been purchased with funds wholly provided by the defendant’s father and was unencumbered. It was subject to an existing lease and rentals from the lease were paid to the defendant’s father.
The defendant’s father agreed to the plaintiff and defendant moving into the property, but requested that they enter into a Cohabitation Agreement prior to doing so.
The plaintiff had a draft Cohabitation Agreement prepared by solicitors and provided a copy to the defendant. The defendant sought and obtained independent legal advice in respect of it.
Following further discussions and the making of handwritten amendments by the plaintiff for the benefit of the defendant (relating to the florist business), the parties executed the agreement under seal on 15 May 2001.
At the time of the agreement the defendant knew that the property had increased in value from $155,000 to $250,000 in the period since his father had purchased it. Both parties anticipated that it would continue to increase in value.
The parties’ intention was to establish a financial framework for a long term relationship and put in place long term arrangements, designed to achieve financial security, including the substantial renovation of Victory Street. Nevertheless the agreement specifically provided for breakdown of the relationship.
Prior to moving into Victory Street, the plaintiff and defendant spent some three weeks undertaking renovation works. The plaintiff worked each weekend and most nights. The defendant worked a similar period save that he went motor cycle riding over one of the weekends. Both of the parties were at that time in full time employment.
The plaintiff expended in the order of $3,500 on materials for the purpose of these initial and subsequent renovations. The defendant also expended money on materials (although in an amount which was not the subject of satisfactory evidence).[2] The plaintiff agreed in evidence that this contribution was of an order equivalent to her own expenditure.
[2]The plaintiff produced a record of payments of some $6,600, but this included payments for household goods and appliances including a vacuum cleaner, kitchen items, furniture, washing machine and dryer, and electrical goods. These may be seen to inform her evidence as to her role as a homemaker.
The works undertaken both before and after the parties moved into Victory Street included the following:
(1) removal of carpet throughout the house;
(2) removal of window dressings;
(3) sanding, replacing, sealing and polishing of floorboards;
(4) removal of bench and linoleum in kitchen;
(5) removal of paint from window frames and doors and treating timber;
(6) steaming and stripping off wallpaper;
(7) sanding, patching, plastering and preparing walls for painting;
(8) repainting walls and ceilings (including feature walls);
(9) making and installing new curtains;
(10) removal and replacement of skirting boards;
(11) supplying and fitting new interior and exterior light fittings;
(12) clearing out backyard and preparing for landscaping;
(13) supplying new plants and landscaping back garden;
(14)preparation for landscaping of the front garden;
(15) installation of gates and painting of garage door.
These works were generally undertaken by the plaintiff together with the defendant and overall the plaintiff agrees that she and the defendant contributed to the performance of the works in approximately equal shares, although she did the greater share in some respects such as gardening.
The plaintiff concedes that the renovations undertaken were not all those which the parties envisaged as part of their long term plans at the time of the Cohabitation Agreement. Nevertheless, she says they did undertake substantial ongoing improvement to the property over the course of the relationship.
Although the defendant disputed some aspects of the detail with respect to the works, I accept the plaintiff’s evidence as consistent and credible. It is corroborated by consistent and contemporaneous records whereas the defendant’s evidence is not.
The plaintiff also performed most of the domestic duties arising out of the parties living together. She was the principal homemaker and did the bulk of the cooking, cleaning and laundry. She purchased major household appliances and household goods to a value in excess of $2,000 for these purposes.
The plaintiff was also substantially responsible for the operation of the florist business, which the parties had intended they would run jointly. This business had recurrent fluctuating work, but failed to make any ongoing profit.
The relationship broke down in 2004 and the plaintiff left Victory Street on or about 28 September 2004. When she did so, she took with her furniture and other household goods, principally comprising objects she had brought into the relationship. She also left behind a series of household goods brought into the relationship by the defendant or in which she believed he had a greater interest than herself. She says and I accept that she in effect made a 50/50 division of the personal property acquired during the relationship.
A redivision of chattels was not pursued by either party upon the hearing of the proceeding.
A valuation has been obtained which shows that the current value of Victory Street is $503,000. The plaintiff accepts that from this figure deduction should be made in respect of monies expended by the defendant. In particular, the defendant should be credited with $5,000 worth of improvements made by him since the separation of the parties and with respect to the value of rates paid by him prior to the separation in the sum of $ 1013.46.
At the time of their separation, neither party had an interest in real estate other than in Victory Street. Both had cars, some furniture and personal belongings. Both had the capacity to work. Both had an interest in the home based florist business referred to in the agreement, but it appears this was not trading particularly profitably.
The Law
The Court is empowered by Part IX of the PLA to make orders in respect of the property of de facto partners, if they have lived in Victoria in a de facto relationship for at least two years, in order to provide for the just and equitable adjustment of the interests in real and personal property of one or both of them.
Section 284 of the PLA further imposes a duty on the Court, so far as is practicable, to make orders that will end the financial relationships between the domestic partners and avoid further proceedings between them.
Section 285(1) of the PLA provides:
285 Order for adjustment
(1)A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to—
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following—
(i) a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and
(c) any written agreement entered into by the domestic partners.
It can be seen that the present case raises each of the three factors to which regard may be required pursuant to s. 285(1).
The notion of contribution referred to in s. 285(1)(a) and (b) has been the subject of consideration by the courts on a number of occasions. In Conn v Martusevicius[3] Vincent J stated:
... the court is vested with a wide discretion and must attempt to arrive at a result which is just and equitable in the circumstances. Accordingly, it must have regard to the whole of the relevant context within which an application is made.
Any assessment of the significance and value of the assistance and support provided by de facto partners which did not place them within a framework provided by all of the circumstances of the relationship, would introduce a measure of unreality into the process and a degree of tension would arise between the adoption of a restrictive approach to the factors to be taken into account, and the duty of the Court to attempt to achieve equity between the partners.
Whilst s. 285 imposes an obligation upon the court to have regard to a number of particular kinds of contributions which may have been made, the legislature has not attempted to confine narrowly the concept of “contribution” and there is, in my opinion, no good reason for the courts to do so. The fundamental limitations to the scope of the section in this context, are contained in the expression “de facto partner” which makes it clear that any such contribution to be relevant must have been made by a person who fell within that description at the time of its making and possesses a sufficient nexus with the relationship.
Whilst the rights conferred upon an applicant by the Victorian provisions are by no means as extensive as those which can arise under the De Facto Relationships Act 1989 (NSW) upon which it appears to be based, it is, in my opinion, reasonable within its ambit of operation to adopt a similar approach to that followed by the courts with respect to the New South Wales legislation according to which a judge:
“... should proceed, first, to identify, and value the assets of the parties; second, to determine whether any, and , if so, what contributions of the type contemplated by [ the legislation] have been made by each partner; third, to determine whether, in the circumstances, the contributions of the applicant has already been sufficiently recognised and compensated for; and, finally, to determine what order is called for in order that the applicant's contributions be sufficiently recognised and compensated for...”.
[3](1991) 14 Fam LR 751 at 754.
I accept that the four step approach to the assessment of contributions referred to by his Honour is of some guidance in the present case, but it is to be entered into in conjunction with consideration of the written agreement. I further accept that in quantifying direct and indirect contributions to the property interests of the parties, one should not attempt to arbitrarily confine the concept of contribution, although such contributions must be of the character contemplated by the section.[4] The relevant principle was restated by Morris J in Findlay v Besley[5]:
In considering whether or not to make an order adjusting the interests of domestic partners in the property of one or both of them, the Court must have regard to, and only to, the financial and non-financial contributions made by each of them of the type referred to in paragraphs (a) and (b) and to any written agreement entered into by the domestic partners.[6] However, in considering what is just and equitable having regard to these factors, the Court will ordinarily have to consider them in context. Contextual matters might include the financial circumstances of the parties, the length of the relationship, the extent to which the financial affairs of the parties have been integrated, and opportunities lost by a party by reason of their contributions. Another important contextual matter will be the consumption enjoyed, by or on behalf of a domestic partner, by reason of the financial and non-financial contributions. However these contextual matters are just that: they are not criteria to which reference should be had in determining what is just and equitable. Further, the word "contributions" is a flexible one: it could even embrace negative contributions (for example, where property was diminished by a partner)[7]; and there is a need to have regard to benefits enjoyed by a domestic partner as a result of a contribution.
[4]Cf Nettle J in Robertson v Austin [2003] VSC 80 at [36]-[40].
[5][2003] VSC 247 at [56] .
[6]There was no written agreement in this case.
[7]Compare Burns v Chazan [2000] VSC 328.
It may be difficult to value a party’s non-monetary contribution to the assets and home of the parties. As Nettle J has stated:
In a case of this kind it is impossible to define with precision or even by reference to objective criteria the worth of the defendant’s non-monetary contribution to the assets and welfare of the parties. Views will differ widely as to the existence and extent of the contribution. The defendant perhaps perceives it as having been of great importance and value; the plaintiff, something less.[8]
[8]Robertson v Austin at [76].
In the present case it is, in part, the plaintiff’s non-monetary contribution which is contentious.
Again, in the present case, however, the Court is not simply concerned with the valuation of contributions. The situation is not that identified by Meagher JA in Evans v Marmont[9] in a critical respect:
Section 20 [of the New South Wales Act being equivalent to s 285 of the PLA] enables a court to “make such order adjusting the interests of the partners in the property as it seems just and equitable having regard to” two specified factors. Those two factors both relate to the contributions, direct and indirect, made by each of the partners to either the property or the welfare of them both. As a matter of English that can only mean that the court may have regard to each of the two factors and not to any other factors. In particular it precludes the court, in a s. 20 application, from having any regard to fault, needs, maintenance, compensation, expectation damages, reliance damages or quasi-equitable damages.
[9](1997) 42 NSWLR 70, 97.
The statute with which I am concerned specifically enjoins the Court to have regard to a further consideration apart from contributions, namely any written agreement between the parties.
Whilst I accept that the execution of the agreement under seal does not fetter the discretion of the Court or throw a “special onus” on the party seeking to depart from it,[10] nevertheless, in this jurisdiction it must be regarded as a starting point in the sense that it presently creates enforceable rights. It must also be given due weight as a relevant factor pursuant to s. 285(1)(c).
[10]Cf Steinbarth v Peters [2005] VSC 87 at [10] per Balmford J.
It was accepted by the parties that if adjustment is to be made, the proper approach is to adjust the parties’ interests in the property by reference to current value. The agreement creates a presently subsisting interest in the property in issue, and as a matter of equity the Court should look as to the characteristics of the property as they are at the time of the exercise of its discretion.[11]
[11]Robertson v Austin at [52] and [53].
The Parties’ Submissions
The defendant submits that regard should first be had to the considerations set out in s.285(1)(a) and (b), and that the value ascertained by reference to these considerations should then be used as a “check” against the value indicated by the agreement pursuant to paragraph (c). The value should be ascertained by the application of the principle stated by Nettle J in Robertson v Austin:[12]
If the net equity in the property is divided rateably according to payments made, each party will receive a share of the inflationary or market gain which accords with the extent to which they have financed the property. That would seem to me to be just and equitable because it rewards each party according to the extent to which they have contributed.
[12]Above at [55].
The defendant further submits that if the value ascertained by reference to consideration of the plaintiff’s contributions pursuant to subsections (a) and (b) is of an entirely different order from that indicated by the agreement, then the agreement should be given little (if any) weight.
Ultimately, Mr Davis submitted on behalf of the defendant that the plaintiff’s contributions, both direct and indirect to the property and the home, should be valued at no more than $25,000, representing 5% of the total value of Victory Street.
He further submitted that the Court should recognise that to give effect to the agreement would be inequitable to the defendant, while conceding that to give no effect at all to the agreement might be regarded as inequitable to the plaintiff.
I accept that the assessment of what is just and equitable is to be undertaken having regard to the circumstances as they are now known. In this sense, it is an assessment in hindsight, whereas the agreement between the parties was a prospective one, reflecting their agreement as to a fair and appropriate division of future equity within a framework of expected performance of reciprocal obligations.
I further accept that the Cohabitation Agreement was entered into in the context of long term plans for residence at and renovation of Victory Street. I accept that these plans did not come fully to fruition as the parties hoped, although there was both a substantial commitment and implementation of renovation works and of course a domestic relationship of not insignificant duration. Further, as Mr Staindl emphasised, the agreement expressly contemplated and provided for the breakdown of the relationship.
There are in my view five fundamental difficulties with the approach submitted on behalf of the defendant.
Firstly, the value of the contributions pursuant to subsections (a) and (b) is not easily ascertainable. Thus, a bare assessment of costs of materials incurred by the plaintiff and of the hours worked in effecting improvements, does not give rise to an easy calculation of the consequent increase in value in the property. In the present case, the evidence suggests that the work undertaken by the plaintiff with respect to the house formed part of a joint effort with the defendant, in respect of which they ultimately contributed approximately 50% each towards costs of materials and value of labour, although the plaintiff undertook somewhat more hours of work in some respects. Further, the evidence supports the view that the works did materially improve the presentation of the house and hence its value, although no precise figure can be ascribed to such increase.[13]
[13]Conversely, the relatively extensive works in the garden undertaken predominantly by the plaintiff, cannot be said to have materially affected the present value of the property, having regard to the terms of the valuation, which refers to the property as having a “basic” garden.
Secondly, the value of the plaintiff’s contribution over five years as a homemaker is even more difficult to assess. But I do not accept that its value is to be regarded as simply that of a domestic servant, nor that it is to be regarded as “negligible”. The evidence does not permit any precise estimate in this regard, but the contribution included the purchase of household equipment to a value in excess of $2,000 and the undertaking of almost all cooking, cleaning and laundry.
Thirdly, the value of the plaintiff’s contributions falls to be assessed within the context contemplated by the parties at the time of entering into the Cohabitation Agreement. Such contextual matters included:
·That the plaintiff would cohabit with the defendant;
·That she would engage in renovation of the property jointly with the defendant; and
·That she would operate the florist business, jointly owned by the parties, from Victory Street.
This context is one in which it was envisaged that the plaintiff would devote substantial effort and personal resources, firstly, to the improvement of the Victory Street property and secondly, to the conduct of the business in which the defendant held a joint share.
In my view, this context is one in which the plaintiff’s contribution both to the improvement of Victory Street and as a homemaker and as a business partner, involved special value to the defendant.
The agreement is in turn evidence of the value to the defendant of the plaintiff’s contributions in the context to which I have referred. The beneficial interest granted to the plaintiff reflects the value of both the contributions anticipated to be made to the defendant’s property and as a homemaker, but also the value of the interest in the florist business granted to the defendant.
Fourthly, the statute gives the written agreement independent status as a consideration, bearing on the conclusion of what is just and equitable. Its significance is not limited to such evidence as it may be bearing on factors (a) and (b). The agreement was entered into after independent legal advice and was intended to form an equitable basis for the parties’ future dealings with their joint property. It specifically contemplated that it might bear on proceedings pursuant to Part IX of the PLA and recorded that the parties had considered:
Whether or not, at that time, it was to the advantage, financially or otherwise, of each party to enter into this agreement.
It was entered into when the defendant knew there had been past capital appreciation in the value of the property, and that that was likely to continue.
Fifthly, the sub-section does not give primacy to factors (a) and (b) over (c). Each is potentially of relevance depending on the circumstances.
It is appropriate to say something more about the concept of special value to which I have referred. It is well recognised in other areas of the law concerned with the valuation of land, that land may have a special value to its owner, beyond its objective market value. Such value ordinarily derives from the context in which the owner holds it and a positive advantage derived from that context.
In the context of assessing compensation for loss suffered as a result of compulsory acquisition of land the concept of special value has been articulated as follows:
It is necessary when discharging that duty always to bear in mind that the claimant has been deprived, not just of a parcel of land, as it were, in a vacuum but of a parcel of land in circumstances of occupation and use, both contemporaneous and prospective. It is, speaking generally, those attendant circumstances that may be of special importance to the claimant. He has lost something that has an objective market value and he has lost too, something that once formed an integral part of his life – his personal life or his business life or, it may be, both.
The compulsory removal of the land from that structure is therefore likely to effect the claimant’s interests adversely; and where it appears that those interests are represented by some special feature of the use and occupation of the land and the interdependence, in a recognisable business sense, between that land and the balance of land still held by the claimant, it has long been settled that he may claim the special value to him represented by the place and function of the acquired land within, and as part of, the structure as a whole.[14]
So too, the plaintiff’s contribution to the parties’ property (including Victory Street) and as homemaker did not occur in a vacuum, but in attendant circumstances, which the agreement may be regarded as demonstrating were of special importance and value to the defendant, within the context of his affairs as a whole.
[14]Per Wells J in Commissioner of Highways v Tynan (1982) 53 LGRA 1 at 5 and see Pastoral Finance Association Ltd v The Minister [1914] AC 1083; Redwood Court Pty Ltd v Roads Corporation (1992) 76 LGRA 358.
The notion of special value provides a mechanism for recognising the contextual significance of contributions. As Vincent J stated in Conn:[15]
Any assessment of the significance and value of the assistance and support provided by de facto partners which did not place them within a framework provided by all of the circumstances of the relationship, would introduce a measure of unreality into the process and a degree of tension would arise between the adoption of a restrictive approach to the factors to be taken into account, and the duty of the Court to attempt to achieve equity between the partners.
[15]Above at 3.
Likewise, as Morris J stated in Findlay:[16]
However, in considering what is just and equitable having regard to these factors, the Court will ordinarily have to consider them in context. Contextual matters might include the financial circumstances of the parties, the length of the relationship, the extent to which the financial affairs of the parties have been integrated, and opportunities lost by a party by reason of their contributions. Another important contextual matter will be the consumption enjoyed, by or on behalf of a domestic partner, by reason of the financial and non-financial contributions.
[16]Above at 5.
In a case where the only evidence is of value resulting from contributions falling within the terms of s. 285(1)(a) and (b), the value of such contributions will ordinarily be the objective market value. In the present case, however, the agreement provides evidence of the anticipated value of the plaintiff’s contributions to the defendant’s property both real and personal, by way of a continuing mechanism for the adjustment of their interests. Such evidence is not of course conclusive of the actual value of such contributions to the defendant, but in my view it demonstrates that the value of such contributions was of special value to him.
Conclusion
Accepting that I must look at the history of the parties’ contributions and relationship as it now appears, and not as it was anticipated they would be at the time of the Cohabitation Agreement, nevertheless in my view the defendant has not established that it is just and equitable to adjust the interest granted to the plaintiff pursuant to the parties’ written agreement under seal:
(a)Such agreement was entered into by mature adults having the benefit of independent legal advice;
(b)It recognised reciprocal rights in respect of the Victory Street property on the one hand and the home florist business on the other. Both had the capacity to grow in value.
(c)It preserved the agreed existing value of Victory Street for the benefit of the defendant’s father.
(d)It contemplated the parties would make their home at Victory Street.
(e)It contemplated that Victory Street would be improved as a result of the joint endeavours of the parties, as in fact occurred. On the evidence the plaintiff contributed at least equally with the defendant in this regard.
(f)It contemplated that an increase in value during the period of cohabitation by reason of improvements or otherwise would be split equally between the parties.
(g)This split was co-extensive with agreements to hold equally the value of the florist business, and the value of chattels acquired by the parties during the same period.
(h)The 50/50 division was agreed to in the context of the establishment and ongoing maintenance of a home at Victory Street, which home was established and maintained as part of a five year relationship. The evidence shows the plaintiff made the greater contribution as homemaker by way of domestic duties.
(i)The plaintiff also contributed a significantly greater amount of time than the defendant to the jointly owned florist business operated from home.
(j)The plaintiff’s contribution towards the renovation of Victory Street and towards the maintenance of a joint home was not negligible.
(k)The plaintiff’s contributions were inherently difficult of valuation, particularly insofar as her contributions in the capacity of homemaker is concerned.
(l)The combined effect of her contributions towards home renovation, as homemaker, and as the operator of the florist business was such as to materially reduce the plaintiff’s opportunity for alternative forms of property related activity than those associated with Victory Street.
(m)Although the long term relationship contemplated by the parties at the time of the Cohabitation Agreement was not achieved, it was substantially commenced and substantial contributions were made by the plaintiff towards the parties’ property during it. Further, the agreement itself provided an agreed mechanism for the adjustment of the parties’ interests if the relationship broke down.
(n)There is no sufficient reason to reject the terms of the written agreement as a just and equitable arrangement between the parties.
(o)To the contrary the agreement is itself evidence of the special value to the defendant of the plaintiff’s contributions to their joint financial position in accordance with the agreement.
(p)The agreement was the subject of continuing performance by the plaintiff over an extended period of time.
(q)The agreement is also strong evidence that the arrangement effected by the agreement was and is just and equitable having regard to the parties’ relationship as a whole. It should be given weight on this broader basis, because it is relevant independently pursuant to s. 285(1)(c) and not simply as evidence bearing on the assessment of the contributions referred to under s.285(1)(a) and (b).
Accordingly, the plaintiff’s entitlement to an interest in Victory Street pursuant to the agreement should be given effect and I will hear counsel as to the appropriate orders in the circumstances.
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