Ryan v Kalocsay

[2010] NSWSC 620

CITATION:	Ryan v Kalocsay [2010] NSWSC 620
HEARING DATE(S):	13/08/09, 14/08/09, 18/08/09, 19/08/09, 20/08/09, 21/09/09, 24/09/09, 18/11/09, 11/12/09
JUDGMENT DATE :	15 June 2010
JUDGMENT OF:	Slattery J at 1
DECISION:	See paragraphs 121 to 123 of judgment.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - De facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - six year de facto relationship - parties occupy house acquired and owned by one of them - evidence of the financial contributions to the acquisition, conservation or improvement of property or to the financial resources of the parties poorly substantiated - financial contributions equal - non-financial contributions and contributions as homemaker equal - HELD: not just and equitable to make an order adjusting the interests of the parties in property - claim dismissed.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) s 17 (2)(b)(i), 20 Property (Relationships) Act 1984 (NSW) ,ss 4, 5, 5(1)(b), 20,
CATEGORY:	Principal judgment
CASES CITED:	Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38 Dridi v Fillmore [2001] NSWSC 319 Evans v Marmont (1997) 42 NSWLR 70 Howell v Fiorenza [2008] NSWSC 163 Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149 Jones v Grech (2001) 27 Fam LR 711; [2001] NSWCA 208 Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 Manns v Kennedy (2007) 37 Fam LR 489; [2007] NSWCA 217 Powell v Supresencia (2003) 30 Fam LR 463 Proudman v Dickason [2008] NSWSC 681 Ross v Elderfield [2006] NSWCA 192
PARTIES:	Plaintiff- Gregory John Ryan Defendant- Zsuzsanne Katalin Kalocsay
FILE NUMBER(S):	SC 2008/3376
COUNSEL:	Plaintiff- Ms S. Sloane Defendant- Ms N. Obrart
SOLICITORS:	Plaintiff- Ms Michelle Collyer, Peter Ciornock & Associates Defendant- Ms Elizabeth Stahlut, Austen Brown Boog

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

TUESDAY, 15 JUNE 2010

3376/08 GREGORY JOHN RYAN v ZSUZSANNA KATALIN KALOCSAY

JUDGMENT

1 HIS HONOUR: The plaintiff, Gregory John Ryan and the defendant, Zsuzsanna Katalin Kalocsay lived in the one household for a period. They do not agree for how long. They also disagree about the nature of their relationship during their co-habitation. Mr Ryan seeks an adjustment of interests in their property. Specifically he seeks an order that Ms Kalocsay pay him the sum of $120,000 pursuant to s 20 of the Property (Relationships) Act 1984 (NSW). She resists that course. They ask the Court to decide whether such an order should be made.

2 Mr Ryan’s case is that the parties lived in a de facto relationship between 1999 and 2008. He says that they lived as man and wife in three different properties, the first in Quakers Hill, the second in Lalor Park and the third in Riverstone. Ms Kalocsay acquired the last of these properties in November 2000. She still owns this property. She says that no domestic relationship ever existed between her and Mr Ryan; that he was her tenant; and, that they were just friends. Her case is that she was in a long-term relationship with another man who was being held in prison for serious criminal offences from 1996 to 2006. She says she was not interested in a long-term relationship with Mr Ryan.

3 Ms Kalocsay also puts an alternative case. She says that even if the Court finds there was a de facto relationship between them that Mr Ryan did not make relatively greater financial, non-financial and homemaker contributions to the property and financial resources of the parties. She submits therefore that the Court should not make an order for the adjustment of the parties’ interests in property under Property (Relationships) Act s 20.

4 The Court has a policy of reducing the risk of identity theft through its published judgments. This judgment does not publish the addresses of any of the properties owned by the parties or of any other person. Nor are any bank account details published. If required this information may be obtained from the Court’s file.

5 Before considering a more detailed account of the parties' relationship it is necessary to identify the legal principles that apply to the determination of the matters in issue.

Applicable Principles of Law

6 Mr Ryan asks the Court to exercise jurisdiction for the adjustment of property interests under the Property (Relationships) Acts s 20 which provides as follows:-

“ 20 Application for adjustment

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:

(i) a child of the parties,

(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

(2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.”

7 To determine whether there is jurisdiction to adjust the interests of the parties in property, the Court must first decide whether there was a “domestic relationship” between Mr Ryan and Ms Kalocsay and for what period such a relationship existed.

Existence of a Domestic Relationship

8 Mr Ryan claims he was in a domestic relationship with Ms Kalocsay. She denies that. There are two types of statutory “domestic relationships” which attract Property (Relationships) Act jurisdiction, de facto relationships and close personal relationships. Mr Ryan says that he and Ms Kalocsay were in a de facto relationship. The statutory concept of a “domestic relationship”, is defined by s 5 of the Property (Relationships) Act:

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

9 The first of the two types of personal relationship that may qualify as a statutory domestic relationship, a “de facto” relationship, is defined under s 4 of the Property (Relationships) Act:

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

(a) who live together as a couple, and
(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.”

10 The statutory concept of a close personal relationship is described but not defined in Property (Relationships) Act s 5(1)(b). The distinction between a close personal relationship and a de facto relationship is explained in authority.

11 In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104] Macready M considers the elements that need to be present in order for two people to be considered to be in a close personal relationship as defined under the Property Relationships Act:

“I have earlier referred to aspects of what the Act describes as a “close personal relationship”. It has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care.

So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a border in an elderly widow’s home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home.

The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc.”

12 It may have been possible in theory for Mr Ryan and Ms Kalocsay to contest that a statutory close personal relationship existed between them. But that is not how the case was pleaded or conducted. Mr Ryan alleged there was a de facto relationship between the parties, not a close personal relationship.

13 If a domestic relationship under the Property (Relationships) Act s 20 is established, the Court must first examine whether the prerequisites for making s 20 adjusting order are satisfied.

Jurisdictional Prerequisites and Financial Contributions

14 The prerequisites for making an order under Property (Relationships) Act s 20 are identified in Property (Relationships) Act s 17. The issues joined between Mr Ryan and Ms Kalocsay include whether they were in a domestic relationship for at least two years, and if not, whether Mr Ryan has made substantial contributions for which he would not otherwise be compensated, warranting the making of an order under Family Provision Act s 17 (2)(b)(i). The reasoning below shows that the matters in issue have not been decided on the basis of the existence of a domestic relationship of less than two years in duration. That was not in serious contest. Mr Ryan alleged that if there was a de facto relationship that it was far longer than two years. Ms Kalocsay did not admit a de facto relationship of less than two years duration. Jurisdictional prerequisites were not the focus of the dispute between the parties. What was in close focus was Ms Kalocsay's alternative case, leading to a contest as to their respective financial and non-financial contributions to their property and financial resources between 1999 and 2008.

15 The decided cases establish three distinct stages in the exercise of jurisdiction under Property (Relationships) Act s 20, once the s 17 pre-requisites to the exercise of jurisdiction are established.

a The first stage is the identification and the valuation of the property of the parties to determine their “divisible pool of property”. The property so identified is “the property of the parties to the relationship or either of them”. Property (Relationships) Act s 20 gives authority to the Court to adjust the parties’ interests in this property.

b The second stage is to identify, evaluate and weigh the parties’ respective contributions of the various types referred to in the Property (Relationships) Act, s 20. Typically this results in the Court apportioning as a percentage the overall s 20 contributions each party made up to the date of hearing.

c In the third stage the Court determines what order is required sufficiently to recognise and compensate an applicant’s contributions in the context of the contributions as a whole of both partners. This stage typically results in an order leaving the applicant with the percentage identified in the second stage of the divisible property identified in the first stage.

16 The courts have repeatedly affirmed this three stage methodology: Evans v Marmont (1997) 42 NSWLR 70, Jones v Grech (2001) 27 Fam LR 711; [2001] NSWCA 208; and Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11.

17 If the contest as to whether there was any domestic relationship between Mr Ryan and Ms Kalocsay is resolved in Mr Ryan's favour, the three stages identified in these authorities present the following questions for decision. What is Ms Kalocsay’s and Mr Ryan’s divisible pool of property? What were their respective contributions that may be recognised under s 20? What order, if any, as “seems just and equitable” should the Court make to adjust Ms Kalocsay’s and Mr Ryan’s respective interests in their divisible pool of property to reflect and recognise their contributions? The issue of whether there was a de facto relationship and those several questions form the structure of this judgment.

18 A chronological survey of the course of Mr Ryan and Ms Kalocsay’s co-habitation below explains their respective allegations and makes findings as to the nature of their relationship at the various properties they occupied. This judgment then deals with the reasoning of the three stages necessary to the making of a s 20 order.

19 The Court is not required in proceedings under Property Relationship Act s 20 to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be eliminated by the requisite financial adjustment in the s 20 order. Rather the Court is required to make a holistic value judgment in the exercise of a discretion of a very general kind. Mathematical calculations, however, are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision making: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [36] and [49] and Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149.

Credibility of the Parties

20 Issues of credibility were important to the Court’s decision making in these proceedings. Neither party survived cross-examination without being disbelieved on some aspect of his or her evidence. In some places I reject and in other places I accept the evidence of each of Mr Ryan and Ms Kalocsay. It is not possible to wholly accept the account of either party as to their relationship or as to what they each contributed.

21 Mr Ryan had a tendency to overstate his own financial and non-financial contributions and to understate those of Ms Kalocsay in the various households that they shared. His affidavit claimed that except for Ms Kalocsay's cigarettes and alcohol that "I paid for everything on behalf of Sue and including the rates and utility bills for Riverstone, all food and any other necessities". Yet in oral evidence this was demonstrated to be an exaggeration. He admitted that Ms Kalocsay paid for all her own clothes, shoes, bags and cosmetics. I accept that Ms Kalocsay's MasterCard statement is correct as showing that she paid for chemist expenses, perfume, clothing, shoes, homewares, food, hardware, general store expenses, supermarket expenses and petrol. This was very different from the impression Mr Ryan sought to convey in his affidavit. I also found his evidence that he paid the Council rates at Riverstone unbelievable. He was not able to show one occasion in the seven years that he was at Riverstone that he had paid the Council rates out of his bank account. Nor could he produce a receipt or any other document which would substantiate his payment of Council rates. Even if that could be overlooked as very poor record keeping, he had no appreciation of what the annual or quarterly rates on the Riverstone property actually were. This recollection was hardly consistent with someone who was taking responsibility for this category of expenditure.

22 I also find that that Mr Ryan was prepared to mislead the Roads and Traffic Authority (RTA) about the ownership of his motor vehicle AM8-1HP. Mr Ryan owned the vehicle but registered it in the name of a Mr Anthony Johnson because Mr Ryan felt that he could not register it in his own name without attracting the attention of authorities as he was a disqualified driver. This scheme represented a level of contrived artifice that cast doubt on the overall quality of his evidence.

23 Mr Ryan's credit was further impaired in a general way by his conduct in driving whilst disqualified. His continuing incapacity to conform with driving laws is an indication of an attitude of seeing what he could get away with without being caught out. Some of his exaggerations had this character too.

24 Ms Kalocsay’s credibility was not generally impaired in the same way as that of Mr Ryan. However, in places she was prepared to give self- interested evidence which I find was untrue. For example, she denied having a sexual relationship with Mr Ryan from late 1999 to 2008. Whilst I accept that the relationship did not last that long, I do not accept her evidence that there was no such relationship between herself and Mr Ryan. Other witnesses who stayed at the Riverstone property overnight establish that she and Mr Ryan slept together there for an extensive period. Ms Kalocsay was prepared falsely to deny any sort of close relationship with Mr Ryan beyond friendship, in order to protect her interest in the Riverstone property.

A Chronological Account

Their Meeting and the Quakers Hill Property

25 Mr Ryan puts his first meeting with Ms Kalocsay at just before Christmas 1999. On his version he was doing car detailing at Ashfield for an acquaintance Shane Nichols. Ms Kalocsay was also working for Mr Nichols as a private investigator. Mr Ryan says they met and commenced seeing each other regularly from this time. She was living in Hamilton Road, Quakers Hill and he rented premises at Regentville when they met. Mr Ryan says that a sexual relationship commenced between herself and Ms Kalocsay and that he slept overnight at her place at Quakers Hill on average about three to four times a week. He says that he was able to come and go from the Quakers Hill property at will.

26 Indeed he says that he was spending so much time at the Quakers Hill property that Ms Kalocsay invited him to move in with her to save him paying rent at his Regentsville premises and so that she would feel safer. On his account Mr Ryan and Ms Kalocsay lived together at the Quakers Hill property for about six to eight months effectively as man and wife, sleeping in the same bed together, with Ms Kalocsay doing washing and housekeeping. He says that they went out on most nights to restaurants and cafes partly because the kitchen at the Quakers Hill property was substandard.

27 Ms Kalocsay and her brother both owned the Quakers Hill property and were in the course of subdividing it at the time Mr Ryan says that he moved in.

28 Ms Kalocsay’s version of this very early period is quite different. She says that she did not meet Mr Ryan until early 2000 although she agrees that she met Mr Ryan at the premises of Shane Nichols but says that after meeting him she did not see him again until some time later. She denies that they saw each other regularly and says that he would only have visited her Quakers Hill residence two or three times during the whole time that she was living there. She explains that he did visit her Quakers Hill residence two or three times whilst she lived there. But she says the reason for this was that she was assisting him in getting his Department of Community Service Services (DOCS) records and that this was the sole purpose of his visits at that time. She denies inviting him to move in with her and says that he did not ever reside with her at the Quakers Hill property.

29 Ms Kalocsay also gives a very different account of their social life at Quakers Hill. She says that there was nothing wrong with the kitchen at the Quakers Hill property which was a well appointed house. There was no need to eat out at night as he claims they did.

30 One of the few matters on which both parties agree about the Quakers Hill property was that Ms Kalocsay and her brother had decided to sub-divide it to make a profit. The parties also agree that Ms Kalocsay moved into a property in Bourke Road, Lalor Park in what must have been early 2000.

Findings about their Meeting and the Quakers Hill Property

31 I find that both parties have adopted evidence about the Quakers Hill property that is exaggerated but which suits their respective cases. They undoubtedly met during this period and commenced to form a close friendship. They saw each other frequently and I find that a sexual relationship developed between them this early. Mr Ryan's claim that he met Ms Kalocsay in 1999 before Christmas through a mutual friend, Shane Nicholls is correct, as is his evidence that he and Ms Kalocsay commenced going out together socially when she lived at Quakers Hill. I do not accept Ms Kalocsay's denial of this.

32 I accept Mr Ryan's evidence that he became a regular overnight visitor at Quakers Hill. But I do not accept that Ms Kalocsay invited him to move into this property. In the conversation which he cites as the trigger for him to move to Quakers' Hill he has Ms Kalocsay saying that she does not feel safe at the house. She denies this. I accept her denial.

33 Nor do I accept that they lived at Quakers Hill together as a couple. Ms Kalocsay, denies this, stating she lived at Quakers Hill on her own. The evidence and the probabilities support this view. Ms Natalie Fox, a friend of Ms Kalocsay states she never saw Mr Ryan when visiting Ms Kalocsay at Quakers Hill some two to three times a month. I accept that Ms Fox is reliable in this evidence, which is consistent with Mr Ryan visiting Quakers Hill regularly but not living there permanently. Neither Ms Kalocsay nor Mr Ryan seemed particularly willing to declare any de facto relationship to friends or family when she was living at Quakers Hill. Mr Ryan's sister, Karen Sweetnam remembers Mr Ryan and Ms Kalocsay living together at Riverstone but she does not give equally definite evidence about them at Quakers Hill. Mr Williams, a witness called in Mr Ryan’s case and who had known Ms Kalocsay since before 1998 said that she introduced Mr Ryan as her “boyfriend” at the time. This evidence too I accept is correct. But Mr Williams did not stay at the Quakers Hill property overnight. As a mere visitor on some days Mr Williams was not able to say whether Mr Ryan had moved in permanently and stayed each night. He was more definite about their presentation as a couple at Lalor Park.

34 Mr Ryan and Ms Kalocsay were starting to become closer friends at Quakers Hill but they were not in a de facto relationship. It was not a relationship which came to the attention of many of those in contact with them both. Their financial arrangements were not demonstrably interdependent and were then consistent with the mutual generosity of close friends but no more. Mr Ryan gives little evidence of contributing to the performance of household duties during this period. Ms Kalocsay was looking after him when he stayed over but it was not an established domestic relationship with shared household work.

35 But Mr Ryan did assist Ms Kalocsay's move to the next property at Lalor Park.

Lalor Park Property

36 After leaving the Quakers Hill property and moving into the property at Bourke Road Lalor Park, Mr Ryan claims he was living with Ms Kalocsay in a domestic relationship at this property.

37 There is also a great distance between the parties’ account of their move to the Lalor Park property. Mr Ryan says that he moved all the furniture and belongings from the Quakers Hill property to the Lalor Park property and that he and Ms Kalocsay continued to live at the Lalor Park property as “man and wife”. He said that they slept together, had a sexual relationship and that Ms Kalocsay did all the washing and housework at that property.

38 Ms Kalocsay’s account is quite different. She says that if Mr Ryan did render her any assistance in moving from the Quakers Hill property to the Lalor Park property that it was not because of any personal relationship between them but because Mr Ryan still wanted her assistance in getting his DOC’s records.

39 The Lalor Park property was owned by two sisters Alia Bartley and Pauline Borg, who had both attended high school with Ms Kalocsay. They let the property out to friends after their mother died. Ms Kalocsay rented it between the sale of the Quakers Hill property and her purchase of the Riverstone property. I do not fully accept either of their accounts of what happened at the Lalor Park property.

40 Mr Ryan states that there was no formal lease of the Lalor Park property but that he and Ms Kalocsay paid $100 per week in rent for it. He has no documentary evidence to support this. He claims he bought all the food, paid all utility bills in respect of this property as well as paying all the rent. He has no documentary evidence of this either. I do not accept his evidence about this. He also says that he did 90% of the cooking. Ms Kalocsay denies all of this. Her evidence is that she lived on her own at the Lalor Park property between about March 2000 and February 2001. She claims she paid her own living expenses and Mr Ryan was only an occasional visitor. I do not accept that was true of the whole period at the Lalor Park property.

41 The evidence of the witnesses called on each side in relation to this period was contradictory. Pauline Borg collected the rent from Ms Kalocsay each fortnight. She claims Ms Kalocsay paid her $140 per week and that this included payment for water and electricity usage. She is likely to have known as landlord what the payments included and I accept her evidence on this. Ms Borg says she was only ever paid the rent by Ms Kalocsay and that she “very seldom saw anyone else there besides Sue”. I accept the reliability of Ms Borg's evidence about the Lalor Park property. Mr Ryan explains that he gave the rent money to Ms Kalocsay and she in turn paid the landlord. But he is wrong about paying the utilities. But this evidence can be reconciled. I find that towards the end of Ms Kalocsay's stay at the Lalor Park property that Mr Ryan began to spend more and more time there living there and sleeping overnight. By late 2000 he had moved in with Ms Kalocsay. There was certainly the beginnings of a de facto relationship here. But there was no moment where they appeared to discuss or agree on sharing a future together. There is a reason for this as will be explained later in these reasons.

42 Mr Williams noted when he stayed at Lalor Park on weekends, "Sue and Greg slept together in a double bed in their bedroom". Mr George Ollerenshaw observed the two as a couple and observed that Mr Ryan introduced Sue as his “girlfriend” and appeared to be very familiar with the interior of the Lalor Park property treating it as his own. All of this evidence is a true description of the later period at the Lalor Park property when Mr Ryan was living there full time and I accept it as correct. I am assisted in this inference by the fact there is no evidence of Mr Ryan paying rent anywhere else during the period that Ms Kalocsay was at the Lalor Park property.

The Riverstone Property

43 There is comprehensive disagreement about almost everything to do with the next property that the parties are said to have occupied together in Garfield East Road, Riverstone. But a few matters are not in dispute. The Riverstone property was a domestic and commercial property from which Mr Ryan could run his car detailing business. The Riverstone property also had a main road frontage which allowed the public easily to see the business signage that Mr Ryan put up for his business.

44 Ms Kalocsay paid $175,000 for the purchase of this property. The purchase of the Riverstone property was not finalised until late 2000. Ms Kalocsay commenced to occupy the property from early 2001. From here the disagreement commences.

45 Mr Ryan claims that he and Ms Kalocsay were living in a de facto relationship at the Riverstone property.

46 Ms Kalocsay's case is that the two were in a close friendship there but that Mr Ryan only rented a room from Ms Kalocsay at the Riverstone property. She asserts they slept in different rooms and he was a tenant paying $70 per week plus his share of the bills all of which were recorded on a calendar. Ms Kalocsay says she was in a personal relationship with a Mr Daryl Lewis of which Mr Ryan was aware. This relationship continued despite Mr Lewis being in prison. Ms Kalocsay also claims that Mr Ryan went out on dates with other women during this period.

47 Mr Ryan says that he and Ms Kalocsay continued to live there as “man and wife”. He describes their social and personal life together as including: having barbeques and friends coming over; attending barbeques together; Ms Kalocsay doing the washing and housekeeping and Mr Ryan working and supporting her; Mr Ryan paying for everything and giving Ms Kalocsay money; their sleeping in the same bed and having a sexual relationship; attending parties together; holidaying together, and Mr Ryan paying for local holidays; Mr Ryan running his car detailing business from the property and doing 90% of the cooking, and mowing the lawn and doing maintenance.

General Findings about the Relationship at the Riverstone Property

48 As with their time at both of the other two properties, the truth lies between the versions that Ms Kalocsay and Mr Ryan have presented to the Court about their time at the Riverstone property. I accept Mr Ryan's version that he and Ms Kalocsay shared a bed at the Riverstone property and organised their household and socialised and supported one another like a couple. But she is partly right in what she says in that he still had a room in the property, the back room, which she regarded as 'his". For her own reasons she preferred to think of him as being a member of the household, paying his way, without her being committed to a long term personal relationship with him. This was because of her relationship with Mr Lewis, which I find she never really abandoned even though he was in gaol. But she did not make this at all clear to Mr Ryan who regarded himself as being in a de facto relationship with her and with good reason during the early years at the Riverstone property. Ms Kalocsay and Mr Ryan shared much of their time together. She assisted him in his detailing business. She did do the housekeeping for both of them. She seemed to Mr Ryan to be content with this situation. It is useful to examine the arguments that Ms Kalocsay advances for their not being in a de facto relationship at the Riverstone property before examining the course of the relationship and Ms Kalocsay's relationship with Mr Lewis.

49 First, Ms Kalocsay challenged Mr Ryan's evidence that there was a sexual relationship between them at this property. Her counsel cross examined Mr Ryan about certain surgical scars on parts of Ms Kalocsay's body that would be obvious to someone who was in a sexual relationship with her. Mr Ryan had a poor but not wholly inaccurate recollection of these scars which were proven through photographs. His poor recollection does not negate the existence of a sexual relationship between them for two reasons. First I assess Mr Ryan as a person who is not particularly observant of his surroundings. Secondly I find, as is explained below, that their relationship had deteriorated probably to the point that sexual relationships had ceased well before Mr Ryan left the Riverstone property. By the time he came to be cross examined in Court he genuinely could not remember the scars on Ms Kalocsay's body that he had last seen some years before. But he had seen them.

50 Secondly, Ms Kalocsay challenged Mr Ryan's poor recollection of Ms Kalocsay's finances. I find that challenge was made good. Mr Ryan did not know that Ms Kalocsay had AMP and Commonwealth Bank accounts as well as a St George Account. He had no knowledge of her expenditure on her credit card. From this I infer that there was very little financial interdependence between them at the Riverstone property. This does not negate a de facto relationship but is highly relevant to the Court's assessment of his evidence of financial contribution to the relationship. He is unable to say with any confidence as he purported to do in his affidavit evidence that he largely supported her. He had no real ground to say this without some idea of her financial resources and banking arrangements.

51 Thirdly, Mr Ryan was curiously deficient in knowledge about aspects of Ms Kalocsay's life that he would be expected to have if they were living in a de facto relationship. He did not know that she had had breast cancer. He did not know that the defendant had been through menopause. He conceded that Ms Kalocsay "did her own thing" and "I done my own thing". Ms Kalocsay submits that this proves that there was no de facto relationship. But this merely proves that the two of them were not with each other all the time and were independent minded people. But an aspect of Ms Kalocsay's point is that this proves that there was no mutual commitment to a shared life. There is much force in this because a curious feature of Mr Ryan's case is the absence of real evidence of expressions of affection and endearment from Ms Kalocsay towards him. Because of Ms Kalocsay's relationship with Mr Lewis I do not think that this was entirely accidental. Although I have found a de facto relationship existed between them at the Riverstone property it lacked some of the features of such relationships and when tension developed as it did in about 2005, the relationship was soon able to be classified as something less than a de facto relationship.

52 Fourthly, Ms Kalocsay submits that Mr Ryan did not buy birthday or Valentine's day cards for Ms Kalocsay, he was very vague about whether he had purchased birthday presents for her and did not know the year of her birth. The answer to these otherwise quite forceful points is that perhaps because of his background, with a difficult childhood, Mr Ryan is a reasonably undemonstrative person without a well developed sense of the significance of gift giving. To him his behaviour was not inconsistent with a de facto relationship with Ms Kalocsay. I think she accepted him as her companion knowing all this.

53 Balanced against Ms Kalocsay's points here also is the powerful evidence of Ms Lorraine Austin the officer from the Department of Corrective Services which I analyse below. Ms Austin's evidence which I fully accept was to the effect that Ms Kalocsay was prepared to allow herself to be represented as Mr Ryan's partner. Ms Kalocsay would not have done this unless it had been true for a period of time. I also doubt Ms Kalocsay's explanation that their relationship was a tenancy of his room. She was not able to produce any documentary evidence consistent with such a relationship. She says the calendars on which she kept her records were taken but it is strange that there is no objective evidence to corroborate her collecting or expending money consistently with her version.

54 One interesting cameo of the different evidence they gave about their relationship at the Riverstone property is their accounts of their arrangements to occupy the property. Ms Kalocsay’s version of the acquisition of the Riverstone property and their occupation of the property is entirely different from that of Mr Ryan.

55 Mr Ryan says that when they commenced looking for houses to buy they did so together. They both understood the purchase of the Riverstone property was to be funded from the sub-division and development of the Quakers Hill property. Mr Ryan says that after they had been looking for about three months he said to Ms Kalocsay “I have got a friend, Sybil, in real estate. Why don’t we see her?” Ms Kalocsay said to have said “I don’t want to go out in the Windsor area. I have trouble with lots of police out there.” But Mr Ryan says he gave her Sybil’s contact number in any event.

56 Mr Ryan says that Ms Kalocsay then contacted Sybil Hood and that all three of them went looking at various properties and that eventually they both agreed upon the property at the Garfield East Road property at Riverstone.

57 In contrast Ms Kalocsay says that Mr Ryan played no role in the purchase of the Riverstone property. She says that she made the decision to purchase the property at that location. She said that she had recently become a grandmother and wished to live closer to her son, his partner and her grandchild. She claims that she had been looking at real estate the whole time that she was living at the Quakers Hill property of her own initiative. She does not disagree that Ms Hood may have shown her a number of properties but that her only interest in it was its proximity to her son’s address and the fact that it was affordable. On Ms Kalocsay’s version Mr Ryan was attempting to secure a commission for his good friend Sybil Hood and that he was pressing Ms Kalocsay to recognise that Ms Hood would receive a commission and ask himself to be able to come along when she was purchasing the property.

58 I find that they are both giving reasonably accurate accounts of the property search. The three of them did look together and a decision to buy was made together. But Ms Kalocsay was partly motivated in this particular purchase, as she says, by a desire to be close to her son and grandchild.

59 Ms Kalocsay’s account of their social life at Riverstone differs substantially from that of Mr Ryan. She says that they did not habitually socialise together although he did cook a barbeque a few times. She says in contrast (a) most of the time he socialised outside of the premises rather than have his friends visit him, (b) they did not have mutual friends, (c) she only socialised with his friends on limited occasions such as when he spent time with Ms Hood, (d) she did all the housecleaning at the Riverstone property but Mr Ryan was responsible for his own room (e) Mr Ryan was responsible for his own share of household expenses while he was renting the room but he did not pay any of the utility bills which were in her name. Most of what Ms Kalocsay puts here should be assessed as a matter of degree. It is true that there is very little evidence to support them mixing in a wide circle of friends as a couple or of them both entertaining guests together. But they did so in their own way and enough to generate quite a range of evidence about their relationship from third parties who had contact with them, to whose evidence I now turn.

60 The evidence of the other witnesses is very contradictory during this period.

The Other Witnesses

61 Natalie Fox called by Ms Kalocsay, says that Mr Ryan was staying in the back room of Ms Kalocsay’s house in Riverstone. She frequently slept over at the Riverstone property and claims Mr Ryan and Ms Kalocsay slept in separate bedrooms and displayed no affection to each other. She was sure that there was no closeness between them. Ms Fox claims Ms Kalocsay told her Mr Ryan moved out on several occasions for months at a time but moved back in when he could not manage on his own. She also states that Ms Kalcosay was the one who made frequent renovations to the house. In my view Ms Fox was either talking of the last few years at Riverstone when the relationship deteriorated or she is wrong.

62 Margaret Clinton, a next door neighbour claims she has never seen any public displays of affection between Mr Ryan and Ms Kalocsay. She is probably right about this as I have found that Mr Ryan does not readily demonstrate affection.

63 Karen Sweetnam, Mr Ryan’s sister, stayed over with Mr Ryan and Ms Kalocsay in the spare room, she says she observed ‘Greg and Sue always went to bed together’, and that ‘they acted as a couple’. She would also drive Mr Ryan to the Post Office to pay bills. I accept the correctness of this evidence.

64 Sybil Hood observed that when she was socialising with them, Mr Ryan and Ms Kalocsay held hands and even would kiss in her company. Further Mr Ryan would pay for himself and Ms Kalocsay. There were three bedrooms. Only one had a double bed in it.

65 I accept Mr Williams' observations that Mr Ryan and Ms Kalocsay slept together in the same bed at the Riverstone property.

66 Mr Robert Jaeger says that he observed that Mr Ryan and Ms Kalocsay slept together in the front bedroom while he slept in the spare room. On social occasions he observed them acting as a couple. For example he witnessed Mr Ryan pay for both himself and Ms Kalocsay.

The End of the Relationship

67 As can be expected from the conflicting evidence about the balance of their association Mr Ryan and Ms Kalocsay had entirely different versions as to how their relationship ended. Resolving what happened at this point also creates a puzzle that must be solved. The account set out in this paragraph is what happened. Mr Ryan’s version is that towards the end of 2007 he started to receive telephone calls from a person named “Darryl” who was asking to speak to Ms Kalocsay. Mr Ryan claims that he used a colourful colloquial expression to deter “Darryl’s” interest but that Ms Kalocsay would take the calls and talk to Darryl out of earshot from Mr Ryan. It emerged there had indeed been a relationship between Ms Kalocsay and Mr Darryl Lewis but that he had been in gaol for many years as a result of his conviction for serious criminal offences. Mr Lewis was released from prison in 2007. Ms Kalocsay went to see him in Broken Hill and telephone contact between Mr Lewis and Ms Kalocsay continued regularly through until February 2008. Mr Ryan says that he overheard Ms Kalocsay explaining to Mr Lewis on the telephone one day that in an apparent reference to Ms Kalocsay and Mr Ryan, “I just did what I had to do to survive. You have got to understand that.” Mr Ryan believed that Ms Kalocsay was speaking to Mr Lewis. Mr Ryan claims that shortly after St Valentines day 2008 when Mr Ryan confronted her about her contact with Mr Lewis that she said to Mr Ryan “You don’t love me and why don’t you just go.” He said that he responded by saying “Fine, just give me six weeks.”

68 The final event in the relationship came, according to Mr Ryan, when in March 2008 he received a sentence of six months weekend detention for driving unlicensed and unregistered. After he came back from his first weekend detention he found that Ms Kalocsay had packed up his utility with all his clothes. He was collected from the premises with his belongings by a friend. In fact the termination of his occupancy at the Riverstone property was not entirely unexplained. She had given him notice.

69 Some examination of the termination of Mr Ryan and Ms Kalocsay’s relationship reveals the true course of that relationship and explains much of the evidence of the witnesses. What seems to have happened is that there was a very close personal relationship amounting to a de facto relationship for a period of time from no later than when Ms Kalocsay and Mr Ryan moved into the Riverstone property but that the relationship cooled due to Mr Ryan’s unreliability and his commission of criminal offences. Ms Kalocsay answered the Court’s questions about this subject in the following way:

“Q. (Mr) Ryan says that the relationship came to an end in about St Valentine's Day 2008 when he says that you were taking an increasing number of calls from someone he thought was Darryl Lewis. You have read that in his affidavit, haven't you?
A. Yes.

Q. You say he was just a boarder?
A. Yes.

Q. And that was he was paying rent?
A. Yes.

Q. Can you explain from your point of view what were the events that led to the end of the boarding relationship? I don't understand quite yet, if he was just a boarder and that is all he was why then, what was it that led to the end of that relationship at that time? Do you understand?
A. I understand.

Q. Could you explain it please?
A. Greg - I wanted to choose the word but I don't think I should use it - just kept getting into trouble with the driving thing over and over again, the rent thing wasn't getting any better, the behaviour was getting worse, the friendship was deteriorating. There was a friendship and even the friendship was deteriorating because every time you turned around he was getting booked again and then when he got booked again and to Court again, all this drama, and again it was supposed to be everyone else has to pick up after him, get him to work and deal with his problems, and, you know, if you want to get on with your life, you want to do what you want to do, you don't want to be forever worrying about this other person's problems. They're big enough and old enough to look after themselves, they should be doing it.

Q. So, what happened?
A. Well, the whole thing, just another driving thing, driving thing, getting pulled up for unlicensed again.

Q. Was there a conversation, an incident, did you give him an ultimatum?
A. Oh yes.

Q. I want to understand the circumstances and events that led to the moment of his departure, do you understand what I mean?
A. Yes.

Q. It is not that complicated.
A. I misunderstood, I was trying to give you a round picture.

Q. I want a precise picture about the events and conversation that let to the moment where basically he was evicted or agreed to go, whatever happened.
A. "You really need to find somewhere else to live. If it takes you a couple of months, that's fine, but just do it".

Q. What did he say?
A. "Yes, I'll be fine, I'll find something and I'll go".

Q. Was it as simple as that one conversation and he agreed the first time you asked him?
A. It was pretty simple as that and then it would be another month or so and he still had not moved and the same conversation would occur again and then, the third time, the same conversation occurred, very straightforwardly and very bluntly, as I put it, I said "I will not have this conversation again".

Q. What did he say or do then?
A. He said "I'll leave after my weekend detention, if you can help me out by packing up my Ute, I'll move out as soon as I get back".

Q. You mean from the next episode of weekend detention?
A. He was actually just going to go to weekend detention when the conversation occurred so "as soon as I get back from weekend detention I'll go?

Q. Weekend detention occurred every weekend or every second weekend?
A. There was some strange arrangement that Greg had where he could actually do it during the week.”

70 I accept the correctness of all of this evidence. Ms Kalocsay’s and Mr Ryan’s relationship deteriorated significantly in the last few years and was barely at the level of friendship by the time he left. I accept Mr Kalocsay’s evidence that she did not wish to keep dealing with his problems. Although by the time she was presenting to Ms Austin with him in March 2008 the relationship had long since ended in any practical sense. It is difficult to place a date upon the expiry of the relationship. But in my view they ceased to live in a de facto relationship and merely became two friends, living in the same household by no later than 2005.

71 The change in the relationship between Mr Ryan and Ms Kalocsay from de facto relationship to friendship explains a great deal of the inconsistency between the witnesses’ evidence in these proceedings. Most of the witnesses attempted their genuine best to give evidence about what they observed of the relationship. Generally those witnesses that supported Mr Ryan’s point of view were speaking about the early years. Those witnesses who supported Ms Kalocsay’s point of view were focusing on the later years of their time at the Riverstone property.

72 Ms Kalocsay’s version is that she had a continuing relationship with Mr Lewis for many years and maintained a close affection for him even when he was in prison. Her case is that a relationship of a kind alleged by Mr Ryan is inconsistent for her affection for Mr Lewis. Ms Kalocsay says that she wanted Mr Ryan to move out of the premises because he was becoming, in the phrase used by Ms Fox “the boarder from hell”. Ms Kalocsay says that she had been asking Mr Ryan to move out for some time and that she regarded him as being less than honest with her in his dealings with her; he had broken and not paid for items of property; he had behaved unsociably; and, he continued to decline to move out of the premises even when asked. I accept the correctness of her evidence about these matters.

73 Much of the objective evidence supports Ms Kalocsay’s account of deep relationship with Mr Lewis. Ms Kalocsay tendered correspondence that she had with Mr Lewis in gaol for a period commencing in 1999 and going through until about 2005, approximately two years before he was released. There can be no doubt upon any objective analysis of this correspondence it is written in the most endearing and affectionate terms and is consistent only with a close, supportive and strong personal relationship with Mr Lewis. Although there are gaps in the correspondence it is evident that it runs right through from 1999 to 2005. The correspondence reflects its most affectionate intensity at the time just after Mr Lewis goes into gaol but in my view it is consistent throughout the years 1999 to at least 2005 with the existence of a deep personal relationship with Mr Lewis. I doubt the correspondence can be read in any other way. There is no evidence of any correspondence back from him but that may of course have been difficult. She was always ambivalent about her relationship with Mr Ryan but she nevertheless entered a de facto relationship with him.

The Evidence of Lorraine Austin

74 The parties’ encounter in March 2008 with the probation and parole system of this State indirectly created one important contemporaneous record of their views about their relationship. Mr Ryan was charged in about March 2008 with an offence of driving while disqualified. He had a lengthy driving record. He was a disqualified driver when in early 2008 he came under police attention whilst driving. He pleaded guilty to this offence. Ms Kalocsay provided evidence in his support on sentence. Before the sentencing hearing both Mr Ryan and Ms Kalocsay attended the probation and parole service at 1.30pm on 25 March 2008. By this time on both their evidence any kind of relationship between them had ended. The probation and parole officer, Ms Lorraine Austin made a record of her interview with Mr Ryan and Ms Kalocsay.

75 The two page record of interview was tendered as a business record (Exhibit B). Objections to its tender was taken. The Court allowed it into evidence on the basis that Ms Austin, its author, would be made available for cross-examination. She attended under subpoena and gave some evidence in chief and was cross-examined. Her evidence was some of the only fully independent oral evidence of the relationship of the parties in these proceedings.

76 At Ms Austin’s record of interview Mr Ryan presented to the probation and parole service under the name “Gregory Sella”. The first section of Ms Austin’s record of the interview concerned his basic identification details and an account of the incident. This first section referred to Ms Kalocsay as Mr Ryan’s “partner” in this context:

“Interview arranged for 1:30pm on 25/03/2008

Gregory SELLA attended with his partner Sue Kalocsay

Attended the PSR interview at Blacktown Office on 25/03/2008

He presented as very anxious and expressed concern about going to prison.

He was open and answered all questions clearly and honestly with no inconsistencies showing up when his partner was interviewed.

He recalled the night when he was charged; stating he and his partner had been working on a boat at Gladesville Marina from early morning and did not complete the job until very late. They were both sunburnt and tired. He stated he was about 3 kms from home when he ran out of petrol. His partner stayed in the car and he walked to a service station. When he arrived back an hour later, his partner had been asleep but woke up vomiting and feeling ill. She told him she was unable to drive the remainder of the way home. He stated he then tried to phone a taxi but the battery in his mobile phone was dead. He said he then made the decision to drive home. He had only gone a short distance when he was stopped by the police for a breath test.

The police then ascertained the client was driving after being disqualified.

He states now his actions were "stupid" but he felt he had no other choice.

INTAKE form was completed and at that point it was found the client had been recorded under two surnames and two MIN (403388/259335)”

77 The record of interview covered Mr Ryan’s personal history and family circumstances from his time as a very young person. None of these details are relevant to the matters now in issue before the Court. But the interview concluded with other references to Ms Kalocsay as his “partner”:

“Asked to bring in Bank statements; prescription from Dr re: partners sun stroke.

Talked to him about the importance of paying fines so his disqualification is not extended

Suggested possible Budget Counselling for future

PARTNER: Sue KALOCSAY, Mobile: [not published]

INTERVIEWED PARTNER: Sue Kalocsay verified information and provided a written statement, signed and dated by her. Partner also confirmed his family background and information about his youngest son.”

78 Ms Austin made a number of follow up telephone calls to confirm the personal account that Mr Ryan had given her.

79 The record of interview, Exhibit B, is a thoroughly prepared document covering all the issues that one might expect from a competent and professional officer from the probation and parole service. Its balance and comprehensiveness is the product of a careful author. That is exactly how Ms Austin presented in the witness box. Her oral evidence added further to the weight of her record of interview of 25 March 2008. She was a highly reliable witness.

80 Ms Austin gave an oral account of her interviews with Mr Ryan and Ms Kalocsay. She still had a recollection of the interview. Ms Austin did not speak separately to Ms Kalocsay. The way the record of interview is structured tends to suggest that the interviews may have been separate. But Ms Austin was cross-examined about whether the interviews with Mr Ryan and Ms Kalocsay were separate or together and I accept the evidence that she gave with conviction that the interviews took place together. The interview also involved filling out a form describing Mr Ryan and Ms Kalocsay’s relationship status. Based upon that form and the oral evidence of Ms Austin the Court makes the following findings:

(a) Ms Austin asked Mr Ryan the status of his relationship with Ms Kalocsay in Ms Kalocsay’s presence. He replied that she was his de facto partner. She did not dissent from that description.

(b) Ms Austin did the best she could to ensure that the pre-sentence report following her interview with Mr Ryan was as accurate as possible.

(c) Although in her own statement about the offence which was tendered to the magistrate upon Mr Ryan’s sentence Ms Kalocsay does not refer to him as her “partner”, the absence of any reference to them being in a relationship was not remarkable because Ms Austin did not regard that fact as particularly relevant to Ms Kalocsay’s evidence to the magistrate.

(d) Although Ms Austin assumed from Ms Kalocsay’s silence in the face of Mr Ryan’s description of her as his “partner” that was what she was, this was a reasonable assumption. There was no evidence available to Ms Austin of any incapacity on Ms Kalocsay’s part to speak her mind or disagree with what was said. Her presentation to this Court would indicate that she was unlikely to have had such difficulty.

(e) Ms Austin observed that they were “ obviously comfortable in what they were saying, how they related to one another ”. She regarded their observations as normal for a couple that knew each other well.

(f) Ms Austin ticked the box for “de facto” in her interview form affirmatively because of a belief that this correctly described the relationship between Mr Ryan and Ms Kalocsay.

(g) Counsel for Ms Kalocsay challenged Ms Austin’s account on the basis that Ms Kalocsay would have felt reluctant to contradict the account being given by Mr Ryan in Ms Austin’s presence. It was said that her account was therefore unreliable. Ms Austin dealt with that challenge in a way that I find reflects her good judgment in such situations. She had 10 years working in the NSW Department of Health which included interviewing people. She expected that she would pick up very quickly whether with two people at an interview one of them was uncomfortable about speaking. She did not observe on this occasion any of those cues. I find that there were no indications to Ms Austin that Ms Kalocsay was uncomfortable in the interview. Mr Ryan was speaking the truth to Ms Austin as Mr Ryan understood it. Ms Kalocsay was prepared to be described as his de facto partner because even though the relationship had ended there had been such a relationship and she was quite prepared to have herself represented that way to the department if it would assist Mr Ryan.

Other Independent Evidence of the Relationship

81 Ms Austin’s evidence of the relationship is significant because of its independence. In contrast Ms Kalocsay and Mr Ryan’s evidence is tainted by self interest and is often unreliable. In such circumstances the Court looks for evidence from independent sources.

82 One source of independent evidence about Mr Ryan and Ms Kalocsay’s relationship is the Home Detention Field Data Sheet made in June 2006 to assist in the consideration of sentencing options for Mr Ryan for his Court appearance. This data sheet (Exhibit 3) was filled out by an officer of the Department of the Corrective Services. Mr Ryan supplied the information in the data sheet. One section of the data sheet records information about “significant contacts” describing the nature of the “relationship” with those significant contacts and provides a phone number where they can be contacted. In the hierarchy of significant contacts in this data sheet Ms Kalocsay is declared as the first in order followed by Mr Gary Ryan, Mr Ryan’s brother, Mr Mick Torno, a friend and Dr M.K. Lalji, a medical practitioner. Ms Kalocsay’s relationship with Mr Ryan is described in the document as “long term friend, co-resident”. She is not described as a “de facto” or with any outcomes of being Mr Ryan’s “partner”. When considering home detention options stability in his relationships was an objectively important factor. Nevertheless his description of Ms Kalocsay fell short of declaring to the authorities a de facto relationship with her. His description to the officer collecting the data sheet of her as a “long term friend, co-resident” is surprisingly close to the description of the relationship that Ms Kalocsay gave in evidence.

83 The data sheet affirms Mr Ryan’s and Ms Kalocsay’s relationship as co-residents. To qualify for home detention it is necessary to supply information which would account for temporary absences from home. Mr Ryan describes his occupational status in the data sheet as “self-employed, works at home address” to which the explanation is then given “(lifts by co-resident periodically for work purposes)”. The form contains a section which accounts for “co-residents” in the place to which the proposed home detention will apply. Ms Kalocsay is identified as a “co-resident” with her date of birth. Against the data sheet question of [his] “relationship client” Mr Ryan has declared to the author of the form that Ms Kalocsay is a ”friend”. He has retreated from the opportunity to declare a de facto relationship between the two of them.

84 It is possible to reconcile these two independent pieces of evidence about the relationship. Ms Obrart’s contention on behalf of Ms Kalocsay is partly right. Mr Ryan did gently exaggerate to Ms Austin in March 2008 the nature of their relationship. Ms Kalocsay acquiesced in this, in his best interests despite the fact the relationship was over. But in 2006 the best of the relationship was already over and there was just a close friendship between them sufficient for Mr Ryan to be able to describe her accurately as his “friend” as well as being a co-resident. In my view by 2006 they had a close friendship, not a de facto relationship, which Mr Ryan was prepared to describe that way.

85 I have found a de facto relationship existed between Mr Ryan and Ms Kalocsay between 2000 and 2005. It is now necessary to examine whether Mr Ryan is entitled to an order under Property (Relationships) Act s 20.

The Divisible Pool of Property

86 There was little dispute between the parties about their divisible pool of property.

87 The evidence does not readily differentiate between the parties' asset positions at the time they first came to know one another at the Quakers Hill property and the time Ms Kalocsay moved into the Riverstone property. The time differential between these two dates is only approximately a year. Neither party suggested that his or her asset position changed materially between these two dates. I have found that there was no de facto relationship between the two of them until about the time that they moved into the Riverstone property in any event. Thus it is convenient to look at early 2001, when they moved into the Riverstone property, as the point to examine their respective asset positions.

88 Mr Ryan says and I accept that he came into the relationship with very few assets, a cash sum of $6,000, a Hi-Lux Van worth about $3,000, business tools and various pieces of furniture and personal items and clothing of no market value. He had a car detailing business with the goodwill attaching to that small operation. Balanced against these few assets Mr Ryan had already accumulated a series of traffic fines and fine default fees of significant value, worth between $2,000 and $3,000.

89 At the time of trial Mr Ryan had been in the car detailing business for over 32 years working full time on average five days per week. His statement of his asset position at the commencement of the relationship after over twenty years of work indicates he was someone for whom the preservation of capital was not an obvious priority.

90 At the end of the relationship his evidence was, and I accept, that he owned an FX utility valued at about $2,500, a small amount of furniture of nominal value, business tools and personal belongings of no significant value. He still continued to operate the same car detailing business. His fines and defaults to the RTA had escalated by the end of the relationship to a total debt of $5,000. After leaving the Riverstone property in February 2008 Mr Ryan's only significant outgoing was the payment of $300 per week rent for the property in which he now lives at Riverstone Parade, Riverstone.

91 Ms Kalocsay’s financial asset position was relatively uncomplicated both at the beginning and at the end of the relationship. Treating the parties setting up of a household in the Riverstone property as the commencement of the relationship, her principal asset at that time was the $175,000 which she contributed to the acquisition of the Riverstone property. These funds were her proceeds of the subdivision of the Quakers Hill property. She had other furniture and personal belongings which were not valued for the purposes of the proceedings. She still owned the Riverstone property at the end of the relationship and did so at the time of hearing.

92 There were conflicting valuations of the Riverstone property at the time of hearing but a satisfactory valuation figure can be reached by averaging available valuations. The real estate appraisals that Ms Kalocsay advanced for the Riverstone property (Exhibit 1) were for $280,000 - $300,000 (Wilkinson’s) and $260,000 - $270,000 (Century 21). Mr Ryan’s valuation from Mr Robert Furney, a registered valuer was $330,000. There is thus a margin of $70,000 between the lowest of Ms Kalocsay’s real estate appraisals ($260,000) and Mr Ryan’s expert valuation ($330,000). Mr Ryan submitted that I should use a midpoint of $295,000 as a current valuation of the property. That appears to the Court to be reasonable and that is the valuation which the Court will use.

93 Ms Kalocsay purchased the property unencumbered in November 2005 for $175,000. The property is now worth $295,000. There has thus been an increase in $120,000 in its value over that period.

94 This measure of the increasing capital value of the sole principal asset in the parties’ relationship is one useful yardstick against which to assess Mr Ryan's claim of $120,000. His claim represents the whole of the capital appreciation of the Riverstone property since Ms Kalocsay acquired it. Assessed with the other evidence in the proceedings, one way of measuring Mr Ryan’s claim is to ask whether it is reasonable in light of the parties respective contributions to the relationship that he should have an adjustment of property interests which represents the whole of the capital appreciation of the property during that period. For the reasons which follow, in my view that would be an excessive award to him.

The Parties’ Respective Contributions

95 Mr Ryan alleges he made substantial financial and non-financial contributions to his and Ms Kalocsay's property and financial resources during their de facto relationship, being contributions that he says qualify under Property (Relationships) Act s 20(1)(a). He also alleges that he made contributions in the capacity of homemaker to the welfare of Ms Kalocsay under Property (Relationships) Act s 20(1)(b). These matters are the "focal points by reference to which the discretionary judgement as to what seems just and equitable [under s 20] must be made”: Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland CJ in Eq at 79 G – 80A. The parties were at issue about the extent of their relative contributions in each of these areas. In this section the Court makes findings as to their disputed relative contributions of these types.

Contributions at the Riverstone Property

96 Mr Ryan alleges that at the Riverstone property he purchased all food and necessities (excluding the purchase of Ms Kalocsay’s cigarettes and alcohol) and paid all living expenses and for the upkeep of the Riverstone property for the duration of their relationship.

97 Mr Ryan says that Ms Kalocsay rarely worked during the relationship. The only work that he can recall her undertaking was her giving him assistance in car detailing, a four month period of work on a vegetation of legal land care scheme. Although Ms Kalocsay had been a private investigator at the time they met Mr Ryan believes she let her licence expire about “6 to 8 years ago”. But he says that he observed that she “hardly went out at all” on private investigation work. But she did receive some income from working in his business. He needed her services in various ways in the business including to drive him to detailing jobs because he was without a driver's licence. Especially in the earlier years she had income from work as a private investigator.

98 Ms Kalocsay points to Mr Ryan’s failure to provide sufficient documentary substantiation corrobating his evidence about the financial contributions he alleges made to the parties' property and financial resources. He has also failed to tender his bank records and chequebook. Mr Ryan’s response to this is that he gave all receipts to Ms Kalocsay to keep. I do not accept his evidence on this. My finding is that he has failed to substantiate any of his alleged expenditure.

99 Mr Ryan also says he was running a business where he earned cash. So receipts were not readily available to record his contributions. Mr Ryan claims he gave evidence of paying for some plumbing work and says that Ms Kalocsay has not provided any evidence that she paid for it. However it is difficult to understand even if the business was a cash business, why Mr Ryan did not attempt to show by the flow of funds through his personal bank account, what he was spending on the household, if it was as much as he says it was. Whilst his failure to produce such substantiation does not prevent a Property (Relationships) Act s 20 order being made in his favour, where his credibility is in issue as it is in this case, the lack of substantiation seriously undermines the case he is presenting.

100 Ms Kalocsay states Mr Ryan only contributed towards his own expenses but not towards the property itself. Further Ms Kalocsay reported stolen items to the Quakers Hill Police Station which were allegedly taken by Mr Ryan. Mr Ryan denies ever stealing items from Ms Kalocsay.

101 Mr Lewis claims he was making payments towards bills although his time in goal would have meant that his contribution was relatively minor.

Financial Contributions

102 Mr Ryan’s financial contribution case is relatively uncomplicated. He was not making financial contributions to the payment of a mortgage over the Riverstone property. Ms Kalocsay paid for the Riverstone property outright from the proceeds of the Quakers Hill subdivision. He did not make any contribution to the purchase price of that property. Indeed he made no allegation of direct financial contribution to the parties’ joint capital. Rather all the contributions alleged are on account of current expenditure, in the form of contributions to the couples ‘ cost of living.

103 It assists analysis to start with Ms Kalocsay’s answer to Mr Ryan’s financial contribution case. Her answer provides a measure against which his claims can be assessed. Her answer is that whatever financial contributions Mr Ryan made to the household they are offset by the benefits he received by living there and using the premises as a base for his business. These benefits were the following:

104 An advantage of the Riverstone property to Mr Ryan was that he could use it as a base for his car detailing business. He admitted it would have cost him in the order of $52.00 per week to rent equivalent space from which to run his business from which he earned income of between $800 and $1000 per week throughout the eight year period. I accept the accuracy of the figures provided by Mr Ryan. On this evidence the best that can be done is to use an average figure of about $75.00 per week. The Riverstone property was partly commercial and partly residential. As Mr Ryan explained “that was one of the reasons why we picked it, so we could run the business from there”. But the business did not pay rent to Ms Kalocsay so it received the benefit of that subsidy which assisted Mr Ryan’s earnings to that extent. There were other less tangible benefits to Mr Ryan from this arrangement that are appropriately mentioned here. He had a workplace that was readily accessible from home without any inconvenience to him. He did not have to worry about negotiating with landlords. He did not face increases in rent. He did not have to pay a proportionate of outgoings as would be common in commercial leases.

105 Ms Kalocsay also assisted Mr Ryan in his business. Given the proximity of business to home that would be a natural thing to do. Mr Ryan said he would “give her a small amount of the proceeds of the job in payment for her assistance”. But the assistance extended to other less definable duties including driving him to locations to do car detailing work for which she would also get some proportion of the proceeds. There is no clear analysis in the evidence of the financial calculus involved in Ms Kalocsay’s driving and general business assistance to Mr Ryan. However I find that it was substantial. Mr Ryan was a disqualified driver for much of the later period of the alleged relationship. An important component of the car detailing business was mobility. Ms Kalocsay’s driving assistance to Mr Ryan was, I infer, of great practical assistance to him in the maintenance and growth of the goodwill of his business. In particular him having a capacity that he could call on her from time to time as needed and at short notice for this task was a very important facility for the business directly associated with the location of the business at the Riverstone property. It is difficult to estimate this benefit in money's worth but I conclude that it was a real financial benefit to the business.

106 Ms Kalocsay’s case is that Mr Ryan was a tenant who was charged $70 a week for occupancy of the premises. In this area her evidence is weak. One of the reasons I am prepared to infer a domestic relationship in her case and that there was not a room tenancy is that such a tenancy is not readily not able to be substantiated. Mr Ryan denies he was a tenant and I accept that denial as an accurate characterisation of the relationship during occupancy of the Riverstone property. Mr Ryan did not pay rent to Ms Kalocsay whilst he was at Riverstone. Instead he received the benefit of rent free accommodation at Riverstone. Neither party gave direct evidence as to the rental value of the Riverstone property. Somewhat rough and ready though it is, the available evidence about the possible rental value of the Riverstone property is Mr Ryan’s own evidence that he is presently paying $300 per week to rent the premises into which he moved from the Riverstone property, also in Riverstone, for $300 per week. Whilst this is not easily to be seen as an assessment of the rental value of the Riverstone property it is nevertheless a measure of the rental savings from which Mr Ryan benefited by being accommodated rent free at the Riverstone property. Had he not had that benefit he would have had to find himself accommodation which by his own admission, to achieve the standard of accommodation that he found acceptable, would have cost him $300 per week.

107 Thus, I assess the benefit to Mr Ryan from his business and personal occupation at the Riverstone property as $375 per week. This is made up of $300 per week in rent for residential accommodation and $75.00 per week in commercial rent. As well as her taking some earnings from the business Ms Kalocsay's at call services assisting Mr Ryan in the business should be assessed as indirect financial contributions on her part to the parties joint financial resources.

108 Mr Ryan’s counsel, Ms Sloane, drew the Court’s attention to the cases that should guide the Court as to the proper approach to be taken where evidence of financial contribution is non specific. Even in cases such as Proudman v Dickason [2008] NSWSC 681 where no substantiation of financial contributions have been made and where neither party was able to say what portion of his or her income was spent on the welfare of the family or the acquisition, conservation or improvement of the family home, the Court can still make findings that the contribution of one party outweighs those of another: Proudman v Dickason [2008] NSWSC 681 at [32]-[33]. Authority has often emphasised that mathematical precision would not be possible; nor is it called for by the Property (Relationships) Act 1984; and, precise mathematical derivation of the figure reached by the Court may not always be demonstrable: Howell v Fiorenza [2008] NSWSC 163 per Hall J at [38] and Ross v Elderfield [2006] NSWCA 192, per Handley J at [42].

109 I accept the cogency of the case against Mr Ryan in relation to his financial contributions for several reasons apart from the lack of substantiation of his financial contributions.

110 First, even if one accepts the items of actual expenditure that Mr Ryan advances Ms Kalocsay as shown in final submissions that all these items total $12,530. The items include, plumbing, a wardrobe, hot plate installation, water filter installation, water tank installation, driveway gravel, glass shelving, motor vehicle repairs, veterinary expenses, tyres, an irrigation system, beds and a mattress. In a six year relationship as I have found this is $2088 per year or approximately $40.00 per week. Thus when financial contributions are compared Mr Ryan must contribute $335 ($375 less $40) per week in order to achieve equality of financial contribution with Ms Kalocsay. I find that his contribution was no more than that. He did have a greater income than she did but he has not reliably demonstrated an average weekly contribution of in excess of $300 per week to the household during the relationship.

111 Second, Mr Ryan admitted to gambling three or four times a week at twenty to thirty different venues and he was not confident that his gambling wins exceeded his losses. This pattern of expenditure together with the lack of substantiation gives a basis to infer that he probably spent most of his income on himself rather than contributing it to joint household expenses.

112 Third, Mr Ryan seemed to take a deliberate course of not disclosing what had passed through his Westpac savings account. The account existed during the relationship but he did not wish to reveal its contents. I infer from his choice that its contents would not have assisted his case that he was responsible for supporting the majority of family expenditure.

113 Fourth, the precise individual items that Mr Ryan points to as expenditure on the household such as paying veterinary fees, some wardrobes and furniture, plumbing costs, motor vehicle repairs are all items that were not especially large and in some cases benefited his business anyway (such as installation of driveway rocks) and were not all undertaken in any event. The remarkable thing about the list he advances is that it does not involve very large expenditure in what I have found to be a de facto relationship of about six years.

Indirect Contributions and Contributions to Welfare and as Homemaker

114 The parties also disagree about their indirect financial contributions and contributions to the welfare of the other including as homemaker. My finding is that Ms Kalocsay was responsible for at least as much indirect financial contribution to their property and joint financial resources as was Mr Ryan. She gave more than he did in homemaking. I accept her evidence as to the extent of her work around the home. Indeed Mr Ryan conceded she did all the housekeeping. I do not believe he did all he says around the household. This is illustrated by impressive and careful evidence from Ms Clinton an elderly neighbour who gave evidence by telephone. I accept her evidence that she never saw Mr Ryan working in the garden and that rather Ms Kalocsay did it. She also attested to Ms Kalocsay regularly helping Mr Ryan in his detailing business.

Order for adjustment of Interests

115 The third stage of the Court’s assessment involves determining what order is required sufficiently to recognise and compensate an applicant’s contributions in the context of the contributions as a whole of both partners.

116 The legal principles to determining what order is required at this stage are not controversial. The Property (Relationships) Act balancing task of what is “just and equitable” may take into account broad considerations including the financial circumstances of the parties, the needs and means of the partners, the length of the relationship, any promise or expectations of marriage and any opportunities lost by reason of the applicant’s contribution and indeed no limit can be set on what circumstances may be relevant: Evans v Marmont (1997) 42 NSWLR 70. The needs and means of the parties will have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of the parties: Powell v Supresencia (2003) 30 Fam LR 463. The proper approach to the Property (Relationships) Act, s 20 evaluative judgment has been comprehensively described in subsequent cases, such as Manns v Kennedy (2007) 37 Fam LR 489; [2007] NSWCA 217 per Campbell JA at [61] – [67].

117 In this case Mr Ryan has submitted that because it is unclear what property Ms Kalocsay owns other than the Riverstone property the assessment should be undertaken on the “individual asset approach”. He submits that in the present case that means an order by way of adjustment of interests in the Riverstone property should be made. Such an approach is open on the authorities: Howell v Fiorenza [2008] NSWSC 681, Kardos v Sarbutt [2006] NSWCA 11 at [51] and Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38 at [41] and [42] per Ipp JA, Giles and McColl JJA agreeing. The Court may of course take a global approach but in the present case the lack of evidence of Ms Kalocsay’s assets beyond the value of the Riverstone property makes an individual asset approach appropriate here. But this case also raises issues as to the treatment of notional rent which engages special considerations.

118 The authorities warn against the danger of double counting when the Court considers the notional rent applicable when one party occupies the property of another during a domestic relationship as IPP JA in Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38 at [122]:

“The respondent’s provision of the family home was a contribution to her by the partnership, and appropriate weight should be accorded to it. It could be wrong in principle however to accord it weight and then require a notional rental in respect of the appellant’s accommodation in the home to be deducted from the value of his contributions. That would be impermissible double counting.”

119 The approach the Court now takes is to use a notional rent approach in considering the balance of financial contributions of Mr Ryan and Ms Kalocsay but beyond that to ignore her provision of the home. Thus non-financial contributions to the property and financial resources of the parties and contributions in the capacity of homemaker are considered without reference to the ownership of the Riverstone property by Ms Kalocsay. This avoids the risk of double counting. As Brereton J said in Kardos v Sabutt [2006] NSWCA 11 at [79] “…whilst it is true that in a sense Ms Kardos provided the Woonoona home as accommodation for the parties, a relationship has to be conducted from some place of co-habitation.”

No Adjustment Required

120 The overall quality of contributions between the parties requires the conclusion that no order for the adjustment of interests in property should be made. As the Court has already found Mr Ryan’s financial contributions to the property and to the resources of the couple did not greatly outweigh those of Ms Kalocsay. To the extent that they did those benefits are neutralised by the benefits he received in operating his business from rent free premises and living rent free at the Riverstone property. Mr Ryan’s non-financial contributions did not outweigh those of Ms Kalocsay. I have assessed her to be generally, diligent, competent and reliable in maintaining their household to his advantage as well as hers. Mr Ryan has a general tendency to stress the value of his own work within the house at her expense that I do not accept as accurate. Her respective contribution to their welfare, including as a homemaker, was greater than his. I conclude in the circumstances that no adjusting order is required. Nor does any consideration in relation to the parties' needs compel a different conclusion.

Conclusions and Orders

121 In the result I have found that there was a de facto relationship between Mr Ryan and Ms Kalocasy between late 2000 and about 2005. There is jurisdiction for the Court to make orders adjusting the parties’ interests in property under s 20 Property (Relationships) Act. But in this case the Court declines to make any adjusting order under the section. Mr Ryan has not established that during his de facto relationship with Ms Kalocsay that he made sufficient financial or non financial contributions to the acquisition, conservation or improvement of property or to the parties’ financial resources or made contributions as to Ms Kalocsay's welfare including in his role as homemaker such that it is just and equitable for the Court to make an adjusting order in his favour. I will therefore dismiss Mr Ryan's claim and give judgment for Ms Kalocsay.

122 Ms Kalocsay has been wholly successful in the proceedings. The applicable principle is that costs follow the event unless it appears that some other order should be made as to the whole or any part of the costs: Uniform Civil Procedure Rules r 42.1. It is not obvious that there is any basis in this case to argue that “some other order should be made”. I will allow Mr Ryan an opportunity for a period of seven days to consider whether he wishes to argue for a different costs order.

123 The orders of the Court, which may be entered on 23 June 2010, unless before then the plaintiff files a motion for a different costs order, are:

1. Judgment for the defendant;

2. Order the plaintiff to pay the defendant’s costs of the proceedings.

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