Taddeo v Taddeo
[2010] SADC 61
•11 May 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TADDEO v TADDEO
[2010] SADC 61
Judgment of His Honour Judge Nicholson
11 May 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - RELATIONSHIP
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION OF TRUSTS IN GENERAL - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - INDEPENDENT OF INTENTION - PARTICULAR CASES
EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - WHERE INTENTION PRESUMED - REBUTTAL OF IMPLICATION - PRESUMPTION OF ADVANCEMENT
LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - OTHER CAUSES OF ACTION
86 year old mother (plaintiff) and 55 year old daughter (defendant) lived together for 24 years in a house registered solely in the name of the daughter. Plaintiff vacated the house on or about 15 October 2007. Issues to be determined included the following.
Were the parties domestic partners within the terms of the relevant legislation?
If so, did their domestic partnership come to an end after 1 June 2007 so as to attract the jurisdiction conferred by the relevant legislation?
If so, was the plaintiff entitled to an order in her favour for division of property?
Held: the plaintiff was so entitled and orders for division of property made. Extension of time granted within which such a claim could be brought. Consideration also given to whether or not the plaintiff was also entitled to a remedy pursuant to the law governing resulting trusts and constructive trusts.
Domestic Partners Property Act 1996 s9, s10, s11, s12; Acts Interpretation Act 1915 (SA) s19, s22; Criminal Law Consolidation Act 1935 (SA) s5; Property (Relationships) Act 1984 (NSW) ; Domestic Relationships Act 1994 (ACT) ; Property Law Act 1974 (QLD) Part 19; Relationships Act 2008 (VIC) s35; Family Court Act 1997 (WA) Part 5A; Relationships Act 2003 (ACT) ; De Facto Relationships Act (NT) ; Commonwealth Acts Interpretation Act s15AB; Statutory Interpretation Australia 5th ed. Butterworths, DC Pearce and RS Geddes at [4.47]; Jacobs' Law of Trusts in Australia 7th ed. Butterworths, JD Heydon and MJ Leeming, referred to.
R v McGlynn (2004) 87 SASR 440; Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 419; Al-Kateb v Godwin (2004) 208 ALR 124; R v Owen; Owen v South Australia (1996) 66 SASR 251; Ye v Fung [2006] NSWSC 243; Karpathiou v Clemente [2008] SASC 316; Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8; Taddeo v Taddeo & Catalano (1978) 19 SASR 347, 361; Hogg v Roberts (2003) 87 SASR 248; Parker v Parker 16 Fam LR 863; Calverley v Green (1984) 155 CLR 242; The Trustees of the property of Cummins v Cummins & Another (2006) 227 CLR 278; Muschinski v Dodds (1985) 160 CLR 583; Nelson v Nelson (1994) 33 NSWLR 740 (NSWCA) and (1995) 184 CLR 538; Baumgartner v Baumgartner (1987) 164 CLR 137; Brown v Brown (1993) 31 NSWLR 582; Inwards v Baker [1965] 2 QB 29; Vinden v Vinden [1982] 1 NSWLR 618; Pearce v Pearce [1977] 1 NSWLR 170; Milton v Proctor (1988) 4 BPR 9654 (NSWCA); Smith v Smith [2004] NSWSC 641; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Commonwealth of Australia v Verwayen (1990) 179 CLR 394; Lees v Cooper [2009] SADC 51, considered.
TADDEO v TADDEO
[2010] SADC 61Introduction
The plaintiff, Fernanda Taddeo, is an Italian woman who turned 86 years of age during the trial of this matter. She has lived for more than 50 years in Australia. However, it is common ground that she has acquired, at best, only a very rudimentary facility with English. She gave her evidence with the assistance of an interpreter. The defendant, Isita Mary Taddeo, is also an Italian woman. She was 55 years of age at the time of the trial and is the daughter of the plaintiff. She has a good facility with English, having been born in Adelaide and having spent all her life living, attending school and working in Adelaide.
For a period of approximately 24 years and 8 months between February 1983 and 15 October 2007, the plaintiff and the defendant lived together in a house at Lomman Avenue, Newton, South Australia. The house was purchased, with settlement taking place in February 1983, in the name of the defendant. She has remained the sole registered proprietor ever since.
The plaintiff claims that the defendant holds the title to the property upon trust for the benefit of the defendant and the plaintiff as tenants in common in equal shares. The plaintiff claims that the title should be impressed with a constructive trust as a result of the financial contributions allegedly made by the plaintiff to the purchase price, repayments of the mortgage loan, improvements to and maintenance of the house and outgoings such as council rates paid in respect of the property. In the alternative, the plaintiff claims that she and the defendant were domestic partners within the meaning of the Domestic Partners Property Act 1996 (“the Act”) and that, in all the circumstances, the plaintiff is entitled to an order for a division of property pursuant to ss9 and 10 of that Act. The plaintiff’s claim under the Act has been brought out of time. The plaintiff seeks, pursuant to ss9(3) of the Act, an extension of time within which to bring this aspect of her claim.
The parties appear to have lived an essentially harmonious life together in the Lomman Street house, as a single mother and a single daughter, each loving and caring for the other in their own way, for more than 24 years.[1] It is a tragedy that mother and daughter have not been able to resolve the dispute that has arisen between them without having to resort to this litigation. However, I do record that the two parties and their legal advisers, insofar as their personal conduct in open court is concerned, by and large, conducted themselves and the proceedings generally in a sensible and even gracious manner.
[1] The nature of their falling out and the timing of their falling out will be discussed in more detail later in these reasons. The issue is significant to the question of whether or not jurisdiction arises under the Domestic Partners Property Act in this matter.
The evidence in chief of both the plaintiff and the defendant was given by affidavit,[2] supplemented by oral testimony.
[2] The affidavits of the plaintiff read in her case were sworn with the assistance of an interpreter on 22 January 2008, 29 January 2009 and 29 April 2009 and are exhibits P1, P2 and P3. The affidavit of the defendant read in her case was sworn 16 July 2009 and is exhibit D4.
Non-contentious matters of fact
In addition to the matters in paragraphs [1] and [2] above, the factual matters set out under this heading are not contested or plainly are supported by the evidence.
The plaintiff was born in San Luri, Italy, on 22 August 1923. She has five children, including the defendant. Her oldest daughter, Carmela Caruso, is married to Cosimo (Jim) Caruso; they live in Adelaide and both gave evidence in the plaintiff’s case. Nicolangelo, a son, also lives in Adelaide and also gave evidence in the plaintiff’s case. Alviana Puntureri[3] is another daughter but she did not give evidence and did not play any role in the case. The plaintiff’s fifth and youngest child is a son, Aldo (Fioraldo) Taddeo. He is married to Karen Andrews; both live in Adelaide and both gave evidence in the plaintiff’s case.
[3] In the plaintiff’s first affidavit, exhibit P1, the name of this daughter is recorded as “Aliviana Puntodieri”. I have adopted the spelling set out in the defendant’s affidavit, exhibit D4, only because she has a better and a direct facility with English and is more likely to have observed whether or not the correct spelling was employed by the drafter.
In the late 1960’s, the plaintiff’s husband, Amatuccio Taddeo, returned to Italy. Initially, this was for a visit only. However, it was his desire that the whole family should return to Italy to live on a permanent basis. Eventually, Amatuccio returned to Australia. However, the marriage foundered. Amatuccio remained living in the family home at Queen Street, Norwood, but the plaintiff, the defendant and Aldo went to live with Carmela. Alviana and Nicolangelo already were living elsewhere. The plaintiff and Amatuccio never divorced but remained estranged, living separately and apart until Amatuccio died in 1995.
As at 1982, only the plaintiff and the defendant remained living together as part of the original family unit. They were in rental accommodation. A decision was made that a property should be purchased within which the plaintiff and the defendant could live rather than continuing to rent indefinitely.
A house in Lomman Avenue, Newton, was purchased in the name of the defendant for the sum of $45,750. A total amount of $4,550 was paid by way of deposit at and shortly after the signing of the contract on 22 November 1982. The Hindmarsh Building Society advanced to the defendant, secured by first registered mortgage on the property, $30,000 together with $53 by way of mortgage loss insurance premium. In addition to the deposit and the $30,000 advance, a further $11,200 together with stamp duty and other transaction costs was needed and became available to enable settlement to occur in February 1983. One of the disputes between the parties is as to what contribution, if any, was made by the plaintiff towards both the deposit and this additional $11,200 or so required for settlement.
The $30,000 borrowed from the Hindmarsh Building Society was borrowed solely in the name of the defendant and she assumed sole responsibility, vis a vis, the Hindmarsh Building Society, for all repayments. Initially, the interest rate was 14.25% per annum and the monthly repayment was $363.
During the first half of 1990, the defendant refinanced the Lomman Avenue loan with the Commonwealth Bank of Australia. The amount advanced on this occasion was $28,000 all of which was used to discharge the Hindmarsh Building Society loan. It can be seen that, as at this time, only about $2,000 of the original principal borrowed had been paid off. The Commonwealth Bank loan carried an interest rate of 14.9% per annum with monthly repayments of $353. The interest rate was fixed for 5 years.
In December 1993, the defendant renegotiated the loan with the Commonwealth Bank. Following this renegotiation, the principal outstanding was $12,760 or so. This comprised $6,603 or so,[4] being the balance of the loan then outstanding, together with a further $6,157 to assist the defendant in purchasing a second hand motor vehicle. The total loan of $12,760 was for a fixed term of 3 years and carried with it an initial (but variable) interest rate of 8.75% per annum and an initial monthly repayment of $450.
[4] Ignoring, for present purposes, any transaction costs that might have been rolled into these figures.
It can be seen that during the period early 1990 (the first refinancing with the Commonwealth Bank) until December 1993 (further refinancing with the Commonwealth Bank), the principal borrowed to purchase Lomman Avenue had been reduced by approximately $21,400.[5]
[5] On the basis that approximately $28,000 was still owing in early 1990, but only $6,603 was owing in December 1993.
As at 12 May 1995, the money borrowed to purchase Lomman Avenue had been completely repaid and the mortgage discharged. Indeed, it would appear that the whole of the $12,760 principal outstanding as at December 1993, including the additional amount of $6,157 borrowed to assist with the purchase of a second hand motor vehicle for the defendant, had been repaid by 12 May 1995.
One of the factual matters in dispute between the parties involves what contributions, if any, the plaintiff made from time to time towards payment of the housing loan principal and interest.
The loan money secured by registered mortgage on Lomman Avenue, together with interest, was repaid by regular, periodic instalments throughout the period 1983 to 1995 in accordance with each lender’s stipulated requirements from time to time. However, in addition, the following lump sum special payments were made: 13 February 1991, $2,000; 6 June 1991, $2000; 28 August 1991, $1,000; 29 January 1992, $1500; 6 March 1992, $750; 24 March 1992, $250; 10 July 1992, $1,000; 6 August 1993, $1,000; 8 September 1993, $500; 1 March 1994, $1,000; 19 May 1994, $3,000; 12 July 1994, $1,000; and 19 May 1995, $152.34. The payment of $152.34 was additional money required by the bank to cover disbursements and a bank service fee involved in stamping and registering the relevant discharge of mortgage.
It can be seen that during the period of the first refinancing (early 1990 to December 1993) additional or special payments totalling $10,000 were made and during the period of the second refinancing (December 1993 to discharge in May 1995) additional or special payments totalling approximately $5,000 were made. I infer that from the time of the first refinancing, when approximately $28,000 by way of principal remained outstanding until the time of discharge (May 1995) something in the order of $13,000 of principal was repaid by way of regular monthly repayments.
In late 1982, the plaintiff was 59 years of age. According to her second affidavit (exhibit P2) her sole sources of income since then and until the present day have been the Australian Government pension and an Italian war widows pension. As at the date of trial, the Australian pension was $A567.99 per fortnight and the Italian war widow’s pension was between $A120 and $A150 per month depending on exchange rates. There is no evidence before the court as to the type of Australian Government pension, if any, to which a woman in the circumstances of the plaintiff may have been entitled in 1982. Nevertheless, this evidence of the plaintiff has not been challenged and I accept it. Her affidavit evidence concerning the Italian war widow’s pension was also unchallenged. However, by its nature, the plaintiff can only have commenced receiving such a pension sometime after the death of her husband on 17 February 1995. It would follow that during the period Lomman Avenue was being paid off (February 1983 to May 1995) the plaintiff would not have had available to her the Italian war widow’s pension but for a few months at most.
In addition to her pension income, the plaintiff received a number of lump sum payments during the period she lived with the defendant.
(i)In 1982, she and the defendant went to Italy for the funeral of the plaintiff’s mother. They visited an aunt of the plaintiff, Aunt Mariaangela, at her house in San Luri, Sardinia. Both the plaintiff and the defendant were present when Aunt Mariaangela made a gift of money to the plaintiff. However, the parties are in dispute over the amount of the gift. In her second affidavit (exhibit P2), the plaintiff said that the gift was of about $A10,000. In her oral evidence she said, in chief, that it was 30 million lira (T35). However, during cross-examination, the plaintiff volunteered that it was 10 million lira and gave an explanation as to why she had mistakenly earlier said 30 million lira. The defendant in her affidavit (exhibit D4) and in her oral evidence maintained that the gift from Aunt Mariaangela was only 10,000 lira.
It has been agreed by the parties that the exchange rate applicable at the time of this gift was 1,352 lira to the Australian dollar. On this basis, a gift of 10 million lira would have been equivalent to approximately $A7,396 and a gift of 10,000 lira would have been equivalent to approximately $A7.40. For the reasons explained later in this judgment, I accept the defendant’s evidence on this issue.
(ii)Some time in 1985, the plaintiff received a bequest, following the death in Italy of Aunt Mariaangela, of 10 million lira. The parties have agreed an applicable exchange rate of 1,337 lira to the Australian dollar. Therefore, this bequest was equivalent to approximately $A7,479.
(iii)The plaintiff also received a bequest of 10 million lira following the death in Italy of her brother Luigi. The parties have agreed that, for present purposes, the court can accept that this bequest came into the hands of the plaintiff in 1987 with an applicable exchange rate at that time of 910 lira to the Australian dollar. The value of the bequest to the plaintiff in 1987 was therefore approximately $A10,989.
(iv)The plaintiff also received an inheritance of approximately $A27,000 from Amatuccio’s estate, some many years after his death in 1995. Apparently the finalisation of his estate caused difficulties and took a long time. The plaintiff lent that money to Nicolangelo and/or to Aldo. At some stage, the plaintiff in her evidence was not specific, Nicolangelo repaid $A1,000. However, the balance, $A26,000, was not repaid by Nicolangelo until 15 October 2007. There is documentary evidence to corroborate the plaintiff’s evidence in this regard.[6] The plaintiff left the Lomman Avenue house on 15 October 2007 and therefore at no time during the period she lived with the defendant in Lomman Avenue did she have access to this $A26,000.
(v)At some stage in or about 1999 or 2000, the plaintiff received a lump sum payment from the Italian government related to her ex-husband’s war service. The plaintiff maintains she received about $A16,000. However, whilst the defendant concedes that the plaintiff did receive a lump sum from the Italian Government, her recollection is that it was an amount in the order of $A5,000 by way of arrears of war pension which was paid into the plaintiff’s bank account. According to the plaintiff, at the request of the defendant, the $16,000 was deposited in the defendant’s bank account to avoid any risk that it might affect the plaintiff’s pension entitlements. The plaintiff insists that the defendant has never returned the money. The defendant denies this. One of the evidentiary problems before the court in this matter is that there are no bank statements or other financial records for the plaintiff or the defendant in evidence for any time prior to 2001.[7] I will need to return to this issue of the additional lump sum payment alleged to have been received from the Italian Government.
[6] The Commonwealth Bank records for the plaintiff’s account number 51465006153 at page 11, which can be found at the back of tab 18 of exhibit P5, show a deposit of $26,000 on 25 October 2007. In addition, exhibit FT1 to the plaintiff’s second affidavit (exhibit P2) is a bank cheque drawn on the Adelaide Bank in favour of the plaintiff for the sum of $26,000 dated 15 October 2007.
[7] Apart from a single entry recording a term deposit in the name of the defendant of $40,000 as at 24/03/00, see the third page behind tab 18 of exhibit P5.
Of the lump sums referred to in the previous paragraph, only those identified in (i), (ii) and (iii) (in total, either $A18,454.40 or $A25,864) would have been available to the plaintiff during the period that Lomman Avenue was being paid off.
As at the date that the plaintiff left Lomman Avenue (15 October 2007) she had managed to save from her pension and such of the lump sums as remained available to her, the amount of $77,237.[8] As at 7 September 2001, that is, a little more than 6 years after the Lomman Avenue loan had been fully repaid, the plaintiff had a savings balance of $23,724.[9]
[8] Page 11 of exhibit FT2 to the plaintiff’s second affidavit, exhibit P2. This figure of $77,237 is exclusive of the amount of $26,000 received on 15/10/07 and banked on 25/10/07.
[9] Page 1 of exhibit FT2.
The plaintiff initially banked at the Hindmarsh Building Society but moved her account to the Commonwealth Bank at the time the defendant moved the home loan there, that is, in or about 1990. Thereafter, the only bank facility available to the plaintiff was her savings account at the Commonwealth Bank. The only records relating to this account that are in evidence are those in exhibit FT2 to the plaintiff’s second affidavit (exhibit P2) which commence 1 September 2001.[10] An analysis of the entries in these bank records shows that during the period from 1 September 2001 to 15 October 2007 (the date of leaving Lomman Avenue) the plaintiff saved a net amount of approximately $53,500 and had withdrawn and spent approximately $43,265 at an average of approximately $137 per week.
[10] These are duplicated behind tab 18 of exhibit P5.
I infer and find that the plaintiff’s savings record between 1995 and October 2007 demonstrates that she had the capacity, prior to 1995, to have contributed (whether from pension or capital sums) one half of a monthly mortgage repayment of between $353 and $450 per calendar month.
The defendant started working full-time as a ledger machinist doing book keeping and related work in 1973 when she was 19. She worked for various employers for a number of years, firstly in this capacity and thereafter doing general receptionist and secretarial work. In about 1990, she commenced working at the Julia Farr Centre doing cleaning and, later on, cleaning and pantry work. She spent 14 years at the Julia Farr Centre, finally retiring from all forms of work in 2004. Apart from a couple of years during which she was unemployed, the defendant engaged in full-time work throughout the 31 year period between 1973 and 2004.
When the defendant started at the Julia Farr Centre in 1990, her hourly rate was $10. She typically worked a 38 hour week, Monday to Friday, together with 8 hours on the weekend for which she received penalty rates. The highest basic hourly rate she can recall receiving during her period with the Julia Farr Centre was $14. The penalty rate at the Julia Farr Centre for weekend work was double the basic rate. On the above figures, which I accept, the defendant was earning in the order of $500 to $550 a week before tax in 1990 at the Julia Farr Centre.
After the defendant left the Julia Farr Centre in 2004, she was in receipt of an invalid pension as a result of a work injury. This was approximately $470 a fortnight at the time she commenced to receive it. After 2004, she also received a carer’s allowance of a further $90 a fortnight during the period she was living with and caring for the plaintiff.
The defendant also received some lump sums from time to time. In August 1995, she received $14,784 by way of compensation for a motor vehicle accident/Workcover claim (exhibit D12). In May 2004, she received $45,000 following the redemption of a Workcover claim. At some stage thereafter, she received a further $5,000 on this account. In June 2004, she received $9,503 on account of annual leave and long service leave entitlements following her retirement from the Julia Farr Centre.
Both the plaintiff and the defendant, during their time together, lived what can only be described as an extremely frugal existence. The evidence of both plaintiff and defendant, which in this respect was not in any way contradicted by the evidence of the siblings, was to the effect that apart from monies spent on acquiring, maintaining and improving Lomman Avenue, money was only spent by either of them on the bare necessities of life.
Ignoring the various lump sums received by the defendant, the earliest of which was received in August 1995, the savings record of the defendant,[11] together with the fact that she was in full-time employment from 1973 to 2004 (but for two or so years) supports a finding, and I so find, that the defendant’s financial circumstances were such that it was possible for her to have met the monthly payments and ultimately to have paid off the whole of the Lomman Avenue mortgage from her own resources and without the assistance of the plaintiff. Of course, her capacity to have achieved this would have been enhanced by any contributions made by the plaintiff to joint household expenses throughout the time they lived together. It is conceded by the defendant that such contributions were made and I deal with the common ground in this respect in the next two paragraphs.
[11] As disclosed in her banking records available from 8 June 2001 onwards (tab 18 of exhibit P5).
The plaintiff made various contributions to the joint household expenses whilst she was living at Lomman Avenue. However, the parties are not entirely in agreement as to the extent or nature of these contributions. It is conceded by the defendant that the plaintiff contributed in the following ways, at least until the relationship soured in the months prior to 15 October 2007. Cooking of meals was shared, although the plaintiff did more of the cooking whilst the defendant was working. Other household chores such as washing the dishes and the washing of clothes were also shared. Whoever was washing would wash the other’s clothes. The plaintiff enjoyed gardening and did most of it, although the defendant helped out with heavier work that the plaintiff could not do such as mowing the lawns. According to the defendant, they went shopping for food and other household needs together and shared the cost equally. However, the plaintiff said that she usually paid for shopping apart from incidental things required during the week when, usually, these would be purchased by the defendant. The electricity, gas and telephone bills were shared equally. The telephone account was in the name of the plaintiff to enable a pensioner’s discount to be obtained. The water rates were shared equally. The defendant maintains that the council rates and the household insurance were paid solely by her, but the plaintiff maintains that these also were shared equally.
Both plaintiff and defendant contributed, from time to time, to the maintenance of and renovations to the house. The defendant conceded that costs incurred for a new carpet, a built veranda, replacement fencing, some plumbing work, roller shutters at the front of the house, some new tiling inside the house, a replacement hot water service (on two occasions) some security lighting, a security door at the front of the house, a kitchen renovation, materials required for a lighting upgrade, some of the furniture bought over the years including a buffet table and chairs, and for replacing a gas stove (on two occasions) were shared equally. Other items such as crockery, glassware and linen were purchased in part by the plaintiff and in part by the defendant. In addition, there were other things that were individually paid for by either the plaintiff or the defendant as one would expect when two women, each with an income, lived together over a period of more than 24 years.
The plaintiff and the defendant shared a good relationship as mother and daughter and living together in Lomman Avenue until they started to fight and ultimately fall out. There is some evidence that they were fighting at the time of the plaintiff’s birthday in August 2006, that is, more than 12 months before the plaintiff left on 15 October 2007. Little weight can be placed on this evidence, taken alone, as indicating the “end” of any “domestic partnership” that may have existed. One of the conceptual difficulties in this matter, at least bearing on the issue of when any “domestic partnership” might have come to an end, is that mothers and daughters often disagree and fight throughout their relationship which is, of course, a relationship that will endure until one of them dies. Nevertheless, there is no doubt that in and around October 2007, the falling out between the plaintiff and defendant was so serious as to lead to the plaintiff leaving the house. Since then, she has resided with her daughter, Carmela and her husband, Cosimo Caruso.
As at 15 October 2007, the market value of Lomman Avenue was $310,000 and as at 25 June 2009 and the time of trial, its market value was $380,000. As at 15 October 2007, the estimated rental return for the property was $275 to $280 per week and as at trial, $320 to $340 per week.[12]
[12] See the evidence of the certified property valuer, Paul Horner, which was not challenged by either party.
Factual matters in contention between the parties
Factual matters about which the parties do not agree include those set out in the following paragraphs under this heading.
The plaintiff asserts that she made an equal contribution, or roughly equal contribution, to the initial purchase monies for Lomman Avenue and thereafter to the monthly mortgage payments. The defendant disputes this. For the reasons explained later in this judgment I, in general, accept the defendant’s evidence on this topic.
The plaintiff maintains that she contributed equally to the council rates and the house insurance. The defendant disputes this. Again, for reasons later explained, I prefer the defendant’s evidence on this topic.
The plaintiff maintains that she received $A16,000 lump sum from the Italian Government, which was paid into the defendant’s bank account and which the defendant has never returned. In addition to her oral and affidavit evidence on this topic, the plaintiff relies on two handwritten notes recording the amounts (totalling $16,000) said to have been given to the defendant on separate occasions.[13] According to the plaintiff, she made these notes at the time she paid over the money. However, the notes are undated. The second note records the numerals 160000. However, it also records, in words “sedicimilla” and the court interpreter translated this as sixteen thousand. It was not explained why the plaintiff needed to record the information twice and why, of the $16,000 said to have been received by one cheque from the Italian government, the plaintiff gave it to the defendant in four tranches of $12,000, $2,500, $500 and $1,000. The defendant denies that the plaintiff received $16,000 and that it was given over to her. She said that she was involved in pursuing the application for unpaid entitlements with the Italian government and that her mother received considerably less than $16,000, more like $5,000.
[13] See the plaintiff’s second affidavit exhibit P2 at paragraphs [8] and [51] to [58] and exhibit FT4 annexed thereto.
For reasons I later explain, I have, in general, a preference for the defendant’s evidence. However, in this case there is the exhibit FT4. I am satisfied that at some stage during the relationship the plaintiff paid over to the defendant the four amounts (totalling $16,000) recorded on exhibit FT4. However, I am not persuaded that it all came from the Italian government. In this respect, I accept the defendant’s evidence to the effect that the amount received from that source was considerably less than $16,000. I also am not persuaded that the amounts referred to in exhibit FT4 were given to the defendant, only by way of loan and in order to avoid any pension complications. I accept that the $16,000 is to be regarded as a contribution made by the plaintiff to the parties’ joint resources at some stage during the relationship. However, I am unable to determine the purpose to which these monies were put either directly or indirectly. For example, it is possible that they were contributions made towards some of the maintenance and renovations to Lomman Avenue.
The plaintiff maintains that, just prior to the purchase of Lomman Avenue, her son Nicolangelo gave her approximately $2,000 to assist her to pay her share of the money required for the deposit and settlement of the purchase. The defendant concedes that the plaintiff gave her some money towards the deposit and the other initial purchase costs but maintains that the amount was much less than the $7,000 or $8,000 that the plaintiff says she contributed.
According to the plaintiff, there was an agreement reached at the time of the Lomman Avenue purchase that each would make an equal contribution to the deposit and thereafter equal contributions to the payment of the mortgage. It was also agreed that the plaintiff would make equal contributions to utilities, such as power and water and other taxes, and all other household expenses. That an agreement was reached in any of these respects at the time of purchase is denied by the defendant. The plaintiff has said, in her first affidavit (exhibit P1, paragraph 18):
It was always my understanding that I shared an equal interest in the house and its improvements with my daughter and that if and when I needed my share of the house and its improvements back, I could recover them.
The defendant maintains that there is no basis in the evidence for such an expectation.
The defendant denies that she and the plaintiff were parties to a “domestic partnership” so as to attract the jurisdiction of the Act and maintains that, even if they were, the “domestic partnership” came to an end before 1 June 2007. It is common ground that the provisions of the Domestic Partners Property Act do not apply to a domestic partnership, not being a de facto relationship, which came to an end before 1 June 2007.[14]
[14] And see s4 of the Act.
General observations concerning the witnesses
In my view, both the plaintiff and the defendant attempted to do their best to accurately recall various financial matters and domestic events and circumstances that took place over a number of decades. In this endeavour, they were able to obtain little assistance from contemporaneous documentary records prior to 2001. I formed the view that both were doing their best to tell the truth and to accurately recall the details of their life together since 1982. Having said that, I have little doubt that there has been reconstruction on both sides and particularly by the plaintiff. Both came to court with fixed positions on the question of whether the parties agreed or intended at any stage for the plaintiff to have a financial interest in the Lomman Avenue property purchased solely in the name of the defendant. Both had difficulty recalling details from time to time.
Notwithstanding these concerns, I found the defendant, overall, to be an impressive witness. She gave her evidence clearly and with confidence. She was prepared to concede a number of factual matters in her mother’s favour. She was prepared to return to matters and either correct or qualify previous evidence as her recollection improved throughout the questioning process. There was one such matter concerning a forgotten savings amount, potentially significant to the assessment of her credit, which came up late in the trial. I refer to this matter again, later in these reasons. However, I note here that it has not caused me to take an adverse view of the defendant’s credit, in the sense that I remain satisfied that she was doing her best to be truthful. The defendant in her statement of assets, provided towards the end of the trial, omitted to include $79,000 in an investment account with Colonial First Choice (Commonwealth Bank). However, it was plain from her banking records behind tab 18 of exhibit P5 that a sum of $80,000 had been withdrawn on 11 March 2005. When questioned about this, the defendant readily admitted that she still had $79,000 of this amount in an investment account. The defendant was a little taken aback when I pointed out that this investment account did not feature on her statement of assets but she was not embarrassed or discomforted. She could have prevaricated and could have offered other explanations such as that she had spent the money on the house or something else during the period since 2005. However, she immediately admitted that she had forgotten to include it when preparing her statement. I was quite satisfied at the time that she had not deliberately attempted to deceive the court.
Having seen and heard the plaintiff in the witness box, I have difficulty in accepting at face value all of her affidavit evidence. Whilst the affidavits may well express, by and large, the plaintiff’s instructions given in 2009, they are not cast in the type of language that would have emanated directly from the plaintiff. I accept the inevitability of this, to some degree, where affidavits are prepared by legal advisors on instructions from and on behalf of an elderly, non English speaking, relatively uneducated woman such as the plaintiff in this case. I also acknowledge that the plaintiff’s affidavits were only sworn after having been interpreted by an accredited interpreter.
Nevertheless, I have a further concern in this respect. It is plain to me, having heard from the plaintiff and the defendant and from Carmela Caruso, Cosimo Caruso, Aldo Taddeo and Karen Andrews that, rightly or wrongly, as the relationship between the plaintiff and the defendant broke down and it became apparent that the plaintiff should leave Lomman Avenue, the forces of the family in general aligned with the plaintiff and against their sister, the defendant. In particular, after hearing from and observing Aldo and Karen Andrews, I formed the opinion that they were persuaded as to the merits of Aldo’s mother’s claim that she was entitled to a half interest in Lomman Avenue but with little, if any, direct evidence available to them in support of this proposition. Aldo Taddeo was in court for a large part of the trial supporting and assisting his mother. There is nothing wrong with this; it is not unexpected for a son to behave in that way towards his mother. However, in this case, I was left with a real concern that the plaintiff’s evidence, as set out in the affidavits and also orally, had been to some degree a product of family reconstruction. Furthermore, I have little doubt of Aldo’s bias in favour of his mother and her case. In my view, this bias was reflected in a level of reconstruction in his evidence and also in that of his wife, Karen Andrews.
Apart from some isolated topics, I found the evidence of the siblings, Carmela, Aldo and Nicolangelo, of Carmela’s husband Cosimo Caruso, of Aldo’s wife Karen Andrews, of the defendant’s second cousin Sylvio Taddeo and of the next door neighbour Antonio (Tony) D’Antonio to be of little assistance. To the extent that their evidence bordered on or approached topics of relevance, it contained reconstruction, opinions or conclusions rather than direct evidence concerning the behaviour of the parties towards each other. Finally, I cannot leave this topic without observing that the plaintiff was 86 when she gave her evidence. She had difficulty in understanding questions from time to time and became easily confused at times.
For these reasons, where there is a difference between the plaintiff’s and the defendant’s respective accounts and in the absence of other acceptable evidence supporting the plaintiff’s account, I have taken the view that the defendant’s account is more likely to be accurate.
Evidence of Witnesses other than the Plaintiff and the Defendant
As at the trial, Karen Andrews had known Aldo Taddeo for about twenty years; they had been married for five years. She met the plaintiff and the defendant about seven years before trial. Apart from family visits with Aldo, she visited the plaintiff and the defendant by herself on only one occasion. Karen Andrews works as a real estate agent; she recalled an occasion in about 2003 when “they” asked her for an appraisal of Lomman Avenue. She said that the defendant said to her (T111-112):
her and her mother would like to be able to sell their home and buy a new courtyard home that they would both buy and live in together.
Karen Andrews also said that a conversation about who owned the home occurred “on a number of occasions”.
That conversation took place on a number of occasions when we visited them on Sundays. And the conversations included that Isita and Fernanda owned the home jointly; they paid their bills jointly; they went out and did the shopping together; that Fernanda gave Isita money to pay -
It is clear from the context in which this evidence was given (T111-113) that, according to Karen Andrews, it was the defendant telling her these things.
The plaintiff relies on this evidence by Karen Andrews as being evidence of admission by the defendant that she was aware and accepted that Lomman Avenue was owned jointly by the plaintiff and the defendant.
I do not accept that Karen Andrews has accurately recalled and restated any such conversations. Throughout her evidence I was unpersuaded that she was giving me an accurate account of conversations she may have had with the defendant. Upon hearing her evidence and upon seeing her in the witness box, I formed the impression that she, like Aldo, was strongly in the plaintiff’s camp and that she had a view that the plaintiff was entitled to half of Lomman Avenue. I am satisfied that she has allowed reconstruction to intrude into her evidence. In addition, the language of her answers as quoted above, and elsewhere in her evidence, is the language of conclusion or reconstruction rather than recollection of words said or the effect of words said. I accept the defendant’s submission that, to the extent the defendant may have used language which acknowledged that Lomman Avenue was “their home” or that “they” were thinking of buying a new home, such was consistent with the fact of continuing joint occupancy and not to be interpreted necessarily as an admission that the plaintiff had any legal interest in Lomman Avenue.
I have already referred to some aspects of the evidence of Aldo Taddeo. As I have indicated, I found him to be an unsatisfactory witness. I am not prepared to accept his evidence on any topic where it is inconsistent with the evidence of the defendant. I have a clear preference for the evidence of the defendant on all such matters. Accordingly, I found Aldo Taddeo’s evidence to be of little, if any, assistance.
On the basis of the defendant’s evidence, I am satisfied that Aldo Taddeo played a significant part in the disagreements that emerged between the plaintiff and the defendant, particularly in the latter months, and that he took the plaintiff’s side and was, at times, aggressive and intimidating towards the defendant. I am satisfied, that he played a significant role in the events that ultimately led to the plaintiff leaving Lomman Avenue on 15 October 2007.
I have elsewhere in these reasons dealt with aspects of the evidence of Nicolangelo Taddeo. Apart from those aspects, his evidence was of no particular assistance.
The plaintiff also called Silvio Taddeo, Amatuccio’s nephew. He has known the plaintiff and the defendant all of the defendant’s life. He lives nearby, about 10 minutes walk away, but hardly saw the defendant or the plaintiff over the years. He saw the defendant on three or four occasions about two or three years before the trial. During cross-examination he conceded that he thought that the defendant needed to be taught a lesson. He clearly holds a grudge against her and is a strong supporter of the plaintiff. In any event, his evidence was directed essentially at the question of responsibility or blame for the relationship ending and I did not find it particularly helpful. His observations about what the defendant said to him, even if true – about which I make no finding, would not assist me in my consideration of the relevant issues.
The plaintiff also called her daughter and son-in-law, Carmello and Cosimo Caruso, and a neighbour of the defendant’s, Antonio (Tony) D’Antonio. Apart from aspects of this evidence directed at the nature of the relationship between the parties and when it started to decline, with which I deal elsewhere, I did not find their evidence to be of any particular assistance.
Claim under the Domestic Partners Property Act
Section 9 of the Act provides that after a domestic partnership ends, either of the domestic partners may apply to a court for division of property. However, this statutory entitlement only applies to the parties to a domestic partnership which came to an end on or after 1 June 2007. In the present case, the plaintiff ceased residing at Lomman Avenue on 15 October 2007. If the plaintiff and the defendant were in a “domestic partnership” and that domestic partnership came to an end some time between 1 June 2007 and 15 October 2007, then an entitlement to apply for a division of property under the Act will have arisen.
The first question is whether or not the plaintiff and the defendant were, at any time, parties to a domestic partnership. The concept or term “domestic partnership” is not defined in the Act. However, the term “domestic partner” is defined and by necessary implication, a “domestic partnership” is a relationship between domestic partners. A “domestic partner” is defined in s3 of the Act to mean:
A person who lives in a close personal relationship and includes –
(a) …
(b) A person who has lived in a close personal relationship.
The concept or term “close personal relationship” is also defined by s3 of the Act. It means:
[T]he relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include –
(a) The relationship between a legally married couple; or
(b)A relationship where one of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.
The definition of “close personal relationship” is broad enough to encompass and is intended to encompass conventional de facto relationships and same sex partnerships involving a romantic element. However, the definition is clearly intended to go further than this. So much is plain from the words of the definition itself and from the parliamentary debates conducted at the time the Act was amended so as to extend its operation and to change its name from the previous De Facto Relationships Act 1996, as of 1 June 2007.
There is a “note” recorded at the foot of the definition of “close personal relationship” as contained in s3 of the Act. That note reads:
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
On my reading of s19(2)(b) of the Acts Interpretation Act 1915 (SA), this “note” does not form part of the Act. There is nothing in the Act which suggests that this note ought to form part of the Act so as to exclude the operation of s19(2)(b) of the Acts Interpretation Act.[15]
[15] Cf; for example, s5(2) of the Criminal Law Consolidation Act 1935 (SA) and R v McGlynn (2004) 87 SASR 440.
A preponderance of authority is to the effect that a court, when interpreting a statute, should not take account of a “note” which does not form part of the statute in question. However, there is a line of authority that contemplates the possibility of referring to such a note where the meaning of a section is in doubt.[16] In any event, in my view, the proposition stated in the note is readily ascertainable from the terms of the definition itself. I do not need to resort to the terms of the note in order to be satisfied that the enacted definition contemplates that two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists or has ever existed between them. I say that the terms of the definition, in my view, make this plain for three reasons. First, the definition is in general terms which are clearly intended to depart from the previous notion in use of a de facto relationship. Second, the portion of the definition in brackets “whether or not related by family …” makes it plain that members of the same family can be parties to a “close personal relationship” and necessarily implies the likely absence of a sexual relationship. Third, reference to the Minister’s second reading speech[17] at the time the bill was introduced into parliament makes it clear that a sexual relationship was not to be an essential requirement of a “close personal relationship”.
[16] See generally, for example, Statutory Interpretation in Australia, 5th Edition, DC Pierce and RS Geddes, Butterworths, at [4.47].
[17] As to the entitlement of a court in this state to resort to extrinsic materials to assist in construing a statute, see below.
The elements of the definition of “close personal relationship” are as follows:
(i)the relationship must concern two adult persons - the two persons can be related by family and can be of the same gender;
(ii)the two adult persons must live together;
(iii)they must live together “as a couple”, and
(iv)they must live together “on a genuine domestic basis”.
During the period early 1983 to 15 October 2007, elements (i), (ii) and (iv) were satisfied. This much is conceded by the defendant and could not seriously be challenged. The defendant also conceded, by her counsel in open court, that the exception in paragraph (b) of the definition did not apply, notwithstanding that, for some of the period (2004 to 2007) the defendant was in receipt of a carer’s payment. As a matter of principle, the jurisdiction of this court to make a property division order under ss9(2) of the Act arises and only arises to the extent conferred by the statute. Ordinarily, the parties to a dispute cannot, by agreement or by concession, attract a jurisdiction to the court where none, as a matter of law, exists. Nevertheless, without staying to develop why, in my view, the defendant’s concession was properly made. The parties’ situation was not one of a relationship where the defendant provided the plaintiff with domestic support or personal care for fee or reward or on behalf of some other person or organisation.
The more difficult issue is that in element (iii); whether or not the plaintiff and the defendant lived together “as a couple”. This notion of “as a couple” is intended to exclude situations such as that of flat mates in shared housing. The notion of “a couple” makes sense when considering the possibility that two persons sharing a house may, in fact, be in a de facto type relationship whether between different sex or same sex partners and whether or not a sexual relationship exists or ever existed. That is because, typically, persons in this type of relationship will have come from a position of independence, or dependence on or mutual dependence with some other person (perhaps a family member or a previous relationship) to voluntarily join together with another such person to form a new relationship of mutual support and dependence - as “a couple”.
However, where members of the one family come to live together, they start with an existing relationship and one which already may contain significant elements of mutual support and dependence which can continue to subsist quite independently of the fact that these family members commence to reside together under the one roof. At what point do two brothers or two sisters or a mother and a daughter, as in the present case, enter into a relationship which involves living together “as a couple”.
It would come as a surprise to the participants in many domestic living arrangements involving family members if they were to be characterised as being parties to a “close personal relationship” thus giving rise to an entitlement to a property division order under the Act. What of a son who, after leaving school, remains on unemployment relief and lives with his employed single mother or single father in that parent’s home for many years, perhaps until the young man is in his late 20’s or 30’s. It is one thing to say that, on exercising the discretion conferred by s9 of the Act, in appropriate circumstances no order for a division of property ought to be made. However, the a priori question is, would such a relationship fall within the definition of “close personal relationship” so as to attract the jurisdiction under the Act in the first place? If so, why should it make a difference if the young unemployed man continues to live in the family home with both parents, that is, was engaged in a relationship with two other adult persons rather than with one “as a couple”.
Another example, perhaps closer to this case, is that of the relationship between an elderly parent who, as is not uncommon, might live the last 10 or 15 years of his or her life with an adult child. Whilst there may well be mutual love and affection and whilst both child and elderly parent might contribute to the betterment and enjoyment of each other’s lives throughout the cohabitation, the issue of dependency can and often will be largely one way, that is, the elderly parent dependent on the love and charity of the child. Is it intended that every time such an arrangement is entered into, followed by a falling out such that the elderly parent leaves the child’s premises, the jurisdiction under s9 of the Act is enlivened for the court to, at least, consider making an order for the division of property?
Does the definition of “close personal relationship” place any restriction on its application to these types of situation, or is it the case that any time two adults set up house together to the exclusion of other people for a period of more than 3 years,[18] either of the two adults acquires a right to apply to the court for a division of property at the end of the “relationship”? In my view, the requirement that the two adult persons must live together “as a couple” will operate to exclude some such family member cohabitations from the purview of the Act. The question is, which ones and on what basis.
[18] Subsection 9(1)(c) provides that an application for the division of property may only be made if the domestic partnership in question existed for at least 3 years or there is a child of the domestic partners.
Legislation dealing with part or all of the subject matter embraced by the Act exists in a number of other Australian jurisdictions.[19] During final submissions, I was taken to a number of authorities dealing with the New South Wales legislation. However, each of the interstate Acts is in terms quite different from those of the South Australian legislation and therefore the interstate authorities can only be of limited assistance. Furthermore, I have been unable to find any authority interstate that deals with the application of interstate legislation to facts analogous to those before me.
[19] For example, Property (Relationships) Act 1984 (NSW), Domestic Relationships Act 1994 (ACT), Part 19 of the Property Law Act 1974 (QLD), Relationships Act 2008 (VIC), Part 5A of the Family Court Act 1997 (WA), Relationships Act 2003 (ACT), De Facto Relationships Act (NT).
There are no authorities in this state which bind me as to the proper construction of the definition of “close personal relationship” as it appears in the Act, nor, as I have said, are there any authorities dealing with analogous interstate provisions that are of any particular assistance. In my view, the definition of “close personal relationship” is to be applied on a case by case basis. Whether or not the relationship between the plaintiff and the defendant in this case can be characterised as a “close personal relationship” is very much a matter of first impression.
Subsection 22(1) of the Acts Interpretation Act 1915 provides that where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object. It has been held in this state that the application of this provision is not to be limited to cases of ambiguity.[20] However, any proposed application cannot prevail over clear and unambiguous words in the statute.[21] In order to apply the purposive approach to interpretation as mandated by s22 and notwithstanding that there is no South Australian equivalent to s15AB of the Commonwealth Acts Interpretation Act, it is permissible to look at the Hansard debates to ascertain the purpose of the statute.[22]
[20] Gerah Imports Pty Ltd v Duke Group Ltd (In liq) (2004) 88 SASR 419.
[21] Al-Kateb v Godwin (2004) 208 ALR 124.
[22] R v Owen; Owen v South Australia (1996) 66 SASR 251.
The Attorney General’s second reading speech when the Statutes Amendments (Domestic Partners) Bill was introduced makes it clear that the proposed amendments to the then De Facto Partners Property Act were intended to remove unjustified legislative discrimination against same sex couples. However, it is also clear that the amendments were to go further and to provide legal recognition to those people who live a shared life as close companions but who are not in a sexual relationship such as, by way of example:
the two elderly ladies who are friends of long standing and live together under one roof, not as housemates only but in a supportive personal relationship. Perhaps they pool their income to pay for the needs of both. Perhaps they divide household tasks between them according to skills or preferences, so that one does the shopping for both and the other the gardening. Perhaps they provide practical help to each other. For example, one might be able to drive and the other not, so the driver takes the other to medical appointments. Perhaps they share a social life so that they entertain mutual friends at their home and go out together to visit friends or take part in family occasions. In many respects, they live the same sort of shared life that couples lead, but they may not have any sexual relationship. This Bill proposes to give those life partners the same legal recognition as a de facto couple or a same sex couple.[23]
Later in his speech, the Attorney said this:
This Bill then proposes to recognise what are called “couples”. The word has been chosen because it is apt to convey a relationship between two, and only two, people. It is not intended that a person can be in more than one domestic partnership at any given time. A “couple” will be any two adults who live together on a genuine domestic basis, that is, they share their home and their lives. It does not matter that they are related by family. For example, they may be siblings. The Bill intends to refer to life partner relationships, however, and not to other domestic arrangements.
The Attorney went on to describe a number of “relationships” that the term was not intended to capture:
It is not intended to capture people who share their lodgings without sharing their lives, for example, a group of university students who live in a share house, even though they may contribute to common expenses and share in domestic tasks. The intention of the Bill is to catch two adults who live together in an enduring personal relationship of mutual affection and support, whether or not the relationship is sexual.
Further on in the speech, the Attorney said this:
If there is a doubt about whether a relationship is a domestic partnership, the Bill provides for the courts to decide. The courts will take into account a list of factors similar to those that apply in other states; the ownership of property, the degree of financial dependence, the degree of mutual commitment to a shared life and other factors … The relationship does not need to have all of the listed features to be recognised by the law as a domestic partnership, but the more it has, the more likely it is to be recognised.
[23] Hansard, Tuesday, 14 November 2006, page 1207.
The preamble to the Act reads:
An Act to facilitate the resolution of property disputes arising on the termination of domestic partnerships; and for other purposes.
In my view, the purpose of the amending legislation, as can be discerned from the Attorney General’s second reading speech and from the terms of the legislation itself, is to place a “close personal relationship” on the same footing as formerly was the case for a de facto relationship. Apart from transitional arrangements, the notion of a domestic partnership (which embraces the notion of a close personal relationship) is to supersede the notion of a de facto relationship. In all material respects, the powers of the court are to be the same whether the relationship in question is a conventional de facto relationship or whether it is a “close personal relationship” outside of the conventional de facto relationship.
The underlying purpose of the legislation in its present form is to provide for a just and equitable division of property following the premature termination of a “life-partner relationship”, to pick up the term used by the Attorney General in his second reading speech, that is, again to use the Attorney General’s words, a relationship between “two adults who live together in an enduring personal relationship of mutual affection and support whether or not the relationship is sexual”.
Of course, the relationship between a mother and a daughter, if healthy, ipso facto will be an enduring personal relationship of mutual support, to a lesser or greater degree, depending upon the circumstances of the parties. In my view, a court needs to take care before characterising the relationship of an elderly mother and her daughter, who for practical reasons reside under the same roof, as a “close personal relationship” so as to attract the application of the Act.
In Ye v Fung,[24] Gzell J expressed the obiter dictum that “close personal relationship” as that term is used in the Property (Relationships) Act 1984 (NSW) “would include the relationship between a daughter and an invalid mother”. However, in the NSW Act the definition of “close personal relationship” is arguably wider in that it does not include the element living together “as a couple”, whereas the definition of de facto relationship in that Act does. Gzell J went on to observe[25] that:
Persons related by family … are not thought of as living together as a couple. A parent and child, or grandparent and grandchild, may live together, but the community would not regard them as living together as a couple.
In my view, the South Australian notion of “close personal relationship” with its focus on living together “as a couple” is intended to be closer in concept to that of a de facto relationship (albeit, absent the need for any “romantic” element) than is the New South Wales concept of “close personal relationship”.
[24] [2006] NSWSC 243 at [52].
[25] At [55].
Under the old law, the authorities in this area tended to look at the following list of factors or considerations when determining whether a de facto relationship had existed between parties.[26]
[26] See generally Karpathiou v Clemente [2008] SASC 316 at [13] – [14] and the authorities there cited.
(i)The duration of the relationship;
(ii)The nature and extent of common residence;
(iii)Whether or not a sexual relationship existed;
(iv)The degree of financial interdependence, and any arrangements for support, between or by the parties;
(v)The ownership, use and acquisition of property;
(vi)The procreation of children;
(vii)The care and support of children;
(viii)Performance of household duties;
(ix)The degree of mutual commitment and mutual support;
(x)Reputation and “public” aspects of the relationship.
These factors, as being relevant to the existence or otherwise of a de facto relationship, are not to be regarded as exhaustive.[27] In my view, they remain a helpful guide to the question of whether or not a “close personal relationship” exists on particular facts. However, they are not to replace an application of the statutory definition as properly construed.
[27] Karpathiou at [14].
In the present matter, the factors referred to in (iii), (vi) and (vii) above are not relevant. The fact that they are not in any way satisfied on the present facts can be of no assistance to the defendant in denying the existence of a close personal relationship. In addition, the factors set out in (x) above can only be given limited weight. The cohabitation by an elderly parent and child will always have a “reputation” and “public” aspect to it. It is difficult to see what this can add to the plainly recognised situation of a mother and daughter relationship pursued in the context of them both living together under the same roof for a very long period of time. The factors of potential significance are those in (i), (ii), (iv), (v), (viii) and (ix).
There is no doubt that the parties’ relationship was and remains of long duration. They are mother and daughter and to that extent the relationship has not ended even now and will not end. However, and importantly, they lived together under the same roof for a very long period of time, something in excess of 24 years. Of course this, on its own, does not mark out the relationship as anything more than an elderly parent living with a child in the child’s residence which of itself, is not, in my view, meant to be captured by the legislation.
Of particular significance in the present case, to my mind, are the factors in (iv), (v), (viii) and (ix). As far as factor (ix) is concerned, the question arises as to what is the object of the phrase “mutual commitment”. It can mean either or both, a mutual commitment “to one another” or a mutual commitment “to a shared life”.
The former notion was identified as a relevant consideration by Barrett J in Petersen v Gregory; Estate Glenn Alfred Petersen[28] when considering the phrase living “together as couple” as that phrase is used in the definition of de facto relationship in the New South Wales legislation.
The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending a mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living “together as a couple”.
[28] [2007] NSWSC 8 at [11].
The latter notion is provided for as an indicia of a “domestic relationship” as defined in the Victorian legislation[29] and is also provided for as an indicia of a de facto relationship for the purposes of the New South Wales legislation.[30]
[29] Relationships Act 2008(VIC) s35(2)(a).
[30] Property (Relationships) Act 1984 (NSW), s4(2)(f).
There is, in my view, an important difference between the two notions. Where the relationship in question concerns an elderly parent and child, there usually will be, in any event, a mutual commitment to each other. This on its own does little to move the relationship from one of parent and child to one of “close personal relationship” as distinct from, say, the situation of a de facto relationship.[31] However, where a parent and child relationship is concerned, a mutual commitment to a shared life would be of more significance. The point was taken up by the Attorney General in his second reading speech where he referred to the notion of “life-partner relationships”, a “degree of mutual commitment to a shared life” and the intention to capture two adults who live together in “an enduring personal relationship of mutual affection and support”.
[31] Cf; Barrett J in Peterson above.
Finally with respect to general approach, in my view, it is not necessary to find at the outset of a relationship a mutual intention that it is to be a “life partner” relationship or an “enduring personal relationship of mutual affection and support” although, in the case of the search for a de facto relationship, for example, this may be of significance. Relationships develop over time. The search is for a relationship that, as it existed over time, manifested such characteristics.
The Factual Nature of the Parties’ Relationship
The Ownership, Use and Acquisition of Property
The defendant, until October 2007, always lived with the plaintiff. At the time of the acquisition of Lomman Avenue (early 1983) the plaintiff was 59 and the defendant 28 or so. The decision to live together was not made at the time of purchase. They were already living together and were in general agreement that continuing to rent indefinitely was not a good idea. Immediately prior to the purchase of Lomman Avenue they had been living in rented accommodation in Penfolds Road, Magill. According to the plaintiff,[32] the defendant and Aldo (who also was living with them) paid the rent and she bought the food for the three of them. The defendant’s recollection is that Aldo did not contribute to the rent. It is a minor point, perhaps, in the overall scheme of things but it does suggest that at the time the decision was made to purchase Lomman Avenue the plaintiff was not in the habit of paying for her accommodation costs.
[32] Exhibit P3 at [21].
The effect of the plaintiff’s evidence, both in her affidavits and orally, was that she and the defendant agreed that the time was right for them to buy a house together. At various times in her written and oral evidence the plaintiff said that her understanding or the intention of or agreement between both of them was that the house was to be purchased together. I am not prepared to accept this evidence at face value. Much of the plaintiff’s evidence on this topic was evidence of her understanding and the conclusion she had drawn in the circumstances. Very little of her evidence was direct evidence of the content of actual discussions held between the parties back in 1982 or thereafter. As I have already said, in my view much of the plaintiff’s evidence had an air of reconstruction about it.
I appreciate that it is very difficult for someone to remember conversations that occurred decades ago and that the law of evidence concerning the proving of oral agreements reached between parties can present considerable difficulties for a plaintiff and be seen as unrealistic and impractical in its operation. Nevertheless, the best evidence here is what the parties said or, at least, the effect of the words used rather than the plaintiff’s impression or understanding of what had been agreed to, particularly where the evidence of that impression or understanding is given some decades after the events that may have given rise to it.
The plaintiff gave a number of reasons why the house was registered in the defendant’s name alone. She said that she trusted the defendant and that the family was worried it might affect her pension if it was in her name.[33] I interpolate here that there is nothing in the evidence of the other family members about any actual discussion held at the time of acquisition concerning whether the title should be put into the defendant’s name alone so as to avoid any pension problems. The plaintiff also said that the defendant was younger and that because she was her daughter she thought that she would look after her until her death.[34] Another reason given[35] is that putting the house in the defendant’s name permitted her to qualify for a first home buyers grant or stamp duty reduction. There is no evidence before me as to whether or not such a first home buyers grant or stamp duty reduction was available back in 1982 and, if so, as to whether or not the defendant would have been entitled to enjoy it. The defendant denied this in her evidence. She said that she did not obtain any first home buyers grant and was not entitled to obtain one because she had previously been a guarantor for a loan taken out by her brother to purchase a house.
[33] Exhibit P2 at [26].
[34] Exhibit P2 at [26].
[35] Exhibit P3 at [41].
The plaintiff also said that she was not worried about the title being in the defendant’s name only because they had always agreed on everything and the plaintiff trusted the defendant to do the right thing by the plaintiff and the defendant trusted the plaintiff to do the right thing by her.
In my view, the plaintiff went close to the reality or truth of the matter during her cross-examination. The following exchange occurred (at T58 emphasis supplied):
QSo, why didn’t you go on to the title 50/50. Why, if everything was paid in equal shares, why didn’t you go on to the title in equal shares with Isita. Why does Fernanda’s name not appear on the title.
ABecause she said that she wasn’t married and I had to live with her because all the others were married. That way I could stay with her.
QYou lost your home in Queen Street, Norwood, because your name wasn’t on the title, it was all in your husband’s name.
AIt was in his name.
QYes. Why didn’t you learn from that experience.
ABecause back then it was like that – they just put in their names.
QBut why did you do that in 1982.
AShe didn’t want to put it, what more could I do?
At that point in the cross-examination it became apparent that there may be some level of confusion in the plaintiff’s mind as to what the cross-examiner was asking. The topic was revisited (at T59) and the following exchange occurred:
QNow the question I put to you before the break was this simple question. You have stated quite categorically without qualification that every expense associated with the acquisition and maintenance of this house was shared equally between yourself and your daughter.
AYes, I always paid half with my daughter.
QThen why didn’t you go on the title in equal shares.
ABecause I trusted her because I cannot speak English so I left for her to do everything.
QBut didn’t you learn from the experience that you encountered in respect of your husband five years’ earlier.
AWell, I trusted her. I gave her my trust and she done everything.
To put the above exchange in context I need to say something about an earlier court case in which the plaintiff had been involved. After she and Amatuccio separated, Amatuccio fell into dispute with a person to whom he had purported to sell the family home. The matter went to trial in the Supreme Court and ultimately on appeal to the Full Court.[36] As part of the dispute, a claim was brought on behalf of the plaintiff to the effect that the plaintiff had an equitable interest in the property by way of a resulting trust notwithstanding that the title to the property was solely in the name of her husband. The plaintiff lost and was found to have no equitable interest in the property. Some time was spent during the present trial in cross‑examining various witnesses, including the plaintiff, as to their understanding of the issues in that case. As would be expected, at 86 years of age and some 30 or so years after the event, the plaintiff had little recollection and little understanding of the case.
[36] Taddeo v Taddeo & Catalano (1978) 19 SASR 347, 361.
However, I am satisfied that, as at early 1983 when the Lomman Avenue purchase was settled, the fact that, not many years previously, the plaintiff’s claim to an unregistered interest in the family home had failed was fresh in her memory. I am satisfied that she was aware in 1982-1983 that if she had wanted to ensure that any interest of hers was legally protected, prudence strongly suggested that her name be on the title. In a sense, this understanding or awareness is implicit in her repeatedly given evidence that she didn’t go on the title because she trusted her daughter to do the right thing. Furthermore, I place significant weight on the plaintiff’s answer that “[the defendant] did not want to put [the plaintiff’s name on the title], what more could I do”.[37] I prefer the defendant’s evidence on this topic and, ultimately, I am satisfied that there was no agreement or understanding, at the time of purchase, to the effect that whilst the title was to be in the defendant’s name, the plaintiff was to be entitled to a half interest.
[37] At T58.
The defendant in her evidence said that prior to going to Italy in 1982 the plaintiff suggested to her that the defendant buy a house and that the plaintiff would assist her with the deposit. The defendant conceded that she obtained some assistance with respect to the deposit from her mother but could not recall how much was provided. She said that the money provided by her mother went towards the deposit and expenses at settlement. The defendant said that at no time did she and her mother discuss that the property was to be in joint names or that the property was to be held by the defendant on trust for the mother. She said that there was no question that her mother would continue to live with her. This was simply assumed. The defendant said that she accepted this responsibility because she was the youngest daughter and none of the other siblings was prepared to do it. It is the defendant’s case that she took sole responsibility for repayment of the mortgage and that there was no agreement that the regular mortgage repayments were to be shared nor did her mother at any time contribute to mortgage repayments.
The plaintiff in her affidavit evidence said that her son Nicolangelo lent her two or three thousand dollars at the time of the purchase. The evidence of Nicolangelo corroborates this. I see no reason to reject Nicolangelo’s evidence on this point. However, the plaintiff says that she provided something in the order of seven to eight thousand dollars at the time of purchase. It will be recalled that approximately $15,000 of the $45,750 of purchase price was required initially with the balance of $30,000 being met by way of borrowings from the Hindmarsh Building Society. If the plaintiff did in fact provide seven to eight thousand dollars then she provided approximately fifty percent of the initial monies.
The plaintiff said that she obtained additional money to assist with the purchase when she went to Italy in 1982, by way of the gift from Aunt Mariaangela. I do not accept this evidence. The considerations that lead me to reject this evidence are these:
(i)The plaintiff’s evidence is itself inconsistent on this topic. In her second affidavit (P2) she said that the gift was “about $10,000”. However, in her oral evidence she said it was 10 million lira.[38] Ten million lira in 1983 was worth approximately $A7,396 which is significantly less than $A10,000.
(ii)The plaintiff’s evidence was that during afternoon tea with Aunt Mariaangela and after telling her of the plaintiff’s poor fortune, Aunt Mariaangela spontaneously gave her a gift of 10 million lira. This was a very significant sum of money in 1983 on any analysis. I find it surprising that Aunt Mariaangela would have had that sort of money with her in her purse or in the house and would have provided it on an impulse in the manner described by the plaintiff. However, I have no evidence before me as to Aunt Mariaangela’s financial circumstances or as to her habits in keeping and giving away cash sums. As such, I can place little, if any, weight on this consideration alone.
(iii)The defendant’s evidence on this topic was that she was present at the time the gift was made and that she saw Aunt Mariaangela take a single note from her purse and that the note was for 10,000 lira. The defendant said that her mother was unimpressed with such a small amount and gave the 10,000 lira to the defendant who used it to purchase a “bridal book”.
(iv)The 10 million lira said to have been spontaneously provided as a gift was the same amount as later received by the plaintiff as an inheritance from Aunt Mariaangela’s estate.
(v) In these circumstances and given my preference for the defendant’s evidence generally, I think it more likely that the defendant’s evidence on this topic is correct. In my view the plaintiff has become confused over the decades and now believes that what was 10,000 lira was either 10 million lira or $10,000.
[38] I accept that the plaintiff was momentarily confused when she initially said that the gift was 30 million lira, that this was clarified for the reasons she later gave in her evidence and that she intended in court to assert that the gift was 10 million lira.
I find that the plaintiff did provide some money to the defendant at the time of the purchase. However, she said in her second affidavit that the only money available to her at this time was that obtained from Nicolangelo and from Aunt Mariaangela. On the evidence before me I can only be satisfied that she provided to the defendant the money made available by Nicolangelo together with such other saved monies that may have been available to her at the time, but not the Aunt Mariaangela gift. I am unable to say how much ultimately was provided. However, I accept the defendant’s evidence, as more likely to be correct, that the money provided by the plaintiff was much less than the seven or eight thousand dollars the plaintiff now says she provided and that it was provided as a gift.
There is some debate in the authorities, unnecessary to explore here, as to whether or not a contribution to the purchase money can include subsequent repayments of any mortgage monies taken out at the time of purchase and as to whether or not, in this respect, the situation might be different in circumstances where the mortgage loan is in the name of only one of the two persons concerned[58]. It is unnecessary to explore this issue because I have found that the only direct contribution made by the plaintiff to the purchase of Lomman Avenue was the contribution of $3,000 or so provided to assist with the initial purchase monies.
[58] For a discussion of what may form a contribution to the purchase price for the purposes of the law of resulting trusts, see Jacobs’ Law of Trusts in Australia, 7th edition by JD Heydon and MJ Leeming, Lexis Nexis, Butterworths Australia 2006 at [1211].
Ordinarily, the extent of the respective beneficial interests of the parties, arising as a consequence of a resulting trust (in the absence of a further arrangement entered into by the parties) will be determined at the time when the property was purchased and the trust created.[59] On the facts as I have found them, if a resulting trust were to operate, the plaintiff would be entitled in equity to a share of the Lomman Avenue property or its value being the proportion that $3,000 bears to the total purchase price of $45,750 (that is, approximately 6.5%).
[59] Calverley v Green at 252-3, per Gibbs CJ.
However, the “presumption of advancement”, if it applies, will mean “that the equitable interest is at home with the legal title, because there is no reason for assuming that any trust has arisen”.[60] Furthermore, even in the absence of a presumption of advancement operating, the presumption of a resulting trust itself may be rebutted. In other words, in circumstances where the presumption of a resulting trust arises, evidence is admissible to prove that no trust was in fact intended.
[60] Calverley v Green at 267 per Deane J and Cummins at [55].
A presumption of advancement will arise, subject to any evidence by way of rebuttal, in circumstances where a parent, be it a mother or a father, provides money to a child and whether or not that child is an adult and of independent means.[61] On the basis of the findings I have made concerning the amount contributed by the plaintiff towards the purchase price of Lomman Avenue and the circumstances in which that contribution was made, I am not satisfied that the presumption of advancement has been rebutted. Furthermore, I am satisfied that the presumption of a resulting trust has been rebutted. In these circumstances, the plaintiff can obtain no remedy in accordance with the law of resulting trusts.
Constructive Trust
[61] See Nelson v Nelson (1994) 33 NSWLR 740 (NSWCA) and (1995) 184 CLR 538 at 548-549 (Deane and Gummow JJ) 576 (Dawson J) 585-586 (Toohey J) and 601 (McHugh J) and see also Brown v Brown (1993) 31 NSWLR 582 at 591, 598-599 and 605.
The law in this country dealing with the so-called remedial constructive trust is still that as set out in Muschinski v Dodds[62] by Deane J[63] (with whom Mason J agreed). His Honour’s analysis of this area and statement of principle was affirmed by the High Court in Baumgartner v Baumgartner.[64]
[62] (1985) 160 CLR 583.
[63] At 613.
[64] (1987) 164 CLR 137 at 147-148 (Mason CJ, Wilson and Deane JJ).
Both Muschinski and Baumgartner concerned the situation of de facto partners both of whom had made contributions towards the purchase of land and improvements on the land. However, there is no suggestion in the authorities that the law, as explained in those authorities as relevant to de facto relationships, does not also apply to other personal relationships the parties to which have made financial contributions of a similar nature. It has not been suggested by the defendant in the present case that the law of constructive trusts, to the extent it might otherwise apply, should not apply simply because the parties to the relationship in question here are mother and daughter.
In Muschinski, Deane J held that a constructive trust will arise regardless of the intention of the parties so as to preclude the retention or assertion of a beneficial interest in property to the extent that such would be contrary to equitable principle.[65] His Honour said this:
At times, disputing factions have tended to polarise the discussion by reference to competing rallying points of “remedy” and “institution”. The perceived dichotomy between these two catchwords has, however, largely been the consequence of lack of definition. In a broad sense, the constructive trust is both an institution and a remedy of the law of equity. As a remedy, it can only properly be understood in the context of the history and the persisting distinctness of the principals of equity that enlighten and control the common law. The use or trust of equity, like equity itself, was essentially remedial in its origins. In its basic form it was imposed, as a personal obligation attaching to property, to enforce the equitable principle that a legal owner should not be permitted to use his common law rights as owner to abuse or subvert the intention which underlay his acquisition and possession of those rights.
. . . .
Like express and implied trusts, the constructive trust developed as a remedial relationship superimposed upon common law rights by the order of the chancery court. It differs from those other forms of trust, however, in that it arises regardless of intention … Indeed, whereas the rational of the institutions of express and implied trust is now usually identified by reference to intention, the rationale of a constructive trust must still be found essentially in its remedial function which it has predominantly retained.
. . . .
Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.
[65] At 613.
Later in the judgment, Deane J said this:[66]
Once its predominantly remedial character is accepted, there is no reason to deny the availability of the constructive trust in any case where some principle of the law of equity calls for the imposition upon the legal owner of property, regardless of actual or presumed agreement or intention, of the obligation to hold or apply the property for the benefit of another.
[66] At 616-617.
His Honour continued:[67]
[The circumstances which will give rise to a constructive trust] can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially (sic – specifically) provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it will be unconscionable for him so to do.
[67] At 620.
His Honour went on to say:[68]
[A]ny assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a de facto situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In the forefront of those special considerations there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home-making and family care.
[68] At 622.
The plaintiff pleads in the second amended statement of claim that a constructive trust should arise because of the financial contributions made by the plaintiff to:
(i)the purchase price of the land;
(ii)repayment of the mortgage over the land;
(iii)improvements to and maintenance of the house; and
(iv)outgoings such as rates and taxes paid in respect of the land.
I have found that the plaintiff has made direct contributions towards (i) and (iii) but not (ii) and (iv). The plaintiff has also pleaded and asserted in her evidence that there was an agreement, that is, a common intention, that Lomman Avenue would be held by the defendant on behalf of the both of them. On the basis of the findings I have made, I am not satisfied that any such common intention existed. To the extent that the plaintiff relies on a common intention to establish the constructive trust, the claim must be dismissed. However, what Muschinski and Baumgartner make clear is that the essence of a remedial constructive trust is not the existence of a presumed or actual joint intention but rather, whether it would be unconscionable for one of the parties to retain the relevant property in all of the circumstances having regard to the considerations identified and explained by Deane J.
In my view, at the heart of the parties relationship was a joint understanding that the plaintiff would live with the defendant at Lomman Avenue for the whole of her life or until some other mutual arrangement was reached. The defendant said in her affidavit:[69]
There was no question that my mother would continue to live with me as long as she wanted or until further arrangement. That was simply assumed by both of us. I accepted that responsibility because I was the youngest daughter and none of my other siblings wanted to care for her.
[69] Exhibit D4 at paragraph 24.
The plaintiff says more than this and that she was entitled to stay indefinitely because she owned half of the house. Whilst I have rejected this as being the joint understanding of the parties, I am satisfied that this greater expectation certainly includes the lesser expectation described by the defendant in her affidavit evidence.
I have already said that I am not in a position to attribute fault to the breakdown of the relationship. There are aspects of living together, particularly where family members are involved and particularly where an elderly parent is involved, that might naturally over time lead to disagreement, unhappiness and frustration such that the parties might find themselves unable to continue to live together. I expect that this formed part of the problem in this case. In addition, there is evidence that the parties started to argue more when the issue of who owned the house was raised and particularly when Aldo and perhaps some of the other siblings took the plaintiff’s side and started to apply pressure to the defendant. It might be said that it was this that primarily lead to the breakup of the relationship and, given that there was no mutual agreement or understanding that the plaintiff was to own half of Lomman Avenue, that the plaintiff was more at fault by adopting and asserting this wrongful and threatening (to the defendant) position. However, the situation is more complex than this. There often will come a point where it becomes impossible for two persons to continue to live together in a close personal relationship, to use the phrase from the Act, yet no matter how badly one party might treat the other or how unfair or unjustified their conduct towards the other might be, it is not appropriate to attribute blame for the break up of the personal relationship. Once, as in the present case, the personal relationship deteriorated to the extent it did, it ceased to be possible for the parties to live together under the same roof in the way that they had done so for more than 24 years.
In my view, the plaintiff made the contributions that I have identified towards the purchase, the renovation and the maintenance of Lomman Avenue, at least partly in reliance on or as a result of the expectation that she would spend the rest of her days living there. To adopt the expression of Deane J in Muschinski, this is a case where the substratum of a joint relationship or endeavour has been removed without attributable blame and where the benefit of money contributed by the plaintiff on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the defendant in circumstances in which it was not specifically intended or specially provided that she should so enjoy it. In other words, the contributions made by the plaintiff were made with the intention or expectation that both parties would enjoy them, not just the defendant alone.
Of course, there is another step in the application of the equitable principles which might give rise to a constructive trust in these circumstances. Equity will not permit the defendant to retain the benefit of any increase in value generated as a result of the plaintiff’s contributions to Lomman Avenue “to the extent that it would be unconscionable” for her to do so.[70]
[70] Muschinski at 620.
As to this issue of unconscionability, there are, at least, three factors that come into consideration. The first one is that no blame or fault can be attributed to the defendant for the fact that the substratum of the relationship has been removed. If a constructive trust were to be imposed, she would pay a price for the break up of the relationship in circumstances where she was not at fault and could do nothing about it. However, according to Muschinski, the principle is to apply when the substratum is removed where there is no attributable fault on either side. Both parties can expect, in these circumstances, to be less well off than they would have been had the relationship remained in tact.
Second, there is the issue that, as a matter of fact, the plaintiff, at 86, has not to this point had her expectations completely removed given that, since the time she left Lomman Avenue until the date of trial, she was able to live with her other daughter, Carmela. Nevertheless, I cannot assume that this always will be the case and it may be (I have heard no evidence on this topic) that she is staying with Carmela only until the uncertainty of her financial position is clarified following the determination of these proceedings.
A third difficulty is that which I faced when attempting to fashion a just and equitable division of property in accordance with the requirements of the Act. I have descriptions of various contributions made by the plaintiff towards the renovation and maintenance of Lomman Avenue but I do not have any evidence as to the amount of any such contributions or the extent, if any, to which they contributed to the increase in value of Lomman Avenue between the time of the purchase in 1982/1983 and the time of the plaintiff leaving in October 2007.
I am not satisfied that it would necessarily be unconscionable to permit the defendant to retain the full benefit of Lomman Avenue. In any event, having regard to the third consideration just mentioned, in my view there is insufficient evidence before me to enable an identification of the extent of any proprietary interest in Lomman Avenue to which the plaintiff should be found entitled. If I am wrong in this respect such that, notwithstanding this difficulty, equity would, in the circumstances, require the making of such a determination, then applying the broad axe which is all that is available to me, I would find that as at the time the plaintiff left Lomman Avenue, the legal ownership of Lomman Avenue was held by the defendant as to 12½ per cent (one eighth) on constructive trust for the plaintiff.
I also have considered the question of whether or not a remedy ought to be fashioned by having regard to my finding that the true “interest” or expectation that the plaintiff has lost is something akin to an irrevocable licence[71] to occupy Lomman Avenue until her death.[72] If so, it may be that the matter could be analysed on a promissory or proprietary estoppel basis in which case the “minimum equity to do justice”[73] between the parties might be satisfied by an order that the defendant compensate the plaintiff for the value of this lost expectation. However, I am not satisfied that the plaintiff has been deprived of this expectation through any fault of the defendant. If anything, but without drawing a final conclusion on this issue, there may have been significant fault on the plaintiff’s side. I have little doubt that the issue of who owned Lomman Avenue raised and pressed unjustifiably (as I have found) by the plaintiff with the assistance of, at least, Aldo, became a significant factor in the ultimate breakdown of the relationship. Furthermore, as I have earlier observed, given that the plaintiff has been able to reside with Carmela since October 2007, it is not clear how significant this loss of expectation will, in fact, turn out to be.
[71] Or, as the authorities sometimes refer to, a licence coupled with an interest.
[72] See for example Inwards v Baker [1965] 2 QB 29, Vinden v Vinden [1982] 1 NSWLR 618, Pearce v Pearce [1977] 1 NSWLR 170, Milton v Proctor (1988) 4 BPR 9654 (NSWCA), Smith v Smith [2004] NSWSC 641.
[73] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 319, Commonwealth of Australia v Verwayen (1990) 179 CLR 394 at 411, 429, 501.
In these circumstances and on the present state of the evidence, I am not prepared to make a finding that in failing to compensate the plaintiff for any such loss of expectation, the defendant has acted or would act unconscionably. Neither am I satisfied, on the present state of the evidence, that compensating the plaintiff for the value of her lost expectation, in the form of the value of the remainder of any irrevocable licence to remain living at Lomman Avenue until death, necessarily would constitute the minimum equity to do justice in the circumstances.
A final consideration here, is that whilst this notion of an irrevocable licence was raised during final submissions by counsel for the defendant, it has never been the plaintiff’s case and as a consequence the trial, including the leading of evidence, was not conducted on this basis and neither party was in a position to argue the issues fully, particularly as to the value to be ascribed to any such lost expectation.
However, if I am wrong here and it would be unconscionable to allow any such irrevocable licence to be terminated without compensating the plaintiff, in my view, the minimum equity to do justice in the present circumstances would focus on her contribution to the improvements and not the value of any such expectancy. Nevertheless, in such a case, I would be left in the same position as arose when considering the value of any interest held by the defendant on constructive trust for the plaintiff. In these circumstances, I, again doing the best I can with the limited information available, would assess such compensation at $40,000.
It follows from the foregoing that, in my view, the discretion available under the Act to order a division of property that is just and equitable provides for more flexibility than does the application of equitable principle, given the facts of this case.
For the reasons given by Clayton J in Lees v Cooper,[74] I agree that there is no indication, express or implied, to be found in the passage of or the terms of the De Facto Relationships Act 1996 – now the Domestic Partners Act 1996 – to the effect that Parliament intended to curtail equitable principles. In other words, I am satisfied that parties to a close personal relationship, such as the plaintiff and the defendant in this case, enjoy such rights as the Act might afford them in addition to such rights to which they may be entitled under the principles of equity, in particular, the principles concerning constructive trusts. That is not to say that the plaintiff in this case would have been allowed to recover twice, only that if she had established an entitlement to relief by way of a constructive trust as well as pursuant to the terms of the Act, she would enjoy a right of election between the two forms of relief.
[74] [2009] SADC 51 at [146] – [151].
Extension of Time
The only remedy available to the plaintiff on my findings to this point is that provided for under the Act. However, her application under the Act was brought out of time and, notwithstanding the findings I have made, she will not be entitled to relief unless the court is prepared to grant an extension of the period of limitation prescribed by ss9(3) of the Act.
Subsection 9(3) provides:
An application for the division of property must be made within one year after the end of the domestic relationship unless the court, after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
The following matters are germane to the question of whether or not an extension of time ought to be granted.
(i)The domestic relationship in question came to an end on 15 October 2007 or on a date relatively shortly prior thereto.
(ii)The Second Amended Statement of Claim in which a claim under the Act was made for the first time was filed on 6 March 2009, some 17 months after the relationship came to an end and some 5 months out of time.
(iii)The plaintiff’s original Statement of Claim was filed on 23 January 2008 and served shortly thereafter, some three months or so after the relationship came to an end.
(iv)In the plaintiff’s first affidavit (exhibit P1) filed on 23 January 2008 in support of her application for interlocutory relief, the plaintiff set out, in broad terms, the basis of her claim including the fact that she and the plaintiff “agreed” to purchase a house at Lomman Avenue in 1982, that they wanted to live together in the house, that she made equal contributions to the deposit, the mortgage and various other household related payments and that she claimed a 50% interest in the house.
(v)The defendant was on notice of the plaintiff’s claim, at least to the extent asserted in exhibit P1, on or before 1 February 2008 when a Notice of Solicitor Acting was filed on her behalf by a firm of solicitors which firm continued to act for her thereafter and throughout the trial.
(vi)I am satisfied that the defendant, properly advised, would or should have been on notice that the plaintiff’s claim, in addition to being based on principles of equity, might also be characterised as falling within the circumstances and type of relief envisaged by the Act.
(vii)In any event, I am satisfied that at all material times the defendant has been sufficiently on notice of the factual nature of the plaintiff’s claim. In this respect, significantly more detail about the factual basis of the claim was provided in the plaintiff’s second affidavit (exhibit P2) filed on 30 January 2009, only some 16 months after the break up of the relationship.
(viii)The defendant has not identified any prejudice caused by the plaintiff’s claim under the Act having been filed approximately 5 months out of time.
Before granting an extension of the time within which proceedings must have been brought, I have to be satisfied, after considering the interests of both parties, that an extension is necessary to avoid serious injustice to the applicant, that is, the plaintiff.
Ultimately, I have found that the plaintiff’s claim in equity should fail. In these circumstances, any refusal to permit her to proceed under the Act would cause her serious injustice. In any event, the equitable claim has not been an easy one to decide. The application of equitable principles to a relationship of this nature and to the facts of this case is not straightforward. Even if I had found for the plaintiff on her equitable claim, the processes involved, and therefore the costs involved, in enforcing judgment for a sum of money to be paid pursuant to the orders I propose to make under the Act might be simpler for the plaintiff than those involved in pursuing enforcement of a constructive trust. Finally, I note that the plaintiff was only 5 months out of time and this is not a case where the main purpose underlying the 12 month limitation period - that the parties should be entitled to order their affairs without the threat of proceedings hanging over them - has been significantly undermined. In all the circumstances, I am satisfied, after considering the interests of both parties, that an extension is necessary to avoid serious injustice to the plaintiff.
Insofar as an order may be necessary, I make an order that the plaintiff is entitled to have her application under ss9 and 10 for a division of the plaintiff’s and the defendant’s property heard and determined notwithstanding that it has been brought out of time.
Conclusion
There will be judgment for the plaintiff. I make the orders, as intimated in paragraph [143] of these reasons. I will hear the parties further on the issues of interest and costs.
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