TAUGHER & CANES - [2011] FamCAFC 191

FAMILY COURT OF AUSTRALIA

TAUGHER & CANES

[2011] FamCAFC 191

FAMILY LAW – APPEAL – PROPERTY – Appeal against orders of trial Judge made in property proceedings – Where the trial Judge had made findings that the husband had made negative contributions to the property of the parties – Not established that the trial Judge erred in any findings of fact – Not established that the trial Judge’s discretion miscarried in reliance upon asserted errors in findings of fact – Not established that the trial Judge erred in his assessment of the contributions made by the parties – Whether the s 75(2) adjustment in favour of the husband was inadequate – Not established that the trial Judge erred in the exercise of his discretion in the s 75(2) adjustment made in favour of the husband.

FAMILY LAW – CROSS APPEAL – PROPERTY – Whether the s 75(2) adjustment in favour of the husband was excessive – Not established that the trial Judge erred in the exercise of his discretion in the adjustment made pursuant to s 75(2) in favour of the husband.

Appeal and cross-appeal dismissed. Application for leave to adduce further evidence dismissed. No orders for costs.

Family Law Act 1975 (Cth) s 79, s 75(2), s 93A

CDJ v VAJ (1998) 197 CLR 172
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Mallett v Mallett (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Mr Taugher

RESPONDENT/CROSS-APPELLANT:

Ms Canes

FILE NUMBER:

BRF

4097

2001

APPEAL NUMBER:

103

2010

DATE DELIVERED:

20 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Coleman, Strickland & Austin JJ

HEARING DATE:

9 August 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 September 2010

LOWER COURT MNC:

[2010] FamCA 769

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr RM Galloway

SOLICITOR FOR THE APPELLANT:

Wellners Lawyers

COUNSEL FOR THE

RESPONDENT/CROSS-APPELLANT:

Mr G Shoebridge

Orders

That the appeal and cross-appeal be dismissed.
That both the wife’s and the husband’s applications for leave to adduce further evidence in the appeal be dismissed.
That there be no orders for costs.

IT IS NOTED that publication of this judgment under the pseudonym Taugher & Canes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 103 of 2010
File Number: BRF 4097 of 2001

Mr Taugher

Appellant

And

Ms Canes

Respondent/Cross-Appellant

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 16 September 2010 Mr Taugher (“the husband”) appealed against orders made by Barry J on 3 September 2010 in proceedings for settlement of property between the husband and Ms Canes (“the wife”).
By Notice of Cross-Appeal filed 30 September 2010, the wife also appealed against the trial Judge’s orders.
At the commencement of the hearing of the appeal, the wife sought leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). However, by the conclusion of his submissions, Counsel for the wife clarified that the application was only pressed in the event of the appeal or cross-appeal succeeding and this Court re-exercising the discretion of the trial Judge. Similarly, the husband’s application to adduce further evidence pursuant to s 93A of the Act was only pressed in the eventuation of that outcome.
The trial Judge’s orders of 3 September 2010 provided for an equal division of the non-superannuation assets of the parties. In lieu of the trial Judge’s orders, the husband sought that he receive “at least 75%” of the non-superannuation assets of the parties.
The wife sought that the trial Judge’s orders be varied so as to produce an outcome more favourable to her by $125,000 than the outcome determined by him. The orders sought by the wife effectively represented a division of the non-superannuation assets of the parties of 55 per cent to 45 per cent in her favour.
Sensibly, at the conclusion of the hearing of the appeal, it was agreed that if the appeal and/or the cross-appeal were upheld, the proceedings should be remitted for re-hearing before a single judge.

Background

The parties cohabited from 1976 until 2000, having married in 1980. There were no children of the marriage.
The husband was born in 1945 and was thus age 65 in the year of the trial Judge’s judgment. The wife was born in 1950 and was thus was age 60 in the year of the trial Judge’s judgment.
The parties met and married in the United Kingdom and migrated to Australia in mid 1981.
During the parties’ cohabitation, the husband was a legal practitioner. Subsequent to 1989, the wife undertook legal studies and was admitted as a legal practitioner in 1995.
Prior to their separation in 2000, the parties bought and sold a number of properties, some of which they retained at the date of separation. The trial Judge considered the initial contributions of the parties to be “approximately equal and in any event of no great financial significance”.
The conclusion of the trial Judge that “an equal division of the assets as at early 2001 would have been an appropriate order” is also not controversial for present purposes.
The trial Judge identified and quantified the assets of the parties at $2,518,000 net. Included in that sum was the wife’s equity in two properties acquired by her subsequent to the parties’ separation. Save in a number of relatively minor respects, the trial Judge’s quantification of the pool of non-superannuation assets of the parties is not controversial for present purposes.
The wife had a superannuation interest of $185,600 which was not included in the pool of property of the parties. This is also not controversial for present purposes.
The trial Judge concluded that the parties’ contributions in the post separation period should result in their contributions being assessed on an overall basis as to 60 per cent by the wife and 40 per cent by the husband. The husband asserted before us that his contributions should have been regarded as equal to those of the wife in the post separation period. The wife made no complaint about the trial Judge’s conclusion with respect to the parties’ post separation contributions.
The trial Judge adjusted the contribution entitlements of the parties by 10 per cent in favour of the husband pursuant to s 75(2) of the Act. The husband submitted that such adjustment inadequately reflected the s 75(2) factors in his favour. The wife submitted that such adjustment excessively recognised the s 75(2) factors favouring the husband.

The grounds of appeal

The issues which were agitated before this Court in the appeal and cross-appeal concern largely the same subject matter, albeit only the husband challenged the trial Judge’s conclusion with respect to contributions, whilst Counsel for the husband submitted that the adjustment made by the trial Judge pursuant to s 75(2) was inadequate, whilst Counsel for the wife submitted that it was excessive.
Sensibly, Counsel for both parties argued the appeal and cross-appeal by reference to the subject matter rather than by artificially separating grounds of appeal from responses to them, or grounds of the cross-appeal. It is convenient and logical that our judgment also adopt that approach.
It is convenient to note at the outset that Ground 1 of the Notice of Appeal, which asserted that “the learned trial Judge erred in law and in fact, such that the exercise of his discretion has miscarried”, is dealt with in these reasons by reference to the subsequent grounds of appeal which expand on that ground. Ground 11 of the Notice of Appeal, which asserts inadequacy of the trial Judge’s reasons with respect to various topics, is similarly dealt with in the course of dealing with the more specific grounds addressing those topics.
Whilst, as Counsel for both parties clearly acknowledged, the challenges and counter challenges advocated before this Court largely involve “weight” challenges, the husband disputed a number of findings of fact made by the trial Judge and asserted that, having been based upon material errors of fact, the trial Judge’s discretion had miscarried by relying upon them. Before considering the weight challenges raised in relation to the trial Judge’s findings, it is appropriate to consider the challenges to those findings.

Challenges with respect to the quantification of the property of the parties

Ground 6(a)

Ground 6(a) of the Notice of Appeal provided: -
6.That the learned trial Judge made findings beyond the evidence in respect of:-
(a)His characterization of the Husband’s line of credit debt of $46,000.00;
Counsel for the husband submitted:
36.All the matters enumerated in this ground were referred to in findings by the learned trial Judge:
(a)The line of credit debt of $46,000.00 was, on evidence, referrable to the parties’ legal practice ultimately taken over by the Husband but in the end a practice, by reason of his illness, that he was unable to continue. It typically carried an overdraft of $30,000.00 but was left at closure with an overdraft of $46,000.00. This is a proper debt that ought to have been taken into account in the schedule of assets and liabilities, particularly when the Husband’s management of the legal practice was said to constitute a “negative contribution” and in respect of which there had already been a finding which reduced his Honour’s assessment of the Husband’s contribution. To fail to accept the line of credit debt as something to be taken into account the learned trial Judge has effectively double counted the liability.
In response, Counsel for the wife submitted:
36..…
a.The findings by His Honour in relation to the overdraft debt were open to him on the entirely unsatisfactory evidence of the Husband under cross examination.
The trial Judge carefully considered this issue under the heading “Liabilities other than mortgage liabilities”. Having identified the $46,000 line of credit, and two lesser debts which he did not include, which omissions are not controversial for present purposes, the trial Judge articulated his reasons for not taking into account the $46,000 line of credit as a liability when calculating the net value of the parties’ non-superannuation assets.
The trial Judge commenced his reasons in relation to this issue by recording that he had “formed a poor view of the reliability of the Husband’s evidence”. Sensibly, that finding has not been challenged.
His Honour proceeded to explain:
44.… No attempt was made to produce any records relating to the line of credit account to establish when the line of credit indebtedness arose or why it arose. The Husband asserted that largely the line of credit arose as the overdraft on the legal practice he operated ballooned out from the $30,000 maximum to $46,000. The Mastercard debt was said to relate to legal expenses incurred in contesting the criminal charges. The Husband asserted that the costs order of $10,000 should be a liability of each of the parties.
45.The Husband engaged in criminal behaviour which involved the police being sufficiently satisfied to prosecute him, a Magistrate being satisfied to commit him for trial, the Director of Prosecutions being satisfied there was sufficient evidence to present an indictment, the Husband thereafter pleading guilty to such charges and a District Court Judge thereafter accepting such pleas. The Husband now complains about the Wife’s conduct in instituting the complaint in the first place and expects her to pay half of the penalty imposed when steps were taken to have his name removed from the Roll of Solicitors as a result of the convictions recorded.
46.The proposition put forward by the Husband that the Wife should be liable for the line of credit debt incurred after he excluded her from the legal practice is equally preposterous and reflects in large measure the unreal position adopted by the Husband in relation to many aspects of the litigation.
We have not been referred to any evidence before him which obliged the trial Judge to find that the $46,000 line of credit reflected an increase of only $16,000 from the level at which it had usually operated up to the time the parties separated. The trial Judge was clearly aware that that was the husband’s contention, but, in the absence of evidence supporting it, his Honour was not obliged to make a finding in those terms. We thus do not accept that the trial Judge erred in fact in not including that sum.

Ground 6(b)

Ground 6(b) complained:
6.That the learned trial Judge made findings beyond the evidence in respect of:-
…
(b)The consequences of the Husband’s failing to agree to the Wife re-financing [B Street];
In support of this complaint, it was submitted:
36.…
(b)There was no evidence of any financial consequence accruing to the Wife from the Husband failing to agree to refinancing [B Street]. The evidence could have been called by the Wife to support her contention but it was not. In the circumstances it was not open to his Honour to conjecture that the parties suffered any loss at all. As argued in submissions a refinancing might well have been, at least in the shorter term more costly.
In response it was submitted:
36.…
b.The Wife’s evidence regarding the Husband’s refusal to co-operate with a re-finance is to be found at paragraph 120 of her Affidavit (AB 208).
That paragraph of the wife’s affidavit provided:
120.The [B Street] properties were a burden I had no choice other than to let out and maintain. The rental income produced a loss I had to make up until I moved out in March 2002. I managed them myself to save on agents fees. I cleaned them, advertised them and let them. I could not sell them as the Husband refused to release the guarantee he had given over the loan when they were built. He would not negotiate a property settlement. He refused to let me re-finance them at a lower rate (the rate remains higher than normal mortgage lending due to the nature of the loan and it being interest only). This means the net rent each year is less than it would be if the loan were converted to a P and I loan with Bank of Queensland – with whom I enjoy a discounted loan rate due to some sort of customer loyalty/privileged customer rating.
We have not been referred to any cross-examination of the wife in which she was challenged in relation to anything alleged by her in paragraph 120 of the affidavit to which her Counsel referred us.
Under the heading “Acquisition of after acquired properties”, the trial Judge considered the evidence before him in relation to the wife’s acquisition of properties in H Street and G Road after the parties’ separation, and to the wife’s contentions in relation to them. His Honour did not there find that the wife had been financially disadvantaged as a result of the husband’s failing to agree to re-financing the properties held in his name at B Street.
Later in his Reasons for Judgment, the trial Judge recorded, under the heading “Section 79 – Submissions For Wife”, the wife’s assertion that the husband negatively contributed by:
·Failing to agree to the Wife refinancing the [B Street] loan to a more favourable interest rate and to allow repayments of both principal and interest.
Whilst his Honour clearly recognised the wife’s contention, we do not understand him to have accepted it.
Later, his Honour re-iterated the wife’s submission that:
·The Wife has added significantly to the property pool by the acquisition of the [G Road] and [H Street] properties. Because of the Husband’s intransigence in not allowing the Wife to refinance [B Street] it could not be used as collateral for the acquisition of [H Street]. The Wife’s evidence, which I accept, is that she had to borrow 100 per cent to acquire [H Street]. [H Street] was later used as collateral to acquire [G Road].
Whilst he clearly accepted that the finding of the acquisition of H Street was as the wife alleged, his Honour did not there accept the wife’s assertion that the husband’s refusal had resulted in the cost of the acquisition being greater than it would otherwise have been.
Later, in the course of explaining why he concluded that contribution factors favoured the wife over the husband by 60 per cent to 40 per cent, the trial Judge recorded his finding with respect to the husband’s contributions “of a negative nature”, which included “failing to agree to the wife refinancing [B Street]”.
Later in the course of his Reasons, the trial Judge explained the factors which “reflected” the $500,000 disparity in contribution entitlements flowing from a 60 per cent to 40 per cent division favouring the wife. His Honour did not there suggest that he allowed any, or any significant adjustment by virtue of the husband having failed to agree to refinance B Street. On the evidence, his Honour could have allowed for the higher interest rate paid by the wife on H Street, as she alleged in her affidavit. We have not been referred to any evidence quantifying that extra cost. Whilst it is less than entirely clear, having regard to the earlier finding to which we have referred, what significance, if any, the trial Judge attached to the husband failing to agree to refinancing B Street, it has not been established that he must have afforded it any, or any significant weight. To so conclude would be inconsistent with what his Honour ultimately concluded and had earlier expressly stated.

Ground 6(c)

It was submitted on behalf of the wife:
6.That the learned trial Judge made findings beyond the evidence in respect of:-
…
(c) The operation of the parties’ legal practice;
In support of that contention, it was submitted on behalf of the husband:
36.…
(c)The parties’ legal practice appeared, historically, to have provided them little more than wages. There was no evidence that it was operated imprudently and in particular no evidence of loss. Further the notion of “negative contribution” has no proper application when the Husband’s inability to continue legal practice was by reason of the manifestation of an illness more fully described by [Dr C] in evidence before the learned trial Judge.
In response it was submitted:
36.…
c.The Husband unilaterally took control of the legal practice in April 2001, whilst the Wife was on holidays. (AB 568 lines 20 to 30).
For the period from 1998 to April 2001, the Wife had run the practice on behalf of the parties.
The Wife’s evidence in relation to the state of the practice is set out in her evidence under cross-examination (AB 644 line 1 to AB 645).
The Husband conceded that he should have let the Wife continue to run the practice.
The Husband last prepared a tax return in the 2004/2005 year (AB 571 line 10).
The Husband failed to make disclosure of any financial record relating to the practice other than an assortment of bank statements for the general account (AB 570 lines 35 to 45).
The paragraphs of the transcript referred to by Counsel for the wife provided:
MR SHOEBRIDGE: And in 2001 she went on a holiday and you re-entered the practice?‑‑‑
[THE HUSBAND]: I what?
MR SHOEBRIDGE: You entered the practice, you took it over?‑‑‑
[THE HUSBAND]: I did that all the time.
MR SHOEBRIDGE: You – well, I’ll put it a different way. When you wife returned from her holiday in April 2001 you excluded here [sic] from the practice, didn’t you?‑‑‑
[THE HUSBAND]: No. I know she says I changed the locks, but in fact the locks were reconfigured. But there was – she was coming in at night and taking things – including furniture, and I was simply making a statement that that shouldn’t happen. Now, I was there from 8.30 every day. All she had to do was come to the office and she didn’t. She just said, “You’ve locked me out.”
and:
MR GALLOWAY:   Are you able to answer this? You became a principal of the firm ?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: in 1999; is that right? ‑‑‑
[THE WIFE]: I think that would be correct, yes.
MR GALLOWAY: All right. Do you know then how much was in the firm’s general account, or is there somewhere we can go to find out?‑‑‑
[THE WIFE]: I believe it was $15,000 overdrawn.
MR GALLOWAY: I see. And in the trust account?
HIS HONOUR:   Good grief, what’s that got to do with it?‑‑‑I don’t know. It would have – it would have to be positive, you can’t have
What’s that got to do with it, Mr Galloway?
MR GALLOWAY:   I want to see what the state of the practice was at that time, your Honour.
HIS HONOUR:   Well, how can I draw any conclusion whether it’s
MR GALLOWAY:   I hadn’t made any submission on it, your Honour. I’m simply inquiring what the state of the practice was when it was overtaken by this lady. All right.
HIS HONOUR:   Do you recall what was in the trust account?‑‑‑
[THE WIFE]: I don’t, your Honour, no.
MR GALLOWAY:   All right?‑‑‑
[THE WIFE]: We never had a large amount of money in the trust account.
MR GALLOWAY: Yes, all right. And when – well, when was it that you say that the practice was recovered by [the husband]?‑‑‑
[THE WIFE]: The end of April 2001.
MR GALLOWAY: All right. And what were the state of the accounts then, if you can remember?‑‑‑
[THE WIFE]: I believe the general account was almost zero. There may have been $1000 overdrawn, and I have a letter from the bank amongst my exhibits.
MR GALLOWAY: Was it, in fact, about $30,000 overdrawn?‑‑‑
[THE WIFE]: No, it was not.
MR GALLOWAY: All right?‑‑‑
[THE WIFE]: I have the letter from the bank that confirmed that when I – that I closed down the – when I closed down the general account I think there was about $1000 owing on that account.
and:
HIS HONOUR:   All right. Do I understand, when was the last time you put in a tax return?‑‑‑
[THE HUSBAND]: 2004/2005. I haven’t – I haven’t put one in for two years, certainly. So I haven’t got 2007 or 2008 and I’ve just contacted my accountant about doing the tax returns for those years.
HIS HONOUR: What about ‘06?‑‑‑
[THE HUSBAND]: I can’t remember, but I was already ‑ ‑ ‑
HIS HONOUR: Well, if you haven’t done ’06, your tax returns are outstanding for four years. 30 June ’06, ’07, ’08, ’09?‑‑‑
[THE HUSBAND]: Well, I must have done ’06 because my accountant would have been in touch with me. ’06 was – I think things were already going bad in terms of the practice in that I just wasn’t coping with it and I know I discussed it with [Dr C] at that time and ‑ ‑ ‑
HIS HONOUR: All right. Carry on.

and:
MR GALLOWAY:   Your Honour, the documentary evidence that we have is annexed as BWT1 to the affidavit.
HIS HONOUR:   What page is that? What page is that?
MR GALLOWAY:   I’m sorry. Pages 19 and following, your Honour. It’s not ideal, but we simply have not ‑ ‑ ‑
HIS HONOUR:   This is just a snapshot of the general account?
MR GALLOWAY:   Yes, and from month to month. They’re not continuous months. Your Honour, we’ve simply annexed what we had.
HIS HONOUR:   All right. Thank you.
MR GALLOWAY:   No tax returns there, sorry.
HIS HONOUR:   All right. Do you accept that that’s the only evidence that I can look to?
MR SHOEBRIDGE:   I accept that it’s the only evidence that’s produced. I’ll make submissions about that, but ‑ ‑ ‑

The trial Judge recorded in relation to this topic that the wife submitted the husband to have caused “wastage” or made negative contributions by, amongst other things:
113.…
·Locking the Wife out of the legal practice in May 2001 while she was away on leave. It had been agreed between the parties that the Wife would operate the legal practice and the Husband would engage in property development.
By his conduct in locking the Wife out of the legal practice, the Husband unilaterally altered an arrangement which had been in place for a number of years and which had the effect of the practice being operated successfully.
The Husband had acquired the practice when it was operating from … for $20,000. It is again unfortunate that no evidence was led by the Wife from an accountant, a valuer or a legal practitioner experienced in the acquisition and sale of legal practices to say what the practice would have been worth based on the earnings in the year 2000 when she had been operating the practice.
There are emails from the Husband’s legal practitioner to the Wife indicating that the Husband had not been capable of operating the practice for many years prior to the Law Society moving in to shut it down on 30 June 2008.
The nett result of this is what could have been a valuable legal practice has ended up being worthless.
The trial Judge recorded the contributions of the husband “of a negative nature” to which he had regard when assessing the contribution entitlements. One of those was “operating the legal practice when he knew or should have know he was incapable of properly operating same”.
When identifying the factors which “reflected” the reasons for the disparity in contribution entitlements of the parties, the trial Judge included “a very conservative global assessment of the cost of the negative contributions by the Husband including the loss in value of the legal practice”.
Nothing to which we have been referred establishes that the trial Judge erred in finding as he did with respect to this topic. The undisturbed findings of fact made by him entitled his Honour to have regard to this factor in the wife’s favour, albeit the evidence did not permit him to quantify it. The trial Judge identified the basis upon which $380,000 of the $500,000 disparity in contribution entitlements was determined. The sum of $380,000 represented the wife’s equity in her two “after acquired properties”. To the extent that they were quantified, two of the other factors to which he had regard in that context were identified by his Honour and represented approximately $40,000. In those circumstances, the loss in value of the legal practice and savings to the parties in self-managing B Street could, at most, have accounted for approximately $80,000 of the disparity. We have not been referred to any evidence which precluded his Honour from so finding or concluding.
To the extent that, although not so expressed, this challenge is also a “weight” challenge, it has not been established. Whilst other conclusions may have been open to him, we are not persuaded that his Honour’s conclusion excluded the ambit of a reasonable exercise of an undoubtedly broad discretion. No error or fact has been demonstrated.

Ground 6(d)

Ground 6(d) complained:
6.That the learned trial Judge made findings beyond the evidence in respect of:-
…
(d)The supposed devaluation of the Husband’s [A property] by reason of his neglect;
In support of that contention it was submitted on behalf of the husband:
36.…
(d)The [A property] was valued at $830,000.00. There was no evidence that it would have been worth $840,000.00 or $850,000.00 if it had been [in] a “fit and tidy state”. Even if it could be said that there was a loss of value to that extent, then that is all that could have been found by his Honour to have constituted “waste” though it is argued that in the circumstances of the Husband’s illness such a matter [was] negligible.
In response it was submitted:
36.…
d.As set out above, His Honour’s findings in relation to the [A property] were referrable to the unchallenged evidence of [Mr H], registered valuer (AB 341 under the heading “7.0 Additional Comments.).
His Honour also had available to him the evidence of the husband himself regarding his lack of effort to maintain the property. (AB 566 to 567).
The relevant section of the report of Mr H, a registered valuer, referred to by Counsel for the wife provided:
The improvements as at the date of inspection were presented to a poor condition both internally and externally. This was generally cosmetic in nature and appears that general maintenance, cleaning and tidy (sic) has not been undertaken for some time. In addition the yard has been overgrown and rubbish has accumulated.
We have made an allowance in our assessment which we have discounted from the current market value to allow for the anticipated costs (for example cleaning and maintenance) to reinstate the improvements to a condition suitable for sale. This cost we estimate at approximately $10,000 to $20,000.
The sections of the transcript referred to by Counsel for the wife revealed the following exchanges:
MR SHOEBRIDGE: [Mr Taugher], I started to ask you a few questions in relation to the property that you’ve [sic] living in at [A property]?‑‑‑
[THE HUSBAND]: Mm.
MR SHOEBRIDGE: Having regard to your evidence and the evidence that we just heard from [Dr C], you don’t say, do you, that for a continuous period of time from 2001 until now you have been physically unable, for example, to do things like mowing the grass?‑‑‑
[THE HUSBAND]: I don’t know. The fact is I didn’t mow the grass and the fact is that [A property] is now considered so “untidy”, in inverted commas, that the social worker won’t allow someone to come there to clean because she said it’s too dangerous and ‑ ‑ ‑
MR SHOEBRIDGE: Just focus on my question for one moment though, [THE HUSBAND]?‑‑‑
[THE HUSBAND]: Yes.
MR SHOEBRIDGE: What I asked you was this: you don’t say, do you, that you have been physically unable to mow the grass, and I’m only asking about mowing the grass at the moment, for a continuous period of time from 2001 until now?‑‑‑
[THE HUSBAND]: All I’m saying is the fact is that I didn’t mow the grass because it just ‑ ‑ ‑
MR SHOEBRIDGE: I understand there’s things you want to say, but for now you have to answer my question, and my question was you don’t say that you were physically unable to do it between 2001 and now, do you?‑‑‑
[THE HUSBAND]: Yes, I do, I suppose. It’s been put to me many times, “Why don’t you clean up the kitchen?” I don’t know, I just don’t do it.
MR SHOEBRIDGE: But there were times ‑ ‑ ‑?---
[THE HUSBAND]: Now, I’m physically capable of doing the washing up but I just don’t do it.
MR SHOEBRIDGE: But [Mr Taugher], there were a great many occasions during your marriage when you didn’t do those things either?‑‑‑
[THE HUSBAND]: Now, hang on. This was a joke between us. My wife used to mow the grass and I used to say you’re trying to pretend to the neighbours that you do all the work and she said, “It’s the only exercise I get.” This was a joke that you have with husband and wives. She used to mow the grass.
MR SHOEBRIDGE: [Mr Taugher], you are just generally an untidy person though, aren’t you?‑‑‑
[THE HUSBAND]: Sorry?
MR SHOEBRIDGE: You are generally speaking an untidy person?‑‑‑
[THE HUSBAND]: No, I’m an obsessive compulsive as my doctor would have said. Everything has to be in it’s [sic] place normally.
MR SHOEBRIDGE: So during those periods when your moods had stabilised, your medication is firing well, why not maintain the property that you are living in?‑‑‑
[THE HUSBAND]: I don’t know. I’m sort of – the excuse I make is that I will come to it when all this is sorted out. This has been hanging over me for 10 years and I’ve had all the problems with the police.
MR SHOEBRIDGE: So it’s reasonable to assume you will come to it when these proceedings are finished?‑‑‑
[THE HUSBAND]: Sorry?
MR SHOEBRIDGE: It is reasonable to assume you will get to it when these proceedings are finished?‑‑‑
[THE HUSBAND]: I have already spoken about getting cleaners in to clean the house and the discussion has been we need some brave girls who will risk the health, workplace safety legislation to come and get the place clean. It’s not that bad but it needs a couple of cleaners there for a week or so.
MR SHOEBRIDGE: Does the same apply to [V property]?‑‑‑
[THE HUSBAND]: Yes, yes, it’s – the tenant is waiting to go in and I’ve still got to take stuff out before we start even cleaning. [V property] has just fallen into ruin.
MR SHOEBRIDGE: Why – do you accept that that’s been your responsibility?‑‑‑
[THE HUSBAND]: Yes, yes, I mean, no one else is responsible for it.
MR SHOEBRIDGE: And there have been no steps taken to rent that property out until very, very recently have there?‑‑‑
[THE HUSBAND]: Now, hang on. Following the – the practice was closed down on 30 June 2008 and immediately following that I applied my mind to the fact that it would need to be rented out. I can’t remember when it went with an agent but I spoke to my solicitor and my solicitor said, “I’ll take – I’ll do [sic] and put it with an agent and all you’ve got to do is sign the lease.”
MR SHOEBRIDGE: So accepting all of that, it has not been rented before now, and you now have someone who is interested in renting the property; that’s correct, isn’t it?‑‑‑
[THE HUSBAND]: Someone who’s waiting to sign the lease. He wants to go in but these proceedings have meant that I can’t [sic] down there to tidy – to let him in, but he wanted to be in on 1 November.
Under the heading “Section 79 – Submissions For Wife” the trial Judge referred to the wife’s contentions with respect to “wastage” which included the impact on the value of properties controlled by the husband in the post separation period resulting from his asserted failure to maintain them.
The trial Judge referred to the expert opinion evidence of the single expert, which revealed a cost of $10,000 - $20,000 approximately to “reinstate the improvements to a condition suitable for a sale”.
His Honour later, in the context of the contributions of the husband in the post separation period which had been “of a negative nature”, referred to:
o Not maintaining the [A property] in a fit and tidy state resulting in an under value of between $10,000 and $20,000.
Later, his Honour reiterated:
137. …
d)the Husband’s failure to maintain the [A property] in proper condition; and
when explaining the factors which “reflected” the $500,000 disparity in contribution entitlements which he considered to be appropriate.
The husband had the benefit of residing in the A property post separation and, although the wife had a substantial interest in it, she derived no benefit from it, and that had to be weighed in the balance when the contributions of the parties were evaluated.
His Honour recorded:
48.[The husband] has had the benefit of residing in the [A property] and he has had sole control over the [V property] premises which he has elected to leave untenanted for a period of 18 months.
Nothing to which we have been referred establishes that the trial Judge erred in finding as he did with respect to the property to which he thus referred. The evidence before him supported a finding that the failure to maintain the property had reduced its value by $10,000 to $20,000.

Ground 6 (e)

Ground 6(e) provided:
6.That the learned trial Judge made findings beyond the evidence in respect of:-
…
(e)The supposed loss occasioned by there being no tenant in the [V property] premises for eighteen months.
In support of this complaint it was asserted:
36. …
(e)There was no evidence of loss occasioned by there being no tenant in the [V property] premises except what may be conjectured without quantification. The property was not in a particularly rentable condition nor was there evidence of any tenant ready willing and able to occupy it. Furthermore, any net gain from rent would have become taxable income and if any inference could be drawn from the absence of a tenant then it could only be that some small moneys were not received by the parties. In [the] circumstances of the Husband’s illness (and hospitalisation) this is a matter which could not reasonably have gone to become a component of the large differential ($503,600.00) created by his Honour’s finding.
In response, Counsel for the wife submitted:
36.…
e.It was open to His Honour to find that there is currently a tenant willing to rent [V property] because that was the Husband’s own evidence (AB 567 line 20).
It was equally open to His Honour to find that, in the absence of any other evidence, the best indication of what the [V property] property could have rented for is the rent that the prospective tenant is willing to pay.
The Husband accepted that [V property] has fallen into ruin (AB 567 line 15) and that no-one else but the Husband is to blame for that (same page line 20 to 25).
The Husband’s evidence is that the reason he hasn’t attended to cleaning up the property and renting it out before now is because he was waiting for these proceedings to finish (AB 572 line 20 to 35).
We have earlier set out those sections of the transcript referred to by Counsel for the wife with respect to the A property and the V property. The further sections of the cross-examination of the husband referred to by Counsel for the wife with respect to the V property revealed:
MR SHOEBRIDGE: The [V property] that the practice operated from has just been left idle since the practice dissolved to nothing, hasn’t it?‑‑‑
[THE HUSBAND]: No. I mean I don’t understand what you mean by the property ‑ ‑ ‑
MR SHOEBRIDGE: Your case is that the property at [V property], the actual property?‑‑‑
[THE HUSBAND]: The physical building?
MR SHOEBRIDGE: The block of dirt with the building on it has fallen into rack and ruin?‑‑‑
[THE HUSBAND]: Who said?
MR SHOEBRIDGE: You do. It’s part of your case?‑‑‑
[THE HUSBAND]: No no. What I’m saying, it’s untidy, it’s got to be tidied up, but the ‑ ‑ ‑
MR SHOEBRIDGE: No you don’t. You say it’s got guttering that’s falling down. There’s internal water damage. You say somehow the Law Society removing files has damaged the place?‑‑‑
[THE HUSBAND]: Well, but that’s – the guttering’s been like that – the guttering’s been like it for 20 years and it requires substantial – and water will come in if we have a heavy downpour of rain and I don’t think there’s very much I can do about that, but no, the practice, the building is much sought after and it’s a solicitor up the road who’s the tenant and as I say, he’s anxious to get in.
MR SHOEBRIDGE: Well, what property of yours remains in there that stops him getting in?‑‑‑
[THE HUSBAND]: Books and files and ‑ ‑ ‑
MR SHOEBRIDGE: How many books? How many files?‑‑‑
[THE HUSBAND]: Well, I anticipate that if I hire a Ute for two days, I’ll be able to take it all out in two days.
HIS HONOUR: Why didn’t you get that done 12 months ago?‑‑‑
[THE HUSBAND]: I had a – I had a furniture van to come and do that and they couldn’t get it all in. They said, oh, you know, we just can’t get all these books in, because they’re all packed into boxes and there’s about 15 quite large boxes almost the size of this desk.
MR SHOEBRIDGE: 15 boxes of books. How many boxes of files?‑‑‑
[THE HUSBAND]: When I came out of hospital, I got – I contacted the Law Society and they came and took all the existing files and all the old files, because I said look, I can’t service them. So they’ve taken them all away.
MR SHOEBRIDGE: All right. What files are left?‑‑‑
[THE HUSBAND]: Mm?
MR SHOEBRIDGE: What files are left?‑‑‑
[THE HUSBAND]: Not time files. My own files, I suppose.
MR SHOEBRIDGE: How many boxes?‑‑‑
[THE HUSBAND]: In terms of Lever Arch files, there’s [sic] probably 100. Something like that.
MR SHOEBRIDGE: Why not just make a phone call and say, “Look, here’s the key, go and empty the place out and put it in storage or burn it, take it to the dump or whatever”?‑‑‑
[THE HUSBAND]: Yes. That has been put to me and my response is, let me get this out of the way first and then I’ll turn my mind to it. I just haven’t thought about it.
Under the heading “Section 79 – Submissions for Wife” the trial Judge recorded the contention of the wife with respect to this topic as:
113.…
·Failing to lease the [V property] for a period of 18 months.
[Mr S] a valuer prepared a valuation for the [V property]. He describes the property as 156 square metres of office and storage accommodation. He notes that the proposed lease is reportedly $200 per square metre nett plus GST and outgoings over a five year term with a five year option period.
This would appear to indicate that failing to lease the property has resulted in a loss of income in the order of $45,000. I accept that there would have been some outgoings deducted from this.
Later, when referring to the contributions of the husband which had been “of a negative nature” in the post separation period, the trial Judge included “Leaving [V property] untenanted for a period of 18 months after the legal practice ceased to operate.”
His Honour later included amongst the factors which “reflected” the disparity in contribution entitlements which he concluded to be appropriate:
137.…
c)the Husband’s failure to lease [V property] for 18 months.
His Honour also recorded:
48.It appears that the Husband was hospitalised for a period of time. No records were produced as to how long he was hospitalised. In any event I see no reason why the Husband could not have made phone calls from hospital to have the [V property] leased and thereby start to generate an income. I will deal with this in more detail when considering what adjustment should be made under the principles of wastage as submitted by the Wife’s Counsel. Suffice it to say the rates on the properties were for the last decade the Husband’s responsibility and I fail to see why it should be treated as a joint liability at this point in time. …
It is to be remembered that the husband had the control of the V property during the 18 months in which it was untenanted. It was open to the husband to adduce evidence of the outgoings and rent by which the income, which the evidence established that the property could have generated, would have been reduced. He did not do this.
The trial Judge clearly recognised that the $45,000 potential gross rental would have been thereby reduced. Through no fault of the trial Judge, by what amount it would have been reduced could not be found.
It was clearly open to the trial Judge to find as he did, and to take this factor into account to the wife’s advantage when assessing contributions. We are thus not persuaded that this complaint has substance. The husband cannot successfully rely upon his failure to prove, if they be fact, matters which were amply within his capacity to prove.
To the extent that it was submitted on behalf of the husband during the course of oral submissions that the trial Judge should have taken a more benign view of the husband’s “negative” contributions, nothing to which we have been referred in the evidence establishes that his Honour should have done so. Nor have we been referred to any submission on behalf of the husband which conveyed such an assertion to the trial Judge.

As Counsel for the wife submitted, and the trial Judge recognised, the matters to which the trial Judge had regard, which are complained of in this ground, all occurred prior to the husband’s health deteriorating and at a time when, on the evidence before the trial Judge, there was no basis for finding that the husband lacked the capacity to know and intend the consequences of his own actions.
No challenge to the trial Judge’s findings of fact having been established, it is necessary to consider the “weight” challenges raised in the appeal, and the cross-appeal.
It is convenient to deal with the husband’s challenges to the trial Judge’s decision with respect to contributions, and the competing challenges with respect to the s 75(2) adjustment ordered by him, by reference to each of those topics.

Challenges with respect to the contributions of the parties

Grounds 2, 3, 4, 7 and 8

Albeit somewhat overlapping, the grounds of appeal in support of the husband’s challenges to the trial Judge’s conclusion with respect to contributions provided:
2.That the learned trial Judge wrongly took into account what he styled “negative contributions” when the same were not waste, nor matters the fault of the Husband which reduced the pool, nor matters which increased the contributions of the Wife, and which are otherwise conjectural.
3.That the learned trial Judge gave no reasons for determining that there should be a “differential of 20% in [the Wife’s] favour”; nor did his Honour quantify the Wife’s “positive” contributions or the Husband’s “negative” contributions.
4.That the learned trial Judge otherwise erred in determining the Wife had made a contribution equal to 60% of the pool in that he failed to give any proper weight to the fact that the Wife had applied, to the exclusion of the Husband, income from jointly owned property to funding the acquisition, post separation, of other property.
Albeit not so expressed, as agitated before this Court, Grounds 7 & 8 of the husband’s Notice of Appeal also related to the trial Judge’s conclusion with respect to the contributions of the parties, and provided:
7.That the learned trial Judge specifically erred in determining, and in giving no adequate reasons for determining, that the Wife should have ‘approximately $500,000.00 more than the Husband [in respect of contributions]’ and in so doing wrongly took into account what he said was the positive contribution of $380,000.00 “being the equity in the two after acquired properties” when the same was acquired from borrowed funds repaid by the receipt of rents from jointly acquired property.
8.That the learned trial Judge erred in giving no reasons for finding, and conjecturing, that the adjustment in favour of the Wife should also arise from:-
(a)The supposed savings in self managing [B Street];
(b)The Husband’s supposed failure to lease [V property];
(c)The Husband’s supposed failure to maintain [A property] in proper condition; and
(d)A supposed very conservative global assessment of the cost of the negative contributions by the Husband including the loss in value of the legal practice
when these matters were not the subject of evidence at all.
We have earlier considered, and rejected, the husband’s challenges to the findings of fact made by the trial Judge.
As Counsel for the husband frankly conceded, the crux of the challenge to the trial Judge’s conclusion with respect to contributions was that, giving all permissible weight to the factors upon which he relied, an adjustment which translated as $500,000 fell beyond the ambit of a reasonable exercise of discretion (see Norbis v Norbis (1986) 161 CLR 513).
It was submitted that if, as emerges clearly from the trial Judge’s Reasons, $380,000 of the disparity of entitlements was referrable to the wife’s contribution of equity in after acquired real estate of that magnitude, then the other factors relied upon by his Honour, for reasons which he had earlier in his judgment suggested, could not reasonably accommodate a disparity of $120,000 (the difference between $500,000 and $380,000). In dealing with earlier challenges to the trial Judge’s findings of fact, we have largely dealt with the subject matter of this complaint. In view of the conclusions we have reached in that context, the focus of this complaint is the trial Judge’s treatment of the equity in the wife’s after acquired real estate.

The contributions adjustment to the wife referable to the equity in the after acquired real estate

As to the inclusion by the trial Judge of the whole of the equity in the wife’s after acquired real property as a contribution solely by or on her behalf, it was submitted that so doing was not reasonably open on the evidence before him. The husband’s indirect contributions to the acquisition and conservation of those properties was submitted to have precluded his Honour’s conclusion.
As is not in doubt, the trial Judge regarded that equity as having resulted entirely from contributions by the wife, the husband being found to have made no contributions to them, whether direct or indirect, financial or otherwise. Counsel for the husband submitted that the wife had benefited significantly, albeit to an extent which was not quantified before the trial Judge, from the receipt of rental from the B Street properties which the parties owned, albeit the properties were registered solely in the wife’s name, after the parties’ separation. It was submitted by Counsel for the husband that given his unchallenged conclusion that, at about the date of separation the parties were equally entitled to the properties which they then owned, which included the B Street properties, the trial Judge had erroneously ignored the reality that, in the post separation period, the wife had the benefit of net rental income from the B Street properties, one half of which the husband was notionally entitled to.
Albeit unquantified, at least from the time the properties ceased to be negatively geared, in 2002 according to the evidence of the wife, it was submitted that receipt of such rental income must have been a significant benefit for the wife, and have materially assisted her with her post separation real property acquisitions. It was submitted that the “only available inference” was that the wife’s ability to utilise rental, to which the husband was notionally equally entitled, contributed materially to her ability to acquire and retain those properties.
Whilst a number of submissions were made in support of the husband’s complaints with respect to the trial Judge’s findings in relation to contributions made by him “of a negative nature”, Counsel for the husband has not referred us to any other specific matter in support of this complaint. That is unsurprising given that there is no doubt that the wife acquired first the H Street property and then the G Road property without utilising B Street or any other property which the parties had acquired prior to their separation, for that purpose. There was no evidence that the husband paid for any expenses associated with the acquisition or retention of the H Street or G Road properties. Nor was there any evidence that the husband ever contributed in any non-financial way, directly or indirectly, to the acquisition or retention of those properties.
In a valiant attempt to demonstrate the likely quantum of the income the wife would have received from the B Street properties in the post-separation period, Counsel for the husband referred the Court to evidence which was submitted to advance this complaint.
In her affidavit, the wife deposed:
120.The [B Street] properties were a burden I had no choice other than to let out and maintain. The rental income produced a loss I had to make up until I moved out in March 2002. I managed them myself to save on agents fees. I cleaned them, advertised them and let them. I could not sell them as the Husband refused to release the guarantee he had given over the loan when they were built. He would not negotiate a property settlement. He refused to let me re-finance them at a lower rate (the rate remains higher than normal mortgage lending due to the nature of the loan and it being interest only). This means the net rent each year is less than it would be if the loan were converted to a P and I loan with Bank of Queensland – with whom I enjoy a discounted loan rate due to some sort of customer loyalty/privileged customer rating.
…
122.Naturally the rents on [B Street] increased over the years. For the 2007 and 2008 financial years the net rent on [9 B Street] [unmortgaged] was a little under $10,000 each year. For [9A] and [59B B Street] it was between $1,000 to $2,000 each. I still manage the properties. If I did not the rent for the two properties would be around zero due to payment of management fees.
…
124.If I had not repartnered and moved in to his house, there would be no excess rent at all as I would be living in [7 B St]. …
Save to the extent that we shall shortly discuss, we have not been referred to any cross-examination of the wife in which she was challenged in relation to that evidence.
In his affidavit, the husband deposed:
111.The respondent in her affidavit of the 7^th of January 2002, says that at best the weekly profit from the rent received was $E40.00/wk. I dispute this, based on her calculations alone in that affidavit being:

Rent received weekly for 2 properties at [B Street]

$435.00/wk

(per annum $22,620.00)

(per month $1,885.00)

Monthly interest on mortgage

$1,100.00/month

(approximately as interest rate is variable)

($13,200.00 per annum)

Rates on property

$519.00/quarter

($2076.00 per annum)

($173.00/month)

In addition I would estimate the insurance to be approximately $1000.00 per annum

($88.33/month)

The tax rates would be approximately 30%

If one uses the monthly income and expenditure and applies a simple calculation

$1885.00 (income)

Less

$1100.00 (mortgage interest)

Less

$173.00 (rates)

Less

$83.33 (estimated insurance)

Balance:

$528.67

Less tax:

$158.60

$370.07 (or $85.38 per week nett)

The relevant part of the cross-examination of the wife to which Counsel for the husband referred the Court provided:
MR GALLOWAY: All right. Then, when you sought a loan for [G Road] you went to a source of finance?‑‑‑
[THE WIFE]: Yes, that’s correct.
MR GALLOWAY: Which source of finance?‑‑‑
[THE WIFE]: Bank of Queensland again.
MR GALLOWAY: Bank of Queensland. All right. And were they your previous financier?‑‑‑
[THE WIFE]: They were.
MR GALLOWAY: All right. So you were able to say to them, and you did say to them that you wanted to purchase another property and you disclosed to them that there were three rental properties at [B Street] from which you derived all of the income; that there was an outgoing with respect to that, but there was also a property at [H Street] and it was generating income, and that there would be income from a property you proposed to buy, [G Road]?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. And you bought [G Road], as we see, completely financed, and it then started to generate rent?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: So you found yourself, when those further properties had been acquired, with five rental properties, which of course you still have, which generate rent that is sufficient, and indeed more than sufficient to cover the cost of the borrowing and the cost of maintaining the properties; that is correct, isn’t it?‑‑‑
[THE WIFE]: That would have been the case probably around about 2003/2004, that there was any surplus rent.
MR GALLOWAY: Yes. And you say that is not now the case?‑‑‑
[THE WIFE]: It is the case now, yes.
MR GALLOWAY: It is the case now?‑‑‑
[THE WIFE]: Yes, yes, that would’ve been since about that time.
MR GALLOWAY: Yes. All right. So in fact, the chain of purchases starts with [B Street] and takes its next two steps because of [B Street]; that’s fair to say, isn’t it?‑‑‑
[THE WIFE]: And my endeavours.
MR GALLOWAY: Yes, because you located them. All right.
MR GALLOWAY: Excuse me a moment, your Honour. I’ll just check a note, your Honour.
MR GALLOWAY: You disclose – and I’m not quite sure what your figure is – but about $1300 a week in rent receipts; is that right, 1393. That’s from all five properties?‑‑‑
[THE WIFE]: That’s correct.
Counsel for the husband fairly conceded that the evidence before the trial Judge in relation to this issue was less than comprehensive. It was however submitted to be sufficient to demonstrate that the B Street rental income must have assisted the wife’s acquisition of real estate after the parties’ separation.
Counsel for the wife submitted:
8.In relation to that, the Court is respectfully referred to the evidence to be found at the transcript from pages 100 to 106 on point (AB 634 to 640). Whilst it is fair to acknowledge that some income from the B Street property was applied by the wife towards the loan, the overwhelming majority of the loan repayments found their source in the rent derived from [G Road] and [H Street] properties themselves and from the wife’s wages.
The relevant portion of the transcript to which the wife referred the Court was a portion of the cross-examination of the wife occurring just prior to that relied on by the husband, as set out above. The transcript provided:
MR GALLOWAY: Yes. So [B Street] is three dwellings?‑‑‑
[THE WIFE]: Yes, in effect.
MR GALLOWAY: And all three are registered in your name; that’s correct?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: But came to be so during the relationship?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: All right. Now, you have had the properties valued and you see that [Mr H], for instance, has an estimate of rental value for number 57, which is the house that was originally there, at $380 a week?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: What is it now rented for, that figure?‑‑‑
[THE WIFE]: $380 a week, yes.
MR GALLOWAY: That is – all right. So do I take it that his rental value arises because you told him that’s the rent?‑‑‑
[THE WIFE]: I don’t think he asked me.
MR GALLOWAY: Okay?‑‑‑
[THE WIFE]: I don’t know how he got that figure, he might have asked the tenant, I don’t know.
MR GALLOWAY: Might have asked the tenant, all right. And the property at 59, though the subject of a single valuation is of course two properties?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: And they have a combined rent of 720 a week?‑‑‑
[THE WIFE]: That’s correct, yes.
MR GALLOWAY: All right. Which is 370 for unit A and 350 for unit B?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: And A and B have different tenants?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: So that should one tenant move out, you don’t lose all the rent?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. And right now, all three [B Street] properties are income earning?‑‑‑
[THE WIFE]: At the moment, yes.
MR GALLOWAY: Yes. Now, does that mean that we can add together, for just [B Street] income, the 720 plus the 380 that they presently earn, showing $1100?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: All right, now that’s just [B Street], isn’t it?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: Okay. And that’s per week. Now, on [B Street], there is $190,000?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: All right. And can you tell me, with some exactness, what your monthly payment on that is?‑‑‑
[THE WIFE]: $1000.
MR GALLOWAY: $1000 a month, all right. Now, if I were to divide the $1000 by 4.33, to get a weekly figure, would that be accurate?‑‑‑
[THE WIFE]: I would have to accept that figure, it would be slightly more than 4, yes.
MR GALLOWAY: All right. Which would be $230, maybe $231 a week?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: All right. So your net gain is $1100, minus, say, $231, on that property?‑‑‑
[THE WIFE]: For a week, yes.
MR GALLOWAY: Yes. Now, his Honour will not forget that there are rates to pay, but all of the capital expenses are deductible?‑‑‑
[THE WIFE]: Yes, that’s correct.
MR GALLOWAY: And indeed, all of the overhead is deductible, because these are commercial properties?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. Now, in this outline, your counsel complains that you may have to, in the future, pay GST, but ?‑‑‑
[THE WIFE]: He said CGT.
MR GALLOWAY: CGT, I’ll do that again, I’m sorry?‑‑‑
[THE WIFE]: That’s all right.
MR GALLOWAY: But your intention, in fact, is to hold these in the long term, because the rental stream is positive, and will be income for as long as you hang onto the property; isn’t that right?‑‑‑
[THE WIFE]: I don’t know that it’s my intention to hang onto them.
MR GALLOWAY: Well, do you have an intention?‑‑‑
[THE WIFE]: Sorry?
MR GALLOWAY: Do you have an intention?‑‑‑
[THE WIFE]: No.
MR GALLOWAY: I see, all right. All right, well, suffice it to say then, that [B Street] and the three rent sources that it represents, were part, were they not, of a plan that you and your husband had to amass an estate through property dealing?‑‑‑
[THE WIFE]: They were.
MR GALLOWAY: And since then, do I take it, no part of the rent receipt has been paid over by you to the husband?‑‑‑
[THE WIFE]: It hasn’t, no.
MR GALLOWAY: No, all right. Now, can you tell me, when was it that you purchased, and I think the order is that you purchased firstly [H Street]?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: And then [G Road]. Now, could you tell me, how much did [H Street] cost you when you purchased it?‑‑‑
[THE WIFE]: 161,000, as I recall.
MR GALLOWAY: 161, all right. How much did you borrow?‑‑‑
[THE WIFE]: 90 per cent, it was 140-something.
MR GALLOWAY: All right. And do you remember, in your loan application, what you told the bank about your income so that the borrowing might be serviced?‑‑‑
[THE WIFE]: I don’t’ [sic] recall what I told them, no.
MR GALLOWAY: Well, you were certain, weren’t you, to have included the income that you were getting for [B Street]?‑‑‑
[THE WIFE]: I imagine I would, yes.
MR GALLOWAY: All right. Which of course, would be, as far as the bank was concerned, the difference between the interest that you were paying and the rent receipts that you were getting?‑‑‑
[THE WIFE]: That would be correct.
MR GALLOWAY: All right. And indeed, that’s what happened. You were enabled to apply the surplus to servicing the borrowing on [H Street]?‑‑‑
[THE WIFE]: There was no surplus at that time.
MR GALLOWAY: Well, you had told the bank that there was. When you say there was no surplus at that time, there must have been?‑‑‑
[THE WIFE]: There was an income, there was – I disclosed the rental income coming in, but there had been a period of considerable vacancy during that time.
MR GALLOWAY: Well, what I’m suggesting to you is that you were able to acquire [H Street] by reason of showing the bank that you owned, as it were, [B Street] – three sources of income – and that [B Street] was pouring income into you?‑‑‑
[THE WIFE]: The potential rent income, yes. I would have done that, yes.
MR GALLOWAY: And I’m suggesting to you that – I’m sorry, what year was it you acquired that? [H Street]?‑‑‑
[THE WIFE]: 2002.
MR GALLOWAY: 2002, all right. Just let me pause there. It was the case, wasn’t it, that you and your husband were putting together, with Suncorp, a deal that in fact would be just this: that is, you and he intended to approach the bank, Suncorp, on the basis that you would get another property and you would service it’s [sic] debt with income it generated and that which was surplus on [B Street]?‑‑‑
[THE WIFE]: I have to say no. I hadn’t a clue what the husband was talking about in the witness box yesterday when he talked about that.
MR GALLOWAY: So I suggest to you that in fact that was your common intention, which, because you were the sole registered proprietor of [B Street] – only you were able to put into operation after separation?‑‑‑
[THE WIFE]: That wasn’t the case. The failed proceeds of [M property] and the block of land were to be used for the next venture, the idea was to keep our borrowings to the minimum. The only reason that we borrowed against [9 B Street] was because it was a duplex, and contrary to our plan, which was to buy, originally, single houses and sidestep from one to the other, the plan got skewed a little with [B Street] because we ended up with a duplex. And we decided to take out a loan for that and keep it as a rental property, and therefore, it could support the loan. The whole purpose of our plan, and I think I have set it out in my affidavit in chief, is that there was to be no borrowing, so there was no pressure on us to complete properties and sell them.
MR GALLOWAY: Yes?‑‑‑
[THE WIFE]: And that’s why I don’t understand the husband’s statement about borrowing from Suncorp. There was $340,000 sitting in the bank ready to pay for the next venture, which was the subject of the money split.
MR GALLOWAY: Yes. The fact remains that you were able to direct to your own purposes the rents derived from [B Street] in its three sources after you ceased to reside at number 57?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. In ’02 you financed, to the extent of 90 per cent, [H Street] and it then became a rental property generating rent?‑‑‑
[THE WIFE]: Sorry?
MR GALLOWAY: It generated its own rent?‑‑‑
[THE WIFE]: It did, yes.
MR GALLOWAY: All right. Which you could apply, together with over the years, what you received from [B Street] to the loan and thus bring down the borrowing on [H Street]?‑‑‑
[THE WIFE]: I did have other income, of course; I was working.
MR GALLOWAY: You were, but as you have reminded us in your affidavit it was for relatively modest wages?‑‑‑
[THE WIFE]: It was at least an average income as far as the Australian standard went, I was at the time earning $50,000 a year
MR GALLOWAY: Yes?‑‑‑
[THE WIFE]: which, while it may have been poor by legal standards, was certainly not poor by the standard of the average population and I had no commitments, it was disposable income for me.
MR GALLOWAY: All right. Now, you lived for a time in [B Street]?‑‑‑
[THE WIFE]: I did.
MR GALLOWAY: Then went to live at [V property]?‑‑‑
[THE WIFE]: No, that’s not correct.
MR GALLOWAY: Well, you say that you slept in the office?‑‑‑
[THE WIFE]: I lived at [V property] before I moved into [B Street].
MR GALLOWAY: I see. All right. When did you leave [B Street] then?‑‑‑
[THE WIFE]: March 2002.
MR GALLOWAY: Right, and where did you go to?‑‑‑
[THE WIFE]: I went to live with [Mr F].
MR GALLOWAY: All right. And in the house you’re presently in?‑‑‑
[THE WIFE]: No, the house in [Town E].
MR GALLOWAY: A house in [Town E]. All right. And were you thereafter supporting [Mr F]?‑‑‑
[THE WIFE]: No, not to begin with.
MR GALLOWAY: Not to begin with?‑‑‑
[THE WIFE]: No.
MR GALLOWAY: All right. I take it though that you were not required to pay him rent, because you were in a relationship?‑‑‑
[THE WIFE]: That’s right.
MR GALLOWAY: All right. So you then had four properties that were generating rent for you; all correct?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. Which, can I suggest, was in excess of the repayments for both [B Street] and [H Street]?‑‑‑
[THE WIFE]: I don’t recall, but that would probably be correct, yes.
MR GALLOWAY: Yes. So you were in a position, given that positive cash flow, to make another acquisition of [G Road]; is that correct?‑‑‑
[THE WIFE]: I don’t know that it was due to the cash flow. It was due to the capacity to borrow because I had the equity in [H Street] to use to purchase that property.
MR GALLOWAY: Yes. Now, the rental value of [H Street] was $235 – or is $235?‑‑‑
[THE WIFE]: That’s what the valuation says, yes.
MR GALLOWAY: Yes. All right. And is that what you’re getting?‑‑‑
[THE WIFE]: No.
MR GALLOWAY: What are you getting?‑‑‑
[THE WIFE]: 220.
MR GALLOWAY: 220. I see. All right. Time for a rent increase?‑‑‑
[THE WIFE]: No.
MR GALLOWAY: Why is that? Are the tenants favoured or ?‑‑‑
[THE WIFE]: It’s not due until next year.
MR GALLOWAY: I see. All right. There’s a lease. All right then. Do you recall what deposit you had for [H Street]?‑‑‑
[THE WIFE]: I didn’t have a deposit, I borrowed 106 per cent of the purchase price.
MR GALLOWAY: I see. I’m sorry?‑‑‑
[THE WIFE]: I did – I had to pay a deposit
MR GALLOWAY: Yes?‑‑‑
[THE WIFE]: at the time of signing the contract which was money I drew down on a loan.
MR GALLOWAY: I see?‑‑‑
[THE WIFE]: And then I repaid it when the bank loaned me the money.
MR GALLOWAY: All right. I think I’ve misunderstood you. I thought it was a 90 per cent loan?‑‑‑
[THE WIFE]: No, that was 106 per cent.
MR GALLOWAY: 106 per cent?‑‑‑
[THE WIFE]: Well, it was $214,00 against a $206,000 purchase.
HIS HONOUR:   Sorry, 214 against?‑‑‑
[THE WIFE]: A $206,000 purchase.
MR GALLOWAY:   This is [H Street]?‑‑‑
[THE WIFE]: [G Road].
HIS HONOUR:   [G Road].
MR GALLOWAY:   No, I’m sorry?‑‑‑
[THE WIFE]: Sorry, you’re back to
MR GALLOWAY: No, I am in error?‑‑‑
[THE WIFE]: Sorry, you’re back to [H Street], sorry.
MR GALLOWAY: It is mine.
HIS HONOUR:   You’re clearly questioning about [G Road].
MR GALLOWAY:   I needed to sort out the figure. You can remind me about [G Road], and I apologise, this is my error. Just to go back to [H Street], you say 90 per cent. Do I take it that the 10 per cent was financed by you?‑‑‑
[THE WIFE]: I borrowed it.
MR GALLOWAY: All right. And that was then $16,100?‑‑‑
[THE WIFE]: It was.
MR GALLOWAY: And that was borrowed?‑‑‑
[THE WIFE]: Yes.
MR GALLOWAY: So in effect, from two sources, 100 per cent was borrowed?‑‑‑
[THE WIFE]: That’s correct.
MR GALLOWAY: All right. Then [G Road] was a purchase for how much?‑‑‑
[THE WIFE]: 206,000.
MR GALLOWAY: 206. And you borrowed 220, did you say?‑‑‑
[THE WIFE]: 214, I believe, yes.
MR GALLOWAY: 214?‑‑‑
[THE WIFE]: 14, yes.
MR GALLOWAY: 14. That maybe – I think you said 106. I don’t do the sums, but that sounds about right?‑‑‑
[THE WIFE]: Something like that, yes.
MR GALLOWAY: A hundred and six per cent borrowing. All right. That was acquired when?‑‑‑
[THE WIFE]: I think November 2003.
The remainder of the portion of the transcript referred to by the wife related to the wife’s failure to disclose documents with respect to those properties.

It was further submitted on behalf of the wife:
24.Reference is again made to the evidence of the wife under cross examination in relation to the after acquired properties. (AB 634 to 640).
25.The Husband’s submission seemingly ignores the extent to which the subject loans were serviced from rent received from the after acquired properties themselves, and from the Wife’s own income.
26.His Honour was entitled to find that the after acquired properties were significantly, if not entirely, the product of the wife’s contributions alone and upon that finding, to adjust the percentage contributions by the parties in the way that he did. (Mackie and Mackie (1981) FLC 91-069, Spiteri and Spiteri (2005) FLC 93-214).
In the absence of reference to the evidence to which Counsel for the wife referred the Court, the submissions of Counsel for the husband in relation to the trial Judge’s conclusion with respect to the wife’s post separation acquisitions of real property have superficial attraction. That attraction dissolves however when regard is had to the evidence to which Counsel for the wife referred the Court, which we have set out above. The trial Judge was clearly alive to the contention of the husband in relation to this issue.
Having referred to the wife’s evidence that:
· At the time the [B Street] properties were not producing profit because one or more of the properties was vacant for periods of time and she was in occupation of one of the properties from shortly after the separation until March 2002.
and the wife’s evidence that:
60.… she was able to borrow not because of a positive income flow from the [B Street] properties but she concedes ownership of those properties gave her a greater capacity to borrow.
the trial Judge accepted that:
61.… since about 2003/2004 the Wife has derived income from five properties being the three [B Street] properties and the two after acquired properties.
His Honour also recorded:
62.So far as the [H Street] and [G Road] properties may be negatively geared the rental from her ownership of these has been instrumental in increasing her equity in the properties. The [B Street] properties produce income as set out in the Wife’s statement of financial circumstances.
The wife’s statement of financial circumstances to which his Honour alluded revealed that as at 28 September 2009 the total rent received by her from tenants of unspecified property, including the three units at B Street, totalled $1,373 per week. The wife disclosed weekly mortgage payments to Westpac Bank with respect to 7 and 9 B Street of $320. The wife did not reveal any other outgoings with respect to property.
The evidence before him did not permit the trial Judge to quantify the financial benefit received by the wife by way of rental income from the B Street properties. Whilst the evidence before him entitled the trial Judge to have reached other conclusions which were less favourable to the wife, we are not persuaded that the evidence obliged him to do so, or precluded him from concluding as he did. In the absence of evidence, presumably emerging during cross-examination of the wife, as to the net rental income received by her from the B Street properties, particularly at the time she acquired the H Street and G Road properties, and in the early years of her ownership of them, and we have not been referred to any such evidence, it was open to the trial Judge to conclude as he did with respect to the acquisition, conservation and enhancement of the equity in the wife’s post separation acquisitions of real estate. It has not been established that the trial Judge erred in treating the whole of the wife’s after acquired equity as a contribution made solely by her.

The remainder of the contributions adjustment to the wife

It remains to consider whether the other factors to which the trial Judge referred could, cumulatively, support an adjustment in the wife’s favour of approximately $120,000.
We have earlier considered, and rejected, challenges to the findings of fact by reference to which the trial Judge exercised his discretion with respect to this topic. As Counsel for the husband clearly, and sensibly recognised, the issue remaining for consideration was whether the trial Judge gave excessive weight to those factors.
To the extent that the husband complained about the trial Judge’s use of the term “negative contributions”, we do not accept that so characterising the matters to which he referred in that context led the trial Judge into appealable error. Properly viewed, his Honour did no more and no less than consider the nature and quality of the contributions which the husband made, or failed to make, a course consistent with what the High Court in Mallett v Mallett (1984) 156 CLR 605 said that a trial Judge was obliged to adopt in determining proceedings for settlement of property under s 79 of the Act. Success or otherwise with this challenge turns not on how the trial Judge categorised those matters, but whether the conclusions he reached with respect to their impact upon the contribution entitlements of the parties were reasonably open to him.
To the extent that the husband complained that the trial Judge failed to provide adequate reasons for the conclusion he reached, we cannot accept that such complaint has substance. Indeed, the ability of Counsel for the husband to argue the various complaints with respect to the husband’s “negative” contributions in the comprehensive way in which he did attests to the adequacy of the trial Judge’s reasons. On no instance did Counsel for the husband submit that he was constrained by the paucity or absence of reasoning of the trial Judge in agitating each of the various complaints which the husband raised.
In his comprehensive written Summary of Argument, Counsel for the husband articulated the bases of the various complaints with respect to the $120,000 component of the disparity in contribution entitlements of the parties.
By reference to paragraph 137 of the trial Judge’s reasons for judgment, in the course of his oral submissions, Counsel for the husband encapsulated the husband’s complaints in the following terms:
(1)That there was no evidence before the trial Judge which enabled him to quantify, or materially reflect in the wife’s favour the “savings to the parties in self managing [B Street]”;
(2)That, given this Court’s rejection of the challenge to the underpinning finding of fact, the trial Judge could not have taken into account by reference to the husband’s “failure to lease the [V property] property for 18 months” a sum exceeding something in the order of $45,000 (having regard to the trial Judge’s finding at paragraph 134 of his Reasons);
(3)That, having rejected the husband’s challenge to the trial Judge’s finding of fact, a sum of no more than $20,000 could have been allowed with respect to the husband’s failure to maintain the [A property]; and,
(4)That, given that there was no evidence at all of the value of the legal practice of the parties, no allowance could have been made with respect to its loss.
It was accordingly, and fairly, submitted that, at the absolute most, the trial Judge could permissibly have had regard to no more than approximately $65,000 in relation to the items to which he referred as “reflecting”, inferentially, $120,000 of the $500,000 disparity which he determined to be appropriate in relation to the contribution entitlements of the parties. The remaining $55,000 was submitted to have been an adjustment which the evidence could not support.
With respect to the ingenuity of the argument of Counsel for the husband, it overlooks the reality that the trial Judge was not confined to adjustments which were quantified, or able to the quantified.
There is no doubt that there was no evidence before the trial Judge as to the quantum of the “savings” which resulted from the wife managing the B Street properties. However, there was evidence of the contributions of the wife which resulted in those savings. His Honour was able to, and did, accept that evidence.
The wife said in her affidavit of her evidence-in-chief, and the trial Judge clearly accepted, that:
120.The [B Street] properties were a burden I had no choice other than to let out and maintain. The rental income produced a loss I had to make up until I moved out in March 2002. I managed them myself to save on agents fees. I cleaned them, advertised them and let them.
It was fairly conceded by Counsel for the husband that the wife was not seriously challenged in relation to the allegations which she there made. We have earlier referred to oral evidence given by the wife explaining and amplifying what she did in relation to the B Street properties. The wife also provided further detail of her efforts in relation to the properties in her affidavit.
In our view, the unchallenged evidence before the trial Judge entitled him to have significant regard to the contributions the wife made to the conservation and maintenance of the B Street properties in the post-separation period. His Honour could not, and did not need to seek to quantify them. As at the date of the trial Judge’s judgment, the wife had been making those contributions for a period approximating a decade. On any view of the wife’s unchallenged evidence, those contributions were substantial.
Although, as the trial Judge clearly recognised, there was no evidence of the value of the legal practice, the loss of which the husband caused, the Court having rejected the challenges to the findings of fact made by the trial Judge in that regard, which he recorded in some detail, whatever its value might have been, the loss of the legal practice was real, even if it had no commercial or saleable value. The reasons why that is so were articulated by the trial Judge. Those reasons were logical, and supported by the evidence.
The loss of the legal practice meant the loss, at least for a period of time, of a means of deriving income to which the wife had materially contributed prior to separation. His Honour could not quantify that loss, nor did he need to. On the facts as found by his Honour, a substantial adjustment in reliance upon that factor was justifiable.
The combination of contributions “of a negative nature” which were quantifiable, and quantified by the trial Judge, and those which were not, and could not be, in our view comfortably accommodated the disparity he determined. Others may have been less generously disposed to the wife, but that is not the test. It has not been established that the trial Judge’s conclusion exceeded the generous ambit of the broad discretion he was exercising. We thus reject the challenges to the trial Judge’s conclusion with respect to the contribution entitlements of the parties.

The challenges to the Section 75(2) adjustment

Grounds 5, 9 & 10

Grounds 5, 9 and 10 of the Notice of Appeal provided:
5.That the learned trial Judge failed, in all the circumstances, to give sufficient weight to the age, state of health and income earning capacity of the Husband and further undervalued the manifest advantages of the Wife, including the benefit to her of her new relationship, her professional income, her superannuation and her UK property.
…
9.That the learned trial Judge erred when, in bringing the parties to a position of equality after consideration of s.75(2) factors, he determined that the Husband [had] been compensated for the sum of $500,000.00 for his disability. If the finding was more than an infelicity of expression then it constitutes a significant error in that either the Husband is being “compensated” to the extent of only $250,000.00, or, alternatively, the sum of $500,000.00 (or about 20%) should have been allocated to him under s.75(2).
10.That the learned trial Judge erred in reasoning that the Husband would have the benefit of the rent on [V property], whilst at the same time acknowledging that the only means of paying the Husband’s mortgage and other debts (he having no meaningful income) would be for him to sell [V property].
Whilst acknowledging that so doing could do little to enhance his own client’s cross-claim with respect to this issue, Counsel for the wife submitted that the trial Judge had not failed to have regard to any relevant fact or circumstance in the course of his s 75(2) deliberations, nor had he had regard to irrelevant facts or circumstances, relied upon erroneous findings of fact, or erred in principle. It was thus submitted that the husband’s challenge to the s 75(2) adjustment was without substance.
It is convenient to deal with the trial Judge’s asserted error in failing to have regard in the context of s 75(2) to the wife’s superannuation interest.
Although it was submitted in Counsel for the husband’s Outline of Argument that the trial Judge erred in failing to include the wife’s superannuation interest in the “pool” of property of the parties, it was, sensibly in our view, conceded by Counsel for the husband on the hearing of his client’s appeal that the trial Judge was not obliged to include the wife’s superannuation interest in the “pool” of property of the parties. However, Counsel submitted, having not done so, the trial Judge was obliged to have regard to the wife’s superannuation interest in the course of his consideration of relevant s 75(2) factors.
It was submitted that the trial Judge had not referred to the wife’s superannuation interest in the course of his consideration of relevant s 75(2) factors. His Honour was asserted to have thereby erred, particularly having regard to the quantum of the wife’s interest, the ages of the parties, and the reality that the husband had no superannuation interest or any prospect of generating such an interest in the future.
In the course of his consideration of relevant s 75(2) factors, the trial Judge recorded:
143.The Wife earns a significant income at the present time as a legal practitioner and has the benefit of the income from the [B Street] properties and the two after acquired properties. In addition she has the security of her superannuation interest and the prospect of a half interest in the United Kingdom property, on the assumption she will outlive her mother.
This complaint can be disposed of swiftly. The trial Judge recorded under the heading “Previous Distribution of $190,000 to each of the Parties”, that each of the parties had, pursuant to consent orders made in 2005, received $190,000 from the proceeds of sale of property acquired by them prior to separation.
The trial Judge recorded that:
35.By the conclusion of the hearing it was common ground that this distribution should not be treated as an add-back.
Nothing to which we have been referred suggests that his Honour was mistaken in that regard, or that he misunderstood the positions which the parties had adopted by the conclusion of the hearing before him.
Before us it was conceded by Counsel for the husband that the wife’s superannuation interest of approximately $185,600 derived substantially, if not entirely, from the $190,000 which she received when each of the parties received $190,000 pursuant to the 2005 consent orders. There would clearly, in the circumstances, have been an unfairness including in the “pool” of the assets of the parties the wife’s superannuation interest, without also including, $185,600 of the $190,000 which the husband had also received pursuant to the 2005 consent orders.
Although not so expressed, the submission of Counsel for the husband implied, in effect, that notwithstanding that the trial Judge, by invitation, excluded the $190,000 which each party received from inclusion in the asset “pool”, he should nevertheless, within the context of s 75(2), have had regard to the interest which represented the monies received by the wife, but continue to totally disregard the amount received by the husband. The illogicality of that proposition is fatal to its acceptance.
In the circumstances of this case, as the trial Judge carefully, and accurately, recorded them, there was no need to refer in s 75(2) to the wife’s superannuation interest. Any doubt as to the trial Judge’s approach, or the reasons for it, are dispelled by his later observation, in the context of explaining his reasons for finding as he did with respect to the parties’ contributions, that:
134.In making this adjustment I am fully conscious the Wife has superannuation entitlements of about $185,600 whilst the Husband has no superannuation. He will have the [V property] investment which should produce a gross income of about $30,000. The valuer’s report indicates the tenant would be responsible for outgoings on the property. The Husband would be liable to pay tax.
Read in context, it is clear that, notwithstanding the basis upon which the trial proceeded before him, the trial Judge recognised the wife’s superannuation interest in the context of his evaluation of s 75(2) factors. This could not have been to the husband’s detriment.
If, contrary to our conclusion, the trial Judge should have considered in greater detail the wife’s superannuation interest in the context of his s 75(2) deliberations, pursuant to s 75(2)(f) or s 75(2)(o), his Honour would have needed in the circumstances of this case to also refer to the source of that interest, to the reality that the husband obtained a corresponding benefit, and to the “common ground” between the parties in relation to the treatment of those monies as his Honour had earlier recorded. Thus, referring to the wife’s superannuation interest would not and should not have changed anything.
Another matter which the s 75(2) adjustment made by the trial Judge in favour of the husband was said to fail to encompass was the wife’s remainder interest, with her brother, in property in the United Kingdom.
Under the heading “United Kingdom Property”, the trial Judge carefully considered this issue. It has not been suggested that any finding of fact made by the trial Judge in relation to this issue was not reasonably open to him. Nor has it been suggested that any of the matters which led his Honour to decline to “bring the property into account or make any adjustment in relation to s 79 factors” was erroneous or other than reasonably open to him.
The factors taken into account by his Honour with respect to this issue were:
24.…
·    The Husband has made no contribution whatsoever to this asset;
·    The Deed of Trust was not executed until some 14 months after final separation;
·    The Wife has had no direct benefit from her 50 per cent interest in the property in the ten years since separation. By paragraph 3 of the Deed, the Trustees are responsible for the costs of repair, maintenance and insurance on the subject property. There is no evidence before the Court what monies, if any, have been paid pursuant to this provision. There is no evidence as to what monies are owing on the property pursuant to the terms of paragraph 3 or pursuant to any mortgage on the property.
His Honour also recorded:
30.I will consider the Wife’s entitlement to the interest in the United Kingdom property in a global sense when considering any further adjustment pursuant to section 75(2). This is made difficult by the fact that there is no evidence of the property’s value or the extent of any encumbrance.
In the paragraph of his reasons we have earlier set out (par 116), his Honour referred, in the course of his consideration of s 75(2) factors, to “the prospect of a half interest in the United Kingdom property, on the assumption [the wife] will outlive her mother”. For the reasons which he had earlier detailed, his Honour was not able to quantitatively reflect the wife’s interest in the property in the United Kingdom in any s 75(2) adjustment in favour of the husband.
As his Honour recorded, albeit 87 years of age, the life tenant of the property was alive. There was no medical evidence before the trial Judge as to her state of health. The husband had made no contribution whatsoever to the property. The deed of trust pursuant to which the wife acquired her equitable interest was executed 14 months after the parties finally separated. The wife has had no benefit from the property in the decade since she acquired an equitable interest in it. There was no evidence of what, whenever it materialises, the gross or net value of the interest might be. In those circumstances, for the trial Judge to have made more than a nominal adjustment in the husband’s favour would have been erroneous.

The third component of the husband’s challenge to the trial Judge’s s 75(2) adjustment related to the trial Judge’s failure to take into account, to the husband’s advantage, “[t]he equitable interest of the Wife in the house owned by her new partner.”
It is clear that the trial judge did not take into account in the husband’s favour the fact that the wife may have had an interest in the property owned by the man with whom she had been living since 2002. He clearly considered the issue, and explained why he concluded as he did in relation to it.
The trial Judge found in that regard:
57.Around this time the Wife commenced a relationship with [Mr F]. In March 2002 she commenced residing in a property at [Town E] occupied by [Mr F]. At the present time she resides in a property at [Town L] owned by him. The Wife’s estimate was the property was worth $660,000 and she understood it was unencumbered. [Mr F] has no other assets and no income. He is supported by the Wife.
The trial Judge recorded the submission on behalf of the husband that:
·An inchoate interest in the [L property] owned by her partner. This property is estimated to be worth $660,000 and is unencumbered. The Wife’s partner is retired and has no assets other than the [L property]. The parties have been in a relationship for about ten years. She supports her partner. One obvious advantage to the Wife so long as the relationship remains afoot is she has rent free use of the property which is some offset for the support she provides which she says is $300 a week. If the Wife and [Mr F] were to separate it is difficult to speculate what the results of any litigation would be. It is possible that it would be found that she is not only not entitled to an interest in the [L property] but she may have to pay her partner an adjustment if it is found that her assets are significantly greater than her partner’s.
It is reasonably apparent that his Honour accepted as fact the matters to which he there referred. The inferences which he appears to have drawn from them have not been shown to have been other than reasonably open to his Honour.
In the course of final submissions before the trial Judge, Counsel for the husband submitted, with respect to the relevance of the wife’s relationship with Mr F:
MR GALLOWAY:   And what we have is that the wife has that property – or at least a half interest in it – as an asset that is within her grasp. Your Honour, there is another matter that you would consider significant, and that is that after nine years of a de facto relationship with [Mr F], where the wife says she supported him, she has an inchoate interest in the [L property]. There’s no doubt about that. Up until March she could have made an application in the Supreme Court. Now she can make an application in this court to have that interest declared and in circumstances where, in a relationship of nine years where she provides the support for this gentleman, absolutely no doubt that she’s got a significant inchoate interest in that property.
HIS HONOUR:   What is the evidence about that? That the property is worth 660?
MR GALLOWAY:   $600,000, your Honour.
HIS HONOUR:   600,000, and it’s unencumbered.
MR GALLOWAY:   I’m going on my recollection, your Honour, but I think that’s
HIS HONOUR:   I thought it was 660, but anyway it’s – and it’s unencumbered?
MR GALLOWAY:   Yes, your Honour. 660,000.
HIS HONOUR:   Yes.
MR GALLOWAY:   My note says., and it would appear now to be unencumbered.
HIS HONOUR:   Yes.
MR GALLOWAY:   So that, your Honour, if we simply translated those two people into married persons, one would ask what is [the wife] worth if that estate were limited to $660,000 and it would be very significant. …
and:
MR GALLOWAY: … She carries also, your Honour, what I’ve obviously said, the many rental properties; her support by living rent free in [Mr F]’s house, and acquiring an equity in it at the same time.
and:
MR GALLOWAY: … The wife, on the other hand, has close to 1700 – 1620, I think I added it up to – gross income from her rents. She has $91,000 earned income and whilst she appears to support [Mr F] and of course pay no maintenance to my client, she has the benefit of living free in that house. So in terms of state of health and income the disparity between the parties is enormous. …

Before the trial Judge, Counsel for the wife does not appear to have made any submissions specifically relating to the implications for s 75(2) factors of the wife’s relationship with Mr F.
Largely for the reasons to which the trial Judge referred, and the reality that, whatever “inchoate” interest the wife may have in the property of Mr F, the husband made no contribution to its acquisition, conservation or improvement, either directly or indirectly, his Honour was entitled to have no regard to such unquantifiable interest as the wife may have in Mr F’s property. In those circumstances, failing to have regard to that as a component of s 75(2) adjustment was not erroneous.
The disparity resulting from the trial Judge’s conclusion with respect to s 75(2) was in our view adequate to encompass all the factors to which he referred in support of such adjustment. Others may have reached other conclusions without being in error, but that is not the test, as the authorities make clear. We would accordingly reject the husband’s challenge to the s 75(2) adjustment determined by the trial Judge.

The wife’s cross appeal

It remains to consider the wife’s challenge to the trial Judge’s s 75(2) adjustment. As Counsel for the wife sensibly acknowledged, the success of the submissions made by him in resisting the husband’s challenges to the s 75(2) adjustment rendered more difficult the prospects of success of the wife’s cross-appeal in relation to it.
The grounds of the wife’s cross-appeal provided:
1.That the learned trial judge erred in law by failing to give proper reasons for the conclusion that he arrived at that it was just and equitable in all the circumstances that the Husband be “compensated for the sum of $500,000 for his disabilities and the differential” in the earning capacities of the parties.
2.That the learned trial judge erred in law by failing to demonstrate within his reasons that he paid proper regard to the relevant sub-sections of ss.75(2) of the Family Law Act.
3.That the adjustment made by the learned trial judge of the sum of $500,000 by reference to s.75(2) of the Family Law Act was so significantly above the legitimate exercise of the wide discretion available to the learned trial judge, as to amount to error on his part.
It was submitted, with appropriate brevity, in support of these challenges:
45.The Appellant failed to adduce any evidence that would have allowed His Honour to undertake a consideration of the s 75(2) factors in the manner contemplated in Clauson and Clauson (1995) FLC 92-595.
46.In the absence of such evidence, His Honour has been forced to adopt something akin to a “guess” when it comes to quantifying the dollar amount to be adjusted in the Husband’s favour under that sub-section.
47.In the premises, the adjustment to the Husband of $250,000, or 10% of the pool is not supported by the facts of the case. The Wife currently has a superior income earning capacity however she does not have a significant working future in the context of her age.
To the extent that it was submitted on behalf of the wife, in reliance upon Clauson (supra), that the trial Judge was required to, or should have attempted to suggest a “dollar amount” with respect to the components of the s 75(2) adjustment determined by him to be appropriate, we cannot accept that to be the case.
There is no provision in the Act requiring a trial Judge to indicate the percentage adjustment he or she makes with respect to s 75(2). The Act mandates that no order be made which is not “just and equitable” (s 79(2)) and that, in reaching a just and equitable determination, the Court must have regard to the matters articulated in s 79(4) and s 75(2).
There is a recognised “four step approach” to property adjustment (see eg Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143) which provides a logical, structured and helpful method of achieving a just and equitable determination. The assessment of contribution-based entitlement is followed by consideration of the need for adjustment. Each of those steps calls for discretionary quantification. However, the failure to identify, within the s 75(2) adjustment, the quantum of its individual components does not in our view constitute an error of principle or of discretion. Indeed, quantifying the individual components of a s 75(2) adjustment may be impossible, and attempts to do so conducive to appealable error.
When considering relevant s 75(2) factors, the trial Judge said that the s 75(2) adjustment which he concluded to be appropriate, and which represented a disparity favouring the husband of $500,000 was largely referrable to the husband’s “disabilities” and the “differential” in the earning capacity of the parties.
As is not in doubt, the two most significant s 75(2) factors in this case, as the trial Judge clearly recognised, were the husband’s “disabilities”, and the disparity in the earning capacity of the parties. There were other factors relevant to the exercise of discretion with respect to s 75(2) to which the trial judge could and did have regard, as his Reasons for Judgment reveal, albeit, by comparison with the two matters to which he particularly referred, they were of only modest significance.
Given that, as Counsel for the wife submitted in the course of articulating his opposition to the husband’s complaints with respect to s 75(2), the trial Judge did not proceed in reliance upon erroneous findings of fact, did not have regard to erroneous or irrelevant facts or circumstances, did not fail to have regard to relevant facts or circumstances and did not err in principle, the scope for appellate intervention, whether with respect to the Notice of Appeal or Notice of Cross-Appeal, is difficult to discern.
Nothing to which we have been referred persuades us that the s 75(2) adjustment determined by the trial judge exceeded the generous ambit of his discretion. We would accordingly dismiss the wife’s cross-appeal.

Further evidence

Both parties having made clear that their respective applications to adduce further evidence pursuant to s 93A were only pressed in the event of the appeal or cross-appeal succeeding and this Court re-exercising the discretion of the trial Judge, as neither the appeal nor the cross-appeal has been successful, the Court need not consider the topic further.

Conclusion

Neither the appeal nor cross-appeal being made out, they will both be dismissed.

Costs

Counsel for the wife sought an order for costs against the husband in the event of the appeal being unsuccessful, and conceded that if the Court so ordered the husband would be entitled to his costs of the cross-appeal. To subject the parties to negotiating, or assessing orders for costs against each other would not be desirable, or cost effective.
The appeal occupied the bulk of the hearing before us. Although unsuccessful, the husband’s challenges were not vexatious, and were agitated with skill and brevity by his learned Counsel. The greater cost burden of the costs of the appeal will fall upon the husband, given that he was responsible for preparing the appeal books.
The wife was entitled to cross-appeal the trial Judge’s decision, but so doing was always likely to prejudice her chances of obtaining a costs order if, as has transpired, the appeal and cross-appeal both failed.
There is a fairness in each party bearing his or her own costs in this case. In our view the circumstances of the case justify making no order for costs.
There will be no order for costs.

I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland and Austin JJ) delivered on 20 September 2011.

Associate:

Date: 20.09.11

Rent received weekly for 2 properties at [B Street]		$435.00/wk (per annum $22,620.00) *(per month $1,885.00)*
Monthly interest on mortgage		$1,100.00/month
(approximately as interest rate is variable)		($13,200.00 per annum)
Rates on property		$519.00/quarter
($2076.00 per annum)
($173.00/month)
In addition I would estimate the insurance to be approximately $1000.00 per annum ($88.33/month)
The tax rates would be approximately 30%
If one uses the monthly income and expenditure and applies a simple calculation
$1885.00 (income)
Less	$1100.00 (mortgage interest)
Less	$173.00 (rates)
Less	$83.33 (estimated insurance)
Balance:	$528.67
Less tax:	$158.60
$370.07 (or $85.38 per week nett)