Tschipan v Tschipan

[2000] NSWSC 734

CITATION:	Tschipan v Tschipan [2000] NSWSC 734
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3226/94
HEARING DATE(S):	3 and 4 August, 11, 12, 13 and 14 October, 16 and 17 November, 7, 8 and 9 December 1999, 31 January, 3, 4 and 29 February 2000.
JUDGMENT DATE:	28 July 2000
PARTIES :	Patcharintra Oscar Tschipan (P & Cr-D) Peter Heinrich Tschipan (D & Cr-Cl)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr G. Roberts (P & Cr-D) Mr M. Stevens (D & Cr-Cl)
SOLICITORS:	Michael L. Conley (P & Cr-D) John R. Quinn & Co (D & Cr-Cl)
CATCHWORDS:	De facto relationship - Adjustment of interests of parties in property - Plaintiff moved into residence in townhouse owned by Defendant - Date of commencement of de facto relationship - Defendant conducted business of a dental mechanic - Plaintiff was unemployed at commencement of relationship, but subsequently was employed in Defendant's business - Respective financial and non-financial contributions of parties - Contributions by parties as homemaker and as parent - Assertions by each party concerning alleged additional assets owned or acquired by other party.
LEGISLATION CITED:	De Facto Relationships Act 1984 Property (Relationships) Act 1984
CASES CITED:	Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See paragraph 68.

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 28 July 2000

3226/94 PATCHARINTRA OSCAR TSCHIPAN -v- PETER HEINRICH TSCHIPAN

JUDGMENT

1    MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 The proceedings were instituted by statement of claim filed by the plaintiff, Patcharintra Oscar Tschipan, on 29 July 1994. By that pleading the plaintiff claims, substantively, orders adjusting the interests of the parties in property pursuant to the provisions of Part III Division 2 of the De Facto Relationships Act. 3    The defendant, Peter Heinrich Tschipan, filed a defence on 18 August 1994, and subsequently, on 29 September 1994, filed a defence and cross-claim. By that cross-claim the defendant seeks, essentially, declaratory relief, as well as certain orders relating to property, pursuant to the De Facto Relationships Act. 4    The plaintiff filed a defence to that cross-claim on 18 November 1994. 5    It was not in dispute that the parties lived in a de facto relationship for some years preceding mid-1994. However, the date of the commencement of that relationship was in dispute, the plaintiff asserting that the de facto relationship commenced in about September 1986, whilst the defendant asserted that the relationship commenced in December 1988. It was not in dispute between the parties that the de facto relationship came to an end in about mid-June 1994. (It would appear that in late June 1994, very shortly after the termination of the relationship, the plaintiff by deed poll, and without the knowledge of the defendant, changed her surname to Tschipan.) 6    It will be necessary for me, in due course, to make a finding as to the date upon which the de facto relationship commenced. Whatever be that date, however, at the time when it commenced and for some time previously the plaintiff had been residing in rented Housing Commission accommodation at Waterloo, and the defendant had been residing since 1983 in a townhouse situate at and known as 7/27 Marshall Street, Manly, of which he had been the owner (either conjointly with his former wife or alone) since 1985. 7    The plaintiff was born on 24 October 1945 at Chiang Mai in Thailand. She married her first husband in Thailand in early 1967, and was widowed in February 1972. The plaintiff married her second husband in Thailand in December 1973, but they separated in February 1974. I assume that they were subsequently divorced. On 6 July 1974 the plaintiff married her third husband, Alan Patrick Oscar, in Thailand. He was an Australian, and the plaintiff joined him in Australia on 24 October 1974. A daughter, Apasara Oscar (apparently the plaintiff’s only child) was born of that marriage on 17 March 1975. The plaintiff lived with Mr Oscar until about August 1978. 8    In November of that year the plaintiff obtained Housing Commission accommodation at Waterloo, and resided there with her daughter. She also commenced to receive a widow’s pension and child endowment. In about late 1979 Mr Oscar started paying to her child maintenance, firstly in an amount of $7.50 a week, and later, from April 1981, in an amount of $25 a week. 9    In mid-1979 the plaintiff commenced an accountancy certificate course at the Sydney Institute of Technology. For a very short time in 1983 she worked for the Australian Taxation Office. 10    On 14 November 1984 orders in proceedings between Mr Oscar and the plaintiff in the Family Court of Australia were made, apparently by consent, in relation to property and maintenance. 11    In consequence of those orders, the plaintiff in about March 1985 received the sum of $17,000. She used an amount of $10,300 of that sum for the purchase of a Nissan motor vehicle. Mr Oscar continued to pay child maintenance in respect to Apasara, in an amount of $30 a week until she attained the age of eighteen in March 1993. 12    According to the plaintiff, she met the defendant in September 1986 (the defendant said that it was in November 1986) whilst she was employed at a Thai restaurant at Manly. Subsequently they commenced a sexual relationship. 13    The defendant was born on 30 November 1949 in Vienna, Austria. He is a dental technician by occupation. Throughout the entirety of his acquaintance with the plaintiff and throughout the entirety of the de facto relationship he conducted his own business as a dental technician. From about 1979 that business had been conducted by the plaintiff in partnership with his former wife, Doris Tschipan, under the name Prodent Ceramics. Subsequently (as will shortly emerge), after the defendant’s divorce, he conducted that business through the vehicle of a company, Prodent Ceramics Pty Limited. 14    The defendant, at the time when he met the plaintiff, was married, although separated from his wife. He had married his wife Doris on 22 September 1978 in Austria, and they had separated on 13 August 1986. They subsequently divorced in the latter part of 1987. Of that marriage was born one child, a daughter Claudia (born on 24 October 1979). Claudia usually resided with her mother, although she spent some time with the defendant, who had access rights. From 1989 to 1991 Claudia and her mother resided in Queensland, and thereafter they resided in Austria. 15    For some time after the parties met and commenced a sexual relationship the plaintiff was in the habit of visiting the defendant in his townhouse at Manly, and on occasion the defendant visited the plaintiff in her rented premises at Waterloo. In about December 1988 the defendant gave up her tenancy of the Waterloo premises and moved into residence in the Manly townhouse, bringing her possessions with her. 16    It was the assertion by the plaintiff that shortly after her birthday on 24 October 1986 the defendant commenced to live with her full-time at the Waterloo premises (an assertion which was denied by the defendant). I am satisfied, however, that, whilst on occasion the defendant spent the night at the Waterloo premises, and whilst on occasion the plaintiff spent the night with the defendant at the Manly townhouse, they did not commence living together on a full-time basis until the plaintiff gave up her tenancy at the Waterloo premises in about December 1988 and relocated herself and her possessions to the Manly townhouse. I am satisfied that the de facto relationship between the parties commenced only when they began to live together upon the plaintiff moving into residence with the defendant in the Manly townhouse, and that, in consequence, the de facto relationship commenced in about December 1988. Before that time the parties, in my conclusion, were not living together in a de facto relationship. 17    At the time when the plaintiff first met the defendant one of the three bedchambers in the Manly townhouse was rented by three Swedish girls, who remained until some time in 1987. 18    According to the plaintiff, at the time of the commencement of the de facto relationship her assets consisted of a Nissan EXA Turbo motor vehicle (purchased for $10,300 from her property settlement with Mr Oscar), $9,000 in cash, and various items of furniture and furnishings (details of which are set forth in paragraph 20.1 in the statement of claim). The plaintiff continued to receive the Social Security payments to which reference has already been made (widow’s pension and child endowment) at least until December 1988. 19    According to the defendant, at the commencement of the de facto relationship in December 1988 he had the following assets:

Townhouse situate at and known as 7/27 Marshall Street, Manly;
Furniture and furnishings in the Manly townhouse;
Prodent Ceramics Pty Limited, a company through the vehicle of which the defendant carried on his occupation as a dental technician;
1985 Toyota LandCruiser motor vehicle, leased by Prodent Ceramics Pty Limited, and used by the defendant;
Land in Vienna held in the name of the defendant, approximately 120 square metres (purchased by the defendant’s father in about 1971, and which may be subject to a trust in favour of the defendant’s father, who died in 1999);
Savings.

20    The precise amount of the foregoing savings did not with clarity emerge from the evidence. However, at the time when he met the plaintiff in 1986 the defendant’s savings included cash of about $10,000, held by him at the Manly townhouse, and moneys held by the defendant’s father in Austria totalling the equivalent of about $9,500, together with amounts in various bank savings accounts totalling about $3,000 (those accounts included accounts held jointly by the defendant with his estranged wife, Doris Tschipan). 21    The Manly townhouse had been purchased by the defendant and his former wife, Doris Tschipan, on 13 December 1985 for the sum of $145,000, that purchase being financed by a housing loan secured by mortgage with the Westpac Banking Corporation. By December 1988 the amount outstanding under that mortgage was about $60,000. There was a further mortgage on the Manly townhouse to secure an overdraft of Prodent Ceramics with the Westpac Banking Corporation, the amount outstanding under that further mortgage being in about December 1988 about $35,000. 22    The property settlement between the defendant and his wife (pursuant to a deed dated 23 April 1987) included provision for the transfer by Mrs Doris Tschipan of her interest in the Manly townhouse to be defendant, upon payment to her by the defendant of the sum of $35,000, the defendant assuming responsibility for the outstanding mortgage on the townhouse. Subsequently the mortgage on the Manly townhouse was discharged by payments made by the defendant from his own funds. Despite the assertion of the plaintiff that at the time when she moved into the Manly townhouse it was almost bereft of all furniture, furnishings and contents, I am satisfied that at that time it was adequately furnished and equipped as a residence. 23    Evidence on behalf of the defendant was given by Mark O’Neill, a registered real estate valuer, concerning the value of the Manly townhouse. According to Mr O’Neill the value of that property in December 1988 was $390,000, and on 1 July 1994 was $350,000. I accept that evidence of Mr O’Neill concerning those valuations of the Manly townhouse. 24    On 25 August 1986 the defendant acquired a company Prodent Ceramics Pty Limited, which from that time, conducted the defendant’s business as a dental technician. The defendant was a director and the secretary of that company (to which I shall refer as “Prodent Ceramics”) from the date of its acquisition. The defendant from the time when that company was acquired and throughout the period of the relationship held 10,000 of the 10,001 shares in that company. The remaining share was held by a Mr Louis de la Roche, an accountant, that share being held on trust for the defendant. In about October 1991 Mr de la Roche transferred that one share to the plaintiff. 25    During the course of the de facto relationship the plaintiff was, for a period, a director of Prodent Ceramics Pty Limited, from 11 October 1991 until 4 July 1994. (Somewhat curiously, the cross-claim of the defendant seeks, as prayer 8, an order that the plaintiff resign her directorship in Prodent Ceramics Pty Limited. Such a prayer for relief is not consistent with the foregoing information concerning the period during which the plaintiff was a director of that company, which appears from the historical company extract, being annexure H to the affidavit of the plaintiff sworn 22 February 1995.) 26    Throughout the period of the de facto relationship the defendant continued to conduct the business of a dental technician through the vehicle of the company Prodent Ceramics Pty Limited. He conducted that activity at premises located at 60 Park Street, Sydney. 27    Throughout part of the period of the de facto relationship, from 1989 until the termination of the relationship in June 1994 the defendant was employed in a part-time capacity by Prodent Ceramics. Her daughter Apasara (also known as “Sara”) was also employed in a part-time capacity by Prodent Ceramics from about 1990 until the relationship between her mother and the defendant came to an end in mid-1994. Throughout the period from 1989 until 30 June 1994 the plaintiff received from Prodent Ceramics wages totalling $162,258, whilst her daughter Apasara received wages totalling $62,649. 28    It was the assertion of the plaintiff that whilst employed by Prodent Ceramics she worked from 9:00am until 8:30pm each day from Monday to Friday, and that she worked ten hours on either a Saturday or a Sunday, and at times she worked a total of up to 80 hours a week. That assertion was denied by the defendant who said that her attention to the affairs of Prodent Ceramics occupied the plaintiff for about 20 to 25 hours a week. On this topic of the plaintiff’s employment by Prodent Ceramics I prefer the evidence of the defendant to that of the plaintiff. 29    According to the defendant, the standard of competence of the plaintiff as a bookkeeper (that being one of her areas of responsibility in her employment) left much to be desired, and her relations with other employees of the company were not harmonious. (The evidence of the defendant in that regard was supported by the evidence of Elizabeth McAlary, a dental technician who had been employed by Prodent Ceramics from about September 1991 to September 1993, and whose departure from that employment was precipitated by the conduct of the plaintiff). After the conclusion of the plaintiff’s employment the books of the company for the 1994 financial year had to be completely re-written by the company’s accountant, at a cost to the company of $6,000. 30    In July 1991 the plaintiff advanced the sum of $10,000 to Prodent Ceramics. That advance was repaid to the plaintiff several months later. 31    During the time when the plaintiff was employed by Prodent Ceramics that company contributed on her behalf to a superannuation fund held with Scottish Australia, which had a cash value for the benefit of the plaintiff in an amount in excess of $10,000. 32    According to the defendant, on about 15 December 1989 he gave to the plaintiff the sum of $5,000, to be held by the plaintiff on trust for the defendant, and to be invested by the plaintiff in the name of herself or her daughter; that money was invested, and the plaintiff had the benefit of the income thereon; the principal fund was later transferred into the name of the plaintiff. Those assertions were denied by the plaintiff. 33    During the period when the plaintiff was employed by Prodent Ceramics, her motor vehicle was maintained and all motor vehicle expenses were met by that company. The plaintiff’s vehicle was involved in a motor accident, as a result of which she became liable to pay an amount of $3,354.97 in respect of property damage. This amount was paid on her behalf by the defendant in December 1988. 34    When she moved into residence at the Manly townhouse in late 1988 the plaintiff was accompanied by her daughter Apasara, who remained in residence with the plaintiff and the defendant until May 1994. 35    At the conclusion of the relationship in mid-1994 the plaintiff had the following assets:

About $25,656 invested with Community First Credit Union
$1,748 held in National Bank Passbook account;
Nissan EXA Turbo motor vehicle;
Superannuation with Colonial Mutual.

36    At the time of the termination of the relationship the defendant had the following assets:

Manly townhouse;
Shares in Prodent Ceramics;
Loan from Prodent Ceramics in sum of about $50,000;
Timeshare interest in the Beach House in Queensland (acquired in 1987);
Interest in the Mount Stilwell Ski Club Limited at Charlotte’s Pass (acquired in 1988);
Superannuation entitlement (said to be worth about $25,000);
Furniture and furnishings of Manly townhouse;
Interest in a company called Alceram Pty Limited (acquired in about May 1991).

37    Each of the parties asserted that at the termination of the relationship the other party had assets greater than those admitted by that party. 38    The defendant asserted that such additional assets of the plaintiff included jewellery, and a house at Lam Pang in Thailand owned jointly by the plaintiff and the plaintiff’s mother. Those assertions, which were denied by the plaintiff, were not supported by evidence. 39    The plaintiff asserted that the assets of the defendant included, additionally, gold ingots weighing at least 20 kilograms, cash held in Vienna totalling at least $300,000, bank bonds held in Vienna, and a block of land located in Vienna. The assertions of the plaintiff concerning gold ingots, cash and bank bonds in Vienna, and a block of land of the nature described by the plaintiff in Vienna, all of which were denied by the defendant, were not supported by evidence. 40    It was also asserted on behalf of the plaintiff that on 18 July 1994, shortly after the termination of the de facto relationship between the parties, Prodent Ceramics received an amount of $14,000 by way of refunded contributions in respect of the plaintiff’s superannuation fund with Colonial Mutual, that sum being received by Prodent Ceramics without the consent of the plaintiff. 41    The plaintiff by her statement of claim sought, in the alternative, either a declaration that the defendant holds the Manly townhouse on a constructive trust in favour of the plaintiff and an order that he transfer the Manly townhouse to her or the payment to her by the defendant of the sum of $400,000; and the return to her of various chattels asserted by her (but denied by the defendant) to have been retained by the defendant at the Manly townhouse after the termination of the relationship. At the hearing the claim for relief grounded upon the asserted existence of a constructive trust was abandoned, and the only relief which the plaintiff then claimed was relief under the De Facto Relationships Act. 42 The relief sought by the defendant by his cross-claim included a declaration that the sum of $5,000 invested in the name of the plaintiff at the Community First Credit Union was held by her on trust for the defendant, and an order that she transfer that sum to the defendant; a declaration that the share held by the plaintiff in Prodent Ceramics Pty Limited was held by her on trust for the defendant, and an order that the plaintiff transfer that share to the defendant. 43 The hearing of this suit occupied fifteen days. The evidence of the plaintiff (consisting essentially of cross-examination) extended over ten of those hearing days. The evidence of the defendant (consisting essentially of cross-examination) extended over four of the hearing days. 44 A very considerable quantity of evidence, both by way of affidavit evidence and by way of oral evidence, related to the asserted existence of additional assets held by each party, in particular, to the existence of considerable quantities of gold asserted by the plaintiff to have been secreted by the defendant, and to various assets (cash, investments and land) asserted by the plaintiff to be held by the defendant in his native Vienna. 45 Further, the case advanced by the plaintiff was upon the basis that the income from Prodent Ceramics was significantly higher than that disclosed in the financial records of that company and that, in effect, the defendant was in that regard cheating not only the taxation authorities, but also the various dental practitioners for whom he was performing technical work. 46 The protraction of the hearing, which had originally been estimated by the parties at two days, and had been specially fixed for hearing upon that basis, was due in no small measure to the plaintiff herself 47 At the outset of the hearing the evidence of the plaintiff was given in English. However, after a relatively short period of examination in chief (supplementing and correcting the plaintiff’s affidavit evidence) the oral evidence of the plaintiff continued in the Thai language, through the intervention of an interpreter. The necessity for all questions and answers to be interpreted from the one language to the other of necessity extended the period during which the plaintiff gave her evidence. However, the conduct of the plaintiff in constantly failing to respond to the question asked, and in constantly offering discursive, non-responsive and frequently self-serving answers, contributed even further to the protraction of the hearing, from two days to fifteen days. 48 Since the evidence on many of the matters in issue in the proceedings (especially the extent of the contributions, both financial and non-financial, by the parties to the maintenance and expenses of the household; circumstances and details concerning the employment of the plaintiff by Prodent Ceramics; and, especially, the asserted takings of that company) consisted of assertions by one party and denials by the other, it is appropriate that I should here express my views concerning the credibility to be given to the evidence of each of the parties. 49 I regarded the plaintiff as a totally unreliable witness. In many instances I considered her to be deliberately prevaricating (for example, in relation to her employment by Cleana Services and in relation to the circumstances in which a property in Thailand had been sold by her in 1974 and the price which she received in respect to that property). At times she made what can only have been deliberately false statements in her evidence (for example, in regard to the circumstances under which she had worked under an assumed name, that of Sakuladit; in this regard the plaintiff’s evidence under cross-examination on 11 October 1999 even included what can only have been a deliberately false statement concerning evidence which she had given on the same topic under cross-examination on the preceding day of the hearing, 4 August 1999). Further, the plaintiff gave false information to one employer (Sunbeam Victa) concerning her previous employment by another employer (the Australian Taxation Office). 50 Some of the assertions made by the plaintiff in her oral evidence were bordering on the fanciful, for example, in relation to the substantial quantity of gold ingots asserted by the plaintiff to have been seen by her being buried by the defendant in the back yard of the Manly townhouse. (I would interpolate that as the evidence of the plaintiff progressed, this substantial and weighty quantity of gold, originally asserted to comprise 20 kilograms, diminished both in weight and in substance, as well as in appearance: see exhibit 11). Another instance of such an assertion bordering on the fanciful was the evidence of the plaintiff (volunteered, non-responsively, during cross-examination) that the defendant took her into many dangerous places, so that she would have an accident, for example, taking her to the top of a volcano, or going down into a swamp. The clearly intended implication of this evidence was that the defendant was desirous of doing away with the plaintiff. No such suggestion had ever previously been made by the plaintiff in her affidavit evidence or in her evidence in chief. 51 Further, it was difficult to resist the conclusion that in regard to the assertions made by the plaintiff concerning the alleged purchase by the defendant of land in Austria, the plaintiff was deliberately making up her evidence. Doubt was further cast upon the accuracy and reliability of the plaintiff’s evidence by the fact that on a considerable number of occasions she volunteered information in answers under cross-examination which had never previously been asserted by her either in her affidavit evidence or in her oral evidence relevant to such a topic given earlier under cross-examination 52 Examples were her assertion that the defendant instructed her not to inform the Department of Social Security that, on account of the commencement of the de facto relationship, she was no longer entitled to a widow’s pension; the asserted withdrawal by the plaintiff on 17 July 1991 of an investment with Citibank, at the alleged insistence of the defendant; the assertion that the defendant employed persons in his business whom he paid in cash; the frequent assertions that in the financial transactions of the defendant’s business the plaintiff acted under instructions from the defendant; the assertion that it was the plaintiff who paid the strata management fees in respect to the Manly townhouse; the assertion --- never previously made --- that the plaintiff worked 70 to 80 hours a week for Prodent Ceramics, and that she worked for that company on Saturdays and Sundays; the assertion that the defendant hid money in various locations (including behind the drawer in his desk at work, in the garage at the Manly townhouse, in the drawer on the workbench at the Manly townhouse, for a protracted period in a drawer in Caludia’s room); the allegation that the defendant kept more gold elsewhere in the townhouse, including in the ceiling fan in the bathroom --- and the later evidence that the plaintiff kept gold nuggets hidden on a temporary basis in a work bench --- as well as the assertion that there was a green magma jar which was filled with gold (that last assertion, made in re-examination, being totally inconsistent with the evidence given by the plaintiff on this topic during her cross-examination); the assertion that when Claudia, then aged about 11, was returning to Austria from a visit to the defendant in Australia, the defendant surreptitiously placed about $18,000 in cash in a pocket or small travel wallet which was part of Claudia’s travelling attire, as she was departing at the airport. 53 The defendant was a far more reliable witness. His answers were confined to responding to questions asked of him. His evidence under cross-examination was internally consistent, and was also consistent with the evidence given in his affidavits. 54 Where on any matter in issue the only evidence consisted of an assertion by one party which was denied by the other party, and where there was no independent evidence (such as evidence from another witness or documentary material) supporting the evidence of the one party or the other, I prefer the evidence of the defendant. 55 It was the case for the plaintiff that she had made contributions of a financial and non-financial nature to the conservation and improvement of the Manly townhouse, including purchase of furniture and furnishings, enhancement of its garden, payment of household expenses and outgoings. Further, that she had made contributions in the capacity of homemaker or parent to the welfare of the family constituted by herself and the defendant, and (whilst they were residing at the Manly townhouse) to Apasara and to Claudia. 56 The plaintiff did on occasion expend her own income upon the acquisition of furnishings and household utensils for the Manly townhouse and upon the enhancement of the garden and upon the purchase of food, and whilst she certainly performed housework (including cooking, cleaning, washing and --- despite his protests and requests that she desist --- ironing for the defendant), the defendant also contributed his money and his efforts to the upkeep and expenditure of the household. The plaintiff said that she bought clothes for the defendant. (By the same token, the defendant also bought for the plaintiff presents of jewellery and other personal items.) I am satisfied that the foregoing contributions of the plaintiff were considerably less than she would have the Court believe. Her financial contributions were far less than those of the defendant who, I am satisfied, was the major breadwinner throughout the relationship. 57 Throughout the period of the relationship the parties travelled overseas on a number of occasions. The defendant paid the fares and most of the expenses for those trips. 58 To the extent that the claim of the plaintiff is grounded upon her asserted contributions towards the business activities of the defendant, those assertions are not supported by the evidence of William Benedict Yong, a chartered accountant and a certified practising accountant, who is the accountant for Prodent Ceramics. His evidence concerning the valuation of shares in that company discloses that the value of those shares considerably diminished during the period from 1989 until 1994 whilst the plaintiff was employed by that company. 59 It will be appreciated that throughout the period of her involvement with Prodent Ceramics the plaintiff was paid a salary, which during the four full years for which she was employed ranged between $26,868 and $32,314. I am satisfied that the plaintiff was quite adequately remunerated for the work which she performed for that company. 60 It should also be appreciated that the conduct of the business of Prodent Ceramics required a considerable degree of technical expertise, which was provided only by the defendant. Whatever work in the business was performed by the plaintiff was not of such a professional or technical nature, and the plaintiff did not contribute to the value of the business or to its profits. 61 The plaintiff relies upon the contributions made by her in the capacity of homemaker and parent. It must be appreciated that equivalent contributions were made by the defendant. For most of the period of the relationship the plaintiff was in employment. The evidence does not demonstrate that the contributions of the plaintiff as homemaker or parent were significantly greater than those of the defendant in such capacities. 62 It should not be overlooked that throughout the entirety of the de facto relationship between the parties the plaintiff was residing in the residence of the defendant, and that throughout most of that period the plaintiff’s daughter was also residing in that residence. In consequence, the plaintiff was relieved of the expenditure for rent and outgoings which she previously had to meet when she was residing in the rented Housing Commission accommodation at Waterloo. 63 I am not satisfied that the contributions of the plaintiff to the relationship of the nature described in section 20 of the De Facto Relationships Act equalled, let alone exceeded, the contributions of the defendant to the relationship. In consequence (and conformably with the principles enunciated by the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70, in particular, the joint judgment of Gleeson CJ and McLelland CJ in Eq), the plaintiff has not demonstrated an entitlement to the relief which she claims by way of orders adjusting interests in property. 64 To the extent that the plaintiff seeks relief in relation to chattels asserted to be in the possession of the defendant, I am not satisfied that any chattels to which the plaintiff has an entitlement are still retained by the defendant. 65 Accordingly, the suit of the plaintiff should be dismissed. 66 I am satisfied that the defendant has established an entitlement to various items of relief sought in the cross-claim (being relief in respect to the entitlement of the defendant to the Manly townhouse, to the investment of $5,000 in the name of the plaintiff, to the share in Prodent Ceramics held by the plaintiff, and in relation to the superannuation entitlements of each party and to chattels and other property in the possession of or under the control of each party). 67 In the light of my foregoing conclusions, it is appropriate that the plaintiff be ordered to pay the costs of the defendant. 68 I make the following orders:

1. I order that the suit of the plaintiff be dismissed.
2. I stand over the proceedings to a date to be fixed (being no later than fourteen days from the date hereof), for the bringing in of short minutes in respect to the cross-claim of the defendant.
3. I order that the plaintiff pay the costs of the defendant.
4. The exhibits may be returned.

**********

Last Modified: 09/26/2000