Turnbull v McGregor

[2003] NSWSC 899

Reported Decision: (2003) DFC 95-272

Supreme Court

CITATION:	Turnbull v McGregor [2003] NSWSC 899
HEARING DATE(S):	7,8,9 May 2003
JUDGMENT DATE:	2 October 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1) I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and, if desired, for argument as to costs.
CATCHWORDS:	Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Residence purchased in name of Defendant alone - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Constructive trust - Where relief is granted under section 20 of Property (Relationships) Act the basis for the imposition of a constructive trust is thereby removed, since the beneficial interest then claimed by the Defendant can no longer be treated as unconscionable or contrary to equitable principle.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Baumgartner v Baumgartner (1987) 164 CLR 137 Black v Black (1991) 15 FamLR 109 Davey v Lee (1990) 13 FamLR 688 Evans v Marmont (1997) 42 NSWLR 708 Green v Robertson (1995) 36 NSWLR 96 Jones v Grech [2001] NSWCA 208 Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001 Muschinski v Dodds (1985) 160 CLR 583 Ngyuen v Scheiff (2002) 29 FamLR 177 Roy v Sturgeon (1986) 11 NSWLR 454 Sullman v Sullman [2002] NSWSC 169 Wallace v Stanford (1995) 37 NSWLR 1
PARTIES :	Lesley Jane Turnbull (Plaintiff) Grant Alexander McGregor (Defendant)
FILE NUMBER(S):	SC 1148/02
COUNSEL:	D.M. Flaherty (Plaintiff) M. Bridger (Defendant)
SOLICITORS:	Wallbanks (Plaintiff) Peter Howell & Company, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 2 October 2003

1148/02 LESLEY JANE TURNBULL -v- GRANT ALEXANDER McGREGOR

JUDGMENT

1 MASTER: By statement of claim filed on 18 January 2002 the Plaintiff, Lesley Jane Turnbull, claims against the Defendant, Grant Alexander McGregor, orders for the adjustment of interests in property pursuant to the provisions of the Property (Relationships) Act 1984 and also claims relief in respect to an asserted constructive trust.

2 On 7 May 2003, the day of the commencement of the hearing of the proceedings, Justice Barrett, as Duty Judge in the Equity Division, made an order for the entirety of the proceedings to be heard by a Master.

3 The parties were in a de facto relationship from July 1990 until August 2000. No children were born of that relationship.

4 At the commencement of the relationship the Plaintiff (who was born on 11 October 1968 and was then aged twenty-one) was in employment, receiving an annual income of $20,113 (gross). At that time the Plaintiff’s assets consisted of clothing and personal effects, some household appliances, household furniture and a small amount in savings (the precise amount not being specified).

5 The Defendant (who was born on 3 November 1963 and was aged twenty-six at the commencement of the relationship) was at that time employed as an area manager by Caltex Oil Australia. According to the Defendant, in that position his annual income at that time was about $36,000. However, it should be observed that his income tax assessment for the relevant year discloses a taxable income of only $11,696. In addition, he received from his employer the use of a motor vehicle.

6 At the commencement of the relationship the Defendant had the following assets:

Home unit at 19/13-19 Princess Street, Brighton-le-Sands, which he had purchased in 1989 for $187,000; that property was subject to a mortgage to Rams Mortgage Corporation Limited in an amount of about $110,000;
Carpet cleaning, lawn-mowing and gardening equipment from a lawn-mowing, gardening and property maintenance business which the Defendant had operated until June 1987;
1976 Holden motor vehicle (to which an estimated value of about $18,000 was ascribed);
18 foot motor boat (to which an estimated value of about $5,000 was ascribed);

Savings - $15,647.50;

Furniture, furnishings and household effects in respect of the home unit at Brighton-le-Sands (to which an estimated value of about $10,000 was ascribed).

7 In addition, the Defendant was at that time the registered proprietor of a residential property situate at and known as 10-12 Knight Street, Arncliffe, and a home unit situate at and known as 1/22 Paine Street, Kogarah. According to the Plaintiff, when those properties were sold the Plaintiff contributed to the costs of such sale (for example, the advertising costs in respect to the Knight Street property).

8 It was the evidence of the Defendant that the foregoing residential properties at Arncliffe and Kogarah were not held beneficially by him, but were held for his parents. It emerged that the Defendant’s mother had been involved in a number of real estate transactions. Those two properties were managed by her, and the Defendant received no benefit from the rent earned by those properties. The Plaintiff had no personal or financial involvement or interest in those properties.

9 Shortly after the commencement of the relationship the Defendant’s Holden motor vehicle was seriously damaged in an accident. He received an amount of $18,000 from the insurer of that vehicle.

10 At the commencement of the de facto relationship between the parties the Defendant was, on account of his employment, residing at Moree. The Plaintiff joined him in that town, where they lived together in rented accommodation. The rent of that accommodation was subsidised, to the extent of 60 percent, by the Defendant’s employer, Caltex. The Plaintiff obtained employment shortly after her arrival in Moree.

11 It was asserted by the Plaintiff that throughout the period in Moree (and, on later occasions, when the parties were residing in rented accommodation) she contributed to the rent of the accommodation in an amount of about $100 a week. The Plaintiff also said that she contributed to food and grocery expenses and to household utilities (such as telephone, gas and electricity). The Plaintiff said that she and the Defendant shared the cost of entertainment expenses, such as restaurants. Those contributions, according to the Plaintiff, were made by her in cash. She said that she had no documentary material to substantiate the making of those asserted cash contributions.

12 Apart from the asserted contributions for rent in an amount of about $100 a week, the Plaintiff was not able to quantify the cash contributions which she asserted she made towards food and grocery expenses and towards household utilities and outgoings, except to say that all those bills were split equally between herself and the Defendant. The Plaintiff agreed, however, that during the period whilst she and the Defendant were residing with the Defendant’s parents at Arncliffe from February 1993 to November 1994 (a period of some twenty-one months) the Plaintiff made no contribution towards rent and made no contribution towards land and water rates. She said that she did pay for food during that period, as also did the Defendant.

13 In the course of his employment the Defendant was transferred to Tamworth in February 1991, and subsequently to Newcastle in November 1992. In each of those cities the parties resided in rented accommodation, and the Plaintiff obtained employment. According to the Plaintiff, she continued, whilst residing in those cities, to make contributions of a nature similar to those made by her whilst the parties were residing in Moree. According to the Plaintiff, when the Defendant was working in Newcastle the cost of the rented accommodation was subsidised by the Defendant’s employer, and the Plaintiff paid one half of the balance of those rental expenses.

14 The parties in 1992 became engaged to be married, and the Defendant gave an engagement ring to the Plaintiff. However, they had not married before the relationship ended in 2000.

15 The parties returned to Sydney in February 1993, in the course of the Defendant’s employment. From then until November 1994 the parties resided with the Defendant’s parents in the home of the latter at 11 Stewart Street, Arncliffe. The Plaintiff obtained full-time employment within a month of her return to Sydney.

16 In August 1993 the Defendant purchased a house property at 5 Towers Place, Arncliffe. That property (to which I shall refer as “the Towers Place property”), which from September 1994 until the termination of the de facto relationship in August 2000, was the matrimonial home of the parties, is the subject of the present claim by the Plaintiff. The purchase price of the Towers Place property was $295,000. That purchase was funded by a mortgage of $300,000 from Atlas Truck Rentals Pty Limited. The Defendant paid the stamp duty of $8,819 on the purchase of the property, and also paid the legal costs associated therewith.

17 After the purchase of the Towers Place property the Defendant in November 1993 sold his home unit at Brighton-le-Sands for $241,500. That property had been rented throughout the period of the de facto relationship, and the Plaintiff did not assert she had made any contributions relating to it, by way of mortgage repayments or outgoings or otherwise. After discharging the mortgage and paying legal costs and commission in respect of the sale, the Defendant received $77,487, from the sale of that property. The Defendant used that amount in reducing the outstanding mortgage on the Towers Place property.

18 In early 1995 the Defendant was made redundant in his employment with Caltex Oil, and received a redundancy payment of $42,904. From that redundancy payment the Defendant made a lump sum payment of $23,805 in reduction of his indebtedness under the mortgage from Atlas Truck Rentals. In February 1996 the Defendant’s parents (or his mother) advanced him the sum of $69,418, being part of the proceeds of the sale of their house property at 1 Ferry Street, Kogarah. The Defendant paid that sum also in reduction of the mortgage on Towers Place. The Defendant also made further lump sum payments in reduction of that mortgage debt, being $5,000 on 19 April 1996, $15,000 on 16 May 1996 and $10,986 on 23 June 1996.

19 In 1997 the Defendant discharged the mortgage from Atlas Truck Rentals. In March of the following year the Defendant rearranged his finances, and obtained a mortgage of $100,000 from Perpetual Trustees Limited in respect of the Towers Place property.

20 It was about six months after he ceased employment with Caltex that the Defendant obtained employment with Burmah Oil. During the intervening period the Defendant worked in consultancy positions. It was the assertion of the Plaintiff that throughout that period of six months it was she who was essentially paying for such household outgoings as groceries, gas, electricity and telephone (but not for municipal rates or for water rates).

21 Although it was the assertion of the Plaintiff that she paid the entirety of such household outgoings, when confronted by an electricity bill which had been paid by cheque written by the Defendant on 3 August 1995 for $138, the Plaintiff responded by saying that she “would have paid half the amount”. She was not able to substantiate such an asserted contribution, nor a similar contribution which she stated was made by her in respect to an electricity account paid by the Defendant on 8 November 1995, or a gas account paid by him on 9 August 1995 for $176.76.

22 During the period of about six months throughout which the Defendant was partly unemployed, the Plaintiff originally said that she paid all the living and household expenses for the parties, whilst the Defendant still maintained the mortgage repayments from the small earnings which she received from casual and consulting work.

23 Despite her original assertion that during the period of six months between the termination of the Defendant’s employment with Caltex and the commencement of his employment with Burmah Oil it was the Plaintiff who paid the totality of such household outgoings as gas and electricity, the Plaintiff under cross-examination said that she “would have paid half” of specific gas and electricity accounts with which she was then confronted. Indeed, the Plaintiff ultimately agreed that her statement that she had paid for all those items was not accurate.

24 The Defendant did not dispute that after the parties moved into residence in the Towers Place property the Plaintiff paid what he described as “her share” of food and living expenses, entertainment and some utilities.

25 At the commencement of the hearing it was noted that it was agreed between the parties that the present value of the Towers Place property was $800,000.

26 It was essentially the case for the Plaintiff that her cash contributions to the household expenses and outgoings of the parties throughout the relationship, especially after they entered into occupation of the Towers Place property, enabled the Defendant from his own income to meet the mortgage payments on that property. Those alleged contributions by the Plaintiff were denied by the Defendant.

27 The Defendant also denied the Plaintiff’s allegations that she made significant non-financial contributions to the relationship, especially in the capacity of homemaker. It was the evidence of the Plaintiff that she performed a significant part of the maintenance, gardening and renovational activities at the Towers Place residence.

28 It was the evidence of the Defendant that it was he, and not the Plaintiff, who performed the major part of the culinary activities during the course of the relationship, and that he performed the entirety of the ironing of his clothing, as well as ironing some of the Plaintiff’s clothing.

29 For some time whilst the parties were residing in the Towers Place property they shared that residence with two lodgers. Each of those lodgers paid $100 a week in cash to the Defendant.

30 The parties essentially kept their finances separate throughout the relationship. There were, however, exceptions to that practice.

31 The parties planned a holiday in Europe for 2000. Each of the parties agreed to contribute $10,000 towards that holiday. For the purpose of that holiday the parties conducted a joint Visa Travel Card with Thomas Cook, Hurstville. Despite the original agreement that each of the parties would contribute $10,000 to that holiday, the Plaintiff obtained from Westpac Banking Corporation a personal loan of $12,150 on 1 March 2000, and contributed that amount to the holiday account. Each of the Plaintiff and the Defendant also paid an amount of about $3,700 towards the cost of airfares and expenses preceding their departure. On 13 April 2000 the Defendant paid $6,276 into the joint Visa Travel Card account. That amount was sourced from the home loan in respect of the Towers Place property. So far as I can gather, the result of those various contributions was that the Plaintiff contributed a total of $12,150, whilst the Defendant contributed a total of $9,976 towards their holiday in 2000.

32 The Defendant also provided the Plaintiff with a credit card on his American Express account. It was the practice of the parties each month to peruse the American Express statement and each then to pay the amount which he or she respectively had incurred on that account.

33 At the termination of the relationship in August 2000 the Plaintiff owned various chattels and other personal items (to which she ascribed a total value of $10,205). The significant liability of the Plaintiff was the personal loan which she had obtained to fund the overseas holiday of herself and the Defendant in 2000. She has been repaying that loan, which was for a term of five years, at the rate of $70 a week. At the time of the commencement of the proceedings the outstanding balance owed by the Plaintiff in respect of that loan was about $6,500.

34 At the time of separation the Plaintiff was earning almost $827 gross a week. According to her calculations (based upon the several notices of assessment received by her in respect of income tax during the period of the relationship), her net disposable income for the totality of that period was about $234,000.

35 Among the chattels retained by the Plaintiff at the end of the relationship were various items of jewellery given to her by the Defendant, being a diamond engagement ring (for which he had paid $4,500), a gold necklace and bracelet (for which he had paid $500) and a white yellow [sic] and diamond ring (for which he had paid $1,000). In addition, the Plaintiff retained an eight piece designer dinner set, a cappuccino machine and a jewellery box.

36 At the termination of the relationship the Defendant’s assets consisted of the Towers Place property (the value of which at that time is stated by Stuart Hunter, a registered valuer, to be $620,000), together with the contents thereof (to which the Defendant ascribed a value of $10,000). The Defendant also had a superannuation entitlement of about $66,000 gross. At the time of the termination of the relationship the Defendant’s liability under the mortgage over the Towers Place property was about $100,000, and the Defendant had a credit card debt of about $3,460.

37 At the time of the Plaintiff’s birthday on 11 October 1998 the Defendant gave to her his Ford Fairmont motor vehicle (1991 model), which was thereafter used by the Plaintiff and treated by her as if it were her own. However, in September 2000, about a month after separation, the Defendant retrieved possession of that motor vehicle from the Plaintiff. According to the Plaintiff, the Defendant subsequently sold that vehicle for about $5,000 and retained for himself the proceeds of that sale.

38 I have had the benefit of receiving chronologies from Counsel for the respective parties, together with a written outline of submissions from Counsel for the Plaintiff. That document will be retained in the Court file.

39 Section 20(1) of the Property (Relationships) Act provides, relevantly,

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

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

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship…

40 The phrase “domestic relationship” is by section 5(1) of the Act defined to include a de facto relationship.

41 Evidence was given by each party to the proceedings, each of whom was cross-examined at the hearing. The entirety of the evidence of each party which was disputed by the other party consisted solely of the unsupported oral evidence of that party. Each party gave her or his evidence in a firm and definite manner. It was not submitted by Counsel for either party that the evidence of the opposing party was deliberately false. Nevertheless, it was submitted on behalf of the Defendant that the Plaintiff in giving her evidence was, in the phrase of Counsel for the Defendant, “gilding the lily”. It is relevant in this regard that, as has already been observed, the Plaintiff’s asserted cash contributions was not supported by any documentary material.

42 There was admitted into evidence (Exhibit C) a schedule prepared by the Plaintiff from her bank statements, setting forth details of cash withdrawals made by her. That schedule discloses that throughout the period from 24 February 1994 to 25 August 2000 the Plaintiff withdrew cash amounts totalling $70,539. It will be appreciated that the effect of those withdrawals by the Plaintiff does not of itself establish that the totality of those cash withdrawals constituted contributions made by the Plaintiff throughout that period of six and a half years. They do, however, establish that throughout that period the cash contributions made by the Plaintiff to the relationship did not exceed that total amount.

43 There was also admitted into evidence (Exhibit D) a schedule prepared by the Plaintiff from her various bank statements disclosing expenses paid by her from 5 July 1993 to 28 June 2000. That schedule discloses expenses (many being incurred in liquor shops and supermarkets) totalling $21,351.

44 I am reluctant to accept the unsupported evidence of the Plaintiff concerning the extent of her alleged cash contributions to the relationship. Nevertheless, I am satisfied that she made a number of cash contributions, but probably not the regular amounts of $100 a week which she asserted and which the Defendant denied.

45 I find it difficult to accept the Plaintiff’s evidence concerning her asserted cash contributions of $100 a week towards rent whilst she and the Defendant were residing in rented accommodation. The parties were residing together in rented accommodation from the commencement of the relationship until February 1993 (when they moved into residence with the Defendant’s parents at Arncliffe). Throughout the entirety of that period the rent being paid for such accommodation was about $200 a week, and the Defendant received from his employer, Caltex Oil, a subsidy of 60 percent of that amount. That is, the actual amount of rent which had to be met by the Defendant was about $80 a week. The Plaintiff was aware of those arrangements and of those amounts. In such circumstances, it would appear unlikely that the Plaintiff would have been prepared to give to the Defendant each week as a contribution towards rent an amount in cash which significantly exceeded the net amount of $80 a week paid by the Defendant in respect of the accommodation. (I recognise that it was the practice of the Defendant to pay the full amount of rent each week and then to receive reimbursement of 60 percent of that amount from his employer.)

46 In respect to the acquisition of the Towers Place property, the Defendant in his affidavit evidence asserted that that property had been discovered by him alone, and that he, without any involvement of the Plaintiff, had inspected the property and had arranged to purchase it. It emerged, however, under cross-examination of the Defendant, that the Plaintiff had been closely involved in locating the property, in its original inspection by the parties, and in the acquisition of that property.

47 Evidence was placed before the Court concerning the financial and material circumstances of the Plaintiff since the termination of the de facto relationship and until the date of hearing.

48 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission, Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 708 at 80-81; Jones v Grech [2001] NSWCA 208, per Ipp AJA at 76). The discretion vested in the Court by section 20(1) of the Act is to be exercised “having regard to” the contributions of the nature described in paragraphs (a) and (b) of that subsection.

49 In Roy v Sturgeon (1986) 11 NSWLR 454, Powell J (as he then was) said, at 464,

The fact that it is not the policy of the Act to elevate the status of a “de facto partner” to that of a party to a marriage would, in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under section 79 of the Family Law Act 1975 (Commonwealth). That caution is, however, reinforced by the fact that there are differences between the language of section 20 of the Act on the one hand, and of section 75(2) and section 79(4) of the Family Law Act 1975 (Commonwealth) on the other, which differences are, in my view, signficiant.”

50 Powell JA in Jones v Grech, at 12, quoted the foregoing passage from his judgment in Roy v Sturgeon, and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Commonwealth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 23 per Sheller JA, Evans v Marmont, supra, per Gleeson CJ and McLelland CJ in Eq.)

51 In Green v Robertson (1995) 36 NSWLR 96 Cole JA at 115-116 considered that the Court should have regard to contributions made to the date of the application (in distinction to contributions made merely to the date of termination of the relationship). That was a proposition which Campbell J in Ngyuen v Scheiff (2002) 29 FamLR 177 found persuasive (the reasons for so finding His Honour repeated in Sullman v Sullman [2002] NSWSC 169). Nevertheless, there is no authority in either of those decisions for the Court to have regard to the present circumstances (especially the needs) of the parties, let alone to likely future needs of the parties.

52 In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act, it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff and, in particular, her present needs, should not be taken into consideration. The Court should not be diverted from the clear words of the statute, in exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable”. The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Matheson [2002] NSWCA 350.)

53 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.

54 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships)Act to disregard evidence concerning her present and likely future needs.

55 In approaching the claim for the adjustment of interests of the parties in property pursuant to section 20(1) of the Property (Relationships) Act, the Court should make a holistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) (see Davey v Lee (1990) 13 FamLR 688).

56 Throughout the period of the relationship there was not a great disparity between the annual net income of the Plaintiff and that of the Defendant.

57 At the commencement of the relationship the Plaintiff had little by way of assets, and that situation had not greatly changed at the end of the relationship. It can be inferred from that fact that the Plaintiff expended almost the totality of her earnings during the relationship upon herself alone or upon herself and the Defendant.

58 At the commencement of the relationship the Defendant owned an investment home unit, together with a motor vehicle, a boat and savings of almost $16,000. (I disregard the properties at Arncliffe and Kogarah, in which he had no beneficial interest.) At the termination of the relationship he owned the Towers Place property, which at that time had a value of $620,000 and was subject to a mortgage of about $100,000. In the period of seven years since the Towers Place property had been owned by him, the Defendant had paid off the original mortgage loan of $300,000. He had been assisted in doing so by an advance from his mother, as well as by the sale of the Brighton-le-Sands unit. Upon my calculations, the following lump sum payments by the Plaintiff constituted significant reductions in the amount of the mortgage debt, quite apart from the regular payments made by the Plaintiff under the terms of the mortgage:

November 1993 $77,500, being net proceeds of sale of the Brighton-le-Sands unit
Early 1995 $23,805, being part of the Defendant’s redundancy payment


February 1996 $69,418, advance from Defendant’s mother

19 April 1996 $5,000

16 May 1996 $15,000

23 June 1996 $10,986

59 The foregoing lump sum payments towards the reduction on the mortgage at Towers Place total $201,709. Of that figure the first three amounts, totalling $170,723, can in no way be regarded as having been contributed to indirectly by the Plaintiff, or having been in any way the consequence of conduct or activities the Plaintiff or of the fact that the Defendant was in a de facto relationship with the Plaintiff.

60 In approaching the claim of the Plaintiff, therefore, I consider, firstly, that had the relationship terminated before the acquisition of the Towers Place property, neither party would have been entitled to an order adjusting interests in property pursuant to section 20 of the Property (Relationships) Act. However, in the circumstances of the instant case, where the relationship obtained for a period of seven years after the acquisition of the Towers Place property (and a period of almost six years after the parties entered into occupation of that property), the Court should consider the respective contributions of the parties in regard to that property.

61 In doing so, however, I consider that the appropriate starting point is the equity in the Towers Place property held by the Defendant at the termination of the relationship. The valuation of the property at that time was $620,000, and there was a mortgage debt of about $100,000 outstanding. Accordingly, the Defendant’s equity in the property at the termination of the relationship was about $520,000. The foregoing lump sum contributions made as a result of the sale of the Brighton-le-Sands property, which had been owned by the Defendant before the commencement of the relationship ($77,500), the contribution from the Defendant’s redundancy payment ($23,805), and the advance from the Plaintiff’s mother ($69,418) are amounts in respect of which the Plaintiff cannot have any claim to entitlement. In consequence, therefore, I consider that the foregoing value of the Defendant’s equity, $520,000, should be reduced by about $171,000, when calculating the net value to be attributed to Towers Place which might be the subject of any order for adjustment of the interests of the parties therein. That is, the appropriate figure upon which the Court should proceed is about $350,000.

62 I have already stated that I do not accept the unsupported assertion of the Plaintiff that throughout the period of three years whilst she and the Defendant were living in rented accommodation she each week contributed a cash amount of $100 towards the rent. It is probable that she made some cash contribution in that regard, but I am not satisfied that it was in the amount alleged by her.

63 The other contributions which the Plaintiff asserted she made were towards various utilities and household expenses. However, as I have already recorded, under cross-examination the Plaintiff departed from her original assertion that she had paid the totality of those expenses at various times and throughout various periods, and asserted that she had paid only one half thereof. Further, at no stage did the Plaintiff make (or assert that she had made) contributions towards water rates or municipal rates on the Towers Place property.

64 It follows, therefore, that, even upon her own evidence, the cash contributions made by the Plaintiff towards household outgoings and utilities were no more than half of the total of those amounts, the balance (of at least one half) being paid by the Defendant, who also paid the totality of the water rates and municipal rates. Nevertheless, by contributing up to about half of those outgoings, the Plaintiff did relieve the Defendant of the necessity for paying the entirety of those outgoings, and thus enabled him to meet the regular mortgage payments and also to make the lump sum payments which were made in April, May and June 1996 in reduction of the mortgage.

65 There remain also to be considered the contributions of the Plaintiff to the welfare of the Defendant, including her contributions as homemaker. There is nothing in the wording of section 20 of the Act to suggest that such contributions are to be regarded as being of less importance or of less significance than the financial and non-financial contributions referred to in paragraph (a) of section 20(1). (See Evans v Marmont, supra, at 79-80; see, also, Wallace v Stanford, supra, especially per Handley JA.) Whilst I accept that the Plaintiff made such contributions (for example, towards cleaning and maintenance of the various residences which the parties occupied throughout the relationship, towards household shopping, towards cooking and towards maintenance of the garden in the Towers Place property), I am not persuaded that those contributions were greater than the contributions of the Defendant as homemaker. The Plaintiff was reluctant to concede that the Defendant had made any contributions at all towards home and household activities, although it clearly emerged that the Defendant was the partner who had the greater responsibility in the culinary department, and that he ironed all his own clothes and occasionally those of the Plaintiff.

66 I am not satisfied that the contributions of the Plaintiff as homemaker exceeded those of the Defendant.

67 That the Defendant was enabled to pay significant amounts in reduction of the mortgage indebtedness on the Towers Place property, was in my conclusion not due to the cash contributions made by the Plaintiff to the household expenses (as was asserted by the Plaintiff), but was due to the receipt by the Plaintiff of his redundancy pay of almost $43,000, the advance to him by his mother of about $69,000, and the net amount of about $77,500 which he received from the sale of the Brighton-le-Sands property. But, as I have already observed, that fact alone is not determinative of the Plaintiff’s claim.

68 I am not satisfied that the contributions of the Plaintiff to the relationship of herself and the Defendant, be they financial contributions or contributions as a homemaker, exceeded the contributions made by the Defendant to the relationship.

69 Nevertheless, as I have already observed, her contributions of a financial nature, contributions towards the acquisition, conservation and improvement of the Towers Place property, and contributions to the welfare of the Defendant, including contributions as a homemaker – whilst all, in my conclusion, were significantly less than asserted by the Plaintiff – reduced to that extent the amounts which the Defendant otherwise would have been required to pay from his sole earnings in order to meet the totality of the household outgoings and the mortgage payments, and also reduced the time, effort and physical resources which he otherwise must have expended upon Towers Place.

70 I have already referred to the salutary views expressed by McLelland J in Davey v Lee concerning the approach which should be taken by the Court, especially that it should eschew any process analogous to the taking of partnership accounts by examining every alleged “contribution” of the kind described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment.

71 I have already set forth the reasons and calculations why the Court should adopt as an appropriate value to be attributed to the Towers Place property at the termination of the relationship (by deducting from the value of the Defendant’s equity in the property the lump sum reductions in the mortgage which had their source in the sale of the Brighton-le-Sands property, the Defendant’s redundancy payment, and the advance from the Defendant’s mother) the amount of about $350,000.

72 In my conclusion the contributions of the Plaintiff of the nature described in section 20(1) of the Act would entitle her to an interest of about one third of that amount. I consider it appropriate that by way of adjustment of the interests of the parties in the Tower Place property the Plaintiff should receive a payment to her by the Defendant of a sum representing about one third of the foregoing amount of about $350,000. That is, she should receive the sum of $115,000.

73 In the light of the conclusion which I have just expressed, it becomes unnecessary for me to proceed to a consideration of the claim of the Plaintiff for relief by the imposition of a constructive trust upon the Towers Place property. It will be appreciated that, in accordance with the principles enunciated by the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137, a constructive trust is imposed upon property in circumstances where otherwise the retention or assertion of beneficial ownership of that property would be unconscionable or contrary to equitable principle (see Muschinski, per Deane J, at 614).

74 In the instant case, the entitlement of the Plaintiff to relief adjusting the interests of the parties in the Towers Place property in accordance with my foregoing conclusions removes the basis for the imposition of a constructive trust upon that property in favour of the Plaintiff, since once such statutory relief is granted the beneficial interest then retained by the Defendant in the property can no longer be treated as unconscionable or contrary to equitable principle (if, indeed, it could ever have been so treated).

75 Further, even if (independently of her entitlement to relief under the Property (Relationships) Act) the Plaintiff were somehow enabled to establish that a constructive trust in her favour should be imposed upon the Towers Place property, the extent of such a constructive trust would be less than the benefit which, in my foregoing conclusion, she is entitled to receive by way of an order under section 20 of the Property (Relationships) Act (since the concept of a constructive trust must disregard contributions of the nature referred to in paragraph (b) of section 20(1) of the Act, being contributions of the Plaintiff to the welfare of the Defendant, including contributions as a homemaker).

76 Accordingly, I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and, if desired, for argument as to costs.

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Last Modified: 12/05/2003