Vella v Mineo - [2005] NSWSC 1149

No judgment structure available for this case.

CITATION:
VELLA v. MINEO [2005] NSWSC 1149

HEARING DATE(S): Thursday 2 June 2005; Friday 3 June 2005

JUDGMENT DATE :

25 November 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hall J at 1

DECISION:
Plaintiff's statement of claim dismissed. Order to be entered in favour of the cross-claimant pursuant to s.20(1) of the Property Relationships Act in the amount of $405,366.

CATCHWORDS:
Tenants in common in equal shares - resulting trust - presumption of resulting trust is rebutted - constructive trust - cross-claim under the Property (Relationships) Act - defacto relationship - plaintiff/cross-defendant had a series of strokes - defendant/cross-claimant performed role of carer - allowance made for need to provide education expenses for 10 year old son - plaintiff/cross-defendant provided the home for the plaintiff/cross-defendant and defendant/cross-claimant - defendant/cross-claimant made substantial contributions as homemaker and parent - allowance made for defendant/cross-claimant's legacy received by her.

LEGISLATION CITED:
Conveyancing Act 1919
Property (Relationships) Act 1984

CASES CITED:
Muschinski v. Doods (1985) 160 CLR 583
Baumgartner v. Baumgartner (1987) 164 CLR 137
West v. Mead [2003] NSWSC 161
Atwood v. Maude (1868) LR 3 CH. app. 369
Lyon v. Tweedle (1881) 17 Ch.D. 529
Calverley v. Green (1984) 155 CLR 242
Currie v. Hamilton (1984) 1 NSWLR 687
Black Uhlans Inc. NSW Crime Commission [2002] NSWSC 1060
Marshall v. Grimsley (1956) 95 CLR 353
Martin v. Martin (1959) 110 CLR 304
Singh v. Singh [2004] NSWSC 109
Wallace v. Stanford (1995) 37 NSWLR 1
Powell v. Supresencia (2003) 30 Fam LR 463
Dwyer v. Kaljo (1987) Fam LR 785
Evans v. Marmont (1997) 42 NSWLR 70
Sullman v. Sullman [2002] NSWSC 169
Magera v. Macintosh [2005] NSWSC 314
MacDonald v. Stelzer (2000) 27 Fam LR 304
Jones v. Grech (2001) 27 Fam LR 711
Matheson v. Wallis (2001) 48 Fam LR 290
Green v. Robinson (1995) 36 NSWLR 96
Mallett v. Mallett (1984) 156 CLR 605
Black v. Black (1991) 15 Fam LR 109
Howlett v. Neilson [2005] NSWCA 149

PARTIES:
VELLA, Caterina Gabrielle, as Tutor for LEONARDI, Rosario
v. MINEO, Lucia

FILE NUMBER(S):
SC No. 2700 of 2003

COUNSEL:
Plaintiff: M. Gilmour
Defendant: J. Stoljar/W. Dawson

SOLICITORS:
Plaintiff: L.P. Alidenes & Co.
Defendant: Browns, The Family Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL, J.

FRIDAY 25 NOVEMBER 2005

No. 2700 of 2003

CATERINA GABRIELLE VELLA, as Tutor for ROSARIO LEONARDI v. LUCIA MINEO

JUDGMENT

1 HALL, J: The plaintiff, Rosario Leonardi, by his tutor, Caterina Gabrielle Vella, claims by way of statement of claimed filed on 16 August 2004, as against the defendant, Lucia Mineo, inter alia, a declaration as follows:-

“… that the defendant holds her interest in the property at Lot 15 of Section B in Deposited Plan 7156, being comprised in Folio Identifier 15/B 7156 in trust for the plaintiff.”

2 The property, currently occupied by Ms. Mineo, was formerly the home of Mr. Leonardi and herself at 60 Russell Street, Russell Lea. It is registered in their names as tenants in common in equal shares following acquisition by purchase on 14 December 2001.

3 Mr. Leonardi also claims consequential orders including the appointment of the Public Trustee as trustee of the property and that it be vested in the Public Trustee under the statutory trust for sale pursuant to Division 6 of Part 4 of the Conveyancing Act 1919 together with an order that the Public Trustee pay to him the net proceeds of sale in their entirety.

4 Proceedings by way of cross-claim were instituted by Ms. Mineo on 22 October 2004. She, as cross-claimant, claims an order for an adjustment of interests with respect to the property pursuant to Part 3, Division 1 of the Property (Relationships) Act 1984 (NSW) (in particular, s.20), having regard to financial and non-financial contributions made directly or indirectly by her.

5 Ms. Mineo further seeks an order dismissing the statement of claim and an order in her favour for adjustment of property interests and, in this respect, claims orders:-

(a) That the cross-defendant within 28 days hereof transfer to the cross-claimant the whole of his interest in the home known as and situate at 60 Russell Street, Russell Lea in the State of New South Wales.

(b) That except as otherwise specified each party be declared the sole owner of all items of property and financial resources in their respect name, possession or control.

6 The written submissions on her behalf subsequently reformulated the order sought under s.20 of the Act as one adjusting the interests of the parties in the Russell Lea property to the effect that they held the property as tenants in common, Ms. Mineo having a 75% share and Mr. Leonardi a 25% share.

PART A

The relationship between Mr. Leonardi and Ms. Mineo

7 The plaintiff, Mr. Rosario Leonardi (known as “Ross” Leonardi) and the defendant, Lucia Mineo, were parties to a defacto relationship for some 17 years. The defendant was aged 20 years when she first met the plaintiff. Her date of birth is 6 April 1964. She is therefore now 41 years of age.

8 Mr. Leonardi was born on 9 October 1934, he accordingly presently being 71 years of age. At the time of first meeting, he was 50 and she was 20 years of age. He was married at the time but was separated from his then wife. The marriage was subsequently dissolved on 7 September 1992.

9 In more recent years, Mr. Leonardi had a series of strokes and associated disabilities commencing in 1995. He is presently a resident in a nursing home and is very unwell. The proceedings have been brought by his daughter, Caterina Gabrielle Vella, on his behalf by reason of Mr. Leonardi’s incapacity. I will say more about the significance of that to the proceedings later in this judgment.

10 The plaintiff and defendant have a son, Luca, who was born on 9 February 1995, he therefore now being 10 years of age. He lives with his mother, the defendant/cross-claimant.

11 There are several very sad aspects to this case. Despite the significant age gap between Mr. Leonardi and Ms. Mineo, their relationship appears to have been a satisfactory one for many years and, from what one can discern from the evidence, a generally happy one, it appears, up until at least a point in time in 1995. In the period 1995 to 2002, Mr. Leonardi suffered several strokes and, in consequence, was in and out of hospital in that period. He, as a consequence, has been left with an increasing level of disability. This meant that in that period Ms. Mineo effectively became his primary carer whilst he was at home. In the remaining years of their relationship together, she worked on a part-time basis as a bank officer for much of that period, as well as being the homemaker. Increasingly, the physical care of the plaintiff became more burdensome for her.

12 The relationship between Ms. Mineo and the plaintiff’s daughter and tutor, Ms. Vella, deteriorated markedly at some point of time following Mr. Leonardi’s first stroke. The position now is that they no longer have a relationship. They are not on speaking terms and plainly there is a good deal of ill-will between them. This is relevant to the assessment of the evidence each of them has given in these proceedings. As the plaintiff himself was not called to give evidence, his case was essentially presented through Ms. Vella’s evidence and by the tender of documentary materials. Ms. Vella and Ms. Mineo, when giving evidence, appeared at times to manifest some of the disaffection and even hostility that exists between the two women. I have accordingly sought to evaluate their evidence carefully, particularly where it relates to important issues of fact, especially where there existed a lack of corroboration from documentation or other evidence.

13 In relation to the failure of Mr. Leonardi to give evidence, little by way of material has been adduced to support his inability to give evidence. Ms. Vella, in her affidavit sworn 20 November 2003 sated (at paragraph 4):-

“My father’s condition is such that I am unable to ask him whether what is alleged in that affidavit he has said is true.”

14 This is hardly satisfactory evidence of Mr. Leonardi’s inability to give evidence or to respond to evidence. No medical evidence was sought to be placed before the court dealing specifically with his capacity to give instructions. However, I am prepared to accept from other evidence, including in particular, hospital records, that Mr. Leonardi has been very unwell although, absent specific medical evidence on the above question, it is difficult to determine his exact degree of incapacity. I have sought to evaluate Ms. Mineo’s evidence on the basis that there is no contradictor to certain matters including alleged statements she attributed to Mr. Leonardi. I have, wherever possible and appropriate, avoided making findings of fact based upon the failure of Mr. Leonardi to give evidence and to independently evaluate the probative value and reliability of evidence on important issues as far as possible.

The residential and investment properties acquired

15 The relevant transactions and financial affairs of the plaintiff and defendant are not unduly complex. During their relationship they acquired a succession of properties and lived in them as their home. At the commencement of the relationship, Mr. Leonardi owned a home with his former wife at Abbotsford. From October 1984, Ms. Mineo lived with him there until the property was sold in December 1993. Following its sale, Mr. Leonardi purchased a home at 19 Trafalgar Parade, Concord. Subsequently, that property was sold in February 1999 and a house was then purchased at Haberfield (in February 1999). That property and the Concord property were registered in the plaintiff’s name only. Haberfield was sold in July 2001 and the Russell Lea property was, as earlier mentioned, purchased in December 2001.

16 The purchase of these properties as well as three successive investment properties at Campsie, Croydon and Five Dock all occurred over the period of the relationship. The purchase and sale of the properties at Haberfield and Russell require detailed analysis: see discussion below. The documentary record of each transaction tendered in evidence is incomplete. The contentions of the Ms. Mineo that she contributed monies towards the acquisition of the latter two properties in part comes down to little more than assertion and counter-assertion. Accordingly, it has been necessary to closely analyse the evidence in order to determine where the truth lies.

Mr. Leonardi’s health problems

17 The evidence of the non-financial contribution made by Mr. Leonardi and Ms. Mineo largely comes from Ms. Mineo herself, with limited evidence from the defendant’s sister, Ms. Blancato, and of a former Haberfield neighbour, Ms. Anna Scalone. Whilst Ms. Vella sought to characterise the relationship between her father and the defendant from 1995 as something of a relationship of convenience, I do not accept that that was the fact. From 1995 onwards Ms. Mineo’s role as carer developed in response to Mr. Leonardi’s illness and disabilities but the relationship otherwise essentially continued through until the year 2000/2001. Indeed, whilst almost inevitably the relationship between them was deteriorating from the time of Mr. Leonardi’s initial stroke in 1995 (on 4 October 1995) through until 2001/2002, I consider that it is incorrect to characterise it as one of convenience or merely as one of a “domestic” nature. The reality is that Mr. Leonardi had significant health problems from 1995 and I find on the evidence that Ms. Mineo, rather than seeking to terminate the relationship or abandon Mr. Leonardi, remained loyal and supportive and continued to provide much needed assistance over what was undoubtedly a very difficult seven years in the period between 1995 and 2001, with Mr. Leonardi spending an increasing amount of time in hospital as the years unfolded.

18 There was considerable cross-examination of Ms. Mineo on tax returns and social security application forms. In some cases it was suggested that where, in answer to the question, “Did you have a spouse for the full year?”, Ms. Mineo inserted the answer “N” as indicating that she in fact did not have the relationship with Mr. Leonardi that she asserted. I note that she disclosed him as a defacto partner in her 1995/1996 and 1996/1997 tax returns and I accept the submission made on her behalf that by the end of the financial year 1997/1998 when the taxation return for that year was submitted that their relationship had significantly changed by reason of the disabilities and associated problems to which I have referred. I also observe at this point that Ms. Mineo was often described as “wife, defacto or Mrs. Leonardi” in hospital and medical records. Her evidence, in any event, as I have stated, was, in part, corroborated by the evidence of Ms. Scalone.

19 The analysis required of the evidence is best undertaken by reference to the key issues that have emerged in the evidence and the submissions of the parties. Those issues are accordingly analysed in accordance with the following.

(a) The nature and duration of the relationship between the plaintiff and the defendant.

(b) Acquisition of residential premises:-

(i) the Abbotsford property;

(ii) the Concord property;

(iii) the Haberfield property;

(iv) the Russell Lea property.

(c) The acquisition of investment properties by Ms. Mineo:-

(i) the Campsie property;

(ii) the Croydon property;

(iii) the Five Dock property.

PART B

The relationship between Rosario Leonardi and Lucia Mineo (1984-1995)

20 The following are the primary facts concerning the parties. Rossario (“Ross”) Leonardi divorced from his wife in 1992 (a decree nisi dissolving the marriage being made on 7 September 1992). He had six children from that relationship, including, Caterina Vella (known as “Cathy”).

21 Mr. Leonardi and Ms. Mineo first met when she operated a coffee lounge and he was a customer who visited. They became acquainted and a friendship developed. According to Ms. Mineo, Mr. Leonardi assured her that the age difference between them did not matter and in due course persuaded her to move in with him. She took up residence on 8 October 1984 at Mr. Leonardi’s home at 54 Wymston Parade, Abbotsford.

22 The defendant says that the plaintiff would refer to him as his wife in public when introducing her and in every respect they lived as husband and wife, although not married. She says that she did most of the domestic chores, although he would occasionally cook, as he had some skill in that area, although she did most of the day to day cooking.

23 Ms. Mineo stated that when she was pregnant in the course of such discussions he said “we will get married before the baby is born. It is important that the parents are married” or words to that effect. Ms. Mineo was very ill for much of her pregnancy and during this time Ms. Mineo claims that one or other of them would say words to the effect “It is not the time to be getting married. There is too much else of more importance to deal with at the moment. Let’s do it after the baby is born”. Luca had a kidney operation at two months of age and thereafter was placed on antibiotics. Ms. Mineo claimed that she paid medical insurance for both herself and Mr. Leonardi from the time she became pregnant or thereabouts.

Mr. Leonardi’s illness in the years 1995 and 1996

24 Subsequent to Mr. Leonardi’s first stroke in October 1995, he was confined to hospital for two weeks during which time Ms. Mineo said that she was by his bedside every day from 8.00 am to 8.00 pm. At that time the plaintiff was unable to speak. Towards the end of his admission he was able to utter disjointed words, but was not able to form sentences. His speech improved over the ensuing months.

25 The plaintiff was admitted to Coorabel Rehabilitation Hospital at Ryde following his discharge from Concord Hospital and he remained there for approximately two weeks. Ms. Mineo continued to visit him with their son every day. According to her, the plaintiff discharged himself after two weeks at Coorabel Hospital and returned home where she looked after him on a full time basis. Ms. Mineo says, and I accept her evidence, that he could do very little to look after himself and that she provided intensive and ongoing personal care including assisting him to walk around the house and also assisted with rehabilitation exercises. A physiotherapist visited the home from time to time and she said she learnt from the physiotherapist the exercises that were needed to assist the plaintiff which she said she did several times a day.

26 In addition, a speech therapist visited the home for a time on a weekly basis during which Ms. Mineo said she was present and learned from the therapist, the exercises considered necessary to assist the plaintiff on a daily basis.

27 Following a two week period at home after his discharge from Coorabel, Mr. Leonardi was admitted to Alwyn Private Hospital at Strathfield, a rehabilitation hospital, which Ms. Mineo said was, in part, covered by her private health care insurance but that she paid additional charges not covered by her health care scheme. He was admitted for some two to three weeks where Ms. Mineo said she visited him on a daily basis from morning to night with her son. She also attended speech therapist sessions and would interpret, the plaintiff being difficult to understand by reason of his speech impairment.

28 Mr. Leonardi returned home where Ms. Mineo continued to look after him for a further two years when he had a further stroke. Although the plaintiff’s speech appeared to have improved, he did not make a full recovery and Ms. Mineo said she continued to do all the housework. Mr. Leonardi no longer did any of the cooking. At this time, Ms. Mineo said that she would assist Mr. Leonardi to get dressed to the extent that he needed help and would ensure that he showered and shaved and assisted him where necessary. She would prepare his breakfast and ensure that he ate it and then would clean up after breakfast. She also attended to his medication and prepared lunch for him. She stated that she would normally return home at about 1.00 pm and for the balance of the day would look after Mr. Leonardi and their son. I have no hesitation in accepting Ms. Mineo’s evidence on these matters as truthful.

29 Ms. Mineo’s evidence, which I also accept, was that from the time of Mr. Leonardi’s first stroke he frequently acted in a violent manner. She stated that prior to his stroke, he had been a gentle man and his illness brought about a change of personality. He would become frustrated and while she was endeavouring to help him, for example, when he had become incontinent, he would snap at her and sometimes slap her, punch her or push her with a walking stick. She stated that this would happen, on average, once every two days and he would shout at her. In consequence of the various assaults she said she suffered varying degrees of physical pain which occasionally resulted in bruising. On one occasion in approximately 2000, Mr. Leonardi became angry during a conversation and punched Ms. Mineo in the face. Her nose commenced to bleed profusely and was painful. On another occasion at about the same time, he became angry and struck her in the eye which resulted in bruising lasting for approximately a week. Ms. Mineo said there were several other occasions which were too numerous to recall or to differentiate one from the other. Abuse which makes a home-maker’s role more difficult can be a factor to be taken into account when weighing the contributions of a partner to a relationship made in the capacity of home-maker or parent: Powell v. Supresencia (2003) 30 Fam. LR. 463 per Einstein, J. at [89] and authorities therein referred to.

30 In 1996, Ms. Mineo returned to work at the ANZ Bank, Strathfield on a 16 hour per week basis, the plaintiff having recovered to an extent where he could be left alone for some three to four hours each day. She says that her income since then was approximately $14,000 to $15,000 per annum from her part time employment which she used for joint family expenses including the purchase of food and clothing and for paying telephone and electricity bills. Mr. Leonardi reached the age of 65 on 9 October 1999 and from that date received the aged pension. There is very limited evidence as to the extent of his disability support pension. In Exhibit A (tab 26) a pension record dated 22 March 1996 reveals at that time that he was entitled to a net rate per fortnight of $53.80. A subsequent application for increase was unsuccessful. Accordingly, Mr. Leonardi’s income increased at a later point (in 1999) when he became entitled to the aged pension.

31 I accordingly proceed upon the basis that, subsequent to 1996, Mr. Leonardi had a limited level of pension income which would have contributed towards household expenditure. I, however, also accept Ms. Mineo’s evidence that her earnings from part-time employment were also employed towards household expenditure between 1996 and 2001.

Ms. Mineo’s investment properties at Campsie and Croydon

32 Ms. Mineo derived a rental income from her property at 24 Scott Street, Croydon of some $300 per week. She said she applied the income for family and living expenses. I will deal with rental income from the Croydon property later. Prior to owning the Croydon property, Ms. Mineo had acquired an investment property at 383A Canterbury Road, Campsie on 5 November 1990. The Campsie property originally cost her $74,000 plus costs and stamp duty. There was a mortgage of $20,000 taken from the ANZ Bank to finance the purchase. The loan on the Campsie property was discharged approximately three years later (on 29 September 1993). The Campsie property was sold on 5 December 1993 for the sum of $87,000.

Mr. Leonardi’s stroke suffered in 1997

33 In late 1997, Mr. Leonardi had a further stroke which resulted in further impairment to his speech which made it difficult for Ms. Mineo to understand him. He was only confined to Concord Hospital for a week, it having been said that he had suffered a “mini stroke”. Ms. Mineo continued to visit the plaintiff, although at this time he was said to be highly agitated. He returned home and received treatment as an outpatient at the Concord Hospital. His mobility and speech were more limited following the “mini stroke”. In 1996, medical records reveal that he had then been more independent in respect of self-care.

34 It was at about this time that Mr. Leonardi and Ms. Mineo had some home care assistance, but it appears that from that time he commenced to become somewhat agitated and, at times, act in a violent fashion. According to Ms. Mineo, he assaulted the lady who was attending the home to render home care. Ms. Mineo had to drive Mr. Leonardi to Burwood Police Station about the incident.

35 According to Ms. Mineo, Mr. Leonardi was a diabetic and this required her to prepare special foods for him. Her evidence was that after his first stroke she virtually exclusively prepared his food and was able to control his diet more effectively by doing so. According to her, the doctor stated that, having had the stroke, it was more important than ever that his diabetes be controlled and that she should ensure that he adhered to a diabetic diet. Dr. Marinucci, according to Ms. Mineo, taught her to monitor his glucose levels and after the first stroke she would do this three times a day.

36 Ms. Mineo’s case is that she was almost exclusively responsible for looking after and raising their son, Luca. She set out in her affidavit sworn 24 September 2004 the various tasks and assistance that she rendered for him over the years until the present time. I accept Ms. Mineo’s evidence on the matters referred to in paragraphs [33], [34] and [35] and as stated in this paragraph.

Mr. Leonardi’s further illness in the period 1999 to 2002

37 In 1999, according to Ms. Mineo, Mr. Leonardi suffered a third stroke and was again admitted to Concord Hospital where he underwent an operation which Ms. Mineo says was paid for by her private health insurance. She continued to work at this time as she said she needed the income to meet the necessary expenses of life. Mr. Leonardi continued to have difficulties, in particular with stability, and he had a number of falls but they were not serious until about 2000. On one occasion in 2000, Ms. Mineo said she arrived home from work to find the plaintiff lying on the bathroom floor, asleep. She took him to hospital where various tests were conducted. He was again admitted to hospital where Ms. Mineo continued to visit him on a daily basis.

38 Mr. Leonardi was subsequently admitted to Scalabrini Village at Bexley. Ms. Mineo attended to the necessary admission procedures, including the payment of an amount of $750 for the admission and, at about this time, obtained a Power of Attorney from Mr. Leonardi. Following his admission to Scalabrini Village, Ms. Mineo said she took him home every weekend until October 2002. She said she has continued to visit the plaintiff every weekend and, on occasion, twice a week and at mealtimes assisted in feeding him.

39 She stated that she has not taken him home since the long weekend in October 2002. She claims that the director at the Scalabrini Village said “we have been told by his daughter Cathy that she does not want you to take him anymore”. Since that time, Ms. Mineo said she has visited Mr. Leonardi almost every weekend and on occasions twice a week. She states that she has on occasion taken their son to see him on a weekend.

PART C: PROPERTY

Mr. Leonardi’s assets at the commencement of the relationship

40 The evidence indicates that at an early point in the relationship between the plaintiff and the defendant, Mr. Leonardi had the following assets:-

• the home at 54 Wymston Parade, Abbotsford;

• a Chrysler motor vehicle;

• a small boat;

• a Toyota Hiace van used in his work as a self-employed house painter;

• an inheritance of $150,000 which was the proceeds of a one-third share in property he had inherited from his parents on their death.

Acquisition of the residential properties

41 In relation to evidence relating to the financial affairs of Mr. Leonardi and Ms. Mineo, the records are far from complete. That has made it difficult at times to determine precisely who made what financial contributions. Complaint was made over Mr. Mineo’s alleged failure to produce financial and other records belonging to Mr. Leonardi. Several of such complaints failed to identify the classes of documents that were suggested as having once been in Mr. Leonardi’s possession and were now said to be missing. Ms. Vella made certain enquiries with the branch of the bank where he held accounts and obtained some information in response. It is to be borne in mind that as Mr. Leonardi had not worked or operated a business between 1995 and 2002 there would be a very limited number of records in existence. It was always open to the plaintiff to establish relevant details as to his accounts by issuing a subpoena to his bank. This step does not appear to have been taken.

42 A complaint was also made as to the failure of Ms. Mineo to produce records showing the extent of the savings she currently has from her earnings as a bank officer. Insofar as that is a relevant matter, it would presumably have been a matter readily established by the issue of an appropriately framed subpoena to Ms. Mineo’s bank. This, it would seem also was not done.

43 There is no basis established in evidence which would support any suggestion that Ms. Mineo has withheld or destroyed documents sought under subpoena.

(a) 54 Wymston Avenue, Abbotsford – 1984 to 1993

44 The Abbotsford home occupied by the plaintiff and the defendant until it was sold on 22 December 1993 for the price of $490,000. The evidence also establishes that Mr. Leonardi received his inheritance of $150,000 at some point after the commencement of his relationship with Ms. Mineo. He used that money for the purposes of satisfying a matrimonial settlement with his former wife.

(b) 19 Trafalgar Parade, Concord – 1993 to 1999

45 The Concord home purchased on 22 December 1993 was principally financed from the proceeds of sale received by the plaintiff from the sale of the Abbotsford home.

46 Ms. Mineo claimed that she contributed the amount of $11,969 towards the purchase. In this respect, the evidence is confined to Ms. Mineo’s affidavit (paragraph 71) and a copy of a letter written by the defendant’s former solicitors, Mattiussi & Trimarchi, written to her on the sale of her investment unit at Campsie. In the affidavit, Ms. Mineo does not actually assert that she did contribute the amount of $11,969 to the purchase of Concord. She refers to the letter of Mattiussi & Trimarchi, which records as a deduction from the purchases monies received “amount transferred by way of loan – R. Leonardi purchase file $11,969”. Ms. Mineo’s affidavit records that she has no recollection of having been repaid that amount. There is no evidence tendered on behalf of the defendant confirming the claimed contribution of $11,969. As the evidence is inconclusive, it does not provide a sufficiently safe basis for an affirmative finding that Ms. Mineo in fact made a contribution of $11,969 by way of loan which was never repaid. I accordingly proceed in dealing with the cross-claim upon that basis.

(c) 45 Wolsley Street, Haberfield – 1999 to 2001

Acquisition of the Haberfield property

47 The evidence relating to the purchase of this property is somewhat more complex. It was purchased in Mr. Leonardi’s name on 19 February 1999 for the price of $685,000. The proceeds of the sale of the Concord property amounted to $555,000. From this amount, $540,930 was apparently applied towards the purchase of Haberfield. Accordingly, the differential between the sale and purchase price of the two properties was approximately $145,000. An additional amount of money was required to meet stamp duty on the purchase, legal costs, removalists’ expenses, agent’s commission on the sale of Concord, etc. (conservatively established at about $50,000). On this basis, a total additional amount of approximately $195,000 was required to meet the shortfall arising on the sale and purchase and expenses arising from the acquisition of Haberfield.

48 The defendant, in her affidavit sworn 24 September 2004 (paragraph 75), states that there were two amounts paid from accounts held by her as follows:-

Total $145,993.66

49 These contributions were said to have come from the proceeds of sale of Ms. Mineo’s investment property in Scott Street, Croydon the year before on 2 March 1998. I will examine this contention below.

Financing of the Haberfield property – sale proceeds from Concord and Croydon properties

50 It is clear from the evidence that the purchase of the Haberfield property was primarily financed from the proceeds of sale of the Concord property as I have discussed already. The balance was sourced from the proceeds of sale on the Croydon investment property which was held in the name of Ms. Mineo. The contention made for Mr. Leonardi, however, is that, as he had earlier contributed to the purchase monies required for the Croydon property, he effectively held a beneficial interest in that property. Even if this were not so, proper account should be taken of this contribution in the assessment of the cross-claim.

51 In order to deal with this contention, I will need to analyse the facts that lay behind the acquisition of the Croydon investment property.

52 It was submitted that the court should infer from a reference in a memorandum of costs by the solicitor who acted on the original Croydon purchase to the drafting of a trust deed that the plaintiff and defendant intended that they would each take a beneficial interest in the Croydon investment property.

53 Instructions on the purchase of the Croydon investment property were taken by a solicitor of Mattiussi & Trimarchi on 4 July 1994. On that date a handwritten note was made by him:-

“Ross want to buy in trust from him in Lucia’s name (about) $60,000 to be borrowed by Lucia, therefore, trust deed”

54 Subsequent notes made by the solicitor record discussions and instructions with/from Mr. Leonardi. All correspondence, however, was addressed to Ms. Mineo. The solicitor’s memorandum of costs dated 11 August 1994 addressed to Ms. Mineo recorded details of work performed on the conveyance. It thereafter records “TO OUR PROFESSIONAL COSTS” of acting on your behalf in relation to receiving instructions, drafting, engrossing and attending to execution of Trust Deed, costs exceed $200, but say: NIL”. The covering letter addressed to Ms. Mineo and bearing the same date does not refer to a trust or the trust deed.

55 Ms. Mineo did not produce in answer to a notice to produce either the original trust deed or a copy of it and none was produced from any other source. It was submitted on behalf of Mr. Leonardi that the inference should be drawn that the Croydon investment property was intended to be shared by Mr. Leonardi and Ms. Mineo, and that an inference should be drawn that Mr. Leonardi’s interest was to have been protected pursuant to a trust deed.

56 Ms. Mineo contended that the original purchase price of $297,000 for the Croydon investment property was met from the following sources.

• The proceeds of sale of her Campsie $71,625.00
investment property

$272,249.90

57 Ms. Mineo contended that the balance of the purchase price of $297,000 (approximately $25,751) could have come from a Commonwealth Bank term deposit.

58 Mr. Leonardi disputes that funds were taken from Ms. Mineo’s term deposit and ANZ savings account. Reliance in this respect is placed upon the absence of confirmatory entries in the records relating to the deposit and account. Mr. Leonardi’s case is that there was a deficit of funds available to complete the purchase of the Croydon property in excess of $143,000. The court should infer, it was further contended, that that amount together with expenses arising on the purchase were paid by Mr. Leonardi. It was further submitted that the monies contributed by him to the purchase of the Croydon property should not be found to have been a gift by him to Ms. Mineo.

59 The evidence as to the amount contributed by Mr. Leonardi and the basis of that contribution is unsatisfactory. It establishes that the Croydon investment property purchased in 1994, was acquired at a time when there existed a good relationship between the plaintiff and defendant and suggests that the parties jointly contributed to its acquisition upon a basis that they were both to have a beneficial interest in the property, although registered only in Ms. Mineo’s name. The price of the Croydon investment property was more than three times the sale price on Ms. Mineo’s Campsie property (which was sold in December 1993 for $87,000). It is clear that Mr. Leonardi did contribute at least $100,000 to its purchase and I accept the submission for Mr. Leonardi that he in fact contributed an amount greater than that and probably somewhere between $100,000 and $143,000. Ms. Mineo contributed at least $71,625 to the purchase of Croydon and possibly as much as $90,000 and additionally over the four year period until it was sold on 3 March 1998, she repaid principal and interest payments on the original loan of $67,000.

60 Ms. Mineo said that she put the money towards the purchase of Haberfield because she believed the home was to be hers and the plaintiff’s in equal shares, despite the registration of the title to the property in Mr. Leonardi’s name. She said that she said to him, “I will put money into it because it is our family home” or words to that effect.

61 I am of the opinion that the evidence does establish that Mr. Leonardi was intended to hold a beneficial interest in Croydon equally with Ms. Mineo. On that basis, the contribution that was made from the sale of the Croydon investment property in the amount of $145,993.66 (paragraph [48] above) in fact represented the equity Mr. Leonardi had in the Croydon property and was not a contribution made by Ms. Mineo from her equity in that property.

62 Ms. Mineo’s evidence is that after the purchase of Haberfield she outlaid the amount of $5,250 (on 19 February 1999) for a bedroom suite for the plaintiff and for herself. Ms. Mineo said that at the time of the purchase of the Haberfield property the plaintiff said to her:-

“This belongs to both of us and you can live here until you die. Then the house will go to our son Luca.”

63 I have reached the following conclusions and make findings accordingly:-

(b) The payment out of the proceeds of the sale of the Croydon investment property of the total amount of $145,993.66 (see paragraph [48] above) is to be regarded as representing Mr. Leonardi’s beneficial interest in the Croydon property and that accordingly a contribution in that amount to the Haberfield property should be seen as his contribution and not as a contribution made by Ms. Mineo towards the acquisition of Haberfield.

(c) Ms. Mineo contributed the amount of $5,250 for a new bedroom suite for the Haberfield home.

(d) The balance of the sale of the Croydon property (approximately $150,000) represented Ms. Mineo’s interest in the property and that amount was reinvested by her in the acquisition of the Five Dock property (see below).

(d) Sale of Haberfield and purchase of Russell Lea

64 In 2001, it was the plaintiff, according to Ms. Mineo, who said that he wanted to sell the Haberfield home but that she was reluctant as they had settled there. The question of selling the home according to her evidence became a major source of disagreement.

65 The Haberfield property was sold on 26 July 2001 for $858,000. The new home, 60 Russell Street, Russell Lea, was purchased on 14 December 2001 for $910,000, excluding agent’s commission, stamp duty and removalists costs. Ms. Mineo said she applied the amount of $25,385.41 towards the purchase of the Russell Lea property.

66 The evidence (tender bundle, tab 13) confirms a withdrawal from Ms. Mineo’s Commonwealth Bank account no. 762145.5003411 on 13 December 2001 in the amount of $25,385.41. Although there is no documentary evidence indicating that these monies were applied towards the purchase of a bank cheque as claimed by Ms. Mineo, I accept her evidence that she did pay towards the purchase of the Russell Lea property that amount (the monies came from an account she established as a trust account for their son, Luca). However, it is not correct to say that that amount was largely built up in the trust account from her earnings. In fact, rental income from the Croydon property and some family allowance payments were deposited into the trust account. Ms. Mineo accepted in cross-examination that some deposits were made from rent monies. The account started with the amount of $7,148 which was principally generated from rental received. There was a deposit into the account on 23 November 2001 in the amount of $10,235.96. However, whether this amount related to rent or not is unclear.

67 Accordingly, given Mr. Leonardi’s contribution to the purchase of the Croydon property, the amount of $25,385, contributed largely from rental income which that property generated, should properly be regarded as a contribution by both Ms. Mineo and Mr. Leonardi to the acquisition of Russell Lea. On this basis, approximately half that amount, namely, $12,692.70 represents Ms. Mineo’s financial contribution to the purchase of Russell Lea.

68 Accordingly, for the purposes of assessing the claim under s.20(1)(a) of the Property (Relationships) Act 1984, I find that Ms. Mineo contributed the amount of $12,692 towards the acquisition of the property, 60 Russell Street, Russell Lea.

69 At the time of the purchase, the plaintiff, according to her, said words to the effect:-

“This home is yours as much as it is mine. It is ours. It is a family home for Luca and us.”

70 He added, according to Ms. Mineo “When we die, it will go to Luca.” or words to that effect. I accept Ms. Mineo’s evidence on the making of these statements. She said it was on the basis of them that she understood that the Russell Lea property was her home in equal shares with the plaintiff and that she put the money towards its acquisition.

(e) The Five Dock investment unit

71 On 27 March 2000, Ms. Mineo purchased the property at 7/20 Kings Road, Five Dock for the amount of $303,388. The purchase, according to Ms. Mineo, was financed by her by funds from the following sources:-

• a mortgage in the amount of $70,600 from the ANZ Bank.

• a deposit from her Commonwealth Bank account no. 761295.5003928 in the amount of $30,038.80.

72 Ms. Mineo still owned the Five Dock unit as at the date of the hearing of the proceedings. Exhibit 6 established that, as at 13 March 2005, an amount of $60,520.20 was owing under the home loan secured by a mortgage on the unit.

(f) The Russell Lea property – 2001 to date

(i) The circumstances leading to the acquisition of the property

73 Ms. Vella, in evidence suggested that it was Ms. Mineo who instigated the purchase of the Russell Lea property. Her evidence suggested that her father was manipulated by the defendant into buying the property and registering it in their joint names as tenants in common in equal shares. Ms. Vella inferred that she believed that Ms. Mineo engineered that situation unmeritoriously to her own advantage.

74 It is important to observe that there is no allegation or contention in the Statement of Claim charging Ms. Mineo with any form of unfair dealing, undue influence or any other form of impropriety. Paragraph 6 simply records the purchase of the property “in December 2000 subsequent to the Plaintiff suffering a number of strokes and at a time that communication with him was difficult”.

75 Any possible implication in that paragraph is not accompanied by any allegation that Ms. Mineo in any way acted improperly.

76 I reject entirely any suggestion that Ms. Mineo was manipulative or that she set out to take advantage of Mr. Leonardi. It is to be recalled that Ms. Mineo, aged only 20 years of age when she entered into the relationship with Mr. Leonardi, continued an uninterrupted relationship with him for many years and that, in times of his extreme ill-health, it was she who provided a high level of on-going care and assistance in increasingly difficult circumstances until Mr. Leonardi was finally admitted to the Scalabrini Nursing Home on 22 January 2001. Against a 17 year relationship between the plaintiff and his much younger defacto wife, the last seven years of which largely involved the demanding role of carer, I consider that it was hardly appropriate for Mr. Leonardi’s case to be conducted by Ms. Vella upon the basis of an inference or implication adverse to Ms. Mineo when no allegation of wrongful conduct was pleaded nor proved.

77 It is against this background that I approach the purchase of the Russell Lea property. There is no basis for not accepting that the plaintiff and the defendant both decided to purchase the property for their mutual advantage, Mr. Leonardi himself having had a history of buying and selling residential homes since December 1993.

78 On 20 October 2001, contracts were exchanged for the purchase of Russell Lea. On Mr. Leonardi’s instructions, the purchasers identified on the contract for sale were Ms. Mineo and himself. The purchase price for the property was $910,000 and the greater part of the purchase price for it was procured through the sale of 45 Wolsley Road, Haberfield. The purchase was, as already noted, completed on 14 December 2001. The evidence established, and I make findings accordingly, that funds applied towards the purchase of the property were made up as follows:-

• $761,155.65 from the proceeds of the sale of the Haberfield property;

• $25,385.41 jointly by Ms. Mineo and Mr. Leonardi;

79 In relation to the abovementioned funds amounting to $25,385.41 from Ms. Mineo, I have already note that that amount was withdrawn on the day before the settlement of the purchase (on 13 December 2001) and that these monies came from the CBA account held in trust for Luca accumulated from rental monies received. I have already made a finding that Ms. Mineo’s actual contribution to the purchase of Russell Lea was approximately half the amount of $25,385.41, namely, $12,692.70.

80 The solicitors who acted on the purchase of the property on behalf of the plaintiff and the defendant were Lapaine Pomare & Forster of Leichhardt. Two months following the exchange of contracts, Mr. Pomare wrote to the plaintiff’s general practitioner, Dr. N. Marinucci, of Haberfield. In a letter dated 10 December 2001, to Dr. Marinucci, Mr. Pomare advised that his firm was acting on behalf of the plaintiff and the defendant with respect of the sale of the Haberfield property and the purchase of the Russell Lea property which was due to settle on 14 December 2001. In that letter, Mr. Pomare wrote:-

“To date, Mr. R. Leonardi’s instructions were clear that he wished the purchase of the Russell Lea property to proceed in the joint names of himself and Lucia Mineo.

This morning, Rosario Leonardi provided instructions to the writer that he did not wish the property at Russell Lea to be in the joint names of himself and Lucia Mineo, however, after some discussion between himself and Lucia Mineo, he sought to confirm his instructions, that the purchase is to proceed in two names.”

81 Mr. Pomare went on to state that his firm would not continue to accept instructions unless he could be satisfied that Mr. Leonardi fully understood the situation. He went on to write:-

“… as we are not aware of the extent/nature of his medical condition, please advise if you are satisfied of the following:-

1. Does Mr. Rosario Leonardi have any medical condition which would prevent or in any way inhibit his understanding of these matters, and in providing instructions.

2. In you opinion, does Mr. Leonardi understand that from the sale proceeds of his property at Haberfield, the purchase of the property at Russell Lea will be in two names, namely, one-half share in the name of Rosario Leonardi, and one-half share in the name of Lucia Mineo, as tenants in common.”

If you are not able to confirm these matters, then we shall refer Mr. Rosario Leonardi and Ms. Lucia Mineo, to independent solicitors to separately confirm their instructions.

Please feel free to contact the writer should you wish to discuss the matter in any way.”

82 On the same day, 10 December 2001, Dr. Marinucci produced a handwritten report which he addressed to Lapaine Pomare & Forster stating:-

“Dear Sirs

re: Rosario Leonardi

1. Mr. R. Leonardi has suffered from strokes in the past which, at present, does not prevent him from understanding matters about the sale of his home.

2. He understands that the purchase of property at Russell Lea will be under joint names.

Yours sincerely”

83 I note from the clinical records of Concord Hospital an entry also dated 10 December 2001 which reads as follows:-

“Called to home.

Mental test … shows that he has enough cognitive function to decide about the sale of home and to put it under joint names.”

84 On 17 December 2001, Mr. Pomare wrote to the plaintiff and the defendant confirming that settlement of the purchase of the Russell Lea property had taken place on 14 December 2001. A settlement sheet was enclosed with that letter. The letter records that the purchase monies were provided in the sum of $761,155.65 from the sale of the Haberfield property and that the balance was advanced by the plaintiff and the defendant in the amount of $64,385.41.

(ii) Registration of the title of Russell Lea in the plaintiff’s and defendant’s names

85 On 16 January 2002, Mr. Pomare wrote to the plaintiff and the defendant advising that they had received the title deed from the Land Titles Office for the Russell Lea property, the original of which had been placed for safe keeping in the firm’s safe.

86 I note from the medical records included in Exhibit A (Tab 25), that the premises at Russell Lea were assessed four days after settlement on 18 December 2001 by Wesley Home Modification & Maintenance Services. The referral form suggested certain modifications considered necessary having regard to the plaintiff’s disabilities. This is to a point confirmatory that Ms. Mineo was contemplating necessary modifications having regard to the plaintiff’s perceived requirements.

87 A review of the clinical notes and associated records held by Concord Hospital indicate between the date of settlement of the Russell Lea property and early 2002 Mr. Leonardi attended from time to time for medical assessment including in particular a degree of bladder obstruction. Those records indicate that on 18 January 2002, the hospital was contacted by Ms. Mineo and the plaintiff was admitted on that day to the emergency department of the hospital. The admission form records the presenting problem as “increasing weakness”. The discharge date is shown as 15 February 2002.

88 During the period of his admission, the plaintiff was assessed. It was observed that there were restrictions on his mobility, the presence of instability and “power of attorney issue was raised as patient has severe cognitive impairment. Patient’s wife saw hospital solicitor on 14/2”. The entry on 18 January 2002 indicated that there had been a gradual deterioration in the past week according to Ms. Mineo. Specific symptoms included an increase in speech disability and an increase in right-sided hemiparesis causing an increase in the number of falls. An entry on 21 January 2002 records deterioration and observes:-

“… in any case, wife is

not

coping at home well prior to recent deterioration ….

Needs placement.”

89 Finally, the notes of 22 January 2002 record that Ms. Mineo had made enquiries with Scalabrini Village and felt that that was the best option and noted that she felt she could no longer care for the plaintiff at home, she being in employment and concerned about him coping alone at home whilst she attended work. There is, accordingly, medical confirmation that, whilst Ms. Mineo was looking to make home modifications after the purchase of Russell Lea to accommodate Mr. Leonardi’s disabilities, clinical assessment of him in January 2002 confirmed a deterioration in his physical and mental condition.

90 Ms. Mineo says that the only available inference from this evidence is that Mr. Leonardi knowingly intended, when purchasing the Russell Lea property, that she should take a half share beneficial interest in the Russell Lea property. In this respect, Ms. Mineo also relies upon the history of the relationship which had existed, at the time of the purchase of the Russell Lea property, over some 17 years (including the birth of their son) and the expectations she developed based upon statements made by Mr. Leonardi whereby she understood that he intended her to take an interest in the property.

91 It is appropriate at this point to observe that at an earlier time, on 16 May 1999, Mr. Leonardi made a Will in which he left the property in which they were then residing, the Haberfield property, to Ms. Mineo for life and, upon her death, to their son, Luca, for his own use and benefit absolutely upon his attaining the age of 21 years. Ms. Mineo relies upon the making of this Will and the failure of Mr. Leonardi to revoke it to meet the contention made on behalf of Mr. Leonardi that their relationship had deteriorated before or by 1999 and had continued to deteriorate thereafter.

PART D: MS. MINEO’S INTEREST
IN THE RUSSELL LEA PROPERTY

Mr. Leonardi’s claim of a resulting trust and alternatively a constructive trust

92 In his statement of claim filed on 16 August 2004, the plaintiff claims a declaration that Ms. Mineo holds her interest in the Russell Lea property on trust for Mr. Leonardi.

93 In the written Amended Overview Submissions and in the Amended Submissions on Evidence on behalf of the plaintiff, it is contended that the facts proved in evidence support a presumption of a resulting trust in his favour of the share in the property 60 Russell Street, Russell Lea registered in Ms. Mineo’s name. I will shortly deal with this contention. Before doing so, however, I will say something on the question of a constructive trust.

94 In the Amended Overview Submissions, there is a brief submission (paragraph 2) contending that if there was no resulting trust in favour of the plaintiff, then Ms. Mineo’s registered share should be found to be held on a constructive trust for the benefit of the plaintiff. A very brief oral submission to that effect was also made. The principles concerning constructive trusts in Muschinski v. Dodds (1985) 160 CLR 583 at 589-590 and Baumgartner v. Baumgartner (1987) 164 CLR 137 at 148-149 were relied upon in support of the submission. Limited written submissions were directed to the issue of a constructive trust (paragraphs 156 to 159).

(a) The issue of a constructive trust

95 The Baumgartner constructive trust proposition or contention was unsupported by detailed analysis or argument. Accordingly, there were no submissions made as to the nature of the contributions that are required to be examined in the case of a constructive trust. Additionally, the contention faces the difficulty of identifying relevant unconscientious conduct on Ms. Mineo’s part. On the question of contributions, Campbell, J. in West v. Mead [2003] NSWSC 161 observed, that in relation to one equitable principle inherent in the reasoning of the majority in Baumgartner - that the beneficial title to an asset ought be proportionate to the contributions made to its purchase price - one way in which the principle has been transmuted in this area of the law of constructive trusts has been to extend the notion of contributions “so that non-monetary contributions are taken into account”, citing what was said on this aspect in Baumgartner at 149. The inclusion of non-financial contributions Campbell, J. observed can raise difficulty in the application of the equitable principle.

96 In relation to the Baumgartner constructive trust, the following points may be briefly noted:-

(a) The general equitable principle underpinning the constructive trust doctrine applies to restore to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them: Atwood v. Maude (1868) LR 3 Ch. App. 369 at 374-375 and Lyon v. Tweedle (1881) 17 Ch. D. 529 at 531 per Jessel, MR.

(b) The relationship in question in the present case is to be properly characterised, as was the case in Baumgartner (supra), as a family relationship which was a long-term and stable one in which the topic of marriage at a mid-point of time in the relationship was under contemplation and discussion.

(c) Whilst there was no pooling of earnings by Mr. Leonardi and Ms. Mineo in the earlier period of their relationship between October 1984 and 1995, I accept the evidence of Ms. Mineo that from 1995 she did in fact contribute from her earnings to the family relationship for its mutual security and benefit.

(d) The Russell Lea property was acquired in the context and for the purposes of their family relationship. Such financial contributions as were made by Ms. Mineo towards items such as furniture and accommodation or living expenses enhanced the security of the parties whilst living, in particular, at the Haberfield home, the proceeds of sale of which, in due course, went towards the purchase of the Russell Lea property.

Baumgartner

premature termination

“… to decide whether this has happened, one must look at what the intention of the parties was, about how long their relationship would endure …”

West v. Mead

(f) The relationship in question was not terminated by Ms. Mineo nor did it arise by or through her conduct towards the plaintiff. It arose from circumstances beyond her control and beyond Mr. Leonardi’s control due to his illness. She remained loyal and supportive of Mr. Leonardi through very difficult times over several years. Given their substantial age difference and the Mr. Leonardi’s age at the time that it became necessary for him to be admitted into the Scalabrini Retirement Village, it is, I believe, both artificial and inaccurate to speak in their case in terms of a premature termination of the relationship , as that expression is employed in the constructive trust context.

(i) Mr. Leonardi, at an earlier stage of the relationship, contributed to or reinforced the expectation of marriage;

(ii) the fact that Ms. Mineo bore him a child at a late stage in his life; and

(iii) the fact that he, in May 1999, reflected in the Will then executed by him a not unexpected sense of obligation towards Ms. Mineo (in terms of an intention to confer upon her on his death a beneficial interest in the matrimonial home),

it is, in my opinion, difficult, if not impossible, to see in the circumstances of the present case any scope for the operation or application to Ms. Mineo of the concept of unconscionable or unconscientious conduct that underlies or underpins fundamental equitable concepts and doctrines, including, in particular, those inherent in the constructive trust doctrine.

97 I am of the opinion that the plaintiff has not established a constructive trust of the interest asserted.

(b) The resulting trust claim

98 I will now turn to examine as concisely as possible the essential aspects and principles relating to the plaintiff’s claim of a resulting trust.

99 In relation to the presumptions which may apply in determining who holds the beneficial interest in land, these include a presumption that prima facie the beneficial ownership and property is commensurate with legal title: Calverley v. Green (1984) 155 CLR 242 at 267 at Currie v. Hamilton (1984) 1 NSWLR 687 at 690 per McLelland, J. In some circumstances, however, this presumption will be displaced by a presumption of a resulting trust.

100 In Black Uhlans Inc. v. New South Wales Crime Commission [2002] NSWSC 1060, Campbell, J. referred to three different types of factual situations where a presumption of a resulting trust can operate (at [127]). One such situation occurs where one person provides the purchase price of property, which is conveyed into the name of another person. Campbell, J. adverted to the observation in Bogert, The Law of Trusts and Trustees, revised 2nd edition, 1991 at 244-246 wherein, in explaining the origin of a resulting trust arising from payment of the purchase price for property it was said:-

“This trust has been called ‘resulting on the theory that it results or arises from the peculiar facts about payment and the form of the conveyance’.”

101 Reference is also made to Bogert, op cit, at 249 in relation to the juristic nature of this type of trust:-

“This resulting trust depends for its existence on the actual intent of the creator, expressed in acts other than writing or the spoken word. The conduct of the payor with reference to the price and deed lead this court to infer an intent to have a trust for himself.”

102 A court in determining with what intention a person (in this case Mr. Leonardi) purchased a property in another’s name, will look to evidence of admissions and to acts or declarations of the parties before or at the time of the purchase on so immediately thereafter as to constitute part of the transaction: see Charles Marshall v. Grimsley (1956) 95 CLR 353 at 365.

103 It is necessary to say something as to the evidential material in terms both as to that which could have been adduced and that which was adduced on the question of the intention of the parties, in particular of Mr. Leonardi, in relation to the contention of the presumption of a resulting trust based upon his payment of most of the purchase price of the Russell Lea property. (I will deal later with the fact that Ms. Mineo, on my findings, contributed $12,692.70 to the purchase of Russell Lea.) Evidence of a sole purchaser’s own state of mind at the time of the purchase can be received from him when the court is seeking to ascertain his intention: Martin v. Martin (1959) 110 CLR at 304-305; Calverley (supra) at 261. In brief:-

• Mr. Leonardi and Ms. Mineo are the registered proprietors of the property as tenants in common in equal shares.

• As earlier stated, prima facie beneficial title is commensurate with the legal title : Currie (supra) at 690F per McClelland, J.

• The greater part of the purchase price for the Russell Lea property was obtained through the sale of Mr. Leonardi’s property, 45 Wolsley Street, Haberfield.

• Ms. Mineo did contribute the amount of $12,692.70 towards the purchase price of $910,000.

• Mr. Leonardi, upon principles discussed below, accordingly appears to have the benefit of a rebuttable presumption to the effect that he and Ms. Mineo should take the beneficial interest in the Russell Lea property in proportion to their respective contributions. As Mr. Leonardi and Ms. Mineo are not married, no presumption of advancement arises: Calverley (supra); Currie v. Hamilton (supra) at 690F-G per McClelland, J.

The matters relevant to the resulting trust claim

104 Ms. Mineo relies upon evidence as to Mr. Leonardi’s intention that the Russell Lea property was purchased upon the basis that she should take a beneficial interest commensurate with her legal title. Reliance in this respect is placed upon the following:-

(a) when the Russell Lea property was purchased, Mr. Leonardi following discussion between them specifically chose to put the property in their joint names.

(b) Mr. Leonardi had previously owned two properties (Concord and Haberfield) each of which he had purchased in his own name.

“To date, Mr. Leonardi’s instructions were clear that he wished the purchase of the Russell Lea property to proceed in the joint names of himself and Lucia Mineo.”

• On the basis of these facts, it is contended that Mr. Leonardi knowingly intended, when purchasing the Russell Lea property, that Ms. Mineo take a half share in the beneficial interest in it.

• Reliance is also placed upon the lengthy relationship, the fact they had a child together and Mr. Leonardi’s attachment to their son.

• The circumstances in which Ms. Mineo had continued to render care and support to Mr. Leonardi during his declining state of health and increasing disability up to the time of purchase would confirm that Mr. Leonardi’s claimed intention was consistent with a wish on his part to confer a benefit on Ms. Mineo (and, indirectly his son) by conferring a half interest to her in the property.

• The Will made on 16 May 1999 in which Mr. Leonardi gave the Haberfield property where he and Ms. Mineo were residing to Ms. Mineo for life and on her death to their son for his own use and benefit absolutely upon his attaining the age of 21 years and the failure up to the time of purchase to revoke his Will tells against a deterioration in the relationship by and after 1999.

“This home is yours as much as it mine. It is ours. It is a family home for Luca and us”

105 The evidence bearing upon Mr. Leonardi’s actual intentions and which I take into account includes the following:-

(a) Instructions were given by Mr. Leonardi for the property at Russell Lea to be purchased in both names.

(b) The letter from Mr. Leonardi’s solicitor to Dr. Marinucci dated 10 December 2001 (see text of the letter set out in paragraph [104(c)]).

(c) The specific inquiry that was made to ensure, from a capacity point of view, that Mr. Leonardi had the cognitive function to make the decision to acquire the property in both names. His capacity in that respect was confirmed on 10 December 2001 (hospital notes, p.289(i)).

106 In evaluating Mr. Leonardi’s final decision to purchase Russell Lea in joint names, it is not an irrelevant circumstance in assessing the strength of the evidence as to whether he intended Ms. Mineo to enjoy a beneficial interest in the property, that at that time he had a very young son (then aged six years) and had continued to enjoy what was a lengthy relationship with Ms. Mineo, who by October/December 2001 had been his sole carer for some years in a period during which his need for support was increasing.

107 It is also not, I consider, wholly irrelevant in assessing the evidence bearing on the likely intention of Mr. Leonardi to have some regard to his intention at an earlier time as conveyed in his Will made on 16 May 1999 in which he left the Haberfield property to Ms. Mineo for life and on, her death, to their son, Luca, in circumstances where that Will, up to the time of purchase, remained unrevoked. Whilst a court must be cautious in having regard to a will-maker’s intention in relation to the circumstances of purchase some two and a half years later, it constitutes a piece of information to be taken into account in assessing the evidence overall. There is something to be said in favour of the proposition that a person in a long-term defacto relationship who intended his partner and son to benefit under his Will may later, during his lifetime, wish to confer a beneficial interest in the property in the expectation that Ms. Mineo would then leave that property to their son.

108 As noted above, Ms. Mineo’s evidence, which I accept, was that Mr. Leonardi said words to her to the effect:-

“This home is yours as much as it is mine. It is ours. It is a family home for Luca and us.”

109 In context of the relationship, this constitutes some, albeit limited, evidence of intention. The plaintiff’s submission is that these words are no more than an indication of who would be living in Russell Lea. I disagree. The plaintiff relied upon dicta of Barrett, J. in Singh v. Singh [2004] NSWSC 109 at [15] wherein it was observed:-

“An intention that a property be bought as ‘a family home’ says nothing about intention as to ownership as distinct from use.”

110 I do not consider, however, that the words attributed to Mr. Leonardi as quoted above are to be taken out of their context. The relevant context includes the fact that the very question of Mr. Leonardi’s “decision” to place the property in both names and the confirmation by his solicitor and medical practitioner that he understood what he was doing and had the capacity to make the decision is relevant to understanding the import of the statement which Ms. Mineo attributed to him.

111 I have also taken into account the submission that Mr. Leonardi was not well enough to provide instructions for preparing evidence in the proceedings. The lack of medical evidence confirming that he was unable to do so represents an omission that cannot be wholly glossed over by Ms. Vella’s evidence to that effect. However, be that as it may, I have, as earlier stated, sought to exercise caution in accepting Ms. Mineo’s account of any statements which she attributed to Mr. Leonardi. Notwithstanding the attack made upon her credit and the fact that there were some inconsistencies in her evidence, I have formed the opinion that she is fundamentally a witness of truth. It would have been quite easy for Ms. Mineo to have given evidence of much more extravagant statements by Mr. Leonardi if she was intent on misleading the court. This she did not do.

112 I am of the opinion that the evidence bearing upon the intention of Mr. Leonardi as at the date of purchase of Russell Lea (14 December 2001) to which I have referred rebuts the presumption of the resulting trust asserted in relation to Ms. Mineo’s legal interest in the property.

113 There was no separate submission put (on the basis that a finding was made that Ms. Mineo contributed financially to the purchase of Russell Lea) based on the equitable presumption that operates when there are unequal contributors to the purchase price of a property and who are not spouses and who take a conveyance for themselves as tenants in common in equal shares. The presumption can be rebutted or qualified by evidence of a contrary intention common to the contributions to the purchase price. However, the findings I have made as to Mr. Leonardi’s actual intention would equally apply to displace or rebut such a presumption.

PART E: THE CROSS CLAIM

The statutory power to adjust interests in property under the Property (Relationships) Act 1984 (NSW)

(a) The relevant provisions

114 Before examining the relevant facts and merits of the claim, it is important to identify the relevant provisions and the principles that govern the application of the Act to a claim made by a party to what is defined in the Act (s.5) as a “domestic relationship”. In broad terms, s.20 of the Act vests power in the court with respect to the possible adjustment of interests with respect to property of the parties to such a relationship.

115 In Part 3 of the Act, “Proceedings for financial adjustment”, s.14, “Applications for orders under this Part”, provides-

“Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both.”

116 “Property” is defined in s.3(1), unless the context or subject matter otherwise indicates or requires, as follows:-

“Property

, in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property.”

117 Section 20(1) is a key provision in the Act. It provides:-

“20(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:

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

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

(i) a child of the parties,

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

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

118 I note at this point that the language of s.20(1)(a) requires the contributions of both of the defacto partners to be taken into account. As Campbell, J. in Sullman v. Sullman [2002] NSWSC 169 at [246] explained, this is because the legislature had quite deliberately used the plural, “of the defacto partners”. Campbell, J. also there observed that it is the property of both partners and the financial resources of both partners, which need to be taken into account. His Honour then observed:-

“… however, to qualify under paragraph (a), it is not any contribution which is made by a partner in the context of the defacto relationship which counts. It must be a contribution with a particular purpose or effect, such that it can properly be described as a contribution ‘to the acquisition, conservation or improvement of …’ property.”

119 I have, as discussed later, brought into account all property owned by both Mr. Leonardi and Ms. Mineo in determining ultimately whether and, if so, how any interest they have in the principal asset, the Russell Lea property, should be adjusted.

120 The expression “financial resources” in paragraph (a) is defined in s.3(1) of the Act in relation to parties to a domestic relationship, or either of them, to include:-

“(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties to the relationship or either of them,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

121 Section 20(1)(a) then is directed to financial and non-financial contributions to the acquisition, conservation or improvement of the property of the parties or either of them or to their financial resources. Section 20(1)(b) is substantially concerned with contributions to the welfare of the other party or of the family constituted by the parties.

(b) General principles

122 On an application to adjust interests with respect to property, the power of the court is not at large. The court is empowered to make such order adjusting the interests of the parties in the property “as to it seems just and equitable”, not as a general proposition, but by reference to the financial and non-financial contributions described in s.20(1)(a) and the contributions described in (b) of that section.

123 In giving effect to the social judgment embodied in s.20, the following matters, at least, require consideration (see Wallace v. Stanford (1995) 37 NSWLR 1 per Mahoney, JA. at 14.):-

(a) what have been the contributions of each party?

(b) what is the balance between those contributions?

124 In a normal domestic relationship where the man goes to work to derive income, the contribution of one partner is not to be treated as inherently the greater: per Mahoney, JA. at 14. The question will arise as to how to measure one against the other, the contribution of a wage earner and a homemaker: Powell v. Supresencia (2003) 30 Fam. LR 463 at [14].

125 The home-maker contribution should be valued whether or not one can trace a connection with particular assets or demonstrate that the home-maker contribution represented an indirect contribution to the asset accrued or preserved in the course of the parties’ “cohabitation”: Powell (supra).

126 Once the task of identification and valuation is complete, the court is required to consider whether it should adjust the interests of the parties in the property in such manner as to it considers just and equitable, having regard to:-

• The contributions identified in s. s.20(1)(a) and (b).

Dwyer v. Kaljo

Evans v. Marmont

127 In relation to the second of these two points, a relevant question will be whether the contributions of the cross-claimant, Ms. Mineo, have already been sufficiently compensated by Mr. Leonardi. In addition, the needs and means of the parties will have general relevance as subsidiary factors to the question of what is just and equitable, having regard to the plaintiff’s contributions. Without being exhaustive, Hodgson, J. in Dwyer (supra) at 793 stated that other relevant subsidiary factors may include matters such as:-

(a) the length of the relationship;

(b) any promise or expectations of marriage;

128 In Evans v. Marmont (supra), Gleeson, CJ. and McLelland, CJ. in Eq. agreed (at p.75) with these observations, stating that it would be unrealistic to attempt to evaluate contributions of the kind referred to in s.20(1)(a) and (b) for the purpose of determining what is just and equitable, having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole. I will later refer to each of the matters (a), (b) and (c) above, insofar as they are relevant to the issues to be determined between the cross-claimant and the cross-defendant.

129 In ascertaining the contributions under s.20, it is now settled law that the court should have regard to contributions of the nature described in s.20(1) which were made before the commencement of the defacto relationship: see MacDonald v. Stelzer (2000) 27 Fam. LR 304; Jones v. Grech (2001) 27 Fam. LR 711 at [24]-[26] per Davies, AJA. and at [76]-[83] per Ipp, AJA; Matheson v. Wallis (2001) 48 Fam. LR 290 (McLaughlin, M. at [56]).

130 The Court must ascertain what the property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made.

131 Reference in the Act to “adjustment” of property interests does not convey an invitation to engage in an unbounded exercise in distributive justice: per Gleeson, CJ. and McLelland, CJ. in Eq. observed in Evans at 79. As their Honours also observed in that case, considerations of fault are not mentioned and there is no reference to means and needs of the kind referred to in the Family Law Act. Accordingly, the reference by Hodgson, J. in Dwyer v. Kaljo (supra) to the needs and means of the parties has to be read with this in mind.

132 It is clear from the authorities to which reference has already been made that the constraining effect of s.20(1) is important in what the court may find to be “just and equitable” in adjusting the interests of the partners to the relationship. In other words, what is just and equitable is not determined at large but will depend upon, or at least be influenced by, the considerations to which the court may have regard in making such a determination: Wallace v. Stanford (supra) at 9 per Mahoney, JA. The considerations in this context are the “contributions” of the parties and the balance between them – not merely to financial and non-financial contributions, but to the more general contributions referred to in s.20(1)(b):-

“It is those contributions and their contribution to the property or financial resources of the parties and to their welfare to which consideration is limited. It is upon this basis that the court is to determine what is just and equitable in the particular case.”

Wallace

(c) Measuring the contributions

133 In the ordinary domestic relationship, the wage earner conventionally provides the material contribution towards the necessities of life of the family unit. A woman who is full-time carer makes a contribution which is not necessarily greater than that of the contribution made by the wage earner. In the consideration and evaluation of applications under the Act, the question arises as how one measures one form of contribution against the other, the contribution of a wage earner and a home maker. The legislation chooses a remedy based on “contributions” as specified in the Act. The property of one is to be “adjusted” to the extent and only to the extent warranted by (the balance of) their respective contributions: Wallace v. Standford (supra) at p.15.

(d) Applying the statutory power for adjustment of interests with respect to property

134 In this matter, Ms. Mineo has standing to apply for an order for relief. This is so by reason of the long defacto relationship that existed between her and Mr. Leonardi and her contributions which include contributions she made and as specified within s.20(1)(b)

135 Adjustment of property on an application under the Act is not automatic: Green v. Robinson (1995) 36 NSWLR 96 at 115 per Cole, J. The key questions are whether and, if so, what order should be made in the applicant’s favour, being an order that seems to the court just and equitable, having regard to the contributions in s.20(1)(a) and (b).

136 In this latter respect, I note that s.17(2) instances one circumstance in which a “serious injustice” to an applicant would occur. This is the case where, absent an order adjusting property interests, a partner would not be adequately compensated for the contributions which he or she has brought to the defacto relationship: see Green v. Robinson (supra) at 115.

137 A court, however, does not commence with a presumption that, upon cessation of a defacto relationship, s.20(1) is intended to produce the result that each party will emerge with equality of property value: see by analogy Mallet v. Mallet (1984) 156 CLR 605 at 625 and with respect to s.20(1) of the Act, Green v. Robinson (supra) at 114, per Cole, JA. As Clarke, JA. said in Black v. Black (1991) 15 Fam. LR 109 at 113, a court is not entitled to work on any preconceived notions or adopt any formula as a starting point.

138 The starting point in the determination of an application under s.20(1) is then the property of the parties at the date of the application for an adjustment: Green v. Robinson (supra) at 114 per Cole, JA. In determining an application under s.20 of the Act, it is necessary for the court to identify and value their property and financial resources: Green v. Robinson (supra) at 108 per Powell, JA.

139 In considering the exercise of the discretion required by s.20(1), the court may, as appropriate, have regard either to the assets of the parties considered globally or individually. It is not an error of principle to adopt one approach or the other: Green v. Robinson (supra) at 115.

140 The contribution of a wife or defacto wife as home-maker and parent is not to be recognised in a token way but in a substantial way: see by way of analogy Mallet (supra) at 609 per Gibbs, CJ. See also Black v. Black (1991) 15 Fam. LR 109 per Clarke JA. at 117. Clarke JA. in Black observed that a domestic servant is neither a home-maker not a parent. He stated that no doubt a home-maker may perform domestic services “but her contribution to the family unit will usually be infinitely greater than that”.

141 In Green v. Robinson (supra), Cole, JA. examined the definition of “homemaker” in the context of the Act: -

“The Macquarie Dictionary gives its meaning:-

1. A person who manages a household and his chief occupation is domestic work, as opposed to breadwinner.

2. One who creates and maintains a comfortable and welcoming ambience for the members of their household.”

142 Cole, JA. preferred the second definition and concluded (at 119):-

“The concept of ‘homemaker’ or ‘making of a home’ has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability.”

143 Cole, JA. also stated (at 120):-

“However, I do not think such money making capacity is included in the expression ‘homemaker’ where used in s.20(1)(b) because that aspect of the direct or indirect contribution by either defacto partner to the financial resources or property of the partners is addressed in s.20(1)(a).”

144 In Powell v. Supresencia (supra), Einstein, J. (at [89]) stated that in light of the above definitions, the following matters may be appropriate considerations for the balancing exercise, although the list was not exhaustive:-

• The role of caring for children (emotionally, developmentally and in terms of attending to the day-to-day needs of the children).

• The care and companionship given to a spouse/defacto.

• The domestic work undertaken and the time devoted to such tasks (for example, whether the domestic work and family responsibility amounts to a full-time role).

• The nature of the domestic work undertaken (does the work undertaken substantially free up the time of the other partner to enable he or she to pursue their career or personal interests?).

• The adaptation of the role of the homemaker in light of changes in circumstances within the family unit (for example, one party caring for the other following ill health).

• Making aesthetic improvements to the home for the benefit of the happiness/comfort of the family.

• The efforts of the other party to these homemaker tasks.

• The sacrifices made by the homemaker to the benefit of the household and the family (for example, foregoing of a career; foregoing the opportunity to study or undertake training, foregoing the chance to earn a living and/or acquire property).

145 In the present case it is plain that certain of these points do have particular significance. In particular they include:-

(a) The role of Ms. Mineo as parent in caring for Luca in the sense indicated above and the fact that that role was largely performed by her in attending to his day-to-day needs.

(b) The care and companionship which Ms. Mineo provided to Mr. Leonardi. It is not to be overlooked that at the time of their first meeting, Mr. Leonardi’s marriage had failed, that he was then 50 years of age and Ms. Mineo was 20 years of age.

(c) The domestic work was largely undertaken by Ms. Mineo during the 17 year relationship.

(d) Ms. Mineo’s role changed and increased from being merely that of homemaker in the sense discussed above to that of primary carer of r. Leonardi during the period of his increasing illness and disability between 1995 and 2001.

146 Finally, it has not infrequently been observed that it is difficult to approach with any degree of precision the exercise of the discretion which s.20 requires. Mathematical precision will not be possible nor is it called for by the Act. However, that said, in the evaluation, it is important to give full and proper value to contributions of the kind referred to in s.20(1)(b): Powell v. Supresencia (supra) at [19], as well as take into account the financial contribution specified in s.20(1)(a)

Findings and conclusions

147 The evidence establishes that in the period between October 1984 and late 1995, Mr. Leonardi contributed to the financial resources of the relationship by providing a matrimonial home (initially Abbotsford, then Concord, then Haberfield and Russell Lea). He also contributed through his earnings as a domestic painter in the years until he retired in 1995.

148 Accordingly, on the findings which I have earlier made concerning the acquisition of the Russell Lea property, Mr. Leonardi contributed approximately $897,308 whilst Ms. Mineo contributed approximately $12,692 (see paragraph [79]).

149 Mr. Leonardi’s personal assets included a motor car of little value and other personal effects (eg., furniture) the value of which is not established by the evidence but is not likely to be great.

150 Mr. Leonardi contributed to household expenditure and personal requirements from his earnings as a house painter between 1984 and 1995 but the evidence fails to disclose the extent of such contributions.

151 Apart from the financial contribution made to the acquisition of the Russell Lea property (in the amount of $12,692), Ms. Mineo also acquired successive investment properties and made contributions from her earnings towards household expenditure and personal expenditure between 1984 and 1995 (just prior to the birth of Luca) and on an increased basis between 1996 and 2001. In Sullman v. Sullman (supra), Campbell, J. observed that for one defacto partner to pay for housekeeping expenses is a contribution which falls within s.20(1)(b), even if the payment of those housekeeping expenses does not enable the acquisition, conservation or improvement of any item of property (at [250]). It was also there pointed out that in that circumstance the question would then arise as to why the making of such a contribution made it “just and equitable” to adjust property interests.

152 There is no evidence which enables a quantification of the value of Ms. Mineo’s contributions to household expenditure. However, they, to a quite significant extent, offset the financial contributions towards household expenditure and personal needs made by Mr. Leonardi up to 1995 from his earnings as a painter.

153 The evidence supports the conclusion that Mr. Leonardi did not make substantial contributions in the capacity of homemaker or parent within the meaning of s.20(1)(b). That is not to say that he has not been interested and emotionally attached to his son. The domestic work was almost entirely performed over the years by Ms. Mineo. Additionally, the care and welfare of Luca was also almost exclusively undertaken by her.

154 From the above findings, it is clear that Ms. Mineo’s contributions as homemaker and parent in terms of s.20(1)(b) were substantial in the 10 year period 1984 to 1995. Such contributions by her continued and increased in the six plus years between 1995 and December 2001.

155 The evidence and findings as to Ms. Mineo’s contributions indicate that there must be an adjustment made to the interests of the plaintiff and the defendant in the Russell Lea property. In exercising the discretionary power under s.20, Mr. Leonardi’s substantial financial contribution to the acquisition of the property must also be given proper weight. This is essential to the balancing exercise which the Act requires.

156 I have referred earlier to the authorities that deal with the question of measuring and evaluating the contribution of a wage earner and the contributions of a homemaker and the need to ensure that full and proper value is given to the contributions of the kind referred to in s.20(1)(b) of the Act. Whilst Mr. Leonardi’s financial contributions outweighed the financial contributions made by Ms. Mineo, her welfare contributions as homemaker and carer, that is, her non-financial contributions, significantly outweighed those of Mr. Leonardi, which, on the evidence, were slight.

157 In making the evaluation, I specifically have regard to those factors which I have identified in paragraph [144]. In Evans v. Marmont (supra), Gleeson, CJ. and McLelland, CJ. in Eq. in their joint judgment stated that it could not be suggested that it was appropriate to value the contributions of a homemaker or parent by reference to wage levels applicable to a domestic servant or any other commercial provider of corresponding services or benefits and that it was established that it was important to give full and proper value to contributions of the kind referred to in s.20(1)(b): see also Sullman v. Sullman (supra) per Campbell, J. at [243].

Post-termination residence/contributions

158 Ms. Mineo and her son Luca and a male companion of Ms. Mineo’s have continued to reside at the Russell Lea property since Mr. Leonardi went into the Scalabrini Village Nursing Home. A submission was made on behalf of the plaintiff/cross-defendant that, as the cross-claimant has had exclusive occupation of the property, this should be taken into consideration. Reliance was placed upon dicta of Campbell, J. in Sullman v. Sullman [2002] NSWSC 169 at [348] and [349] and Magera v. Macintosh [2005] NSWSC 314 at [48].

159 The particular circumstances in this case, however, need to be brought into account in considering the submission. The fact is that Ms. Mineo does not have exclusive personal occupation, but rather has continued to use the property as a home for herself as well as for her son, Luca. Additionally, the reason for Mr. Leonardi not occupying the property is wholly due to his ill health, given that he cannot live independently and requires ongoing support and care. A further factor to take into account is that the occupancy of the home provides the context in which Ms. Mineo continues to actually provide care and support for the child of the relationship with Mr. Leonardi and she has, at least in a limited sense, continued to maintain the property. I accordingly to do not consider that it is appropriate to regard the post-termination occupation as a factor which should be taken into account in assessing Mr. Leonardi’s contributions to the relationship. I am equally of the opinion that there should be no deduction or adjustment for the asserted value of notional rent for the property in respect of the post-termination occupation as contended for in the cross-defendant’s written submissions.

160 Recently, in Howlett v. Neilson [2005] NSWCA 149, Hodgson, JA. (Ipp and McColl, JJ. agreeing), confirmed the principled approach to the exercise of the jurisdiction under s.20 of the Act as involving three steps:-

(a) identification and valuation of the property of both parties;

(b) identification and valuation of the respective contributions of the parties, of the types referred to in s.20;

161 In the course of his analysis in that case, Hodgson, J. (at [30]) dealt with the question of the contributions of the parties in terms of both the “initial contributions” made by each of the parties to the relationship at the outset of it and to the contributions that are made by both partners during the period of their cohabitation.

162 Hodgson, J. (at [37]) stated that even if the parties to a relationship are not necessarily entitled to a return of their initial contributions, these contributions should be identified and evaluated. Accordingly, it is necessary, not only to identify but also, as appropriate, to reflect the original contribution in some measure in the ultimate order which the court is required to make under s.20 of the Act.

163 In the present case, Mr. Leonardi brought to the relationship the home at 54 Wymston Parade, Abbotsford as from 8 October 1984. The evidence does not disclose what the value of the property was at that time. As noted earlier, the Abbotsford home was sold on 22 December 1993 for the price of $490,000. The value of the property increased over the period of nine years of occupation by Mr. Leonardi and Ms. Mineo in accordance with market forces which, of course, included the property boom, in particular in Sydney house prices, in the late 1980s. In order to make allowance for Mr. Leonardi’s initial contribution relative to the value of the Abbotsford home as at October 1984, I take the property at that time as valued between $200,000 and $225,000. The plaintiff’s submissions suggest that the initial contribution should be taken as $250,000 but there was no evidence led to substantiate that amount or any particular amount.

164 In seeking to determine what is just and equitable, I am required to evaluate the contributions referred to in s.20(1)(a) and (b) as earlier discussed in a context that is relevant to the particular relationship and having regard to the particular matters that are germane by reason of that context: Powell v. Supresencia (supra) per Einstein, J. at [83]. In this regard and as earlier noted, the court is entitled to take account of the needs and means of the parties as matters of general relevance, in particular, as subsidiary factors to the question of what is just and equitable, having regard to the plaintiff’s contributions: see Evans v. Marmont (supra) at 7.

165 The nature, context and incidents of the relationship in the present case include the fact that, in the period 1995 to 2001, Ms. Mineo’s intensive tripartite role as parent, home-maker and carer all prevented her from realising her earning capacity by undertaking full-time employment in that period and receiving the benefits that would have flowed from such employment. In Howlett v. Neilson (supra), Hodgson, JA. observed that s.20 does not permit evaluation of contributions having regard merely to the benefit of the contributions to the relationship and to the property of the parties but also to have regard to the cost of each contribution to the person making it, at [36]. This is an important aspect associated with Ms. Mineo’s non-financial contributions.

166 In accordance with accepted principle, the cost of Ms. Mineo’s to her in making the contributions to both her son and to Mr. Leonardi in that period must be brought into account. Commitment to family requirements and to family welfare may be productive of financial loss or loss of opportunity, as in the example already stated whereby a home-maker is effectively prevented from working on a full-time basis and receiving the benefits of so doing.

167 Ms. Mineo has now and has had the responsibility since the termination of the relationship, of ensuring that her 10 year old son is educated and, in that respect, the evidence indicates that both she and Mr. Leonardi were hoping that he would receive a private school education. It was for that reason that the trust account was established.

168 Full-time employment in the period 1995 to 2001 would have provided a means for Ms. Mineo of providing or at least helping to provide for Luca’s future education expenses. However, as I have earlier stated, the opportunity she had for undertaking full-time in that period became impossible due to her family commitments. As Hodgson, J. stated in Dwyer v. Kaljo (supra) at 793 (and later cited with approval by the Court of Appeal in Evans v. Marmont):-

“… further, I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to those contributions.”

169 Accordingly, in determining what adjustment in property interests should be made, I propose to bring into account Mr. Leonardi’s initial contribution by way of providing the Abbotsford home at the commencement of the relationship, but consider that this should be discounted for reasons associated with Ms. Mineo’s non-financial contributions and the need that exists in consequence. The aim in doing so ultimately is to produce a just and equitable determination.

170 It is, in my opinion, consistent with a just and equitable determination to bring into account the need created and that presently exists to provide for Luca’s education expenses to which I have referred in paragraph [167]. That need can be seen either as having arisen directly or indirectly in part due to Ms. Mineo’s inability to build a fund for Luca’s education expenses for the future from full-time earnings in the period 1995 to 2001. Alternatively, it can fairly be said that a need was generated by the failure by Mr. Leonardi to make any adequate contribution by way of a compensating provision for Luca’s education in the context that Ms. Mineo’s demanding role as homemaker and carer prevented her independently from being able to earn sufficient wages to provide for her son’s education.

171 There is no strict methodology whereby a calculation is made to balance one contribution against another. Adherence to the just and equitable principle as stated in s.20(1) is the objective that guides the balancing exercise. I consider that by offsetting the need for education expenses against the allowance that is to be made for Mr. Leonardi’s initial contribution by way of providing the Abbotsford home assist in working to a result that is just and equitable under s.20(1). The value of that contribution, which I have assessed at approximately $200,000, should, in my assessment, be reduced to $65,000 thereby indirectly allowing and compensating for the need that now exists for there to be provision for Luca’s future education expenses. I will reflect that discounted initial contribution in the approach that I have adopted and which I have set out below.

172 I have referred above to the fact that very early in the relationship, Mr. Leonardi inherited monies which he used in satisfying his matrimonial settlement with his former wife. There is no evidence that any part of that inheritance was employed directly or indirectly in a way which constituted a contribution to the property relevant to the relationship with Ms. Mineo. Accordingly, I do not consider that any deduction for these monies should be made, as was the case in Powell v. Supresencia (supra) on very different facts.

173 On the other hand, the legacy Ms. Mineo received under her father’s Will in 1998 came in the late stages of the relationship and was used in acquiring the Five Dock unit. Therefore, there should be a deduction made in accordance with the principle stated in Wallace v. Standford (supra) at 15 and Powell v. Supresencia (supra). I have accordingly made such provision in the calculations set out below.

174 I have had regard to the financial contributions made by both the cross-claimant and the cross-defendant. I have also had regard to the non-financial contributions made by Ms. Mineo which, as I have found, were disproportionately greater than the non-financial contributions made by the cross-defendant. In making that judgment, I have made some allowances for the onerous role Ms. Mineo discharged for several years as carer to Mr. Leonardi. In some circumstances a period of illness of one partner to a relationship is an ordinary adjunct to a contribution by one partner to the welfare of the other: Green v. Robinson (supra) at 118. However, the extent and nature of Mr. Leonardi’s illness and associated disabilities (including his episodic outbursts and violence) could not by any measure be considered to be an ordinary adjunct to the give and take of a relationship.

175 The order which I propose to make to adjust the interests of the parties will be achieved through an adjustment of these interests specifically in relation to the Russell Lea property. It will be apparent from the statement of principles set out above that the order is not, as it were, merely a “carve-up” of that property undertaken in isolation from all property held by the parties, details of which are set out in paragraph [182].

176 The statutory scheme under the Property Relationships Act requires the ultimate result and order to be made having regard to all of the partners’ joint and several property and to their financial resources and their contributions thereto (that is including both the initial contributions they brought to the relationship and those which they made during the period of cohabitation). It is only by doing so that a court will be in a position to determine what is a just and equitable adjustment to existing property entitlements having regard to past contributions of the type described so that the financial relationship between the parties may be finalised.

177 The approach which the Act requires is intended to bring into account the fact that partners to a defacto relationship may contribute both directly and indirectly to the acquisition of an item or items of property. For example, where both partners for a period are simultaneously working (as was the case with the plaintiff and defendant prior to 1995), the female partner who is supported by the earnings of the male partner has the opportunity of saving a proportion of her earnings which she may in due course use to purchase a property in her name. That occurred in the present case. To some extent the male partner has indirectly contributed to that result. These and the various other contributions, as earlier discussed, must be borne in mind in balancing the contributions made by both.

178 This approach is one that has guided the determination of the result I have arrived at in this case. As the authorities have observed, there can be no pretence to mathematical precision in determining such matters for they do not lend themselves to surgical-like accuracy. What is required is the exercise of a discretionary judgment as to what seems just and equitable by reference to the focal points specified in s.20(1) of the Act.

179 The methodology and approach I have adopted below seeks:-

(a) Firstly, to determine where the balance lies in terms of all financial and non-financial contributions of both the cross-claimant and the cross-defendant.

all

180 I am of the opinion that, having regard to the parties’ s.20(1)(a) and (b) contributions, that there should be an adjustment of the interests in what might be termed the relationship property. The adjustment should be undertaken upon the basis that I assess the s.20(1)(a) and (b) contributions overall to the acquisition, conservation and improvement of the property of the parties and to their financial resources and to the welfare of the respective parties and to their family as having been made as to 60% by Ms. Mineo and 40% by Mr. Leonardi. That determination will guide the approach to be taken in resolving the relief to be granted with respect to the Russell Lea property as set out below. In other words, the proceeds of sale of that particular property can be utilised to satisfy the adjustment required by the order under s.20(1).

181 The affidavit evidence of Michael Blight, valuer, sworn 7 March 2005 attached a valuation of the Russell Lea property dated 3 March 2005. Mr. Blight valued the property at that date as $950,000. There is no other valuation evidence and I accordingly accept Mr. Blight’s valuation for the purposes of determining what, if any, adjustment should be made.

The relationship pool of assets

182 Relationship property:-

(a)

Russell Lea – valued established as at 7 March 2005

$950,000

(b)

Furniture and car – estimated approximate value

$15,000

(c)

Five Dock unit:-

• Purchased in 2000 for $303,388 – value as at March 2005 – claimed at $355,000 less outstanding loan monies – approximate current net value $300,000 (current loan monies owing approximately $60,520 (Exhibit 6)) – net value - $234,219.

• Less inheritance monies received by Ms. Mineo and applied to purchase of the unit (namely, $65,781) ($300,000 - $65,781 = $234,219): Wallace v. Stanford (1995) 37 NSWLR 1, 15; Powell v. Supresencia [2003] NSWCA 195 at [59] and [72].

Value of Five Dock unit

$234,219

(d) Ms. Mineo’s superannuation entitlement: Green v. Robinson (1995) 36 NSWLR 96, 109, 114 $61,896

(e) Ms. Mineo’s Telstra shares $6,972

Total $1,268,087

183 In determining the adjustment of the parties’ interests in the Russell Lea property, the following elements are to be allowed for in the calculation:-

(i) The initial contributions of the parties: Howlett v. Neilson [2005] NSWCA 149

(a)	Mr. Leonardi (estimated approximately $200,000 - $225,000 – adjusted to $65,000 for contributions by Ms. Mineo in period 1995 to 2001 and need created to provide for Luca’s future education expenses) – see paragraph [165] to [171]	$65,000
(b)	Ms. Mineo	$4,000

(ii) The total value of relationship property

Total value of relationship property (as above) less initial contributions estimated at $65,000 by Mr. Leonardi and $4,000 by Ms. Mineo (as above) ($1,268,087 - $69,000 = $1,199,087)

$1,199,087

(iii) Balancing the s.20(1)(a) and (b) contributions

The balance of financial contributions to the property, financial resources and welfare to the respective parties and their family is as stated in paragraph [180], namely by Ms. Mineo, 60% and Mr. Leonardi, 40% and of non-financial contributions made by Ms. Mineo to the welfare of Mr. Leonardi and to the family constituted by the parties and their son, Luca is as determined and stated in paragraph [180]:-

(iv) “Just and equitable”

184 I calculate the basis for an order adjusting the interests of the parties on the “just and equitable” ground having regard to the contributions under s.20(1)(a) and (b) in accordance with the balance I have previously determined in paragraph [180]:-

(a)

Mr. Leonardi: 40% of $1,199,087 (see paragraph [183(ii)])

- add adjusted initial contribution

Total value of adjusted interest of the cross-defendant

479,634

$65,000

$544,634

(b)

Ms. Mineo: 60% of $1,199,087 (see paragraph [183(ii)])

- add initial contribution

Total value of adjusted interest of the cross-claimant

$719,452

$4,000

$723,452

(vi) Order adjusting interests of the parties in the Russell Lea property

(a) Whilst both a specific and general claim originally was made under s.20 of the Property Relationships Act in the cross-claim, as noted in paragraph [6] of this judgment, the ultimate relief sought as formulated on the cross-claim was for a specific adjustment of interests in the Russell Lea property on the basis of Ms. Mineo holding a 75% share of the Russell Lea property and Mr. Leonardi a 25% share in the property.

(i)	Adjusted interest of the cross-defendant’s (Mr. Leonardi’s interest) in the Russell Lea property	$544,634
(ii)	Adjusted interest of the cross-claimant in the Russell Lea property	$405,366
Total value of Russell Lea property	$950,000

185 By way of clarification I add that whilst Ms. Mineo’s ownership of the property identified in paragraph [182(c), (d) and (e)] has been necessarily brought into account in the manner and for reasons of principle earlier discussed, her ownership with respect thereto, of course will remain unaffected by the order proposed to be made under s.20(1).

186 Accordingly, pursuant to s.20(1), I propose to make the following orders:-

(a) An order that the statement of claim be dismissed.

Property Relationships Act

187 I grant leave to the parties to make any submissions on any matters of calculation to give effect to the orders as proposed including the form of such orders.

188 I will reserve the question of costs in order to enable the parties to make such submissions on costs as they may wish to make.

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Citations

Vella v Mineo [2005] NSWSC 1149

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CITATION:	VELLA v. MINEO [2005] NSWSC 1149
HEARING DATE(S):	Thursday 2 June 2005; Friday 3 June 2005
JUDGMENT DATE :	25 November 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hall J at 1
DECISION:	Plaintiff's statement of claim dismissed. Order to be entered in favour of the cross-claimant pursuant to s.20(1) of the Property Relationships Act in the amount of $405,366.

CATCHWORDS:	Tenants in common in equal shares - resulting trust - presumption of resulting trust is rebutted - constructive trust - cross-claim under the Property (Relationships) Act - defacto relationship - plaintiff/cross-defendant had a series of strokes - defendant/cross-claimant performed role of carer - allowance made for need to provide education expenses for 10 year old son - plaintiff/cross-defendant provided the home for the plaintiff/cross-defendant and defendant/cross-claimant - defendant/cross-claimant made substantial contributions as homemaker and parent - allowance made for defendant/cross-claimant's legacy received by her.
LEGISLATION CITED:	Conveyancing Act 1919 Property (Relationships) Act 1984
CASES CITED:	Muschinski v. Doods (1985) 160 CLR 583 Baumgartner v. Baumgartner (1987) 164 CLR 137 West v. Mead [2003] NSWSC 161 Atwood v. Maude (1868) LR 3 CH. app. 369 Lyon v. Tweedle (1881) 17 Ch.D. 529 Calverley v. Green (1984) 155 CLR 242 Currie v. Hamilton (1984) 1 NSWLR 687 Black Uhlans Inc. NSW Crime Commission [2002] NSWSC 1060 Marshall v. Grimsley (1956) 95 CLR 353 Martin v. Martin (1959) 110 CLR 304 Singh v. Singh [2004] NSWSC 109 Wallace v. Stanford (1995) 37 NSWLR 1 Powell v. Supresencia (2003) 30 Fam LR 463 Dwyer v. Kaljo (1987) Fam LR 785 Evans v. Marmont (1997) 42 NSWLR 70 Sullman v. Sullman [2002] NSWSC 169 Magera v. Macintosh [2005] NSWSC 314 MacDonald v. Stelzer (2000) 27 Fam LR 304 Jones v. Grech (2001) 27 Fam LR 711 Matheson v. Wallis (2001) 48 Fam LR 290 Green v. Robinson (1995) 36 NSWLR 96 Mallett v. Mallett (1984) 156 CLR 605 Black v. Black (1991) 15 Fam LR 109 Howlett v. Neilson [2005] NSWCA 149
PARTIES:	VELLA, Caterina Gabrielle, as Tutor for LEONARDI, Rosario v. MINEO, Lucia
FILE NUMBER(S):	SC No. 2700 of 2003
COUNSEL:	Plaintiff: M. Gilmour Defendant: J. Stoljar/W. Dawson
SOLICITORS:	Plaintiff: L.P. Alidenes & Co. Defendant: Browns, The Family Lawyers

(e)	Ms. Mineo’s Telstra shares	$6,972
Total	$1,268,087