Walsh v Mulherin

[2008] NSWSC 61

CITATION:	Walsh v Mulherin [2008] NSWSC 61
HEARING DATE(S):	05/02/07-09/02/07, 23/02/07
JUDGMENT DATE :	12 February 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Counsel for the plaintiff to bring in short minutes of order in accordance with the reasons.
CATCHWORDS:	FAMILY LAW - de facto relationships - adjustment of property interests - contributions to purchase of property and payment of principal and interest for mortgage - contributions to renovation and maintenance of residence - adjustment for the provision of accommodation - contributions generally.
LEGISLATION CITED:	Property (Relationships) Act 1984 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Hughes v Egger [2005] NSWSC 18 Bloch v Bloch (1981) 55 ALJR 701 Green v Green (1989) 17 NSWLR 343 Grant v Edwards [1986] Ch 638 Baumgartner v Baumgartner (1987) 164 CLR 137 Evans v Marmont (1992) 42 NSWLR 70 Jones v Grech (2001) 27 Fam LR 711 Manns v Kennedy [2007] NSWCA 217 Gissing v Gissing [1971] AC 886 Burns v Burns [1984] Ch 317 Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 Ross v Elderfield [2006] NSWCA 192 Haydon v Perpetual Executors Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111 Schmierer v Taouk [2004] NSWSC 345; (2004) 207 ALR 301 Gray v Gray [2004] NSWCA 408; 12 BPR 22,755
PARTIES:	Anthony Michael Walsh v Pamela Lorraine Mulherin
FILE NUMBER(S):	SC 3345/05
COUNSEL:	Plaintiff: J Lloyd Defendant: P Batey
SOLICITORS:	Plaintiff: Beilby Poulden Costello Defendant: Barkus Edwards Doolan

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 12 February 2008

3345/05 Anthony Michael Walsh v Pamela Lorraine Mulherin

JUDGMENT

1 HIS HONOUR: This is an application under s 20 of the Property (Relationships) Act 1984 (NSW) for an order adjusting interests with respect to the property of the parties to a domestic relationship. It is common ground on the pleadings that the plaintiff, Mr Walsh, and the defendant, Ms Mulherin, were in a de facto relationship from 1986 to 1987 and from 1989 to 19 November 1998. Mr Walsh claims that the second period of the de facto relationship extended from 1988 to December 2003.

2 Section 20 of the Property (Relationships) Act provides:

“ 20 Application for adjustment

(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. ”

Introduction

3 Mr Walsh worked as a police officer until April 1993. He then took sick leave. Disciplinary proceedings were taken against him. He suffered from stress which led to anxiety, depression and paranoia. He instituted proceedings against the Police Service claiming an entitlement to a pension as a result of disabilities arising from his service. He was on sick leave from April 1993 until about October 1997. His proceedings against the Police Service were settled in 2001. As a result of the settlement, he received pension arrears from 18 March 1988 to 22 February 2001. He became entitled to a pension from 22 February 2001.

4 When the parties met, Ms Mulherin was a prostitute. She worked as a prostitute until at least 1992. She has had various other employments including as a travel consultant.

5 There were no children of the relationship.

6 According to Mr Walsh, in 1986, the parties commenced cohabitation in a rented unit at Fullerton Street, Woollahra. The unit was leased by Ms Mulherin. At that time Mr Walsh had savings of about $5,000. He owned a motor vehicle of negligible value. He owned a speed boat which he sold for $7,500 shortly after 1986, and he had sundry items of furniture and personal effects. There is no dispute about these matters. According to Mr Walsh, he also held a sum of $88,000 in cash which had been given to him in 1984 by his grandmother. His grandmother died in 1986. According to Mr Walsh, he kept this large sum of cash in his brother’s garage.

7 Ms Mulherin had more financial resources at the commencement of the relationship than did Mr Walsh. She and her sister were equal shareholders in a company called S P Secretarial Pty Ltd. It was a vehicle through which Ms Mulherin and her sister directed their earnings. S P Secretarial Pty Ltd was the owner of a property in Caldedonia Street, Paddington. Although the property was subject to a mortgage, there was a substantial equity in it.

8 Ms Mulherin did not give evidence of what assets she owned in 1986 at the commencement of the first period of the relationship. She gave evidence that in 1989 (that is, at or about the commencement of the second period of the relationship) she owned a BMW motor vehicle which three years later (in 1992) had a trade-in value of $27,510. She held a share in S P Secretarial Pty Ltd. She had a life insurance policy with National Mutual of negligible value on surrender. She owned some Lladro figurines valued at less than $1,700 in 1985. She was indebted to her sister in respect of a real estate venture in which they had jointly engaged in Queensland in the early 1980s in an amount not less than $100,000.

9 In 1989, at about the time the parties’ relationship was re-established, Ms Mulherin purchased a property at 141 Hargraves Street, Paddington, for $350,000. The property was purchased in her own name. Ms Mulherin obtained a loan of $100,000 from Citibank to assist with the purchase. She was the only borrower from Citibank. Mr Walsh claims that he contributed $38,000 towards the purchase of the property, and a further $7,500 to assist in the payment of stamp duty on the property. Ms Mulherin says that Mr Walsh paid $2,000 towards the purchase of the property. Following settlement of the purchase, Mr Walsh and Ms Mulherin moved into the Hargraves Street property.

10 The loan from Citibank was secured by mortgage. It was a “line of credit” loan, meaning that Ms Mulherin could reduce the principal as she saw fit, and re-draw the loan, provided that the re-drawings were within the lender’s parameters for the reduction of the loan balance. It is common ground that Mr Walsh paid moneys from time to time between 1990 and 1994 to Ms Mulherin which she applied to reduce the loan. She acknowledges that in addition to the sum of $2,000 paid in 1989, Mr Walsh paid her $15,000 in calendar year 1990, $32,000 in 1991, $39,000 in 1992, $12,000 in 1993, and $1,500 in 1994. She says that during this period, there were withdrawals from the Citibank line of credit which were paid to Mr Walsh totalling $43,351.

11 Mr Walsh claims that he provided much more money to Ms Mulherin. As well as the $45,500 which he says he paid to assist with the purchase (compared with the $2,000 which Ms Mulherin acknowledges), Mr Walsh claims that between 1989 and 2005, he gave Ms Mulherin between $300 and $600 each week, and told her that those were moneys to be put on the mortgage. This was in addition to a payment of $200 per week to her which he claims to have made between 1989 and 1995. Mr Walsh also claims that in 1991, he paid $90,000 to Ms Mulherin from the balance of moneys given to him by his grandmother, and loans made to him by a Mr Bill Mulherin (no relationship to Ms Mulherin) and a Mr Van Houten.

12 All of the payments Mr Walsh alleges he made are claimed to have been made in cash. There is no record of any of them. Mr Walsh claims that, apart from the cash of $88,000 he had from his grandmother, he borrowed $48,000 from Mr Bill Mulherin, between $22,000 and $30,000 from Mr Van Houten, and that later (after 1997) he borrowed about $50,000 to $60,000 from Mr Harvey. Mr Bill Mulherin died in or about 2002. The alleged loan was not repaid to his estate. There is no corroboration of the loans allegedly made by Mr Van Houten, notwithstanding that Mr Van Houten swore an affidavit in the proceedings. There was no record of any of the loans. There was no explanation as to why all of the alleged loans were made in cash. There was no explanation as to why the moneys lent in cash were not deposited to Mr Walsh’s bank account before they were lent to Ms Mulherin. In other words, apart from the moneys borrowed later from Mr Harvey, there was no corroboration of the alleged source of funds and there is no direct corroboration of any of the payments allegedly made by Mr Walsh, except in so far as they are admitted by Ms Mulherin.

13 However, undoubtedly, substantial payments were made in reduction of Ms Mulherin’s loan from Citibank. The loan was reduced to a mere fourteen cents by September 1992. Ms Mulherin’s tax returns and her bank account with the National Australia Bank suggest that she did not have the financial resources with which to repay the loan. While she acknowledged that some payments were made to her by Mr Walsh in cash (for which there was no record), she contended that the repayments were in part due to moneys which she had which did not reach her own bank account. These moneys were cash which she received and did not declare in her tax returns. Some unidentified amounts of cash were, she said, gifts from clients. She also claimed that a Mr Terry Barclay, who was originally a client but became a friend, lent substantial moneys to her. These loans were all in cash in amounts of up to $4,000 at a time. According to a letter which Ms Mulherin said Mr Barclay gave her in 1998, he lent her $12,000 in 1989, $48,000 in 1990, $37,000 in 1991, $42,000 in 1992, $35,000 in 1993, $28,000 in 1994, $13,000 in 1995, $15,000 in 1996, $7,000 in 1997, and $3,000 in 1998. The loans were all interest-free. They were to be repayable on demand only. According to the letter produced by Ms Mulherin, Mr Barclay stated that in the event of his death, the loans would be forgiven. Mr Barclay died in about 1999 or 2000.

14 For the reasons which appear below, between 1989 and 1992 the interest on the Citibank loan was substantially paid by Ms Mulherin, and the principal debt was effectively extinguished as at 30 June 1992. Further fees were charged to the account but as at 16 September 1992 the debt was only fourteen cents. From 6 October 1992, there were further drawings on the line of credit. Ms Mulherin drew down various lump sums which she says were used to repay moneys to Mr Walsh which he had “parked” in the account. There were other withdrawals to meet expenses including joint expenses. By 15 July 1993, the mortgage debt was $17,398.08. No bank statements were tendered after this date. Ms Mulherin gave unchallenged evidence that in April 2000, she used part of a further loan by paying about $100,000 to discharge the Citibank mortgage. There is an issue as to what drawings from September 1993 were paid to Mr Walsh. Ms Mulherin says that after 1994 until the mortgage was discharged in April 2000, she met all of the interest payments and withdrew funds from time to time to pay bills and living expenses.

15 In 1997, Ms Mulherin entered into a contract to purchase an apartment in The Wharf, Woolloomooloo. She paid a ten percent deposit of $53,400. The purchase was completed in April 2000. Mr Walsh claims that he was involved in the decision to purchase the Woolloomooloo apartment, that he was told that the unit would be put in both names, and that he paid $5,000 in cash and weekly payments averaging $500 to assist with the purchase of the Woolloomooloo property and subsequently to meet mortgage payments. Ms Mulherin denies this. In April 2000, she obtained a loan on mortgage security which was refinanced a year later. The amount of the loan taken in 2001 was $775,000. The loans were secured over both the Woolloomooloo property and the Paddington property. The loan was used to complete the purchase of the Woolloomooloo property and to discharge the mortgage to Citibank over the Paddington property. $150,000 was borrowed to repay debts owed by Ms Mulherin to her sister and her sister’s husband.

16 At the hearing, it was common ground that the Paddington property and the Woolloomooloo property, both registered in the name of the defendant alone, were valued at $950,000 and $725,000 respectively. Ms Mulherin also had investments in the form of cash and shares to the value of $15,855. She owned a BMW motor vehicle valued at $15,000 and had financial resources in the form of superannuation to the value of $48,920 as a result of her employment as a travel agent. She owed $775,000, which debt was secured over the Paddington and Woolloomooloo properties.

17 Mr Walsh had cash resources of $9,000. He was entitled to a pension of $1,097 net per fortnight.

Issues

18 There is no documentary corroboration of many of the contributions both parties claimed to have made to the acquisition, conservation or improvement of property, or towards their living expenses. The principal factual issue is what contributions were made by each party to the purchase of the Paddington property, the payment of interest and repayment of principal on the mortgage taken to acquire the Paddington property, and renovations to the Paddington property. For the reasons which I give below, such contributions provide the measure of the parties’ beneficial interests in the Paddington property, or alternatively, provide the basis for a just and equitable adjustment under s 20 of the Property (Relationships) Act of Ms Mulherin’s interest in that property. A second issue is whether Mr Walsh made any financial contribution to, or had any involvement in, the acquisition of the Woolloomooloo property. I have concluded he did not. A third issue is what other financial contributions either party made for the benefit of the other, what non-financial contributions they made, and whether, by reason of such contributions, it is just and equitable to adjust, or further adjust, the parties’ interest in property.

19 There is also a preliminary issue, namely, when the parties’ de facto relationship came to an end. The proceedings were commenced on 7 June 2005. Mr Walsh contends that the de facto relationship continued to December 2003. Ms Mulherin contends that the relationship ended on 19 November 1998. If the de facto relationship terminated prior to 7 June 2003, Mr Walsh needs leave to make his application for an order under s 20 of the Act (s 18 Property (Relationships) Act). Ms Mulherin did not oppose the grant of leave under s 18. The contributions of either party made after the termination of their de facto relationship are to be taken into account in the same way as if they had been made during its continuance. I adhere to the views which I expressed on this question in Hughes v Egger [2005] NSWSC 18 at [4]-[7]. Neither party contended to the contrary. Of course, whether a de facto relationship continued after 1998 will be relevant to assessing the credibility of evidence of continuing contributions. I will deal with this preliminary issue first.

Period of De Facto Relationship

20 Although in her defence Ms Mulherin admitted that the parties lived together in a de facto relationship from 1986 to 1987, in her evidence she asserted that she and Mr Walsh were not living together at that time and that the relationship did not commence until 1989. No application was made for leave to withdraw the admission in the defence and it is not open to Ms Mulherin to dispute the formally admitted fact. However, this is of no real consequence. No substantially disparate contributions were shown to have been made during this period. Between 1986 and 1987 Ms Mulherin was the lessee of an apartment in Fullerton Street, Woollahra. She admitted that Mr Walsh made some contribution to the rent, but the amount of his contribution was not quantified. According to Mr Walsh, although denied by Ms Mulherin, he resided in the apartment with her. Mr Walsh accepted that the parties’ significant contributions did not commence “in a serious way” until the Hargraves Street property was acquired.

21 It is common ground that the de facto relationship revived following the acquisition of the Hargraves Street property in May 1989. Both parties lived in the Hargraves Street property until Mr Walsh moved out in 2005.

22 Mr Walsh accepts that just before Christmas 2003, he ceased to have a de facto relationship with Ms Mulherin. He says that at that time, he started sleeping in the second bedroom of the Hargraves Street property, and that he and Ms Mulherin ceased to have any sexual relationship. He also says that from that time, he stopped paying moneys to Ms Mulherin, although he claims to have continued to do housework. He was evicted from the Hargraves Street property on 15 April 2005.

23 Mr Walsh claimed that the parties had sexual relations until 2003. Ms Mulherin claimed that they had not had a sexual relationship since 1989. I conclude that the parties had ceased to have a sexual relationship well prior to 1998. Mr Walsh told a Dr Dinnen, a psychiatrist, who examined him in relation to his claim for workers’ compensation from the Police Force on 22 April 1999 that there had been no sexual relationship since 1993.

24 Ms Mulherin claimed that they separated in November 1998. She said that from that time, he and she lived their lives separately under the one roof. She said that this was preceded by Mr Walsh spending increasing periods of time away from the Paddington property from about October 1997. She said that in the second half of 1998, she and Mr Walsh discussed the possibility of travelling to Cable Beach in Western Australia to try to reconcile. The trip was unsuccessful. Mr Walsh left the day after they arrived and returned to Sydney. She returned a day later. When she returned, Mr Walsh was not at the Paddington property. From that date, she considered their relationship was at an end. She said that from that time, she and Mr Walsh ceased to have any verbal communications, but communicated through notes left in the house. Mr Walsh stopped sleeping regularly in the Paddington house. Frequently, he did not sleep at Paddington on weekends, and would be absent for nights or weeks at a time. She rarely ate at home. If they did meet in the house, Mr Walsh would turn away from her and go to his bedroom. She said that they had occupied separate bedrooms since November 1997. I accept this evidence, which is corroborated in important respects by documentary evidence, and the evidence of an unimpeachable witness.

25 Ms Mulherin’s evidence that they ceased to talk to each other, rarely saw each other and communicated by notes is corroborated by the events concerning the death of their dog. Both Mr Walsh and Ms Mulherin were attached to the dog, who was called Sam. One of the reasons Ms Mulherin did not try to force Mr Walsh to leave the house was because she was afraid he would take Sam away with him. In November 2001, Mr Walsh left a note for Ms Mulherin saying “Sam lethargic, panting heavily. Took to Nigel. Needle – 1pm. Died peacefully in my arms.”

26 Ms Mulherin left a note for Mr Walsh, “Where is Sam’s body?”. He replied by a note “Cremated. Ashes two weeks”.

27 There is further corroboration that the parties’ relationship had broken down by 1999 in information provided by Mr Walsh to treating psychiatrists. Mr Walsh took sick leave in April 1993 from the New South Wales Police Service. He faced a disciplinary hearing in 1995. He suffered from anxiety, depression and paranoia. In 1996, Dr Westmore reported to Mr Walsh’s solicitors that Mr Walsh had a very caring, supportive partner who had made many attempts to assist him in different ways over the previous year or so. Dr Westmore reported that Mr Walsh’s relationship was not a significant element in his therapy. His observations as to the relationship were based upon information provided to him by Mr Walsh. On 7 August 1998, Dr Westmore reported that Mr Walsh’s relationship had suffered because of his mental state disturbances. Dr Westmore reported that whilst Mr Walsh’s partner was extremely supportive of him, it seems she eventually became overwhelmed with Mr Walsh’s symptoms, his preoccupation, and his inability to get his life back on track.

28 In May 1999, Dr Dinnen reported that Mr Walsh had said to him that “his girlfriend, Pamela, is 40 and they are now living apart.” Dr Dinnen then provided an elaboration of what Mr Walsh told him. This included that Mr Walsh had ridden away on a motorbike for ten days. Mr Walsh also told Dr Dinnen that “for the last six months he has been living at Eastlakes with his brother and before that he was with a nephew in Woolloomooloo for six months. He continues to make contact with Pamela … “.

29 On 20 June 2000, Mr Walsh had a consultation with another psychiatrist, Dr Hampshire. Dr Hampshire had previously treated him from late 1993 to around mid 1994. Dr Hampshire reported that when he had first met Mr Walsh, “he was in love with a woman who had been his long-term live-in lover for some years.” Dr Hampshire reported that “this is no longer the case. He still retains a friendship with the lady but no longer lives with her and is no longer her lover. He sees her as a supporting and caring friend who he sees infrequently.”

30 On 10 July 2000, Dr Westmore reported that he gathered that Mr Walsh’s relationship had “effectively broken down.”

31 There is further corroboration of Ms Mulherin’s evidence on this topic in application forms prepared and signed by Mr Walsh to Centrelink for social security benefits. On 4 November 1998, he completed a form used by Centrelink to assess persons’ eligibility for employment assistance and “Job Network” assistance. In the form, he advised that he was single and not in a de facto relationship. He gave his permanent home address as the address of his brother in Helena Parade, Eastlakes, although he gave his postal address as the Hargraves Street property. On 10 October 1999, he completed another form for Centrelink. Again, he gave his brother’s Eastlakes address as his permanent address and the Hargraves Street, Paddington address as his postal address. Again, he described his current marital situation as single. He answered “no” to a question whether he had a partner. He stated falsely that he was paying $150 per week in rent to his brother. He stated he was sharing his accommodation with one other person who was not his partner.

32 Mr Walsh provided an elaborate explanation for having completed the Centrelink applications in this way. In substance, he said that the reason he gave his home address as the address of his brother at Eastlakes was because he feared persecution from persons in the Police Force or revenge from criminals, and he believed that such persons could obtain access to his personal information on Centrelink’s records. He said that he was concerned also for the safety of Ms Mulherin and did not disclose his de facto relationship with her, or nominate the Hargraves Street property as his place of residence, because he believed it had no impact on his eligibility for benefits, and might avoid Ms Mulherin being questioned, either by the Police or any third persons who bore a grudge against him and who might wish to exact revenge against him by attacking her. He said that he obtained his belief that the questions which he says he answered wrongly (for example, his residential address and whether he was in a de facto relationship) had no impact upon his eligibility because Ms Mulherin had told him so. According to him, Ms Mulherin told him that he could still claim the benefits and get rental assistance if he was not on the title on any property. He said that Ms Mulherin assisted him to complete the forms to obtain the benefits.

33 I do not accept this evidence. On each form, he ticked “no” to the question “Did someone help you fill in this form?”. I do not accept his evidence that this was an oversight. Nor is his nominating the Hargraves Street property as his postal address consistent with his asserted desire to protect Ms Mulherin from unwanted attentions of third parties.

34 Whilst I accept that at this time he continued to suffer from paranoia, I do not accept that his paranoia led him to falsify the Centrelink application forms. I consider that apart from his statement that he was paying $150 per week rent to his brother, the answers he provided were accurate. They are consistent with the statements made at about that time to his psychiatrists.

35 I conclude that his de facto relationship with Ms Mulherin had ceased by the end of 1998, even though he continued to occupy the Hargraves Street property from time to time, and kept his bedroom in that property. Ms Mulherin gave a number of reasons for not seeking to force him to leave until 2004. These included fears for her own safety and sympathy for his position, in that he was involved in proceedings against the Police Service to seek to obtain a pension. Those proceedings were not resolved until 2001. Ms Mulherin did make requests or demands for Mr Walsh to move. On 13 April 2003, she left a typed note for him. The note contained bitter recriminations, and included the following:

“ I asked you a couple of years ago to move out so I could fix the house up and put it on the market. Now I am further in debt and if I don’t sell it, it will be taken over by the mortgagee anyway. I spent three weeks of my holiday last year working in the house cleaning and doing maintenance in readiness to sell and when you came back it only took a couple of weeks to be back in the same condition – cockroach infested pigsty. … I expect that you will start arranging to move out asap. Take whatever you like, all I want is peace of mind. … Overdue for a total change and of course I cannot afford a holiday and have been ordered to get out of this environment so have had to go up to my parents’ for a week. I expect that you immediately start to move on to a new life. Our life together is well and truly expired. ”

36 Mr Walsh took the view that he was entitled to stay. On 16 February 2004, Ms Mulherin’s solicitors wrote to Mr Walsh requiring him to leave the property and remove his possessions within 28 days. There followed negotiations between the solicitors under which it was agreed that there would be a round table conference and that Mr Walsh could remain in the property until 28 days had expired after that conference. That was in February 2004. It was not until 18 March 2005 that Mr Walsh, through his solicitors, confirmed that he would move out of the property. He agreed to leave by a particular day. He did not do so. Ultimately, Ms Mulherin obtained vacant possession of the property only by changing the locks.

37 I do not consider that Mr Walsh’s continued residence in the property indicated a continuation of the de facto relationship.

38 Evidence was given by friends of Mr Walsh of attending a barbecue at the Paddington property with Mr Walsh and Ms Mulherin in about 2003 in which they conducted themselves as a de facto couple. Mr Fowler deposed that in the summer of 2003 at the barbecue, he observed them holding hands and giving each other a cuddle and that neither of them said anything to indicate that they were not a couple. Mr Fowler placed this barbecue as having occurred in the summer in late 2003, but he also said that they chatted about the recent death of the dog Sam. Sam died in 2001. Mr Fowler also said that it was about a year later that he was told by Mr Walsh that Pamela and he had just split up. I was not impressed with Mr Fowler’s evidence. I considered that he was doing his best to try to assist a friend. His description of the parties’ conduct towards each other at the barbecue is inconsistent with Mr Walsh’s own description given to his doctors of his relationship with Ms Mulherin and such contemporaneous documentary records as have survived. If the barbecue happened at all, it could not have taken place in late 2003 because that is when, even on the plaintiff’s case, the parties separated. It may be that Mr Fowler made a mistake in his oral evidence and, consistently with his affidavit, the event occurred about a year after the dog died, which would place it in 2002. On the other hand, in his oral evidence, Mr Fowler would say only that the barbecue occurred either a year, or two, or three, after the dog had died.

39 According to Mr Fowler, other persons who attended the barbecue were a Mr Blake and a Mr Delaney. Mr Delaney was not called to corroborate this evidence. Mr Blake was called. He swore two affidavits, only one of which was read. In that affidavit, he gave no evidence of attending such a barbecue. He said that he had been invited to a barbecue for the Christmas of 2002 which he could not attend. He gave evidence of having had a cup of coffee with Mr Walsh and Ms Mulherin in the new year of 2003 where they acted as if they were a couple. Notwithstanding that he gave no evidence in the affidavit which was read of attending a barbecue, he gave oral evidence that he “certainly” attended a barbecue at the Paddington property in 2003 which was also attended by Mr Delaney and Mr Fowler, as well as Mr Walsh and Ms Mulherin. There is a serious risk that the evidence of the barbecue was confabulated. In any event, I am not persuaded that any such event occurred.

40 Mr Walsh’s brother, Mr John Walsh, gave no evidence on the subject, whereas he could be expected to have known whether or not his brother and Ms Mulherin continued to present themselves as a de facto couple after 1998. Ms Mulherin’s sister, Sharon Mulherin, corroborated Ms Mulherin’s evidence, but I do not consider that much weight should be placed on her evidence. Ms Mulherin relied on the evidence of her niece Hannah, who stayed at the Paddington property from time to time during the week and on weekends when a schoolgirl. She observed a significant change to Mr Walsh and Ms Mulherin’s relationship in 2000 or 2001 including that they did not speak to each other, that they left notes for each other about the dog, that they did not eat meals together, that they did not go out together and that they did not have visitors together. They avoided each other in the house while she was there. I accept that evidence.

41 I conclude that the parties’ de facto relationship expired by the end of 1998. Mr Walsh requires leave pursuant to s 18(2) of the Property (Relationships) Act to apply to the Court for an order under s 20. That leave is not opposed. I am satisfied as to the matters in s 18(2). Accordingly, there will be a grant of leave nunc pro tunc to the plaintiff’s application for an order under Pt 3 of the Property (Relationships) Act.

Contributions to the Purchase of the Paddington Property

42 The total of the costs of the purchase of the Paddington property was $365,067.60. This comprised the purchase price, adjustments on settlement, stamp duty, and legal costs. Of this amount, $100,000 was received from Citibank. As noted above, Mr Walsh claims that he contributed $45,500 to the balance of the costs, and that the source of these funds was from cash which he had received from his grandmother in 1984 and which had been kept in his brother’s garage.

43 I do not accept Mr Walsh’s evidence that he received such cash from his grandmother, albeit that his evidence was in general terms corroborated by his brother. In his affidavits, John Walsh deposed to his brother having told him that he had been given $88,000 by their grandmother, but said that “Tony also never gave me boxes of documents for safekeeping.” In his affidavit he did not give evidence that his brother had given him a box or bag containing money for safe keeping. Under cross-examination he said that his brother stored material in his garage and told him that amongst the material there was money. He could see for himself that the material also included clothing and sporting goods but he did not go near it.

44 Mr Walsh gave evidence that his grandmother urged him to use the $88,000 in cash to invest in real estate. Notwithstanding this advice, he took no step to do so between 1984 and 1989. Moreover, on his evidence, he kept the money in cash rather than putting it into an account where it would earn interest because he was financially naive. I do not consider that evidence to be credible. If Mr Walsh had been given $88,000 by his grandmother in 1984, particularly given his position as a police officer, it would have been prudent for him to deposit the money into a bank account to keep it safe from theft, so that it would earn interest until he decided to use it, and so as to avoid difficult questions as to how a police officer should be holding that much money in cash.

45 Moreover, on Mr Walsh’s version of events, after contributing $45,500 towards the purchase of the Paddington property he still had more than $40,000 in cash. In May 1989, he had about $3,000 in his bank account with the Police Credit Union. On 24 May 1989, he purchased furniture for the Paddington property at a cost of $11,970. He paid for the furniture by a cheque drawn on his account with the credit union. He gave oral evidence that he paid for the furniture partly from his savings and partly from the $88,000 in cash which he had. However, it was clearly established that in order to pay for the furniture Mr Walsh took out a $9,000 loan with the Police Credit Union on 18 May 1989. The proceeds of loan were paid into his account with the credit union from which the cheque for the purchase of the furniture was drawn. There would have been no reason for him to take out a loan at interest to pay for the furniture if he was then in possession of a large sum of cash which was not earning interest which could have been used for the same purpose.

46 My rejection of Mr Walsh’s evidence of a cash gift from his grandmother does not mean that he had no cash resources. He gave evidence of borrowing moneys from 1991 from Mr Bill Mulherin, Mr Van Houten, and Mr Harvey. Apart from the borrowings from Mr Harvey between 1997 and 2000, his evidence of those borrowings was not corroborated. Nonetheless, it is clear from the evidence of the payments he made to reduce the Citibank loan that even before 1991 he had available cash resources. Whilst such cash resources were not available to him in late May 1989 when he purchased furniture for the Paddington property, it is impossible to say how much cash was available to him which could have been used to assist with the purchase of the Paddington property.

47 Ms Mulherin deposed that she financed the purchase of the Paddington property using a gift of $5,000 from her mother, $1,515.82 she received as a tax refund shortly before the settlement, $2,000 given to her by Mr Walsh on or about 10 May 1999, $100,000 from the Citibank mortgage, and the balance from moneys paid to her by her sister for her share in SP Secretarial Pty Ltd. She and Sharon Mulherin deposed that the amount paid for her share was $276,500.

48 As noted above, SP Secretarial Pty Ltd owned a property in Caledonia Street, Paddington. The property was put on the market. Sharon Mulherin and her husband made the highest bid for the property. They bid $776,500. Although they paid the agent’s commission on the sale, no contract of sale was then signed. Nonetheless, the sale price was used as a basis for calculating the price to be paid to Ms Mulherin for her one share in SP Secretarial Pty Ltd. There was no documentary corroboration of Ms Mulherin’s assertion that she received $276,500. Rather, her tax return for 30 June 1989 recorded that her share in SP Secretarial Pty Ltd was sold for $246,439.72.

49 Ms Mulherin’s mother corroborated her evidence of making a gift of $5,000 to assist with the purchase of the property. I accept that evidence. There is also a contemporaneous record of a deposit of $1,515.82 described as a tax refund with Citibank apparently used for the purpose of providing funds for the purchase. The same deposit book records deposits of $200,000 on 7 April 1989, $5,000 on 9 May 1989 and a further $5,000 on 18 May 1989 (one of which was provided by Ms Mulherin’s mother) and $2,000 on 10 May 1989 which was recorded as having come from “Tony”, that is Mr Walsh. The total of the deposits is $213,515.82. $100,000 was provided by Citibank, and there had been an earlier payment of $35,000 by way of deposit on the exchange of contracts for the Paddington property. These sums total $348,515.82. There is no documentary record as to the source of funds to pay the $35,000 deposit. However, Ms Mulherin had sufficient funds from the sale of her share in SP Secretarial Pty Ltd with which to make that payment. Apart from the $35,000 deposit, there is still an unexplained difference of $16,551.78 between the funds deposited by Ms Mulherin in an account with Citibank to make the purchase and the balance of the purchase price.

50 Given that the price Ms Mulherin received for her share in SP Secretarial Pty Ltd was $246,439.72 and not $276,500, on her own figures, there was a shortfall of $12,112.06 to make up the purchase price ($365,067.60 - $100,000 (Citibank loan) - $246,439.72 (proceeds of sale of share) - $5,000 (gift from mother) - $1,515.82 (tax refund)). This assumes that all of the proceeds of sale of the share in SP Secretarial Pty Ltd were applied to the purchase of the property. However, the deposit of the round sum of $200,000 into the Citibank account suggests that this was not so. Whilst I accept that the deposit was paid by Ms Mulherin, I infer that the unexplained difference between the balance of the purchase price payable on completion and the amounts deposited by Ms Mulherin with Citibank to meet the purchase, was provided by Mr Walsh. That is, I infer that he contributed $18,551.78 towards the purchase of the property. Ms Mulherin contributed the balance.

Payment of the Citibank Mortgage up to September 1992.

51 As at 16 September 1992, the debt owed to Citibank had reduced to fourteen cents. Drawings were subsequently made which put the account back into debit.

52 In the period from 15 July 1989 to 15 June 1990, Ms Mulherin paid $17,530.25 to the Citibank account by way of regular monthly debits from her account with the National Australia Bank. During this period, there were no drawings from the line of credit account. The only debits were credit charges, taxes and bank fees. There were further credits shown on the Citibank statements as reference “92034” as follows:

5 September 1989 $5,000
8 September 1989 $5,000
2 February 1990 $1,000
13 February 1990 $3,000
6 June 1990 $6,000
Total $20,000

53 There is no correlation between these payments and Mr Walsh’s account with the credit union. There was no explanation of the reference “92034”. I infer that these payments were made by Mr Walsh. The reason for that inference is that Ms Mulherin accepts that in the calendar years from 1990 to 1993 Mr Walsh gave her sums totalling “not more than” $98,000 which were applied in reduction of the Citibank mortgage, although she says that there were withdrawals which were paid to Mr Walsh. In later years, it is possible to match the deposits with the reference 92034 against the amounts which Ms Mulherin concedes Mr Walsh gave her. Thus, in the calendar year 1991 she deposed that Mr Walsh gave her amounts of “not more than” $32,000. In that year, there were deposits to the Citibank account against the reference 92034 which totalled $32,000 as shown below:

19 March 1991 $2,000
10 April 1991 $10,000
9 May 1991 $10,000
19 August 1991 $5,000
13 November 1991 $5,000
Total $32,000

54 For the period from 15 June 1990 to 15 July 1991, Ms Mulherin made payments to the Citibank account by way of direct debit from her National Australia Bank account of $13,355.16. During that period, there were further credits to the Citibank account with the same reference 92034 as follows:

19 June 1990 $4,000
9 July 1990 $3,000
19 September 1990 $3,008
20 December 1990 $1,800
19 March 1991 $2,000
10 April 1991 $10,000
9 May 1991 $10,000
Total $33,808

55 During the same period, there were drawings against the line of credit as follows:

12 October 1990 $1,278
16 November 1990 $2,808
22 April 1991 $3,000
27 June 1991 $4,800
Total $11,886

56 Ms Mulherin deposes, and I accept, that she gave Mr Walsh these withdrawals.

57 As at 15 July 1991, the loan balance had been reduced to $59,101.05.

58 Between 16 July 1991 and 15 June 1992, Ms Mulherin paid $6,234.87 to the Citibank account by way of direct debits from her National Australia Bank account. During that period there were credits to the Citibank account against the same reference, 92034, as follows:

19 August 1991 $5,000.00
13 November 1991 $5,000.00
9 March 1992 $5,000.00
16 March 1992 $5,000.00
30 March 1992 $3,000.00
3 April 1992 $2,000.00
6 April 1992 $3,000.00
8 April 1992 $2,000.00
30 April 1992 $2,397.00
8 May 1992 $19,000.00
1 June 1992 $8,014.55
Total $59,411.55

59 As at 15 June 1992 the debit balance of the account had been reduced to $63.18. There were no further credits made to the line of credit account against the reference 92034 in the 1992 calendar year. In the 1992 calendar year the payments made against that reference totalled $49,411.55. In her affidavit, Ms Mulherin conceded that $39,000 had been paid in that calendar year by Mr Walsh. The two payments totalling $10,411.55 for which she did not give credit to Mr Walsh have the same reference as the other payments for which credit is given to him. There was no explanation as to why Mr Walsh was not given credit for those payments. I conclude that those payments were also made with funds provided by Mr Walsh.

60 During the period covered by the bank statements from 16 July 1991 to 15 June 1992 there was a single withdrawal from the account on 4 May 1992 of $815.53 described as “bank drawdown”. Ms Mulherin does not claim that this was a payment made to Mr Walsh. All of the payments which she claims were given to Mr Walsh in 1992 were made after 15 June 1992. In the absence of any evidence about the topic, I can infer that that withdrawal was made for joint expenses. In other words, neither party should be treated as having received the benefit of that drawing to the exclusion of the other.

61 Between 15 June 1992 and 16 September 1992 (when the debit balance was reduced to fourteen cents), there were some minor charges for bank fees, taxes and the like and payments to cover those charges from Ms Mulherin’s account. After apportioning the withdrawal of 4 May 1992 between the parties equally, the amounts paid by Ms Mulherin up to 15 September 1992 totalled $37,016. The amounts paid by Mr Walsh totalled $100,925. In substance, Ms Mulherin had paid the interest and charges on the reducing loan balance, and Mr Walsh had discharged the principal debt.

62 I do not accept Mr Walsh’s evidence as to the payments he made towards the mortgage. As already noted, he deposed, without any supporting record or other corroboration, that during the time they resided at the Paddington property, he gave Ms Mulherin moneys every week in cash to apply towards the mortgage repayments, and that he gave her approximately $300 to $600 each week from his pay. His pay was paid into his Police Credit Union account. It is clear from that account that he did not make such cash withdrawals. He also deposed that he made the following additional payments to Ms Mulherin to be applied to the mortgage, namely, about $90,000 a short time after 1991, $1,000 in cash in 1997, $10,000 in two lots of $5,000 each in 1997, $18,000 in 1998, $1,500 which he received from a third party to reimburse him for the cost of repairs to the BMW, and $6,000 in 2000.

63 I do not accept that any of these payments were made by Mr Walsh to be applied towards the reduction of the mortgage. I do not accept that he made a lump sum payment of $91,000 some time after 1991, or that he made any of the claimed payments except a sum of $19,352.92 in 1997 representing the proceeds of surrender of a life insurance policy with the MLC, and $18,000 in June 1999. Those payments are addressed later in these reasons.

64 In summary, the costs to the parties of acquiring the Paddington property unencumbered as at September 1992 were as follows. Mr Walsh paid $18,552 towards the purchase price and $100,925 in reduction of the mortgage, a total of $119,477. Ms Mulherin paid $246,516 towards the purchase price and $37,016 in servicing the interest on the mortgage, a total of $283,532. At that point, if the principles in Bloch v Bloch (1981) 55 ALJR 701 at 704, 706 applied, that is, if the parties had the common intention that they should each have a beneficial interest in the property to be acquired as an unencumbered property, their beneficial interests would be in the proportion of approximately 30% for Mr Walsh and 70% for Ms Mulherin.

Renovations to the Paddington Property

65 Mr Walsh claimed that he paid $1,800 in 1989 for the installation of an electric garage door, $1,800 in 1990 for the installation of two wooden doors and double glazing in the main bedroom, and $2,200 in 1990 towards the tiling of the front porch. Ms Mulherin deposed that they shared the cost of the garage door. This is corroborated by her note on the quote. I accept her evidence. Ms Mulherin does not dispute that Mr Walsh paid for the wooden doors and the double glazing. However, the cost was not that claimed by Mr Walsh. The cost was $768.40. Ms Mulherin claimed that she paid for the tiling which cost $1,955. She has the bills and the receipts which shows that the cost of the tiling was not that which Mr Walsh claimed it to be. It is impossible to say who paid for the tiling. I find that Mr Walsh paid $768.40 for the installation of the wooden doors and double glazing in 1990, that the expense of the garage door was shared, and that neither party has displaced the onus of proof of showing who paid for the tiling.

66 In 1992 and January 1993, substantial improvements were made to the Paddington property. Ms Mulherin kept the invoices for the work which was done, and contemporaneously with the work being done, prepared a summary of the costs. It is common ground that Mr Walsh paid for the cost of the renovations. According to him, at that time he paid $78,900 for the costs of the renovations. These included the installation of an outdoor spa, the tiling of the backyard side passage and spa area, the installation of a glass bar, flooring, installation of an outdoor shower, extensions to the bedrooms and the staircase, installation of an outdoor toilet, and other incidental works. Mr Walsh deposed unequivocally that he made payments of specific amounts for various items. For example, he deposed that he paid $5,000 to a Mr Smith for tiling, $4,000 to Mr Rosenbaum and a friend of Mr Rosenbaum’s for a wooden floor, $52,000 to Mr Rosenbaum for various of the extensions, $500 to Mr Smith for an outdoor toilet and $2,000 to him for matching outdoor awnings of wooden frames, and so on. He produced no documents to corroborate those payments. The payments were made in cash and not by cheque. On the other hand, Ms Mulherin kept a detailed account of the payments. She kept a running account as the payments were made.

67 Mr Rosenbaum gave evidence in support of Mr Walsh’s claim. However, he had no records and his description of the work done and the payments for that work was very general. I prefer Ms Mulherin’s evidence as to the cost of the work. After an adjustment in relation to her contribution to carpets, the amount paid by Mr Walsh was $41,406. To this should be added the value of work done by Mr Smith. Mr Smith’s work was done in return for $5,000 which Mr Walsh gave to Mr Smith in Thailand. There was also a payment of $3,484 (claimed by Mr Walsh to be $4,000) for wooden floors for which Mr Rosenbaum made a separate charge and which Mr Walsh paid. Ms Mulherin admits that Mr Walsh paid $800 for lighting to the backyard. The total amount contributed by Mr Walsh to permanent improvements and additions to the Paddington property, not including shared expenses, was $51,458.

68 Between 16 September 1992 and 31 December 1992, various lump sums were drawn down from the Citibank line of credit account. The withdrawals totalled $23,172.09 and were as follows:

6 October 1992 $5,000.00*
13 October 1992 $2,000.00*
15 October 1992 $1,780.00*
20 October 1992 $5,000.00*
21 October 1992 $954.00
21 October 1992 $1,500.00*
23 October 1992 $657.00
27 October 1992 $3,000.00*
4 December 1992 $350.00
14 December 1992 $350.00
14 December 1992 $1,335.40
15 December 1992 $454.90
16 December 1992 $1,680.79
Total $23,172.09

69 The asterisked sums total $18,280. Ms Mulherin deposed that these were moneys which she withdrew and gave to Mr Walsh. I accept that evidence. I infer that the balance of the withdrawals were used to meet joint expenses, although, for the reasons to which I will come to in due course, it matters not to the outcome of these proceedings whether the balance of the withdrawals were applied to joint expenses or were for Ms Mulherin’s personal use.

70 For the 1993 financial year, up to 15 July 1993, there were further withdrawals of $5,021.89. Ms Mulherin deposes that she withdrew $5,885 in 1993 which she gave to Mr Walsh. That evidence was given in summary form by reference to the 1993 calendar year. Neither party tendered any Citibank bank statements from 15 July 1993. It is impossible to say what, if any, of those instalments Ms Mulherin contends were paid to Mr Walsh.

71 During the period from 15 September 1992 to 15 July 1993, there were deposits to the Citibank account against the reference 92034 totalling $12,176.17. During the same period, Ms Mulherin made payments of interest, fees and taxes totalling $1,238.56.

72 As at 15 July 1993, the mortgage debt was $17,398.08. As I have said, no later bank statements were tendered. Ms Mulherin deposed that by April 2000, the mortgage debt was about $100,000. She was not challenged on this evidence. I find that from July 1993 she drew down moneys on the line of credit account which she used for her own purposes (in which description I include her making loans to others including Mr Walsh), and that she serviced the interest on the debt. Her borrowing moneys under the line of credit on security of the Paddington property after July 1993 should not alter the parties’ beneficial interest in the property, or, the adjustments which should be made to the parties’ property interests to reflect Mr Walsh’s contributions to the acquisition, conservation and improvement of the Paddington property.

73 Between 16 September 1992 and 15 July 1993, Mr Walsh was repaid $6,104 more than he contributed to the account. That sum should be deducted from the contribution of $51,458 which he made towards renovations during this period, giving a net additional contribution by him to the capital value of the property of $45,354.

74 Up to 15 July 1993, Ms Mulherin paid further interest and charges of $1,239 and there was a mortgage debt as at that date of $17,398 which she eventually discharged. That debt arose because of the withdrawals from the account. As those withdrawals go to reduce the credit to be given to Mr Walsh for his contributions, they should not also be taken into account to enhance the value of Ms Mulherin’s contributions on the basis that she later discharged the debt.

75 The jointly shared expenses of renovation should also be taken into account in reflecting the parties’ contributions to the acquisition of the property in its improved state, but they are not substantial and do not materially affect the proportions of the parties’ respective contributions.

76 The fact that Mr Walsh was meeting some of these expenses and sharing others, as well as paying off the principal of the mortgage, together with his contribution of a reasonably substantial sum towards the purchase of the property, strongly suggests that it was the common intention of the parties that he should have some beneficial interest in the property. In his amended statement of claim Mr Walsh claimed relief by way of the imposition of constructive trust of a 50% beneficial interest in the Paddington property in his favour. He pleaded no facts in support of that claim and, in opening, counsel said that the only claim being pursued was a claim for an adjustment of property interests pursuant to Pt 3 of the Property (Relationships) Act. On the face of things, Mr Walsh would have a strong claim to a beneficial interest in the property on the basis of Bloch v Bloch, or on the basis that it was the common intention of the parties that he have an interest in the property and that he acted to his detriment on the basis of that common intention (Green v Green (1989) 17 NSWLR 343; Grant v Edwards [1986] Ch 638), or on the basis that there was a joint endeavour between the parties which failed in which expenditure on the Paddington property was shared for their common benefit, where it was not specifically intended, or specially provided, that the other party should enjoy the benefit of the contribution if the substratum of the joint relationship or endeavour was removed without attributable blame, to the extent that it would be unconscionable for the party enjoying the benefit of the contribution to retain it (Baumgartner v Baumgartner (1987) 164 CLR 137).

77 Rather than seek to explain by reference to equitable principle what beneficial interest in the property Mr Walsh had, counsel was content to rely upon an exercise of the more general discretion under s 20 of the Act to adjust the parties’ property interests without first identifying what those interests were. There is powerful support for that approach. In Evans v Marmont (1992) 42 NSWLR 70, Gleeson CJ and McLelland CJ in Eq said (at 84) that the Court was not obliged to ascertain in full detail the property rights and interests of the parties by reference to the general law, in particular the law of constructive trusts, before applying the statute to the interests as found (cf Jones v Grech (2001) 27 Fam LR 711 per Davies AJA at 722-723).

78 Whether or not the Court makes a finding as to the beneficial interests in property, it must, so far as possible, make a reasoned conclusion as to whether, and if so, why, a financial contribution by one party to another, or to the acquisition, conservation or improvement of property, should result in an adjustment of property interests. Where the contributions are financial and therefore commensurate, merely to identify all contributions on each side of the ledger and then make an “holistic value judgment” as to how the property of the parties to the relationship should be shared runs the danger of expressing a bare conclusion without reasons as to why any adjustment of the parties’ property interests is thought to be just and equitable having regard to the contributions (see also Manns v Kennedy [2007] NSWCA 217 at [65]-[67]).

79 Although there was little evidence as to Ms Mulherin’s subjective intentions, it can be inferred from the matters referred to above, and also from the further evidence referred to below as to Mr Walsh’s payments for renovations in 1992 and early 1993, that it was the common intention of the parties that he should have some beneficial interest in the Paddington property. Whether or not it was the parties’ common intention that that interest should be measured not at the time the property was acquired but by reference to their subsequent contributions (Gissing v Gissing [1971] AC 886 at 909; Burns v Burns [1984] Ch 317 at 327), it is just and equitable that Mr Walsh’s entitlement to an order under s 20 be assessed on that basis. That of course is subject to any further adjustment either in his favour or against him in respect of other financial contributions not referable to the acquisition, conservation or improvement of the Paddington property, or to the non-financial contributions of either party.

80 If the payments for improvements made by Mr Walsh in 1992 and early 1993 were not treated as expenses for which he was entitled to a 70% reimbursement (reflecting his 30% beneficial interest in the property or an order under s 20 which would treat him as so entitled), but as contributions to the capital of the property, his beneficial interest in the property, or entitlement to an order under s 20, would increase to approximately 37% ($119,477 (para [64]) + $45,354 (para [73])) ($119,477 + $283,532 (para [64]) + $45,354 (Para [73]) = 36.7%) .

Adjustment for the Provision of Accommodation

81 It was submitted for Ms Mulherin that the contributions made by Mr Walsh were substantially matched by his having rent-free accommodation in the Paddington property from 1989 to 2005. This submission raises the issue as to how far, if at all, under claims for an adjustment of property interests under s 20 of the Act, the provision by one partner of rent-free accommodation to the other can be taken into account as a contribution by the partner supplying the accommodation. Assuming, as a matter of principle, that such a claim can be advanced, the next question is how it should be dealt with if the partners are equitable co-owners of the property in different shares. In the absence of a contrary agreement, co-owners are both entitled to occupy the whole of the property. Where one co-owner has been in occupation of the property and claims reimbursement for the cost of improvements and lasting repairs, he or she may be charged with an occupation fee to be set off against the claim for improvements and repairs.

82 Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 (at [116]-[118]) does not lay down a principle of law that a party who provides his or her house as accommodation for his or her partner does not make a contribution which can be taken into account under s 20 (Ross v Elderfield [2006] NSWCA 192 at [30]). Indeed, in Bilous v Mudaliar itself, Ipp JA recognised (at [122]) that the provision of the family home was a contribution of the defendant to be accorded appropriate weight, although so far as appears, no weight was accorded to it (at [183], [184], [190]-[194]).

83 It would be an error to double count the benefit of provision of accommodation. However, there is no double counting in recognising that a contribution by A provides a reciprocal benefit to B. To recognise that dual character is not to double count.

84 Were Ms Mulherin the legal and beneficial owner of the Paddington property, I would have no hesitation in accepting the submission of her counsel that the provision of accommodation in the Paddington property should be treated as a contribution by her to be weighed when considering an adjusting order under s 20, or, to put it another way (but not to count it twice), Mr Walsh would have received a benefit or advantage of rent-free accommodation to be weighed against his contributions.

85 However, the position is not so simple. Although counsel for Mr Walsh did not put or argue a case that he was a beneficial owner of the Paddington property, the evidence suggests that he was. As a co-owner, he was entitled to occupy the property. That is not to say he did not receive a benefit from his occupancy. He did, in that he enjoyed the occupancy of the Paddington property for sixteen years equally with Ms Mulherin, although he did not make equal contributions to the purchase of the property. That should be weighed under s 20 by recognising that her greater contributions to the purchase price were of benefit to him in providing him with a residence for which he did not make equal contribution.

Conclusion

116 For the reasons given earlier, the parties’ financial contributions to the acquisition and improvement of the Paddington property up to the completion of renovations in late 1992 and early 1993 warrant an order under s 20 which treats Mr Walsh as if he were then entitled to a 35% beneficial interest in the property. I do not consider that any further adjustment to the parties’ interests in property is warranted having regard to their other contributions. The benefit derived by Mr Walsh from being able to live in the Paddington property without making a contribution to rent, even though he was not a 50% beneficial owner, did not give Ms Mulherin any legal or equitable rights at the time, and there is no reason in justice or equity to create such rights now. As with the case of possible unequal contributions to joint living expenses referred to in para [102] the fact that one party made a contribution to the welfare of the other is not itself a reason for adjusting the parties’ interests in property.

117 The position may be different after the relationship terminated, and particularly after Ms Mulherin asked Mr Walsh to leave the property, which was “a couple of years” before April 2003. But against Ms Mulherin’s claim for rent or an occupation fee which reflected her greater contribution to the acquisition and improvement of the Paddington property, there is to be balanced the fact that Mr Walsh did not press a claim, when he could have done so, to a beneficial interest in the Paddington property, and Ms Mulherin was able to mortgage that property to borrow the funds to complete the purchase of the Woolloomooloo property. The value of that contribution was not quantifiable.

118 I have earlier explained why I do not consider the other claimed financial and non-financial contributions warrant an order under s 20 adjusting the interests of the parties with respect to the property of either of them.

119 For these reasons I am of the view that there should be an order adjusting the interests of the parties in their property which has the effect of recognising that Mr Walsh should receive 35% of the value of the Paddington property. Considering the matter in the round, and making an holistic value judgment, or impressionistic assessment, of their respective contributions under s 20(a) and (b), that appears to me to be a just and equitable adjustment. The property had an agreed value of $950,000. The appropriate order is for payment of a lump sum of $332,500 to be secured by a charge over the property. The furniture should be dealt with as indicated in para [97] above.

120 I direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. The orders should provide for leave to be given nunc pro tunc to Mr Walsh to bring the application. I will hear the parties on costs.

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