Whicker v Pettiford

[2004] NSWSC 782

CITATION:	Whicker v Pettiford [2004] NSWSC 782
HEARING DATE(S):	18, 19 November, 18 December 2003 (written submissions to 22 March 2004)
JUDGMENT DATE:	27 August 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	I order that the proceedings stand over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and for submissions as to costs.
CATCHWORDS:	FAMILY LAW - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Purchase of a property - One party contributed capital, whilst the other party made higher repayments - Caution should be exercised in applying to a claim by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Cth) - The Property (Relationships) Act looks to past contributions whereas the Family Law Act looks also to present and future needs
LEGISLATION CITED:	Family Law Act 1975 Property (Relationships) Act 1984
CASES CITED:	Black v Black (1991) 15 FamLR 109 Davey v Lee (1990) 13 FamLR 688 Evans v Marmont (1997) 42 NSWLR 70 Green v Robertson (1995) 36 NSWLR 96 Jones v Grech [2001] NSWCA 8 Matheson v Wallace [2001] NSWSC 931 Roy v Sturgeon (1986) 11 NSWLR 454 Wallace v Matheson [2002] NSWCA 350 Wallace v Stanford (1995) 37 NSWLR 1
PARTIES :	Susan Desirée Whicker Colleen Nina Pettiford
FILE NUMBER(S):	SC 1697 of 2002
COUNSEL:	Judith Housego (Plaintiff) Lynette Judge (Defendant)
SOLICITORS:	Robinson & Mason (Adelaide) (Plaintiff) Sydun & Co (Defendant)

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 27 August 2004

1697/02 SUSAN DESIRÉE WHICKER –v- COLLEEN NINA PETTIFORD

JUDGMENT

1 MASTER: These are proceedings under the Property (Relationships) Act 1984.

2 By statement of claim filed on 28 February 2002, the Plaintiff, Susan Desirée Whicker, claimed against the Defendant, Colleen Nina Pettiford, orders adjusting the interests of the parties in property, pursuant to section 20 of the aforesaid Act. Subsequently, an amended statement of claim was filed 30 September 2002, and on 19 November 2003, during the course of the hearing, leave was granted to the Plaintiff for further amendment to that pleading in respect to the relief claimed therein.

3 The Defendant filed a defence and cross-claim on 19 April 2002, and subsequently filed an amended defence and cross-claim on 13 November 2002.

4 The parties met in early 1991 at which time they were both employed by Eastern Sydney Area Health Service. The parties lived in a de facto relationship from either December 1991 (according to the Plaintiff) or June 1992 (according to the Defendant). That relationship came to an end on 2 March 2000. From June 1992 the parties resided together, firstly in a house property owned by the Defendant at 41 Rose Street, Annandale (“the Rose Street Property”); and from late 1995 in a house property purchased conjointly by the parties, which was situate at and known as 112 View Street Annandale (“the View Street property”). Upon the purchase of the View Street property the Rose Street property was sold, the Defendant receiving a net amount of almost $202,000 from that sale. A significant part of that amount, being in excess of $120,000, was used in reduction of the housing loans in respect of View Street.

5 After the termination of the relationship both parties continued to reside in the View Street property until June 2002, when the Plaintiff, consequent upon orders made by Burchett AJ on 27 June 2002, was, inter alia, restrained from remaining in residence in that property. The Defendant, however, asserts that the Plaintiff had in fact departed the property during the later part of 2001, despite the fact that items of the Plaintiff’s personalty remained in the property after that time, some remaining there even to the present time.

6 There were no children of the relationship or of either party to the relationship.

7 There were no significant changes to the financial circumstances of the parties between December 1991 and June 1992. It is a fair summary of those circumstances that the Plaintiff, who for at least ten years previously had been pursuing an academic career whilst obtaining the research degree of Doctor of Philosophy, and tutoring within the University of Sydney, had little in the way of assets; whilst the Defendant, who was some thirteen years her senior, and who had been in the workforce for many years longer, had acquired interests in three pieces of real estate (although one of those, the Rose Street property, was subject to a substantial mortgage).

8 At the commencement of the relationship (irrespective of whether that took place in June 1992 or some six months earlier) the assets and liabilities of the Plaintiff were stated by her to be as follows:

Assets

Savings - $16,000

Honda motor vehicle - $3,500

Bicycle - $1,200

Furniture - $10,000

Superannuation entitlements - $3,645

Liabilities

Credit card liability - $200

9 The Defendant stated that at the commencement of the relationship her assets and liabilities were as follows:

Assets

Rose Street property - $175,000

Interest in property at Nelly Bay, Magnetic Island - $15,000

Half interest in property at 2 Isabella Street, Balmain - $125,000

Motor car - $5000

Furniture - $35,000

Superannuation entitlements - $3,458

Liabilities

Mortgage on Rose Street property - $137,000

10 The Plaintiff stated that her assets and liabilities at the time of the termination of the relationship were as follows:

Assets

Interest as co-owner of View Street property - $287,500

Renault motor vehicle - $2000

Savings - $4,326 (estimate)

Interest in household contents - $32,500

Superannuation entitlement - $76,000

Liabilities

Joint liability for View Street mortgage - $181,333

Credit cards - $3,000

11 The Defendant stated that at the termination of the relationship her assets and liabilities were as follows:

Assets

Interest as co-owner of View Street property - $262,500

Interest in Magnetic Island property - $22,000

Potts Point property - $165,000

Peugeot motor vehicle - $18,000

Savings (business capital) - $6,939

Interest in publishing business - nil

Interest in household contents - $42,500

Superannuation entitlements - $74,800

Liabilities

Joint liability for View Street mortgage - $167,000

Credit cards - $8,700

CBA lease (on motor vehicle) - $15,000

Potts Point mortgage - $62,711

(It should be noted that many of the foregoing amounts are estimations of values ascribed by the respective parties to assets and liabilities.)

12 The Plaintiff, who has professional qualifications as a clinical pharmacologist and who obtained the degree of Doctor of Philosophy in that field in 1990, was, in November 1993, seconded to work for the Royal Australian College of General Practitioners (RACGP) as a project officer. She remained employed by the RACGP, holding various responsible positions in that organisation, throughout the period of the relationship.

The Defendant continued in the employ of the Eastern Sydney Area Health Service until April 1995, at which time she left that employment and commenced her own business as a publisher (to the details whereof I shall make further reference).

13 The Plaintiff, who was born on 28 August 1956, is presently aged 48, whilst the Defendant, who was born on 11 April 1943, is presently aged 61.

14 There has been agreement between the parties concerning the present value of various of the foregoing assets of one or other of the parties, as follows:

Business interests of the Defendant

Colleen Pettiford and Associates Pty Ltd - nil

CP Works - $1,604

What Should I Do Publishing - nil

62/1 McDonald Avenue, Potts Point - current value $210,000

Lot 26, Lilac Street, Nelly Bay, Magnetic Island,
Queensland - current value $27,500

It was agreed that items within the description “furniture, furnishings, artwork, etc” were not to be taken into account in the present proceedings.

It was further agreed that the present amount outstanding on the mortgage over the View Street property was $120,659, and the present amount outstanding on the mortgage over the Potts Point property was $82,382.

15 Various calculations were placed before the Court concerning what was described as the gross pool of assets of the parties and the net pool of assets of the parties. According to the calculations of the Plaintiff the value of the net pool of assets of the parties concerning which the Court must arrive at a decision was presently an amount of $848,563, whilst, according to the Defendant, the present value of such net pool of assets was an amount of $738,563.

16 There was considerable dispute between the parties concerning the extent of their respective contributions towards household expenditure and towards work performed upon the conservation and the renovation and improvement of the Rose Street property and, after its acquisition, of the View Street property.

17 The purchase (by the parties as joint tenants) of the View Street property was fully funded by bridging finance. After the sale of the Rose Street property, the amount owing to the mortgagee, the Commonwealth Bank of Australia, was significantly reduced, by more than $120,000.

18 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and the cross-claim of the Defendant.

19 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

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

On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to 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 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.

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

22 A considerable quantity of the evidence in the instant case related to the assets and liabilities of the parties after the termination of the relationship and especially to the present value of the various assets of one or other of the parties – in particular, the present value of the View Street property.

23 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission, Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 80 – 81; Jones v Grech [2001] NSWCA 8 per Ipp AJA at 76).

24 The discretion vested in the Court by section 20 (1) of the Act is to be exercised “having regard to” the contributions of the nature described in paragraphs (a) and (b) of that subsection.

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

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

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

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

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

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

30 I propose, therefore, in considering the claims of the parties for adjustment of interests in property under section 20 (1) of the Property (Relationships) Act to disregard evidence concerning various financial transactions which occurred after the termination of the relationship. Those transactions can be in no way determinative of the outcome of the present proceedings.

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

32 It is appropriate that I should express my findings concerning the date of the commencement of the de facto relationship and the date of the termination thereof.

33 Until June 1992, the Plaintiff resided in premises at Leichhardt, in respect whereof she was the tenant under a lease and for which she paid rent. She asserts, however, that throughout the period from December 1991 until June 1992 she spent time with the Defendant, and that throughout that period she made financial contributions to the housekeeping expenses of the Defendant. The Plaintiff conceded that a formal arrangement as to her financial contributions to the household did not, in fact, commence until six weeks after she moved into residence in the Rose Street Property in June 1992. Throughout the period from December 1991 until June 1992 each of the parties was in employment, thus spending considerable periods (in the case of the Plaintiff, protracted periods) each day away from her own residence.

34 Whilst the parties appear to have enjoyed a close friendship between December 1991 and June 1992, I am not persuaded that the de facto relationship commenced until the Plaintiff moved into the Rose Street property in June 1992.

35 Although, after 2 March 2000, the Plaintiff continued to reside, at least on a part-time basis, in the View Street property, and although, as I have already observed, various items of the Plaintiff’s personalty remained in that property after that date, even to the present time, nevertheless it was not disputed by either party that the de facto relationship between them came to an end on 2 March 2000.

36 Accordingly, in my conclusion, the de facto relationship between the parties obtained from June 1992 until 2 March 2000.

37 But, in any event, as has already been observed, there was little difference between the assets and liabilities of each party at the commencement of the relationship in June 1992 and those assets and liabilities some six months earlier, in December 1991.

38 It was the evidence of the Plaintiff that from the time when she entered into residence at the Rose Street property in June 1992 there was an arrangement concerning her financial contributions towards the household. At the outset she contributed $420 a month as rent and $75 a week for living expenses, each of those amounts being paid by her to the Defendant in cash. In late 1993, the rent was increased to $500 a month which the Plaintiff initially paid by cheque, and then, from August 1994, by way of direct debit. That arrangement continued until the purchase of the View Street property in August 1995. The housekeeping payments increased in 1994 to $175 a fortnight, and in 1998 to $200 a fortnight. From October 1995 to December 1995, the Plaintiff paid the Defendant a sum of $750 a fortnight, to cover the totality of rent, her share in the mortgage payments and household expenses.

39 It was the case for the Plaintiff that during the relationship she assisted the Defendant both physically and financially with renovations carried out to the Rose Street property from 1992 to 1994. In May 1994, the Defendant sold her interest in the house property at 2 Isabella Street, Balmain, receiving a total amount of $122,194 for that interest. A significant part of that sum, about $80,000, went towards the reduction of the mortgage on the Rose Street property in May 1994.

40 It was the assertion of the Plaintiff that during the relationship she and the Defendant purchased a number of items of household furniture and effects, all of which presently remain in the Defendant’s possession at the View Street property.

41 During the course of the relationship, the parties altered their financial and material circumstances on several occasions. For example, in 1992 the Plaintiff sold her Honda motor vehicle for $2,300 and purchased a Renault Fuego motor vehicle for about $9,000. That purchase was financed in part by a personal loan in the sum of $5,000 from Endeavour Credit Union. The Plaintiff discharged that loan during the course of the relationship.

42 The Defendant also, during the course of the relationship, sold her Mini Minor motor vehicle for $5,000 and purchased a Subaru motor vehicle for $7,250 in February of 1995. That vehicle was subsequently sold for about $5,000. In 1996, the Defendant acquired a Peugeot motor vehicle for $25,000, which was subject to a lease arrangement.

43 The Defendant remained in the employ of the Eastern Sydney Area Health Service until April 1995, at which time she commenced her own business, known as Pettiford Promotions, and which was later incorporated in about June 1996 under the name Colleen Pettiford & Associates Pty Ltd. The Defendant also entered into two partnerships, one being under the name CP Works (with one Juliette Cobb) and the other known as What Should I Do Publishing Pty Ltd (with Mort Bay Services Pty Ltd). The business activities of the Defendant were essentially those of a publisher (in the field of medicine and health), but the Defendant also worked as a consultant in the health industry.

44 It was the case for the Plaintiff that she assisted the Defendant in setting up her various business enterprises, by assisting in the acquisition for her of a number of items of office equipment, and by giving to her a mobile telephone, for which, according to the Plaintiff, she paid some of the telephone accounts. The Plaintiff said that she also gave practical assistance to the Defendant in building up the Defendant’s businesses, both by way of giving physical assistance in the production of publishing work and also by the use of the Plaintiff’s own connections in the health industry. The Plaintiff received commissions in respect to the projects performed by the Defendant’s business enterprises in which the Plaintiff had participated.

45 The View Street property was purchased in July 1995 by the Plaintiff and the Defendant as joint tenants for $310,000. In order to finance that purchase it was necessary for the parties to obtain bridging finance in the sum of $310,000 from the Commonwealth Bank of Australia. That total sum was obtained by way of two separate loans, one being in the sum of $62,000 and the other being in the sum of $248,000. The Defendant’s Rose Street property was security for those loans. The stamp duty and associated costs related to the purchase (totalling about $10,700) were initially paid by the Plaintiff, who was subsequently reimbursed from the later borrowings from the Commonwealth Bank. Similarly, the deposit of $14,000 was paid by the Plaintiff on 6 August 1995 and was repaid to her on 28 August 1995, from the borrowings from the Commonwealth Bank. After the sale of the Rose Street property the loans were secured by mortgage over View Street.

46 In mid-1995 the Plaintiff was in receipt of a salary of $65,000 a year, and was receiving income from part-time employment of $5,000 a year. It is apparent that had the Plaintiff not been in full-time employment and had she not been in receipt of income in the foregoing amounts, the parties would not have been able to obtain the financial accommodation from the Commonwealth Bank which enabled them to purchase the View Street property. It was the arrangement between the parties that the Plaintiff would contribute two-thirds of the repayments on the loans and the Defendant would contribute one-third thereof. That arrangement was intended to reflect the fact that the Defendant had made a far greater capital contribution to the purchase than had the Plaintiff (although that capital contribution was not made until the sale of Rose Street, some eight months later).

47 The parties continued to reside in the Rose Street property until 1995. During the last three months of that year various renovations costing, according to the Plaintiff, a total of about $40,000 were effected to the View Street property. That sum was funded by contributions of $12,500 from each of the Plaintiff and the Defendant, together with a joint personal loan which they obtained in December 1995 from the Commonwealth Bank in the sum $15,000. That loan was subsequently repaid by the Defendant from the proceeds of the sale of Rose Street.

48 During the period of from December 1995 until 6 April 1996, the parties contributed equally to the repayment of the mortgage instalments on the View Street property at the rate of $913 a fortnight each. It was asserted by the Plaintiff that during that period and until the bridging finance came to an end, the Plaintiff, at the request of the Defendant, paid additional household expenses, and also assisted the Defendant in meeting her proportion of the mortgage payments, since, according to the Plaintiff, the Defendant’s financial situation did not enable her to do so.

49 Although the de facto relationship between the parties terminated in early March 2000, nevertheless, each party has thereafter continued to contribute to the mortgage repayments on the View Street property. However, consequent upon the order made by Burchett AJ on 27 June 2002, the Defendant was required to make minimum monthly payments, and has since that time been paying an amount of $532 a fortnight, whilst the Plaintiff has continued to make payments of $713 a fortnight.

50 According to the calculations of the Plaintiff, from April 1996 to June 2002 a totality of payments on loans in respect to the View Street property have been made in the sum of $165, 785, of which the Plaintiff has contributed the sum of $122,015.

51 The cost of renovations and refurbishment to the View Street property was, in general, shared equally between the parties. However, the Plaintiff said that in March or April 1996, she received an inheritance of $5,000 from her late grandmother’s estate which amount she used towards the installation of a combustion heater in the View Street property and for improvements to the backyard. She received a further sum of $1,000 by way of inheritance in November 1999, which amount she subsequently used to pay the expenses of the Defendant and herself on a visit to Samoa.

52 Throughout the relationship, the parties maintained separate bank accounts into which their respective incomes were deposited. However, in 1994, they opened a joint account with the St. George Bank into which they made equal payments towards household expenses. In late 1995, at the time of the financing of the mortgage with the Commonwealth Bank, the parties opened a second joint account with that bank (the joint Streamline account). Thereafter, mortgage repayments and, according to the Plaintiff, selected household expenses were paid from that account. In late 1998, arrangements were made for automatic transfers into the joint Streamline account from the individual accounts of the Plaintiff and the Defendant in respect to both mortgage repayments and household expenditure.

53 It was the case for the Plaintiff that she frequently subsidised the contributions of the Defendant towards household expenses. The Plaintiff also said that at the time of separation, the Defendant withdrew an amount of $800 in cash and (as I understand it) an amount of $200 for payment for groceries from the joint account without the authority of the Plaintiff.

54 The Plaintiff also asserted that she, rather than the Defendant, mainly paid for meals when they went out together and for the purchase of alcohol for the household; that she generally paid for entertainment expenses and frequently purchased clothing for the Defendant; that she gave the Defendant $500 by way of spending money for a trip to Norfolk Island and gave various other incidental amounts to assist the Defendant. The Plaintiff and the Defendant had a number of holidays together. According to the Plaintiff, she paid the major part of the expenses for those holidays.

55 The Plaintiff has, in her affidavit evidence, set forth a table showing the comparative taxable annual incomes of herself and the Defendant for the years ended 30 June 1993 to 30 June 2001. According to that table, the total annual incomes of the Plaintiff were in an amount of $693,355 whilst those of the Defendant were in an amount of $274,796.

56 In August 1999, the Defendant withdrew the sum of $10,000 from the mortgage account special redraw facility to assist her in her business.

57 Also during the course of the relationship the Defendant in August 1996 purchased an investment property at 62/1 McDonald Avenue, Potts Point (“the Potts Point property”) for the sum of $130,000. That purchase was funded by way of a loan from the Commonwealth Bank in the sum of $104,000, the balance of the purchase price and associated costs being met (according to the Defendant) from the proceeds of the sale of the Rose Street property. The Potts Point property has generally been tenanted, the Defendant receiving the rental therefor. It was submitted on behalf of the Defendant that the Potts Point property was, in effect, quarantined by the parties during the relationship, and should thus be disregarded from the assets of the parties presently available to be the subject of any order in the present proceedings.

58 It was the case for the Plaintiff that not only did she make direct and indirect financial contributions to the relationship, but she also contributed to the relationship as homemaker, attending to cleaning, cooking, housekeeping, entertaining, gardening, and the like.

59 There was considerable dispute between the parties concerning the amount, if any, held by the Plaintiff by way of savings at the commencement of the relationship (be that commencement in mid-1992, as I have found, or some seven months earlier, as asserted by the Plaintiff). In her pleadings and in her affidavit evidence the Plaintiff asserted that at the time of the commencement of the relationship she had an amount of $16,000 in savings. However, under cross-examination she admitted that that figure was a guess and was not based on any document held by her. Nevertheless, it was subsequently submitted on behalf of the plaintiff that the bank records (Exhibit A) in fact substantiated the figure asserted by the Plaintiff to have been held by her by way of savings. However, the Defendant submitted that those bank records reveal a pattern of movement of funds between accounts and that it was not possible on the basis of that material to conclude that the savings asserted by the Plaintiff were in fact held in a lump sum in that amount at the relevant times. Ultimately, however, it was conceded by the Defendant under cross-examination that the Plaintiff at the commencement of the relationship held savings totalling about $17,445.

60 Although there was considerable dispute between the parties on many factual matters, the dispute was more in relation to the degree of the respective contributions of the parties, rather than to whether such contributions, were in fact, made. I did not consider that, generally, either party was deliberately attempting to mislead the Court in regard to the nature and extent of the respective contributions of the parties, although it is possible that, perhaps unintentionally, each party was exaggerating the extent of her own contributions and underrating the extent of the contributions of the other party.

61 It was conceded by the Plaintiff under cross-examination that the Defendant was financially well organised and was much better organised concerning financial records and the like than was the Plaintiff. In the light of that concession (and, indeed, in the light of the assertion to like effect made by the Defendant herself), it seemed to me somewhat strange that when the Defendant was being cross-examined concerning financial records and transactions of the parties she on a number of occasions responded by saying that she was not an accountant, thereby (as I understood it) implying that without accountancy qualifications she was not in a position to agree with the proposition then being put to her. Similarly, I considered it strange that the Defendant appeared to have little recollection of the details of her discussion, or discussions, with the appropriate officer of the Commonwealth Bank who was dealing with the loan application of the parties in respect to the purchase of the View Street Property. Those responses of the Defendant led me to prefer the evidence of the Plaintiff on those topics (especially regarding the statements by the Bank officer concerning the factors relevant to obtaining the housing finance), where there was dispute in regard thereto between the evidence of the parties.

62 I have already observed that in approaching the claim for adjustment of interests of the parties in property, the Court should make a wholistic judgment and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts.

63 It seems to me, therefore, that it is appropriate that I should, in somewhat general terms, describe those contributions as they appear to me to emerge from the evidence.

64 At the commencement of the relationship, the Defendant, who was thirteen years the Plaintiff’s senior, owned a number of pieces of real estate and could be described as a woman of property. The Plaintiff, on the other hand, although with high academic qualifications and a potential (subsequently fulfilled) to command a reasonably high salary in the workforce, had little in the way of assets to bring into the relationship. The chief contributions of each party related to the acquisition, the conservation, and the improvement of the View Street property. That is the asset which essentially is the subject of the present dispute between the parties.

65 At the outset, the acquisition of the View Street property was funded entirely from bridging finance provided by the Commonwealth Bank. That bridging finance was provided by the Bank partly upon the basis of the assets (essentially real property) owned at the relevant time by the Defendant, and partly upon the basis that, since the View Street property was to be purchased conjointly by the parties as joint tenants, the financial and material circumstances of the Plaintiff should also be taken into account by the Bank. At that time the Plaintiff was in receipt of a salary higher than that of the Defendant. The Plaintiff was in a financial position to contribute higher amounts to the repayments of the housing loan than was the Defendant. In fact, the arrangement between the parties was that the contributions of the Plaintiff to those repayments should be approximately twice those of the Defendant.

66 When the Defendant sold the Rose Street property she was thereupon enabled to reduce significantly the indebtedness of the parties over the View Street property.

67 The financial arrangements between the parties for the purchase of View Street were, in summary, that the Defendant put in equity, whilst the Plaintiff made higher repayments. The non-financial contributions to the View Street property (by way of the performance of physical improvements thereon) were shared between the parties, although the major part thereof appears to have been performed by the Defendant rather than by the Plaintiff.

68 Whilst each of the parties contributed as a homemaker, nevertheless, especially after the Defendant ceased her employment and became a self employed publisher and consultant working from home, the practical constraints of the Plaintiff’s employment (including long working hours, and the requirement that she travel interstate from time to time) meant that the Defendant had greater opportunities than the Plaintiff to contribute as a homemaker.

69 Whilst the Plaintiff assisted the Defendant in certain activities in the Defendant’s publishing business (such as proof reading from time to time), nevertheless the equivalent assistance given by the Defendant to the Plaintiff in the Plaintiff’s professional work (such as the completion of projects to a deadline) was, in my conclusion, somewhat greater.

70 I do not disregard the fact that in all likelihood the Bank would have been unwilling to advance finance to the Defendant alone for the purchase of the View Street property and that a significant factor in the Bank’s decision in that regard was the Plaintiff’s financial situation and the security of her employment. Nevertheless, although the Plaintiff thereafter contributed approximately twice the amount of the Defendant’s contributions towards the repayment of the housing loan, I consider that the payment by the Defendant of more than $120,000 from the proceeds of sale of the Rose Street property towards the repayment of the housing loan for View Street significantly outweighed the possibility that the housing loan might not have been granted without the Plaintiff, in the financial circumstances in which she found herself, being a co-purchaser of that property. The repayments by the Plaintiff at a rate of about twice the repayments of by the Defendant did not, in monetary terms, equate the capital contributions of the Defendant towards the purchase of View Street.

71 Further, there is substance in the submission of the Defendant that the regular payments by the Plaintiff, characterised as rent, would have included amounts which, in any event, the Plaintiff would have been required to expend upon herself if the parties had been living separately and apart. It seems to me to be a somewhat simplistic approach to assume that, especially when the parties were residing together in Rose Street, the totality of the contributions by way of rent made by the Plaintiff to the Defendant should be regarded as contributions to the joint household expenses of the parties. Neither do I regard disregard the facts that Rose Street had been owned by and was the residence of the Defendant (and contained all the Defendant’s furniture and furnishings) before the relationship commenced, and that for the first three years of the relationship the parties were living in that residence belonging to the Defendant.

72 In adopting an overall approach to the respective contributions of the parties of the nature referred to in section 20(1) of the Act, it seems to me that the contributions of the Defendant were somewhat greater than those of the Plaintiff throughout the relationship (especially the financial contributions resulting from the sale of the Rose Street property, those financial contributions themselves resulting from the fact that the Defendant was the owner of that property (and other properties) at the commencement of the relationship).

73 In my conclusion, the relief which should be granted by the Court should reflect that the contributions of the Plaintiff represented 40 per cent whilst those of the Defendant represented 60 per cent of the totality of the contributions by the parties of the nature described in section 20(1) of the Act (those contributions being significantly in respect to the acquisition, conservation and improvement of the View Street property).

74 In her statement of claim as originally filed, the Plaintiff sought essentially that each of the View Street property and the Potts Point property should be sold and that the net proceeds of the sale (after the discharge of any mortgage and the payment of costs and expenses associated with such sale) should be divided equally between the parties.

75 By her amended statement of claim the Plaintiff sought, in the alternative to the foregoing relief, an order that the Defendant transfer to her, free of encumbrance, the Potts Point property; that the Defendant pay to the Plaintiff a sum equivalent to one half of the equity in the View Street property, the Potts Point property and the Magnetic Island property and the various businesses of the Defendant less the unencumbered value of the Potts Point property, and that in return therefor, the Plaintiff would facilitate the discharge by the Defendant of the mortgage in respect to the View Street property and transfer to the Defendant the Plaintiff’s interest in the View Street property.

76 I have already recorded that on 19 November 2003, during the course of the hearing, leave was granted to the Plaintiff for further amendment to the statement of claim in respect to the relief sought therein. That amendment is set forth in a document entitled “Plaintiff’s Amended Minute of Order”, which was filed in Court on 19 November 2003. That document replicates the primary relief in respect to the View Street property sought in each of the statement of claim and the amended statement of claim (being the sale of the property and the equal division between the parties of the net proceeds of sale); and then seeks in the alternative that the Plaintiff pay to the Defendant such sum as is equivalent to one half of the equity in the View Street property, and that in return the Defendant will facilitate the discharge by the Plaintiff of the mortgage over the View Street property and will transfer to the Plaintiff the Defendant’s interest in that property.

77 That document also provides, in paragraphs 19.5 and 20.7 thereof, a formula for the division between the parties of the remaining items of furniture, white goods and electrical goods located at the View Street property.

78 By her amended defence, the Defendant opposes the relief sough by the Plaintiff in the amended statement of claim.

79 By her cross-claim the Defendant seeks an order that Plaintiff transfer to the Defendant the Plaintiff’s interest in the View Street property, subject to the existing mortgage, and that simultaneously with such transfer the Defendant pay to the Plaintiff an amount equal to 15 per cent of the net value of the View Street property (the phrase “net value” being defined therein to be “the market value less the amount outstanding under the mortgage”). The Defendant, by her cross-claim, seeks a declaration as to her entitlement to a considerable quantity of chattels which are then identified in that pleading.

80 It will be appreciated from the foregoing that various alternative items of relief are sought by each party in respect to the View Street property. I have already expressed my conclusion that it is appropriate that the plaintiff should be entitled to a 40 per cent interest in that property whilst the Defendant should be entitled to 60 per cent interest therein. Since the Defendant continues to reside in the View Street property, it may be that she would desire that that property not be sold, but that she should be enabled to acquire the interest of the Plaintiff therein for payment to the Plaintiff of 40 per cent of the current market value less the amount outstanding on the mortgage. Similarly, in the event that the Plaintiff were desirous of acquiring the View Street property, she should be entitled to do so upon payment by her to the Defendant of 60 per cent of the current market value less the amount outstanding on the mortgage. If neither party wishes to retain the property, then it should be sold and the net proceeds, after repayment of the mortgage debt, should be divided as to 40 per cent to the Plaintiff and 60 per cent to the Defendant.

81 I do not consider it appropriate that the Plaintiff should receive any interest of the Defendant in the Potts Point property. In this regard I am substantially in agreement with the submission of the Defendant that this property was, in effect, quarantined by the parties during the relationship. Neither do I consider it appropriate that the Plaintiff should receive any interest in the Defendant’s property at Nelly Bay, Magnetic Island, which was owned by the Defendant before the commencement of the relationship, and towards which no contributions were made by the Plaintiff.

82 If the parties are not able to reach an agreement concerning the entitlement claimed by the Defendant in the chattels listed in prayer 3 of the cross-claim, then it may become necessary for the Court to rule upon each and

every one of those chattels, and to receive evidence concerning the identity, acquisition and present location of each such chattel. However, it would appear that most, if not all, of those chattels fall within the description “furniture, furnishings, artwork, etc,”, which, in accordance with the agreement between the parties which was noted on the first day of the hearing, were not to be taken into account in the present proceedings. If that be so, then the claim of the Defendant in prayer 3 of the cross-claim may be disregarded.

83 Each of the parties claims an order that her costs should be paid by the other party (the Defendant by her cross-claim seeking that those costs be paid by the Plaintiff on the indemnity basis).

84 The Plaintiff sought a 50 per cent interest in View Street and a 50 per cent interest in the Potts Point property, whilst the Defendant sought an 85 per cent interest in View Street and that the Plaintiff should have no entitlement to Potts Point. In the event, I have held that the Plaintiff should receive a 40 per cent interest in View Street and no interest in Potts Point whilst the Defendant should receive a 60 per cent interest in View Street and the totality of Potts Point.

85 It will be appreciated that neither party has succeeded in obtaining, substantially, the relief which she sought against the other party. In those circumstances, I consider it appropriate that I should make no order in respect to costs, to the intent that each party will bear her own costs of proceedings.

86 However, I have not heard any submissions in respect to costs. Accordingly, if either party is desirous of pursuing an application for costs, she will have an opportunity to do so.

87 I propose to stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of Short Minutes to reflect my foregoing conclusions and to enable the parties, should either or both so desire, to make submissions concerning costs.

88 The Short Minutes should make provision for liberty to apply in respect to the implementation of the orders.

89 I make the following orders:

(1). I order that the proceedings stand over to a date to be fixed by arrangement with my Associate for the bringing in of Short Minutes and for submissions as to costs.

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Last Modified: 09/02/2004