Ziino v Crabtree

[2005] NSWSC 468

CITATION:	Ziino v Crabtree [2005] NSWSC 468
HEARING DATE(S):	3 and 4 March 2005
JUDGMENT DATE :	18 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1). I order that the proceedings be stood over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and, if desired, for argument as to costs.

CATCHWORDS:	Family Law. De facto relationship. Whether or not parties were in a de facto relationship. Parties were having an affaire, but were not living together as a couple. Trusts. Constructive trusts. Plaintiff made significant financial contributions towards property of Defendant. Whether a constructive trust should be imposed upon that property (or upon proceeds of sale thereof). Money Claims. Defendant received financial benefits in consequence of payments of various amounts which Plaintiff had not authorised. Plaintiff entitled to be repaid those amounts as moneys had and received by the Defendant to the use of the Plaintiff.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Baumgartner v Baumgartner (1987) 164 CLR 137 Muschinski v Dodds (1985) 160 CLR 583
PARTIES:	Dominic Michael Ziino (Plaintiff) Marie Mavis Crabtree (Defendant)
FILE NUMBER(S):	SC 3193 of 2003
COUNSEL:	Mr. P. O'Loughlin (Plaintiff) Ms. P. Nash (Defendant)
SOLICITORS:	Hancock Alldis (Plaintiff) Cragg Braye & Thornton (Defendant)

LOWER COURT JURISDICTION:

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 18 May 2005

3193/03 DOMINIC MICHAEL ZIINO -v- MARIE MAVIS CRABTREE

JUDGMENT

1 MASTER: These proceedings were instituted by summons filed by the Plaintiff, Dominic Michael Ziino, on 6 June 2003. The relief sought in that summons, which related to certain land at Peakhurst of which the Defendant, Mavis Marie Crabtree, was the registered proprietor, is no longer pursued, since that land has been disposed of by the Defendant.

2 Subsequently the Plaintiff filed a statement of claim on 10 July 2003, which pleading was superseded by an amended statement of claim filed on 2 September 2003. The Defendant filed a defence on 18 July 2003 and a cross-claim on 17 July 2003, and the Plaintiff filed a defence to that cross-claim on 11 August 2003.

3 By the amended statement of claim the Plaintiff claims relief by way of orders adjusting the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act 1984; together with relief by way of restitution, or, in the alternative, damages, in the sum of $24,764; a declaration that the Defendant holds certain real property upon trust for herself and the Plaintiff in certain proportions; and consequential relief.

4 By her cross-claim the Defendant seeks substantively an order that the Plaintiff pay to her the sum of $120,000 within a specified period.

5 On 3 March 2005 Justice Campbell, as Duty Judge in the Equity Division, made an order that the entirety of the proceedings be heard by a Master.

6 The Plaintiff was born on 22 November 1968 and is presently aged 36. At the time when the parties met in January 1998, the Plaintiff was employed as a television technician by an entity known as Betterview. According to the Plaintiff, the parties entered into a de facto relationship in March 1999. He said that from that time until March 2002 he was essentially living with the Defendant in her residence at 908 Forest Road, Peakhurst (“the Peakhurst property”).

7 The Defendant was born on 27 October 1966 and is presently aged 38. At the time when she met the Plaintiff the Defendant (who had previously been married and had separated from her husband in 1994) was residing with her three children (Jonathon, then aged 7, Tara, then aged 6, and Erin, then aged 4) in the Peakhurst property. Also residing with them in the Peakhurst property was the Defendant’s elderly mother, who was occupying a granny flat in that residence. That property had been inherited by the Defendant from her uncle in 1989. The Defendant’s former husband, Mark Crabtree, was in the practice of visiting the Defendant and her children on a regular basis, although the frequency of those visits was disputed by the Plaintiff.

8 It was the case for the Plaintiff that he was living on a full-time basis with the Defendant in a de facto relationship with Defendant from March 1999 (about fourteen months after they had first met) until March 2002. The Defendant denied the existence of such a de facto relationship. However, she conceded that from about June 1998, when the parties commenced a sexual relationship, it was the practice of the Plaintiff to stay at the Peakhurst property on one or two nights a week. The Defendant asserted that the Plaintiff always lived at his mother’s residence at 13 Winifred Avenue, Epping. The Defendant herself stayed at that residence on one occasion.

9 Throughout the period from the time when they met in January 1998 until March 2002 the Defendant was in receipt of a carer’s pension of about $385 a week and in receipt of child support from Mark Crabtree in an amount which from early 1998 until December 1999 averaged $212 a week.

10 In mid-2000 the Plaintiff ceased work as an employee of Betterview and embarked upon his own television repair business, using the business name, Clearview, which he had registered in January 2000. That business (which was described by the Plaintiff as being a mobile repair business) was conducted from the Peakhurst property, and some television sets were repaired at that property (although many were repaired on site at the premises of their owners). There was considerable dispute between the parties as to the extent to which, as a practical matter, the television repair business encroached upon the domestic arrangements in the Peakhurst property. According to the Plaintiff, it was only to a slight extent, since most of his work was performed at the location of the client; whereas the Defendant asserted that from mid-1998 the Plaintiff used part of the Peakhurst premises (referred to as “the rumpus room”) for his business, and that that business subsequently expanded throughout the house, televisions being stored in bedrooms, hallway, lounge and dining room. That latter assertion was denied by the Plaintiff.

11 The Defendant gave assistance to the Plaintiff in the conduct of his television repair business. However, the extent of that assistance was the subject of very considerable dispute between the parties. According to the Defendant, she gave very significant assistance to the Plaintiff in the conduct of his business. It was the Plaintiff’s evidence that any such assistance was minimal. The Defendant complained that the Plaintiff paid to her no rent or occupation fee for conducting his business from the Peakhurst premises. The Defendant also complained that she received no wages for her work and assistance in the Plaintiff’s business.

12 By her cross-claim the Defendant claimed recompense for working six days a week from 8am to 8pm, Monday to Saturday, from June 1998 to about October/November 2001, and also, on occasion, on a Sunday. The Defendant quantified that claim upon the basis of secretarial/bookkeeper/assistance being valued throughout the relevant period at $450 a week, and claimed for the asserted period the sum of $79,560.

13 It was also alleged by the Defendant in her cross-claim that the Plaintiff had rented from her premises at the Peakhurst property pursuant to an oral lease, for his work and business and for the storage of his business items, for the period from 28 June 1998 to January 2002, and that, in addition, the Defendant had paid $800 for the removal of certain items and goods of the Plaintiff from the Peakhurst premises. It was alleged in the particulars furnished in the cross-claim that for the period from 28 June 1998 to January 2002 the Plaintiff rented the rumpus room as a workshop and utilised other areas of the house for storage, at an agreed rental of $150 a week, in a total amount of $27,300; and that for the period from June 2000 to January 2002, the Plaintiff also rented the granny flat at an additional agreed rental of $120 a week, in a total amount of $9,360. (I would observe that the discrepancy between the totality of the foregoing items, $117,020, and the amount claimed by the Defendant in the cross-claim, $120,000, remained unexplained.)

14 After the Plaintiff departed from the Peakhurst property the Defendant arranged for the disposal of his chattels and equipment (including, finally, an aquarium, which was removed in January 2003).

15 Whatever be the nature of the relationship which had obtained between the parties, it had clearly come to an end well before the Defendant made application for an apprehended violence order against the Plaintiff in May 2002. That application was consented to by the Plaintiff without admissions.

16 The Peakhurst property was sold on 1 July 2003 for $570,000, and the caveat which had been lodged by the Plaintiff against the title to that property was withdrawn consequent upon orders made by the Court on 17 June 2003. The foregoing sale price represented, essentially, the value of the land, since the residence standing thereon had been destroyed by fire some months earlier, in January 2003.

17 In March 1999 (at the time when, according to the Plaintiff, the de facto relationship commenced) the assets of the Plaintiff consisted of funds deposited in the Advance Bank in an amount of $159,163, together with a Toyota Corolla motor vehicle.

18 At that time the Defendant owned the Peakhurst property, together with the contents and chattels therein, and a Holden Apollo motor vehicle.

19 The Plaintiff at that time was earning about $365 net a week from his employment as a television technician.

20 In March 2002 (at the time when, according to the Plaintiff, his de facto relationship came to an end) the Plaintiff had the following assets,

National Australia Bank - $20,000

St. George Bank - $64,915

Toyota Corolla motor car - $12,000

Various items of electronic equipment - $5,650

Aquarium - $800

21 The Defendant at that time still owned the Peakhurst property (which, as I have already recorded, was sold in mid-2003 for $570,000, the house having been destroyed by fire in January of that year).

22 During the period from March 1999 until January 2002 a number of payments were made to or on behalf of the Defendant from the Plaintiff’s bank account. It was asserted by the Plaintiff that several of those payments had been made without his knowledge or authority, and that, in effect, in those instances the money had been fraudulently obtained by the Defendant. Irrespective of whether or not the Defendant had perpetrated the frauds asserted by the Plaintiff, there was no doubt that the Defendant had received the benefit of payments totalling in excess of $78,000, which included payments to RAMS in respect to the mortgage on the Peakhurst property in a total amount of almost $51,000, and an amount of $21,000, which, according to the Plaintiff, the Defendant told him was required to pay legal bills associated with her divorce from her former husband.

23 An amount of $6,500 was expended by the Plaintiff upon the construction of a driveway for the Peakhurst property.

24 During the course of her oral evidence under cross-examination the Defendant asserted that the foregoing amount of $21,000 was a gift, and, further, that she had repaid $17,500 of that amount to the Plaintiff a few days later. There was no suggestion in the pleadings, or in her affidavit evidence, or, indeed, in her oral evidence to that point, of that allegation made by the Defendant that the $21,000 was a gift. That allegation was made for the first time in the course of the Defendant’s oral evidence during cross-examination.

25 The Defendant did not in any way attempt to explain the purpose for which she obtained this sum of $21,000 from the Plaintiff, the receipt whereof she admitted, other than to deny that its purpose was to pay legal expenses associated with her divorce from her former husband.

26 The Plaintiff said that throughout the foregoing period from March 1999 to January 2002 the Plaintiff contributed to living expenses at the Peakhurst property and also paid half of the municipal rates and electricity on that property, as well as contributing $50 a week towards food.

27 Further, that the Defendant requested (and the Plaintiff complied with such requests) that the Plaintiff pay an amount of almost $51,000 in discharge of the outstanding mortgage upon the Peakhurst property.

28 According to the Plaintiff, he paid for a trip to Fiji for himself, the Defendant and the Defendant’s children in June 1998. The Defendant, conceded that they had all gone on that trip (although asserting the destination to have been Nouméa, in New Caledonia, not Fiji), and that the payment to the travel agent of almost $7,000 had been made by cheque drawn by the Plaintiff. However, the Defendant said that she gave to the Plaintiff in cash the sum of $5,000 for the fares of herself and her children. The Defendant said that that sum had been given to her by her mother.

29 It will be appreciated that in many instances the evidence of one party, especially of the Plaintiff, was flatly denied by the other party. It is appropriate, therefore, that I should express my views concerning the credibility of each of those two witnesses.

30 I did not regard either the Plaintiff or the Defendant as being a particularly reliable witness. However, on balance I preferred the evidence of the Plaintiff to that of the Defendant. The Defendant was determined that she would in no way concede anything to the benefit or to the credit of the Plaintiff. She went so far as to assert that the relationship between the parties was purely a business relationship, when it was quite obvious that a sexual relationship obtained between them (indeed, such was conceded by the Defendant) and that, at the least, they were, to use a somewhat old-fashioned phrase, having an affaire.

31 Exhibit G, which could be described as being an anniversary card, was sent by the Defendant to the Plaintiff. It bears many printed expressions relating to love, and contains the following handwritten endorsements,

With love always
Maree XXX
What more can be said.
Happy or not so happy 3yrs

Maree

XXX x 10,000

OOO

32 The Defendant attempted to explain Exhibit G by saying that she and the Plaintiff had “had a business relationship for three years”, and that the reference to three years in her handwritten statement on that card related to such business relationship.

33 Exhibit H was also a card sent by the Defendant to the Plaintiff, in an envelope bearing the postmark of 19 February 1998. The card, as well as containing printed messages of affection, bears the following endorsements in the handwriting of the Defendant,

To Dominic

Thinking of you

Love

Maree

XXXX

OOOO

To Dominic

Just a short note to thank you for a lovely weekend. I enjoy your company a lot & you make me laugh.

I am so glad I’m your girlfriend & like you so much

Love always

Maree & Co

XXX

OOO

34 Those two cards supported the assertion of the Plaintiff concerning the emotional and sexual relationship which obtained between himself and the Defendant. They were totally inconsistent with the Defendant’s assertion that the relationship between the parties was a purely business one, and that the chief, indeed almost the sole, purpose of the Plaintiff’s presence at the Peakhurst property was for the conduct of his television repair business. Exhibit G supported the conclusion that the emotional and sexual relationship between the parties obtained for at least three years.

35 The foregoing exhibits, as well as the evasive and misleading manner in which the Defendant testified in her affidavit evidence concerning the totality of the payments made by the Defendant towards the Plaintiff’s mortgage, in particular, the payment of $5,000 in January 1999, and the quite unbelievable evidence of the Defendant in respect to the alleged repayment of a substantial part of the $21,000 which she had also received from the Defendant in January 1999 made me reluctant to accept the evidence of the Defendant where it conflicted with that of the Plaintiff.

36 I have had the benefit of receiving a written outline of submissions from Counsel for the Plaintiff and a chronology from Counsel for the Defendant. Those documents will be retained in the Court file.

37 The first basis upon which the Plaintiff claims relief against the Defendant is that the parties were in a de facto relationship, and the Plaintiff thereupon seeks an order, pursuant to section 20 of the Property (Relationship) Act 1984, for the adjustment of the interests of the parties in property. For the jurisdiction of the Court to make such an order to be attracted it must be established firstly that the Plaintiff and the Defendant were parties to a domestic relationship (section 14(1)) and that the parties had lived together in a domestic relationship for a period of not less than two years (section 17(1)) (subject to the qualification provided by section 17(2)).

38 The phrase “domestic relationship” is defined by section 5(1) of the Act as being,

(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

39 In the instant case the Plaintiff asserts that the relationship between himself and the Defendant was a de facto relationship. That phrase is defined by section 4(1) as follows,

For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

40 Subsection (2) provides,

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

41 Subsection (3) provides,

No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

42 In the instant case, the Plaintiff asserts that he commenced to live full-time with the Defendant in the Peakhurst property in March 1999, and that the relationship (whatever may have been the nature thereof) terminated in March 2002.

43 It was the evidence of the Plaintiff, which was flatly denied by the Defendant, that throughout the foregoing period he resided on a full-time basis in the Peakhurst property. The Defendant said that the Plaintiff came to the Peakhurst property only occasionally up to March 1999, perhaps only once or twice a fortnight, and essentially only when he had jobs in the Sutherland Shire, and that on other occasions he slept at his mother’s residence at Epping. It was not entirely clear whether the Defendant disputed that the Plaintiff after March 1999 spent nights at the Peakhurst property. She did assert, however, that from that time the Plaintiff’s presence in the Peakhurst property was limited to the conduct of his business from those premises. According to the Defendant, the Plaintiff told her at about that time that he was conducting a liaison with another lady. It will, however, be appreciated that it was only in mid 2000 (more than a year after the Defendant asserted that the sexual and emotional relationship between the parties had come to an end) that the Plaintiff commenced to conduct his business from the Defendant’s home.

44 Throughout the period whilst the Plaintiff asserted that a de facto relationship obtained between himself and the Defendant, all his tax returns showed his home address as being 10 Winifred Avenue, Epping, which was the address of his mother. Each of those income tax returns disclosed that he did not have a spouse. Each of his bank statements indicated that his home address was the foregoing address at Epping. That address was shown on his driver’s licence and motor vehicle registrations. Similarly, that was the Defendant’s address for the purposes of the electoral roll. The only instance when the Plaintiff used the address of the Peakhurst property as his address was for the registration of the business name Clearview.

45 It was not in dispute (despite the Defendant’s foregoing assertion that her relationship with the Plaintiff was a business relationship) that a sexual relationship existed between the parties from some time in 1998, when on a visit by the Plaintiff to the Peakhurst property in order to repair a television set for the Defendant there had been a sexual encounter between them (initiated by the Defendant), until at least March 1999. I am satisfied, however, that such a relationship obtained for at least three years. Exhibit G supports that conclusion.

46 Despite the denials of the Defendant, there was a significant degree of financial dependence by her upon the Plaintiff, especially in the payment of the outstanding mortgage debt, in a total amount of almost $51,000, and in the payment of the sum of $21,000, as well as in the payment for a driveway for the Peakhurst residence (whether or not the Plaintiff requested or wanted that work, she certainly accepted it), the payment of one-third of the cost of flooring for the kitchen, and contributions (whether or not in the amounts asserted by the Plaintiff) towards the purchase of food and the payment of household outgoings.

47 Whilst there was no conjoint ownership or acquisition of property by the parties during the course of their relationship, the Defendant allowed the Plaintiff to use the Peakhurst property as the address for the registration of his business, to have his business telephone calls directed to that property, and to locate upon that property television sets which were awaiting repairs.

48 The Plaintiff proposed marriage to the Defendant. The Defendant said that she rejected that proposal, and denied the Plaintiff’s assertion that he had given her an engagement ring.

49 The parties, together with the Defendant’s three children went on a Pacific cruise, costing almost $7,000, which was entirely paid for by the Plaintiff. I do not accept the Defendant’s evidence that she made a cash contribution of $5,000 towards the cost of that holiday.

50 There was little in the way of performance of household duties which was shared by the Plaintiff with the Defendant and her children.

51 The Plaintiff and the Defendant did not hold themselves out publicly as a couple. Indeed there was little evidence to suggest that they went out together socially. They did not have the reputation of being in a de facto relationship, neither do there appear to have been any public aspects of the relationship.

52 Throughout the period from March 1999 to January 2002 the Plaintiff did not remain faithful to the Defendant, although the extent of his infidelity was probably less than the Defendant would have the Court believe.

53 No evidence was adduced by either party from, for example, the Plaintiff’s mother, concerning the extent or the frequency of the periods when the Plaintiff was residing at the maternal home at Epping.

54 Whilst it is quite apparent that the parties were conducting an affaire, I am not satisfied, on balance, that they were living in a de facto relationship. That being so, the Plaintiff has not established his standing to seek relief pursuant to section 20 of the Property (Relationships) Act.

55 I turn now to the other grounds upon which the Plaintiff claims relief.

56 It is submitted on behalf of the Plaintiff that the circumstances of this case require the imposition of a constructive trust upon assets of the Defendant. The principles relating to the imposition of a constructive trust have been recognised and discussed by the High Court of Australia in such leading authorities as Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137. In that latter case Mason CJ and Wilson and Deane JJ said, at 148 (whilst referring to and approving of Muschinski v Dodds),

His Honour [Deane J, with whom Mason J (as he then was) agreed] pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention “to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle”(page 614): see also page 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair His Honour acknowledged (at page 616) that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust (page 616).

57 The foregoing description certainly has application to at least the moneys paid by the Plaintiff to RAMS for the discharge of the mortgage upon the Peakhurst property, in amounts totalling $51,905.82. Those payments were made whilst the Plaintiff and the Defendant were having an affaire, whilst the Plaintiff was spending considerable time at the Peakhurst property of the Defendant, in circumstances where the Plaintiff had proposed marriage to the Defendant, and where the Plaintiff was contributing towards the outgoings in respect of the Peakhurst property (being one-half of the insurance and one-half of the municipal rates), and the Plaintiff was contributing towards the household expenses in the Peakhurst property. The Court is entitled to infer that the foregoing payments made by the Plaintiff for the discharge of the mortgage were made in the expectation either that the owner of the property, the Defendant, would ultimately become his wife, or that the affaire between the parties would mature into a closer and more intimate relationship, possibly a de facto relationship.

58 To that extent, and in accordance with the foregoing principles enunciated by the High Court of Australia, the Court should recognise and impose a constructive trust upon the Peakhurst property and, since the sale by the Defendant of that property, upon the proceeds of such sale presently held by her.

59 The amount in respect of which a constructive trust should be imposed upon the assets of the Defendant representing the proceeds of sale of the Peakhurst property will be the amounts of $50,905.82 (representing the totality of the payments to RAMS for discharge of the mortgage) and $6,500 (for the construction of the driveway in October 1998), making a total amount of $57,405.82.

60 In this regard, it is difficult to resist the conclusion that, as was submitted on behalf of the Plaintiff, the relatively recent expenditure by the Defendant of a very considerable part of the foregoing proceeds of sale upon a property at Muswellbrook which is owned by the parents of the her present fiancé, with whom she has been living for a period of only about two and a half years and in which the Defendant has no legal interest, is motivated, at least in part, by a desire of the Defendant to prevent the Plaintiff from obtaining relief in respect to those proceeds of sale.

61 I have already recorded that it was the case for the Plaintiff that a number of the payments which the Defendant had received from the Plaintiff’s bank account came to the Defendant as a result of fraudulent conduct on the part of the Defendant, including either the forgery of the Plaintiff’s signature upon cheques which had been improperly abstracted by the Defendant from the Plaintiff’s chequebook or forged alterations of cheques which had legitimately been drawn by the Plaintiff in favour of the Defendant.

62 The Plaintiff did not, however, refer any of these instances of alleged fraudulent conduct and forgery to the police for investigation, although he attempted (in the event, unsuccessfully) to stop payment of certain cheques the amounts of which he asserted had been fraudulently increased by the Defendant. He offered as an explanation that he did not want the woman to whom he had recently become engaged to marry to be in trouble with the law.

63 I have already observed that the Defendant made no attempt to offer any explanation concerning the amount of $21,000 which had been paid to her by the Plaintiff, for the purpose, according to the Plaintiff, of paying the Defendant’s legal costs associated with her divorce. The Defendant did not dispute that she had received that money. I do not believe her assertion (made for the first time during responses given by her under cross-examination) that she repaid part thereof, $17,500, to the Plaintiff. She offered no particulars or details concerning that alleged repayment – for example, when; where; in what form; if in cash, the source of such cash; in the presence of whom; any accompanying conversation; the reason for the original payment to her, and the reason for the alleged repayment of most of the money paid to her.

64 During the course of the hearing and after the completion of the evidence it was noted that the parties agreed that the sum $17,500 in cash said by the Defendant to have been paid to the Plaintiff in cash during February 2000 was not paid into the Plaintiff’s St. George or National Australia Bank accounts.

65 I am satisfied that the Plaintiff has established an entitlement to receive from the Defendant the foregoing amount of $21,000; together with amounts of $1,000 (withdrawn by the Defendant from the Plaintiff’s account on 14 January 1999); $2,000, being the unauthorised excess which the Defendant received consequent upon the alteration of a cheque for $1,000 given to her by the Plaintiff on 20 April 1999; $1,000, being the unauthorised increase in the amount of the Plaintiff’s cheque for his contribution towards the cost of the flooring of the rumpus room in August 1999; together with amounts of $660, for payment by way of cheque to Waterfall Building for construction of steps to the granny flat, and $764.80 for payment to Australia Post by cheque of June 2000.

66 The payment of $21,000 was, according to the Plaintiff, a payment for an express purpose, being the Defendant’s legal costs associated with her divorce. But according to the Defendant it was not used for that purpose. The Plaintiff did not authorise or intend the Defendant to receive that sum except that it be used by the Defendant for the purpose which, according to the Plaintiff, was stated to him by the Defendant. Since it was not used for that purpose, the Plaintiff is entitled to its return. The other payments to which I have just referred were not authorised by the Plaintiff, yet the Defendant received them and has had the benefit of them.

67 The foregoing entitlement of the Plaintiff to receive those sums from the Defendant can be categorised as an entitlement grounded upon moneys had and received by the Defendant to the use of the Plaintiff.

68 The amounts of the foregoing payments, upon my calculation, total $28,424.80.

69 It has already been observed that the Defendant by her cross-claim asserts her entitlement to be reimbursed with respect to rent or occupation fee for the conduct by the Plaintiff of his business in the Peakhurst property, and that the Defendant also claims reimbursement for her own work in that business.

70 Despite the allegations in her cross-claim, there is no evidence of any agreement, either express or implied, that the Plaintiff would make such payments of rent or wages to the Defendant.

71 The Plaintiff commenced to operate his own business in June 2000. Until that time the Plaintiff was employed by Betterview. It was the evidence of the Plaintiff, which was not disputed by the Defendant, that it was Defendant herself who had originally suggested to the Plaintiff that he should set up his own business.

72 No demand was ever made by the Defendant for either rental or wages before the filing of the cross-claim. Such claims had not been the subject of any correspondence between solicitors. It is difficult to resist the conclusion that the cross-claim was filed, not because of any belief by the Defendant of her entitlement to the amounts claimed therein, but essentially as a response to and by way of resistance to the claims of the Plaintiff.

73 It must be appreciated that throughout the entire period whilst the Plaintiff was conducting his business from the Peakhurst property, and whilst some work (and I prefer the evidence of the Plaintiff concerning the extent and nature of that work) was being performed by the Defendant, the parties were having an affaire. I totally reject the assertion of the Defendant that the relationship between them was purely a business relationship, or that in any way it partook of the nature a business relationship or a commercial enterprise. The parties were in a liaison which, in the eyes of at least the Plaintiff, and probably of the Defendant as well, was expected to mature into something more. In those circumstances it is in no way unlikely that the Defendant, who obviously wished to promote the financial and business prospects of the Plaintiff, should, having suggested to him that he establish a business of his own, have allowed him to conduct that business from her premises, and have given assistance, to a limited and slight degree, in that business (by, for example, taking telephone messages, and attending to banking, and the like).

74 I am not satisfied that the Defendant has established any entitlement to receive rent or occupation fee for the use by the Plaintiff of the Defendant’s premises for the conduct of his business, or to receive anything in the nature of payment or wages for the slight amount of work which the Defendant performed in that business. The claim of the Defendant made by way of her cross-claim will be dismissed.

75 I have not received any submissions concerning costs. It will be appreciated that the Plaintiff, although successful in his claims grounded upon the imposition of a constructive trust and for moneys had and received by the Defendant to the use of the Plaintiff, has not been successful in his claim for adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act. The Defendant has been wholly unsuccessful in her cross-claim, and in respect to the claims of the Plaintiff has succeeded only in resisting the claim for relief grounded upon the foregoing statute.

76 In these circumstances, I consider that the Defendant should pay a proportion of the costs of the Plaintiff of the proceedings. In my view an appropriate proportion would be two-thirds. However, if either party wishes to make submissions for some other order in respect to costs, an opportunity will be given for that purpose.

77 I propose to stand the matter over to date to be fixed by arrangement with my Associate, for the bringing in of short minutes to reflect my foregoing findings and conclusions and, if desired, for argument as to costs.

78 I make the following order:

(1). I order that the proceedings be stood over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and, if desired, for argument as to costs.

**********