MI YUK ALICE LEUNG AND JEFFREY BYRON GOILE

[2024] NZHC 2915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1787

[2024] NZHC 2915

IN THE MATTER

of an appeal under s 39 of the Property (Relationships) Act 1976 and s 124 of the District Court Act 2016

BETWEEN

MI YUK ALICE LEUNG

Appellant

AND

JEFFREY BYRON GOILE

Respondent

Hearing:	22 February 2024
Appearances:	L La Mantia for the appellant P Cobcroft for the respondent
Judgment:	8 October 2024

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 8 October 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/counsel:

Simpsons Lawyers, Auckland Chambers Craig Jarvis, Auckland L La Mantia, Auckland

P Cobcroft, Auckland

LEUNG v GOILE [2024] NZHC 2915 [8 October 2024]

Introduction

[1]    The appellant, Ms Leung, and the respondent, Mr Goile, were in a de facto relationship from 2001 until 27 October 2008. They jointly owned their home in Manurewa (the property). From December 2010 until January 2021 Mr Goile lived at the property together with his new wife and their daughter.

[2]    The parties were unable to agree about various issues relating to the division of their relationship property. They sought orders from the Family Court under the Property (Relationships) Act 1976 (PRA). Amongst other claims, both parties sought compensation under s 18B of the PRA for contributions they claimed to have made to each other in respect of the property after their relationship had ended. Mr Goile claimed half of the costs he had incurred maintaining the property. Ms Leung claimed compensation by way of occupation rent for having made her share of the property available to Mr Goile.

[3]    In a reserved judgment dated 22 June 20231 Judge Ginnen made various orders in Ms Leung’s favour, but declined both parties’ claims for compensation under s 18B of the PRA. Ms Leung appeals the decision not to award her that compensation.

Factual Background

[4]    The parties met in late 2000 and began living together at the property in the second half of 2001. At that time Mr Goile owned the property. He had originally brought the property with his ex-wife. He retained it when their relationship ended.

[5]    In July 2003, the parties agreed that Ms Leung would purchase an interest in the property. Ms Leung paid Mr Goile $43,000 which was put towards the mortgage on the property, reducing it to $90,000. Ms Leung was added to the title as a joint owner and the remaining mortgage debt was refinanced in both their names. From then on, they shared all expenses equally.

1      Goile v Leung [2023] NZFC 3302.

[6]    In June 2006, the mortgage on the property was $62,242.38. The parties decided to repay it in full. Ms Leung paid $58,000 and Mr Goile paid $4,424.38. Judge Ginnen found that the $58,000 Ms Leung contributed was relationship property and not separate property,2 but that the parties had an oral agreement that Mr Goile would repay Ms Leung half of the $58,000. She made an order under s 21H of the PRA to give effect to that oral agreement.3

[7]    Later in 2006, Ms Leung travelled to Hong Kong to care for her mother who had suffered a hip fracture. Her employer gave her two years’ unpaid leave to do this.

[8]    In 2007, Ms Leung returned briefly to New Zealand to attend Mr Goile’s daughter’s wedding. The roof on the property was leaking and in need of repair. In May 2007 Ms Leung paid Mr Goile $20,000 for the cost of these repairs. Judge Ginnen found that the parties had an oral  agreement  that  Mr Goile would  repay Ms Leung half the cost of repairing the roof ($6,675). She made an order under s 21H of the PRA to give effect to that oral agreement.4

[9]    In 2008, Mr Goile visited Ms Leung in Hong Kong. He returned to New Zealand on 15 May 2008. Judge Ginnen found that the parties’ relationship ended on 27 October 2008 when Mr Goile emailed Ms Leung to tell her he had met somebody else he intended to marry.

[10]   In December 2008, Mr Goile moved out of the property. He continued to pay rates, insurance and other outgoings.

[11]   On 23 October 2009, the insurers of the property, IAG, advised Mr Goile that because the property was not occupied the insurance would be cancelled on 6 November 2009.

2 At [46].

3      At [57] and [107(a)].

4      At [73] and [107(b)].

[12]   In December 2010, he moved back into the property with his new wife and their young daughter, thereby ensuring that the property could be insured and retained.

[13]   The parties had commenced negotiations regarding the division of their relationship property in 2009. There remains a dispute as to whether the parties agreed they would rent the property, and whether it was in a tenantable condition at that time.

[14]Mr Goile and his family moved out of the property in 2019, 10 years later.

[15]   For her part, Ms Leung had remained living in Hong Kong from December 2006 until she returned in late 2019.

[16]   The parties made various attempts to reach an agreement to sell the property, but these were unsuccessful. They continue to blame each other for that. In any event, following the Family Court hearing in 2022 the parties agreed to sell the property. The property sold on 17 March 2023 for $810,000.

Section 18B compensation claims

[17]   After the parties separated, Mr Goile paid the rates, insurance and other outgoings on the property in the total amount of $46,355.18. In  the Family Court, Mr Goile claimed half of this amount pursuant to s 18B of the PRA. Judge Ginnen declined that claim.5

[18]   Ms Leung claims occupational rent for the period that Mr Goile lived in the property, which she calculates to be 644 weeks for the period from 27 October 2008 until 19 March 2021. She claims $137,442, being half of $274,885 which a registered valuer, Mr Patrick Beasley, assessed to be the market rental for the property during that time. Judge Ginnen declined to make an order under s 18B for occupational rent.6

5 At [89].

6 At [95].

Legal principles

[19]   A court may make orders compensating a party for contributions to a de facto relationship after it has ended, if the court considers it just to do so.7 The exercise of the power under s 18B is discretionary. All relevant circumstances must be considered.8 The Family Law Service commentary summarises the discretionary power as follows:9

The power in s 18B “is not a simple matter of calculating the relevant figures and allowing an adjustment to produce equal sharing of income and outgoings”. Indeed, the exercise of the power in s 18B is discretionary, and ultimately, as endorsed by the Court of Appeal in Ronayne v Coombes, “a broad brush rather than a ‘precise accounting’ approach is appropriate”. This means that the arithmetical basis for compensation when taken in isolation may be denied or modified when the full circumstances of the parties’ situation is examined.

(footnotes omitted)

[20]   Where one partner makes his or her share of capital in the family home available to the other, this will qualify as a contribution for the purposes of s 18B.10 However:

The mere fact that one party has made such a contribution is not, however, sufficient to allow an award to be made under s 18B… the Court must also be satisfied that it is just in all the circumstances that such an order be made. That question will require the Court to take into account a variety of factors, many of which will be case specific.11

[21]   In assessing whether an award should be made, the court must take into account the benefits of remaining in the home against the expenditure incurred in preserving it. These factors must then be weighed against the detriment to the party who has been deprived of his or her capital for the period of occupation.12

7      Property (Relationships) Act 1976, s 18B.

8      X v X [2009] NZFLR 956 (CA) at [97].

9      Bill Atkin and others Family Law Service (looseleaf ed, LexisNexis) at [7.387].

10     E v G HC Wellington CIV-2005-485-1895, 18 May 2006.

11     C v C HC Auckland CIV-2007-419-1313, 26 June 2008.

12 At [37].

Approach on appeal

[22]   Section 18B provides the Family Court with a broad discretion. In an appeal from an exercise of that discretion an appellant must demonstrate that the lower court: acted on a wrong principle; failed to take into account relevant considerations or took into account irrelevant ones; or was plainly wrong.13

The Family Court decision

[23]   As noted, the Family Court was required  to  determine  various  issues.  Judge Ginnen upheld Ms Leung’s claims that the parties had entered into two oral agreements and that these should be given effect under s 21H of the PRA. The Family Court also rejected both parties’ claims for compensation under s 18B.

Mr Goile’s claim for s 18B compensation

[24]   Mr Goile does not appeal Judge Ginnen’s  decision to dismiss his claim for    s 18B compensation, but I address it because it was relevant to the Judge’s decision to dismiss Ms Leung’s claim.

[25]   As noted, after the parties separated Mr Goile paid rates, insurance and other outgoings in the amount of $46,355.18. He also submitted that he had made a significant post-separation contribution to the relationship by moving back into the property, which was in a sub-standard condition, thereby ensuring the property could be insured and retained. Over the ten-year period he occupied the property, its value increased significantly.14

[26]   The Judge noted that there was evidence that the property was in a substandard condition. The Judge referred to correspondence between lawyers in June 2010 which noted that the property needed painting and wallpapering, that the stove had been removed or had stopped functioning, and that a new water heater, kitchen and bathrooms were required.15 The Judge referred to a real estate appraisal noting that

13     May v May (1982) 1 NZFLR 165 (CA) at 170; Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; and Vaifo’ou v Vaifo’ou [2023] NZHC 3092 at [35].

14     Goile v Leung, above n 1, at [82].

15 At [84].

the property “would benefit greatly with a full renovation” and a letter from another real estate agent dated 16 March 2018 noting that “the property is in need of some serious attention and to be honest most buyers would be looking at it as a full renovation or a knock over and rebuild”. She also referred to the cross-examination of Mr Beasley, who eventually conceded that it was unlikely that the house could be rented in the state it was in, stating that he could “see that there are a number of issues which would make it difficult to rent”.16

[27]The Judge concluded as follows:

[87]      Mr Goile and his family did live in substandard conditions between 2010 and 2021, which ensured that the property retained insurance cover, and that the parties retained an asset that significantly appreciated in value over time, which benefitted Ms Leung.

[88]      Having said that, during that time he did not need to pay a mortgage and he did not pay rent. Although he was frustrated at Ms Leung’s demands which he says prevented a sale, he did not initiate PRA proceedings until late 2019. The increased value of the property benefitted him as well as Ms Leung.

[89]      In those circumstances I do not find that a just division requires compensation to be paid to Mr Goile pursuant to 18B of the PRA.

Ms Leung’s claim for s 18B compensation

[28]   Judge Ginnen set out the basis of Ms Leung’s claim for occupational rent as follows:17

(a)Ms Leung was locked out of her capital for approximately 14 years.

(b)For over 10 of those years, Mr Goile exclusively occupied the property, thus avoiding a major living expense in the form of rent over those years, which likely freed up his household’s income and enabled his family to  accrue  savings.  Ms  Leung  pointed  to  two  properties  Mr Goile’s wife was able to purchase in August 2015 and wondered if those savings enabled her to do that.

16 At [86].

17 At [90].

(c)Ms Leung suffered a lower standard of living, not having access to her capital during that period.

(d)Ms Leung had made it clear that she wanted a return on her investment in the property by requesting that the property be rented.

(e)Mr Goile’s claim that the property was not rentable had not been established.

(f)Whether it was tenantable is irrelevant in any event because Mr Goile had the benefit of mortgage-free living for over 10 years. Ms Leung disputed his evidence that he had to move back into the property, saying that he wanted to retain the property for his family to live in.

(g)It was Ms Leung, not Mr Goile, who followed up in 2018 about what to do with the property. Although there was a criticism of her not taking such steps earlier, he did not follow her up either and was reaping the benefits of free accommodation. Arguably there was no motivation for him to take steps to progress a resolution at that stage.

(h)The state of the property at the time of the October 2020 Inspect House NZ report that Mr Goile filed was of his own making, as he had failed to undertake even the most basic and inexpensive maintenance and repair work at the property.

[29]   The Judge referred to relevant authorities including C v C18 and Clarkson v Slegers.19

[30]   The Judge weighed various factors which she considered favoured an occupational rent claim against various factors which she considered did not. Ultimately, she decided not to exercise her discretion to award Ms Leung occupational rent. Ms La Mantia for Ms Leung submits that the Judge erred in different ways.

18     C v C, above n 11.

19     Clarkson v Slegers [2020] NZFC 9991.

Counsel’s submissions are extensive and detailed. In those circumstances I set out the Judge’s analysis in full: 20

[93]The following factors favour an occupational rent claim:

(a)Mr Goile had the significant advantage of living in a mortgage free home for over 10 years.

(b)Although Mr Goile met the outgoings, the amount he had to pay was not onerous.

(c)I infer from the substandard condition the home was in by the time of hearing that Mr Goile failed to adequately maintain the home. There is conflicting evidence, including in correspondence between the lawyers written closer to the time, about whether the home was in a rentable state at the time of separation. I cannot find to any degree of certainty what the state of the home was in then. However, it was apparent from the evidence filed closer to the hearing date that there were multiple issues with the home that hadn’t been attended to.

(d)There is no clear evidence of Ms Leung demanding occupational rent from Mr Goile. However, she did say in early March 2009 through her lawyer that in terms of renting and maintenance of the property she proposed to appoint a real estate agent to look after the management of the property. However, she was not prepared to “lend” further money for the renovation of the interior of the home.

[94]The following factors do not favour an occupational rent claim:

(a)There is a serious question as to whether the property was in a rentable state without investment into some basic maintenance and upgrades. Neither party was willing to invest in renovation, maintenance or upgrades.

(b)Although Ms Leung said early on that she wanted to rent the property out, she did not signal an intention to seek occupational rent from Mr Goile.

(c)Ms Leung appeared to condone the arrangement by not taking any steps to resolve relationship property matters between 2010 and 2018. During that time the property increased in value significantly.

(d)Mr Goile reluctantly moved back into the property to ensure it would continue to be insured. By doing that he made a post separation contribution by preserving the asset, which increased in value significantly. Although I do not consider it just for him to be awarded

20     At [93] – [95].

compensation for that contribution, it is a factor against occupational rent being awarded.

(e)Both parties accuse the other of delaying the sale of the property. Ms Leung notes that Mr Goile moved out of the home at the end of January 2021 but did not notify her until 19 March 2021 when a query was made on her behalf. She says he then delayed in providing the keys to her valuer so he could gain access to complete a valuation for the purpose of guiding a reserve price. Mr Goile signed a listing agreement on 27 January 2022. Ms Leung returned it, with her corrections and conditions, nearly four months later on 22 May 2022. She said he did not respond or raise the sale of the property again until 20 September 2022.

Mr Goile pointed to his attempts to settle the property or at least get the home on the market for sale. He obtained three appraisals in 2018. He said Ms Leung’s demands as to the sales process were unreasonable. In 2019 he filed PRA proceedings. In August 2021 a registered valuation was obtained which valued the property at $1.3 million. Ms Leung objected to the proposed agent until November 2021 when she agreed to Sally Wong being appointed. He signed the listing agreement in January, and she signed it in May 2022. Between August 2021 and May 2022, the house market stalled considerably, and the value of the property dropped. The sale process again came to a halt because the reserve price and the conditions required by Ms Leung were not agreed.

I find that both parties contributed to the delay in the sale of the house. Both suffered loss as a result, because the house sold for a far lower price than what it had been valued at in August 2021.

[95]      Weighing up the above factors, I find that it is not just to order compensation to Ms Leung for occupation rent. I do not exercise my discretion to do so.

(footnotes omitted)

Submissions

Ms Leung’s submissions

[31]   Ms La Mantia submits that the Judge erred in declining to exercise her discretion under s  18B to  award Ms  Leung  occupational  rent.  In broad  terms,  Ms La Mantia submits that:

(a)The decision is wrong in principle. Ms La Mantia says that although the Judge set out the factors for and against the making of an award, she did not provide reasons for her conclusion that “I find that it is not

just to order compensation to Ms Leung for occupation rent. I do not exercise my discretion to do so”. Ms La Mantia submits the Judge erred by failing to canvass the evidence and submissions presented at the hearing.

(b)Regard and/or undue weight was given to irrelevant considerations concerning the post-separation condition and rentability of the property, the finding that Ms Leung condoned Mr Goile’s occupation of the property, the alleged post-separation contributions by Mr Goile, and the finding that both parties delayed the sale of the property.

(c)Relevant considerations were overlooked or not given adequate weight, including expert and contemporaneous evidence regarding the condition and rentability of the property, Mr Goile’s failure to undertake basic repairs and maintenance, that during the relationship Ms Leung repaid the mortgage in 2006, Mr Goile’s purchase of two properties while living in the property, and Ms Leung’s lower standard of living endured while she was locked out of her interest in the property.

(d)Had the Judge correctly balanced the relevant considerations, she would have concluded that it was just to exercise her discretion to award Ms Leung compensation under s 18B.

(a)     Balancing relevant considerations and the exercise of the discretion

[32]   Ms La Mantia submits that the Judge did not carry out an appropriate balancing of the relevant considerations, and failed to provide any analysis or reasoning as to how the considerations cited led the Judge to reach the  conclusion that she did.     Ms La Mantia submits that it was insufficient for the Judge to list the various factors she had taken into account and then to state her conclusion that it is not just to order compensation. Instead, Ms La Mantia submits that the Judge should have explained how she weighed each of these factors, and how that balancing exercise led her to the conclusion that it did. Counsel submits that the Judge’s failure to explain the weight she placed on each various factor renders the judgment wrong in principle.

(b)     Irrelevant considerations

[33]   Ms La Mantia submits that the Judge gave undue weight to hearsay and non-contemporaneous evidence regarding the condition of the property and whether it was rentable from the date of separation or subsequently. She says this evidence was contrary to correspondence exchanged between counsel soon after separation, which shows there was no need to renovate the property before it was rented. This includes correspondence between counsel in March 2009 in which the parties appear to have agreed to rent out the property, and in which Mr Goile’s previous counsel noted that there was no need to renovate it. She also points to an email sent by Mr Goile dated 27 October 2008 stating: “for me renting the house is fine or selling the house is fine or if there is another option that’s fine as well”. She submits that subsequent correspondence from Mr Goile’s solicitors dated 9 June 2010 stating: “we are instructed that the house needs painting and wallpapering, new stove, water heater, because of the new wiring, new kitchen and bathrooms” can be dismissed as an attempt to lower the value at which Mr Goile would be able to retain the property. In any event, Ms La Mantia says that none of these issues meant that the property could not be rented.

[34]   Ms La Mantia also submits that the report from Inspect House NZ dated       7 October 2020 which Mr Goile produced in support of his contention that the property was unrentable in October 2008 was unreliable, and little (if any) weight should have been placed on it. The author of the report did not provide an affidavit. In any event, Ms La Mantia submits that the report is inconsistent with Mr Goile’s own evidence and does not provide contemporaneous evidence of the state of the property in 2009. Moreover, the issues described in the report appear to be due to deferred maintenance and repairs which Mr Goile chose not to address while he and his family were in occupation.

(i)  Inconsistent findings regarding the condition of the property

[35]   Ms La Manita submits that the Judge gave undue weight to the factors set out in [94(a)] of her decision, namely that there is a “serious question as to whether the family home was in a rentable condition without investment into some basic maintenance and upgrades”. Ms La Mantia says the evidence does not establish any

such “serious question”. She submits this was inconsistent with the evidence, and in any event does not establish that the property was untenantable. Ms La Mantia also submits that this conflicts with the Judge’s earlier findings at [93(c)] that: “… I cannot find to any degree of certainty what the state of the home was in then”.

[36]   Ms La Mantia submits that the weight the Judge gave to this factor fails to take account of Ms Leung’s reluctance to advance further funds for repairs and maintenance after the separation, especially in light of Mr Goile’s failure to honour his agreement to repay his share of funds she had advanced to repay the mortgage and for roof repairs.

[37]   Ms La Mantia submits further that the Judge’s undue emphasis on whether the property was in a rentable condition overlooks the fact that Mr Goile lived there for more than 10 years with his family, during which time Ms Leung was kept out of her capital.

(ii)    Condoning/acquiescing in the occupation

[38]   Ms La Mantia submits that the Judge was wrong to conclude that Ms Leung condoned Mr Goile’s occupation of the property with his wife and daughter, rent-free for 10 years. She submits this was inconsistent with Ms Leung’s correspondence in 2008 and 2009 explaining that she did not agree to anyone other than her or Mr Goile living in the property, and that she wanted to rent it out.

[39]   Moreover, Ms La Mantia submits it is clear the Judge placed undue weight on Mr Goile’s acquiescence because she effectively listed it twice, at paragraphs [94(b)] and [94(c)].21 Ms La Mantia also points out that the increase in the property’s value between 2010 and 2018 benefitted both parties and is therefore a neutral consideration in determining whether an order should be made for occupational rent.

(iii)    Undue emphasis on the respondent’s contributions to the property

[40]   Ms La Mantia submits that the Judge placed undue emphasis on Mr Goile having made a post-separation contribution by moving back into the property so that

21 Set out at [30] above.

it could be insured, thereby preserving the asset. She says that it overlooks the possibility that the property could have been tenanted, and deflects from Ms Leung’s significant post-separation contribution of having her capital tied up in the property where Mr Goile and his new family lived rent-free.

(iv)    Delays in sale

[41]   Ms La Mantia submits that the parties’ respective delays in selling the property is a neutral factor that should not have weighed against the exercise of the discretion to award occupational rent.22

(c)     Failure to take account of relevant considerations

[42]   Ms La Mantia submits further that the Judge failed to take account of, or sufficiently take account of, the following relevant considerations.

(i)     Whether the property was rentable

[43]   Ms La Mantia submits that the Judge did not properly take into account the evidence of Mr Beasley who prepared a valuation report dated 3 June 2021 and gave evidence at the hearing as to the value of the property and the prospect of renting it. She submits that the concession by Mr Beasley referred to by the Judge23 – “I can see that there are a number of issues that would make it difficult to rent” – was in response to a question about the Healthy Homes Standards. However, Ms La Mantia observes that those standards did not come into force until 1 July 2021, and do not qualify   Mr Beasley’s evidence that the property was rentable in 2009. Again, Ms La Mantia submits that the Judge had insufficient regard to the letter from Mr Goile’s lawyer dated 6 May 2009 stating that there was no need to renovate the property before it was rented.

(ii)      Mr Goile’s failure to undertake repairs and maintenance

[44]   Ms La Mantia submits that the Judge gave insufficient weight to the fact that Mr Goile did not undertake basic repairs and maintenance to the property during the

22     Citing G v G HC Wellington AP319-02, 4 August 2003.

23 At [86].

period after the roof was repaired in May 2007, or during his rent-free occupation of it after he and Ms Leung separated. She submits that Mr Goile could have easily carried out other maintenance items, but did not. She submits that he should not have the advantage of that in the Court’s assessment of whether he should be ordered to pay occupational rent.

(iii)      Benefits to Mr Goile/detriment to Ms Leung

[45]   Ms La Mantia submits that the Judge failed to give weight (or sufficient weight) to various factors including Ms Leung’s repayment of the mortgage on the basis of her agreement with Mr Goile that he would repay his share (which he did not), that Mr Goile’s wife was able to purchase other properties while living in the property in Manurewa, Mr Goile’s failure to maintain the property, and Ms Leung’s lower standard of living arising from being denied access to her capital.

[46]   Finally, Ms La Mantia submits that the Judge failed to give weight to the fact that Mr Goile’s wish to retain the property in 2010 would have motivated him to make disparaging comments in legal correspondence about the condition of the property at that time.

[47]   For all of the above reasons, Ms La Mantia submits that the Judge did not appropriately balance the relevant considerations, and her decision was plainly wrong.

Mr Goile’s submissions

[48]   Ms Cobcroft for Mr Goile submits that the Judge appropriately weighed all relevant factors and did not give undue weight to any irrelevant factors. She says that the Judge’s factual findings were available to her on the evidence, and it is clear from the decision that the Judge carefully weighed and balanced the factors in favour of occupational rent and those against. Ultimately, Ms Cobcroft submits that the Judge lawfully exercised her discretion under s 18B, and there is no basis for this Court to interfere on appeal.

Discussion

[49]   Section 18B of the PRA confers a broad discretion on the court to order compensation if the court considers it just to do so. The exercise of this discretion is not an arithmetic calculation, but a broad-brush assessment of what a court considers just in the particular circumstances of each case. Different courts might lawfully exercise the discretion differently. Appeals are to be determined in accordance with the principles set out in May v May.24

[50]   In this case, Judge Ginnen set out the various factors she took into account in determining whether she considered it would be just to order Mr Goile to pay compensation. I do not accept Ms La Mantia’s submission that the Judge was wrong in principle not to explain the balancing exercise further by setting out the relevant weight she placed on each of the different factors she considered. In oral submissions, Ms La Mantia suggested a Judge must describe the relative weight placed on each relevant factor so as to enable an appeal court to consider the matter afresh more easily. With respect, that is to misconceive the nature of the s 18B discretion and the role of this Court on appeal.

[51]   Similarly, I do not accept Ms La Mantia’s various submissions that the Judge erred by placing undue or insufficient weight on different factors. The relative weight to be attached to different factors is a matter for the Family Court in the exercise of its discretion.

[52]   Nor am I satisfied that the Judge took into account irrelevant factors or failed to consider relevant ones. In terms of the rentability of the property in 2010, the Judge noted a conflict in the evidence and considered that she could not find “to any degree of certainty” what the state of the property was at that time.25 However, the Judge found “a serious question whether it was rentable without investment in basic maintenance and upgrades which neither party was willing to make”.26 These findings are not inconsistent, and both were open to the Judge. So too was the inference she

24     May v May, above n 13, at 170.

25     At [93(c)].

26     At [94(c)].

drew at [94(c)] that Mr Goile did not adequately maintain the property while he was in it.

[53]   I also consider it was open to the Judge to find that the conduct of both parties contributed to the delay of the sale of the property, and that they both suffered loss as a result. Ultimately, this is a neutral factor, so it was not incorrect to describe it as one that “does not favour an award of occupational rent”.

[54]   Nor do I consider the Judge should be criticised for finding that Ms Leung “did not signal an intention to seek occupational rent from  Mr Goile”,27  and also  that  Ms Leung “appeared to condone the arrangement by not taking any steps to resolve relationship property matters between 2010 and 2018”.28 These are different points and do not signify any improper “double counting” by the Judge.

[55]   Standing back, I do not accept Ms La Mantia’s submission that the Judge’s conclusion was plainly wrong. It may be that other Judges would have exercised the discretion differently. However, the Judge has carefully and thoroughly explained why she decided not to award either party compensation under s 18B. As well as taking into account the various factors listed at [93] and [94], it is also relevant that the Judge made orders under s 21H in Ms Leung’s favour, giving effect to oral agreements that would otherwise have been unenforceable between the parties.

[56]   For all these reasons, I accept Ms Cobcroft’s submission that the Judge has lawfully exercised her discretion based on factual findings that were available on the evidence she heard.

Result

[57]The appeal is dismissed.

[58]   The respondent is entitled to costs. My preliminary view is that costs should be calculated on a 2B basis. If the parties are unable to agree, the respondent should file a memorandum of not more than three pages (excluding attachments) within 15

27     At [94(b)].

28     At [94(c)].

working days. The appellant should file a memorandum of similar length within a further 10 working days. Unless I require anything else I will deal with costs on the papers.

Robinson J