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TD v GP[2006] QDC 367

TD v GP[2006] QDC 367

DISTRICT COURT OF QUEENSLAND

CITATION:

TD v GP [2006] QDC 367

PARTIES:

TD

Plaintiff

V

GP

Defendant

FILE NO/S:

3574 of 2005

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

11 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 25 and 28 August 2006

JUDGE:

Ryrie DCJ

ORDER:

  1. The plaintiff’s claim is dismissed in respect of the relief sought pursuant to the Property Law Act 1974.
  2. The plaintiff’s claim be allowed in respect of the alternative relief for breach of the deed dated 9th August 1999
  3. A declaration that the defendant holds on trust for the plaintiff the sum of $4686.94 together with interest calculated at 9% from 12th November 1999 for a further sum of $2919.03
  4. The defendant’s counter claim be allowed in the sum of $4125.00 together with interest of 9% from 26th October 2002 for a further sum of $1471.78.

CATCHWORDS:

PROPERTY LAW – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – whether parties resided together in a de facto relationship for the purpose of Part 19 Property Law Act 1974

PROPERTY LAW – DEED – whether deed was breached by the defendant – whether plaintiff entitled to recover – financial contributions

Property Law Act 1974 (Qld) Part 19

Acts Interpretation Act 1954 (Qld) s 32DA

COUNSEL:

Mr G Waterman for the plaintiff

Mr P Hackett for the defendant

SOLICITORS:

Mullins Lawyers for the plaintiff

Hirst & Co for the defendant

Background

  1. [1]
    The plaintiff and the defendant were born 7th April 1980 and 2nd December 1946 respectively.
  1. [2]
    The parties first met each other at work in 1990 in Brisbane. They worked for the same company at that time.
  1. [3]
    A sexual relationship subsequently commenced between the parties in December 1993. That relationship continued until at least January 2003.
  1. [4]
    The parties however were not each others exclusive sexual partners during that time. The defendant was already in a relationship with another woman since 1988 until late 1997/early 1998. The parties also engaged in sexual relations with others.
  1. [5]
    The parties did not reside together in the same residence on a full time basis during the period December 1993 to January 2002. The defendant only then returned to Brisbane to reside full time.
  1. [6]
    The parties did however spend a night or nights or a weekend together whether it be in Brisbane or Sydney during that period. They holidayed together at Christmas, Easter or on some weekends. The parties also holidayed apart. They remained in contact with each other through regular communication however when they were not together.
  1. [7]
    The defendant had been living and working in Sydney prior to January 2002. He had worked in Sydney during the period May 1995 to May 1997 at which time he returned to Brisbane to work and live. He had however lived most of the time in Sydney during that period.
  1. [8]
    He subsequently returned to Brisbane to work and live in May 1997until he again returned to Sydney to work and live in January 1998.
  1. [9]
    The defendant then remained in Sydney working and living there for that purpose from that date until his return to Brisbane on a full time basis in January 2002. He has remained in Brisbane since that time working and living.
  1. [10]
    The plaintiff, on the other hand, has always remained working and living in Brisbane since December 1993 and still does for that purpose.
  1. [11]
    In February 1997, the plaintiff rented one of the defendant’s property situated at Sheriff Street Brisbane. (‘Sheriff St’). She paid $150 per week rent to the defendant as his tenant. The defendant continued to use Sheriff St as his base whenever he returned to Brisbane.
  1. [12]
    The defendant had lived at Sheriff St in the past. He had been living there with another woman from at least 1990 until May 1995 at which time it was rented out.
  1. [13]
    In October 1998 the defendant advised the Plaintiff that he was planning on buying another property in Brisbane. He already had several properties in Brisbane. He inquired whether she was interested in getting involved in the purchase in a primary or secondary way if she liked.
  1. [14]
    The parties subsequently had further discussions during early 1999 regarding the purchasing of a property as joint tenants in common.
  1. [15]
    A property was then located.
  1. [16]
    On 3rd June 1999 the parties signed a contract for the purchase of a property located at Woodstock Rd Brisbane (‘Woodstock Rd’) as joint tenants in common.
  1. [17]
    A bank loan was secured by the parties as joint mortgagees in order to finance the property.
  1. [18]
    The property settled on the 9th July 1999.
  1. [19]
    Subsequent to the signing of the contract but prior to the Woodstock Rd property settling, the defendant emphasised the need for the parties to formalise the purchase of the property by written deed.
  1. [20]
    The defendant emphasised this again on the 2nd August 1999.
  1. [21]
    A deed was subsequently entered into by the parties on 9th August 1999.
  1. [22]
    That deed had been prepared by the parties themselves from a generic form which had been obtained from a solicitor.
  1. [23]
    On the 15th July 1999 the plaintiff moved into Woodstock Rd from Sheriff St.
  1. [24]
    Furniture and property which belonged to the defendant was also moved from Sheriff St to the Woodstock Rd at that time. Much of that furniture and property however had been stored in a room at Sheriff St since 1997.
  1. [25]
    Furniture and property belonging to the plaintiff was also moved from Sheriff St to Woodstock Rd however most of the furniture moved into Woodstock Rd for the parties’ mutual use, was that of the defendant’s.
  1. [26]
    A short time after the parties had moved their respective belongings into Woodstock Rd, the defendant requested that certain renovations take place in order to make the house ‘more liveable’.
  1. [27]
    The plaintiff was unable to contribute financially to the renovations at that time. As a result, she subsequently transferred her legal interest in the property to the defendant.
  1. [28]
    That transfer took effect on the 12 November 1999.
  1. [29]
    The defendant paid for all of the renovations which then took place at the property. He also paid the full deposit, legal fees and stamp duty upon initial purchase of that property.
  1. [30]
    The defendant also made mortgage payments in respect of the Woodstock Road property. He did this by regularly transferring monies from his own account into the joint mortgage account which had been initially set up by the parties to fund the purchase of the property.
  1. [31]
    Prior to the transfer of ownership taking effect on the 12th November 1999, the plaintiff however had made two monthly mortgage payments against the parties joint mortgage account, on the 9th August and September 1999 respectively.
  1. [32]
    She made no other payments against that account subsequently.
  1. [33]
    She did however continue to pay $1375 per month directly to the defendant by paying that amount into his own account. The plaintiff made those payments from October 1999 until July 2002.
  1. [34]
    The plaintiff subsequently moved out of Woodstock Rd on the 26th October 2002.
  1. [35]
    She then rented a property in Brisbane to reside in. She also rented commercial premises in order to run her business.
  1. [36]
    The ‘Woodstock Rd’ property has now become the subject of dispute between the parties.
  1. [37]
    It is also the only property the subject of dispute between the parties for the purpose of these proceedings.
  1. [38]
    The plaintiff seeks relief pursuant to Part 19 Property Law Act 1974 for a property adjustment order (to be assessed at 25% of the current value of the subject property) based upon a claim that the parties were in a ‘de facto relationship’ between June 1999 and 26 October 2002. (emphasis added).
  1. [39]
    She also seeks alternative relief for damages for breach of the deed dated 9th August 1999 for any financial contributions made by her to the subject property.
  1. [40]
    She also seeks an order that the defendant holds on trust for her, an amount equivalent to the financial contributions she made to the subject property.
  1. [41]
    The defendant has counterclaimed and is seeking to recover an amount of $4125.00 for monies due and owing to him by the plaintiff as unpaid rent in respect of the subject property for the period August, September and October 2002.

Issues

  1. To determine whether or not the parties, for the purpose of the Property Law Act 1974, ever resided together in a ‘de facto relationship’ between the period June 1999 and 26th October 2002.

What, if any, property adjustment order should be made by the court which it considers to be just and equitable.

  1. Has there been a breach of the Deed by the defendant which entitles the plaintiff to damages?

If so, what was the quantum of the plaintiff’s financial contributions to the subject property.

  1. Should a trust be declared by this Court that the defendant holds for the plaintiff an amount, based on the financial contributions assessed, which she has made to the subject property?.

The applicable law – Issue 1

  1. [42]
    The Property Law Act 1974 (‘the Act’) provides for definitions as they relate to a ‘de facto relationship’ and ‘de facto partner’.
  1. [43]
    A ‘de facto relationship’ is defined as ‘the relationship between de facto partners’s. 261.
  1. [44]
    By s. 260 of the Act, a reference in Part 19 to a ‘de facto partner’ is taken to be a reference to the term as defined in s. 32DA of the Acts Interpretation Act 1954.
  1. [45]
    That section provides:

(1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—

(a) the nature and extent of their common residence;

(b) the length of their relationship;

(c) whether or not a sexual relationship exists or existed;

(d) the degree of financial dependence or interdependence, and any arrangement for financial support;

(e) their ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life, including the care and support of each other;

(g) the care and support of children;

(h) the performance of household tasks;

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

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

(5) For subsection (1)—

(a) the gender of the persons is not relevant; and

(b) a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.

(6) In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary.

  1. [46]
    The time limit for issuing court proceedings under Part 19 of the Act is within two (2) years of the end of the ‘de facto relationship’. s. 288.
  1. [47]
    The Act also requires that the parties have lived in such a relationship for a period of no less than 2 years. s. 287(a)
  1. [48]
    In order to determine Issue 1, it is necessary therefore to examine all of the relevant circumstances which existed between the parties at the material time including the circumstances set out in s. 32DA ss (2) of the Acts Interpretation Act 1954.
  1. [49]
    In doing so, this Court is required to make findings of fact and in turn, those findings may be largely dependent on credibility issues (PY v CY [2005] QCA 247).
  1. [50]
    The onus of proof is also on the plaintiff to prove, on the balance of probabilities, that a ‘de facto relationship’ existed at the relevant date.
  1. [51]
    It follows then that a decision in this case therefore depends on the Court’s consideration of all the relevant circumstances including those matters set out in s. 32DA of the Acts Interpretation Act 1954.

The evidence

  1. [52]
    Evidence in chief was received by affidavit (with annexures) from the Plaintiff and the defendant in the proceedings. Those affidavits were marked as exhibits in the proceedings.
  1. [53]
    Both parties were cross examined at large by Counsel at the hearing.
  1. [54]
    Other evidence was also received from witnesses by affidavit. Those affidavits were also marked as exhibits in the proceedings. Most, but not all, were cross examined at the hearing.
  1. [55]
    Various documents were also received during the course of the hearing. These were also marked as exhibits.
  1. [56]
    I also had the opportunity to observe all of the witnesses who were cross examined over the course of the hearing.

s. 32DA(2) Acts Interpretation Act 1954

  1. [57]
    s. 32DA subsection (2) of the Acts Interpretation Act 1954 provides a helpful summary in respect of those matters which the Court should make reference to in deciding whether 2 persons are living together as a couple on a genuine domestic basis.
  1. [58]
    While no particular finding in relation to any one of the circumstances set out in that subsection is necessary in deciding whether ‘2 persons are living together as a couple on a genuine domestic basis’, the list nevertheless is a helpful guide in cases such as this.
  1. [59]
    Accordingly I intend to address each of the circumstances listed.
  1. (a)
    the nature and extent of their common residence
  1. [60]
    Subsection (4) of 32DA of the Acts Interpretation Act 1954 states that 2 persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.
  1. [61]
    There is no dispute on the evidence that the parties only shared a common residence on a full time basis in Brisbane during the period 8th January 2002 until the defendant left for overseas on 28th July 2002 (a period of nearly 7 months) or alternatively until the defendant moved out on 26th October 2002 (a period of nearly 10 months).
  1. [62]
    That common residence shared by the parties at that time was the Woodstock Rd property, the property subject of dispute.
  1. [63]
    There is also no dispute between the parties that prior to the purchase of that property on 3rd June 99, the parties had not owned any other property together nor had they resided together in any other residence on a full time basis.
  1. [64]
    Indeed, the Plaintiff confirmed under cross examination that it was the parties’ purchase of the Woodstock Rd property together as joint tenants in common which confirmed her view that the parties were living together as a couple on a genuine domestic basis from that point.
  1. [65]
    The plaintiff also gave evidence that the property was to be their residence together as a de facto couple in that they would live upstairs and downstairs was to be used for her business.
  1. [66]
    She also gave evidence that she believed that they continued to live together as a couple on a genuine domestic basis up to and until she moved out of the residence in October 2002.
  1. [67]
    The defendant, on the other hand, gave evidence that the Woodstock Rd property had only ever been purchased together for their mutual benefit.
  1. [68]
    His evidence in essence was that the property had been purchased together so that the plaintiff would not only have somewhere to live but somewhere she could run her business. He would continue to use the property as his base whenever he came home to Brisbane from Sydney.
  1. [69]
    The defendant gave evidence that there had been no discussions between the plaintiff and himself that their relationship would be any different from the one which they had had prior to the purchase of Woodstock Rd.
  1. [70]
    The evidence available shows that the parties never resided together on a full time basis until the return of the defendant to Brisbane in January 2002.
  1. [71]
    Indeed, the evidence shows that the parties spend, at best, a night or nights or weekends at each others residences whether it be in Brisbane or Sydney prior to the purchase of Woodstock Rd.
  1. [72]
    Even after the purchase of Woodstock Rd took place in June 99, the plaintiff conceded under cross examination that the defendant continued to work and live more in Sydney than he did in Brisbane during the years 1999, 2000, 2001.
  1. [73]
    The plaintiff submits that it is not necessary to establish the subsistence of a de facto relationship where the parties do not share the common residence on a daily basis.
  1. [74]
    In making that submission, the plaintiff has relied on PY v CY [2005] QCA 247. The facts of that case however can be distinguished from the case to be decided here.
  1. [75]
    In that case the Court upheld the primary judge’s decision in relation to a relationship which had existed for a further three and a half years after one of the parties moved from Rockhampton to the Sunshine Coast to care for sick elderly relatives.
  1. [76]
    The parties had however already resided together for a period of 9 years with indicia consistent with that of a ‘conventional family’.
  1. [77]
    The submission made here therefore may have had more force if the parties in this case had resided together on a full time basis before the purchase of the Woodstock Rd property.
  1. [78]
    Indeed the evidence shows that prior to the purchase of the Woodstock Rd property by the parties in June 1999, the defendant had used the residence which the plaintiff was renting from him (Sheriff St) as his base whenever he returned to Brisbane from Sydney.
  1. [79]
    That arrangement did not change even after the purchase by the parties of Woodstock Rd and was consistent with the situation which had existed in fact before the purchase was even made.
  1. [80]
    The evidence also shows that shortly after the purchase of the Woodstock Rd property and even before settlement of it, the defendant was seeking to have the parties formalise the purchase by deed.
  1. [81]
    The deed subsequently signed by the parties in that regard does not, in my view, evidence any intention by the defendant or the plaintiff that the purchase of the property at Woodstock Rd as joint tenants in common was to be some ‘turning point’ in their existing relationship.
  1. [82]
    Indeed, the deed suggests the contrary.
  1. [83]
    The first recital to that deed confirms that both parties were of the view, at least at the point they both signed it, that they had not been living in a de facto relationship but may only chose to do so in the future.
  1. [84]
    Accordingly, I cannot accept the plaintiff’s evidence that the purchase of the Woodstock Rd property was some ‘turning point’ in their relationship insofar as her belief that they would be a couple living together on a genuine domestic basis from that point.
  1. [85]
    The plaintiff also submits that the declaration by the defendant (in order to obtain stamp duty reduction) that Woodstock Rd was to be his principal place of residence, evidenced an intention by him that the property was to become the common residence of the parties in support of their commitment to each other as a ‘de facto’ couple.
  1. [86]
    I cannot accept that submission.
  1. [87]
    There is no dispute that the defendant was maintaining a residence both in Sydney and in Brisbane well before and even after the purchase by the parties of the Woodstock Rd property.
  1. [88]
    The evidence available which I have accepted shows that the defendant’s principal place of residence in Queensland (my emphasis) was to be the Woodstock Rd property and that upon his return to Brisbane on a full time basis, he would then only reside in it.
  1. [89]
    The evidence available which I have accepted also shows that the defendant, while hoping to return to Brisbane to reside and work, did not in fact return to Brisbane to work and live full-time until January 2002.
  1. [90]
    The plaintiff also relies, in support of his submission, upon certain correspondence which had been sent by the defendant to the plaintiff both prior to and following the purchase of the property. (letter dated 29th October 1998, fax dated 29th April 1999 and letter dated 6th September 1999).
  1. [91]
    The submission made by the plaintiff however ignores the true content of that correspondence when read in the context of other correspondence which was available at that material time passing between the parties, and in particular, the subsequent deed and transfer of ownership which took place in respect of the property in question.
  1. [92]
    Indeed the correspondence dated 29th October 1998 is at best ‘ideas’ which the defendant was raising with the plaintiff at that time regarding his thoughts on buying another property and a way that it might benefit the plaintiff.
  1. [93]
    That correspondence, in my view, confirms the defendant’s evidence that he had only suggested she get involved in the purchase in order that she might acquire some equity in a property herself rather than her continuing to pay ‘dead rent’ to him at Sheriff St and in respect of the commercial premises she was also renting at the time.
  1. [94]
    Indeed, the plaintiff confirms in her own affidavit evidence in chief (para 28) that during the discussions which she had with the defendant in March 1999 regarding the purchase of a property together, the defendant had told her she would be able to acquire some equity in a property herself if she was to paid the same amount of money she was paying as rent into a mortgage instead.
  1. [95]
    The plaintiff also relies on notations which the defendant has made in his 1999 and 2000 diaries to show that the defendant’s common residence was to be at the Woodstock Rd property.
  1. [96]
    That submission ignores the fact that those notations merely demonstrate that the defendant intended his residence in Queensland to be Woodstock Rd just the same as he had done in respect of Sheriff St.
  1. [97]
    It also ignores the fact that in the defendant’s year ending 2000 tax return, he has indicated his home address was in Sydney.
  1. [98]
    The plaintiff also submits that it was inherently improbable that the defendant did not usually share the main bedroom with the plaintiff when at the Woodstock Rd property.
  1. [99]
    There was no dispute that the street lighting was changed due to it shining into that bedroom at the defendant’s instigation.
  1. [100]
    However, that is beside the point. There was no dispute that when the defendant was at the residence, he did sleep on occasion with the plaintiff in the bedroom which she used.
  1. [101]
    The photograph (Ex 30) shown to the defendant in evidence confirmed that the bed which the defendant was lying on was the plaintiff’s bed and not his. That evidence was not challenged.
  1. [102]
    The defendant also gave evidence that he had also retained his own bedroom with his own bed in it which is, in my view, consistent with his evidence that the parties retained separate bedrooms at Woodstock Rd notwithstanding that their sexual relationship continued.
  1. [103]
    Indeed, the faxed correspondence dated 29th April 1999 refers to the defendant’s feeling that at least at that time he was wanting to retain his own room/study, and space and that the parties may end up using the same bedroom.
  1. [104]
    In that same fax, it is also noted by the defendant that the upper residence was to be the residence of the plaintiff and only then for the both of them once the defendant returned full time to Brisbane, which he was planning on doing at the end of that year.
  1. [105]
    The evidence available also shows that while the plaintiff and the defendant shared a common residence on a full time basis during January 2002 until the defendant left to go overseas on 28th July 2002, the parties maintained separate bedrooms at the insistence of the plaintiff after she was told by the defendant that he had slept with someone else overseas.
  1. [106]
    The evidence of the witness Ms Pickworth confirms this arrangement during that period.
  1. [107]
    Further, the evidence from the witness Mr Maddern confirmed that there were two bedrooms set up for use at Woodstock Rd and only one bedroom set up at Sheriff St.
  1. [108]
    Ms Dunne on the other hand gave evidence that the 2nd bedroom in the house didn’t appear to be used however her evidence is of limited assistance insofar as she conceded under cross examination that she was not there during the times the defendant was sleeping nor did she ever see the defendant and the plaintiff actually sleeping in the main bedroom together at any time.
  1. [109]
    There was also evidence given by the defendant under cross examination that he had drawn up the house plans for Woodstock Rd and had labelled the 2nd bedroom as a ‘guest room’.
  1. [110]
    Those plans reveal however that the main bedroom was also only referred to as ‘bedroom 1’.
  1. [111]
    The defendant gave evidence that even though the bedroom had been labelled ‘guest room’, it was still his room with his bed in it for his sole use when he came up to Brisbane from Sydney.
  1. [112]
    I accept the evidence of the defendant on this point.
  1. (b)
    the length of their relationship
  1. [113]
    The plaintiff in her claim maintains that a de facto relationship subsisted between the parties during the period June 1999 until 26th October 2002.
  1. [114]
    The defendant denies that they were ever in a de facto relationship during the period alleged.
  1. [115]
    The plaintiff must establish that such a relationship subsisted for a period of at least 2 years traversing or post 21st December 1999, the date that part of the Act commenced operation.
  1. [116]
    The plaintiff is estopped, by the deed she signed on 9th August 1999, from asserting that a de facto relationship subsisted between the parties before that date.
  1. [117]
    I find that on the true construction of the deed the parties agreed to be bound by its terms and that the recorded state of the facts therein which formed the agreement that was entered into between them.
  1. [118]
    Accordingly, at best the plaintiff can argue that a de facto relationship subsisted between the parties at a time sometime after the 9th August 1999.
  1. [119]
    A decision in this case requires that the Court determine whether a de facto relationship existed at all between the parties at any time, for a period of at least 2 years, during the period 9th August 1999 and 26th October 2002 at which time the plaintiff says the relationship ended.
  1. [120]
    There was no evidence provided by the plaintiff why the relationship came to an end on the 26th October 2002.
  1. [121]
    The only evidence available is that this was the date the plaintiff vacated the Woodstock Rd property.
  1. [122]
    There is evidence available however that that whatever relationship the parties had, it was in trouble even before that date. (see e-mail dated 17th October 2001).
  1. [123]
    There was also evidence available from the plaintiff herself that at her request, the defendant slept in another bedroom upon his return from overseas late 2001 which continued until he went overseas again in July 2002.
  1. [124]
    Accordingly, it is difficult to accept the plaintiff’s assertion that a de facto relationship subsisted between the parties during the whole of the period alleged in her claim.
  1. [125]
    However, that is not the end of the matter.
  1. [126]
    As already stated, this Court must determine whether there existed a de facto relationship between the parties for the requisite period required which required an examination of all the relevant circumstances.
  1. (c)
    whether or not a sexual relationship exists or existed
  1. [127]
    It is common ground that a sexual relationship commenced between the parties on 18th December 1993 and continued until sometime in January 2003.
  1. [128]
    Sexual intercourse alone therefore cannot be the decisive factor to the determination of whether a de facto relationship existed between the parties, even on the plaintiff’s own case.
  1. [129]
    It is also common ground that the parties were not each others exclusive sexual partners.
  1. (d)
    the degree of financial dependence or interdependence, and any arrangement

for financial support

  1. [130]
    The evidence available shows that the plaintiff and the defendant never pooled their finances prior to the purchase of the Woodstock property.
  1. [131]
    The purchase of that property together in June 1999 however was not on the basis that the parties were in a de facto relationship at the time, as evidenced by the deed subsequently signed by the parties.
  1. [132]
    Indeed, that deed, signed by the parties on 9th August 1999, also demonstrates that the parties were to keep their finances separate from one another with the freedom to dispose of their income however they so chose.
  1. [133]
    The deed also confirms the parties’ desire to retain their independence and freedom in respect of all financial matters without any obligation to consult with the other party.
  1. [134]
    It was common ground that a joint mortgage account was opened by the parties with a view to finance the purchase of the Woodstock property.
  1. [135]
    Correspondence dated 8th October 1999 from the defendant to the plaintiff confirms that the parties continued to retain that joint account with limited funds in it after an adjustment of that account had been made to reflect the deductions which had been made to the respective parties after monies in that account were returned to their respective individual finance pools at that time.
  1. [136]
    However there is dispute regarding the negotiations leading up to the property’s purchase, the agreement that was made between the parties in respect of their financial obligations regarding that property and the true nature of any payments which were then made by the plaintiff in respect of the joint mortgage held over the property.
  1. [137]
    The plaintiff says that the agreement between the parties in respect of the purchase of Woodstock Rd was that she was to pay the full monthly mortgage amount $1987.97 until such time that she had made a contribution equivalent to that of the defendant’s initial contribution who had paid the whole of the deposit and the associated legal fees and stamp duty.
  1. [138]
    She denied that there had been any agreement between the parties prior to the purchase of the property that she would contribute equally as asserted by the defendant.
  1. [139]
    She gave evidence that at no time prior to the purchase had the parties talked about any renovations being carried within a particular time frame.
  1. [140]
    She said that when the defendant had asked to contribute to the renovations in August 1999 she told him she was unable to contribute financially at that time.
  1. [141]
    The plaintiff also gave evidence that when she told the defendant that, he said to her that he wanted her name of the title to the house and said that if she didn’t he would sell the house from under her and the relationship would be over.
  1. [142]
    The defendant, on the other hand, says that the agreement was that the parties were to share all of the costs equally in respect of property as it related to any deposit, legal fees and stamp duty, mortgage payments, outgoings, repairs and renovations.
  1. [143]
    The defendant also gave evidence that discussions had taken place between the parties prior to the purchase of the home regarding the need for certain improvements that would be needed to be made in order to make the house more liveable.
  1. [144]
    He also gave evidence that when he requested the plaintiff to pay her share towards the costs of the deposit, legal fees and stamp duty which he had paid, the plaintiff only then informed him she was unable to make those payments.
  1. [145]
    The defendant says that as a result of that failure, the parties subsequently reached an agreement that she would transfer her interest in the property to him, pay rent on a monthly basis in the amount of $1375 and that she would have no further interest in the property’s ownership.
  1. [146]
    The evidence available shows that the plaintiff did in fact pay two (2) monthly mortgage amounts on the 9th August and 9th September 1999 respectively into the said joint mortgage account.
  1. [147]
    The evidence also shows however that the plaintiff subsequently paid an amount of $1375 per month directly into the defendant’s own account thereafter until July 2002.
  1. [148]
    The initial two mortgage payments made by the plaintiff directly into the joint mortgage account are, in my view, consistent with the plaintiff’s evidence that there had been an initial agreement between the parties, that she would pay the full monthly mortgage payments until such time as she contributed an amount equal to that of the defendant’s initial contribution.
  1. [149]
    However that is not the end of the matter.
  1. [150]
    Any initial agreement that the parties may have had in that regard clearly changed shortly thereafter.
  1. [151]
    Indeed, the deed entered into by the parties on the 9th August 1999 demonstrates this.
  1. [152]
    That deed shows, amongst other things, that the share of the improvement and maintenance costs of any property acquired by the parties as tenants in common was to be borne equally by the parties after that time.
  1. [153]
    In particular, that deed evidenced a clear intention by both parties that they had not been living in a de facto relationship prior to that time and may only chose to do so at some point in the future.
  1. [154]
    The other evidence available also shows that the parties had discussed entering into a deed in respect of the Woodstock Rd as early as the 27th June 1999, a date prior to the settlement date of the property.
  1. [155]
    This evidence is contrary to the plaintiff’s assertion that it was a few weeks after settlement that the defendant had told her he wanted the parties to enter into a deed in respect of the Woodstock Rd property transaction
  1. [156]
    There is also evidence that the residential part of the property was in a poor state of repair (Ex 7 paragraph 3). That evidence is, in my view, consistent with the defendant’s evidence that the parties had discussed prior to the property settling that the property would need improvements to make it more liveable.
  1. [157]
    The evidence also shows that it was because of the plaintiff’s insufficient cash flow to uphold her half of the financial commitment to the property, that the defendant had real concerns over the (then) current and evolving financial situation and requested that steps be put in place to transfer her interest to him. (see fax letter 17th August 1999 where the plaintiff had agreed to that course taking place).
  1. [158]
    It is therefore difficult to accept the plaintiff’s submission that there was an arrangement for financial support between the parties which subsisted in the context of a de facto relationship in respect of the Woodstock Rd property purchase when considering all of those circumstances.
  1. [159]
    The evidence also shows that the subsequent payments which were made by the plaintiff, after she had agreed to transfer her interest in the property to the defendant, were paid by her directly to him into his account in the sum of $1375 per month.
  1. [160]
    This evidence is contrary to the plaintiff’s own oral evidence that she made those payments directly into the parties joint mortgage account as ‘mortgage repayments’.
  1. [161]
    There is no dispute on the evidence that the plaintiff paid that sum each month to the defendant and then claimed that same amount as a tax deduction on behalf of her company for all of the relevant financial years as ‘rent’.
  1. [162]
    The plaintiff gave evidence under cross examination that ‘her business was always going to pay into the mortgage, pay rent into the mortgage’, and that the amount of $1375 per month which she paid was in accordance with the advice she had received from her financial adviser.
  1. [163]
    That evidence however is not consistent with the actual advice which she had received from her financial adviser regarding the rental which both she as an individual and her company should pay as tenants while at Woodstock Rd. (Ex 7).
  1. [164]
    The amount of $1375 per month paid by the plaintiff to the defendant was inclusive of the rent ($375) which she was to pay as a tenant individually (not deductible) and the rent ($1000) which her company was to pay as a tenant at Woodstock Rd (deductible).
  1. [165]
    The plaintiff submits that those rental payments should be viewed by this court in the context of the subsisting de facto relationship between the parties as it merely represented a tax effective way in which it contributed to the wealth of both parties as a de facto couple.
  1. [166]
    I cannot accept that submission. The plaintiff’s oral evidence on this point was less than satisfactory and indeed, contrary to the evidence available.
  1. [167]
    The plaintiff also relies on certain correspondence to support the submission.
  1. [168]
    The correspondence dated 29th October 1998, 10th April 1999 and 13th May 1999 relied on however predates the purchase of the Woodstock Rd property and ignores the content of the subsequent Deed entered into by the parties, the financial arrangements which were also entered into later between the parties and the transfer of the plaintiff’s interest in the property to the defendant.
  1. [169]
    That evidence shows, in my view, that the defendant was trying to help the plaintiff acquire some equity in a property for herself and indeed, the relevant correspondence that passed between the parties confirms, in my view, that the defendant was encouraging the defendant to acquire some equity in a property which would ultimately be beneficial to her financially.
  1. [170]
    It does not follow however that any such encouragement or financial arrangement entered into between the parties for that purpose should be viewed by this court in the context of a subsisting de facto relationship at the material time.
  1. [171]
    It is therefore my view that I cannot accept the plaintiff’s submission that the payments made by the plaintiff under the circumstances that they were, should also be viewed as contributions made by her in the most tax effective way to benefit towards the wealth of both parties in the context of a subsisting de facto relationship.
  1. [172]
    The plaintiff also gave evidence that she also contributed to the household by the payment of telephone and electricity during her occupation.
  1. [173]
    The undisputed evidence was that the plaintiff was using the residence not only as her home but to also run her business during that time.
  1. [174]
    A telephone line had been installed by her (and claimed as a tax deduction for her business) to the downstairs area of the property which was exclusively for her business use.
  1. [175]
    The evidence also shows that the plaintiff was in situ at the residence more than the defendant was during any of the relevant period until his return to Brisbane full time to Brisbane in January 2002.
  1. [176]
    The Plaintiff provided no tangible evidence to support her assertion that she used her income to pay utility bills, groceries and other household expenses which the defendant had any real benefit of over than that which might ordinarily be expected.
  1. [177]
    Indeed the payment of such items, in my view, is consistent with the plaintiff paying normal expenses associated with the running of a household which she predominantly occupied and paid rent for both as an individual and on behalf of her company. (see ex 7).
  1. (e)
    their ownership, use and acquisition of property
  1. [178]
    The parties had only ever owned one property together, the property subject of dispute. They held that property as joint tenants in common from 9th July 1999 (date of settlement) until the 12th November 1999 (date of transfer).
  1. [179]
    The acquisition of that property has already been addressed in (d).
  1. [180]
    The use of that property was to be used as a residence by the parties upstairs and for the plaintiff’s exclusive business use downstairs.
  1. [181]
    The plaintiff says however that the residence was to be used by the parties as a de facto couple (upstairs) whereas the defendant says that the residence was going to be used by the parties for their mutual benefit but not in the context as asserted by the plaintiff.
  1. [182]
    The evidence shows that the plaintiff had occupation of the residence more than the defendant during 1999, 2000, 2001.
  1. [183]
    The evidence also shows the defendant continued to have use of the residence whenever he returned to Brisbane on weekends or holidays during those years.
  1. [184]
    The defendant’s use of the property in that regard however was also completely consistent with the defendant’s conduct prior to the purchase of the property and the arrangement which existed between the parties.
  1. [185]
    Indeed the evidence shows, in my view, that the defendant only ever intended to make the property his home once he returned to Brisbane full time to work and live. (see Ex 7 paragraph 10, fax letter 29th April 1999, fax letter 6th September 1999, e mail 9th September 2001 by way of example).
  1. [186]
    There is no doubt that the defendant was hoping that he would get home to Brisbane to live and work earlier than he did. There is no dispute on the evidence that the plaintiff was certainly hoping he would also.
  1. [187]
    However, the reality is that the defendant did not return to Brisbane until January 2002 full time and at that point the evidence shows that the relationship between the parties was already breaking down.
  1. (f)
    the degree of mutual commitment to a shared life, including the care and support of each other
  1. [188]
    There is no dispute between the parties that they had shared a relationship based on mutual support, intimacy and friendship from 1993.
  1. [189]
    The evidence shows that the parties holidayed together whenever they could and spend weekends together from that date.
  1. [190]
    The evidence also shows that the parties were in regular communication with each other during their absences from one another.
  1. [191]
    The plaintiff submits that the parties’ mutual commitment to a shared life together as a couple is evidenced by the communications which passed between the parties during material time.
  1. [192]
    However, that submission ignores the other correspondence which also passed between the parties during that time, in particular as it related to the purchase of the property the subject of dispute.
  1. [193]
    The correspondence relied on by the plaintiff does not, in my view, looking at all of the documents available to this court, reflect the parties’ mutual commitment to a shared life together in the context of a de facto relationship.
  1. [194]
    Indeed, that correspondence reflects exchanges between the parties consistent with their relationship as it had been since 1993.
  1. [195]
    The plaintiff in her evidence confirmed that the ‘change’ in their existing relationship which caused her to consider that the parties were in a de facto relationship thereafter was the purchase of the Woodstock Rd property together.
  1. [196]
    However, that understanding must be viewed against the reality of the true situation which existed, in my view, based on the evidence available with respect to the Woodstock Rd property.
  1. [197]
    The communications which passed between the parties soon after the contract for purchase was signed were ‘business like’ and indeed, the parties formalised that purchase and their affairs by deed shortly after the property settled and entered into a rental arrangement in respect of her occupation.
  1. [198]
    Problems also arose early shortly after the property was settled regarding the plaintiff’s expectations regarding their ‘relationship’ (fax 18th August 1999).
  1. [199]
    Those expectations, unfortunately, were still not resolved it seems even as late as 17th October 2001 (see fax sent by the plaintiff to the deft expressing her uncertainty about the future and her expectations regarding the defendant’s commitment to their relationship).
  1. [200]
    The written communications available as evidence between the parties can be, at best described as ‘mixed’ insofar as some of the correspondence was clearly ‘business like’ (see fax 6th October 1999) and some was not. (see for example 6th September 1999 correspondence and the reference to the parties having to a more stable life starting the end of the year; yet compare fax 21st February 2000 where the defendant is organising for a removalist to deliver property and furniture from Woodstock Rd  to his Sydney address).
  1. [201]
    The written communications that were available as evidence, when taken as a whole, are equally consistent, in my view, with the relationship that had always existed between the parties.
  1. [202]
    That relationship had, in the past, also been based on intimacy, support and friendship and all of the communications available do not however reflect that a de facto relationship subsisted between the parties during the period suggested by the plaintiff.
  1. (g)
    the care and support of children
  1. [203]
    irrelevant
  1. (h)
    the performance of household tasks
  1. [204]
    Both parties gave evidence that they performed household chores for each other when they were together.
  1. [205]
    However, when put in context in light of where they were both living full time during the material time, the contributions made by each, based on the evidence available is in my view, to be must the same as each other.
  1. [206]
    The plaintiff submits that the collection of mail, the payment of some of the defendant’s accounts on his behalf, the arrangement of tradesmen and supervision of the renovations carried out at the property supports a finding that the plaintiff had performed household tasks over and above that which would normally be given between parties if they weren’t actually living together.
  1. [207]
    The evidence shows that the plaintiff did collect the mail on occasion, pay some of the defendant’s accounts on his behalf, arrange some tradesmen and provided some supervision of the renovations.
  1. [208]
    However that evidence must be viewed in the following light.
  1. [209]
    The plaintiff was residing at the property full time and accordingly the collection of mail for the defendant would not be unusual in those circumstances.
  1. [210]
    Nor in my view would the payment of accounts be on his behalf. The accounts which the plaintiff paid were not in any event, the accounts of both parties but rather were accounts which the defendant had sole responsibility.
  1. [211]
    The defendant was already living at the residence when the renovations took place. The evidence shows that it was the plaintiff who had been unable to contribute financially to the renovations notwithstanding that she had agreed to do so equally in accordance with the deed she signed.
  1. [212]
    The evidence shows that the renovations that were carried out made the residence more liveable. The plaintiff subsequently enjoyed the benefits which flowed from those renovations being carried out as an occupant of that home.
  1. [213]
    Indeed, the plaintiff also enjoyed renovations that were made to the downstairs area of the home which she exclusively used.
  1. [214]
    I therefore cannot accept the plaintiff’s submission regarding this issue.
  1. (i)
    the reputation and public aspects of their relationship
  1. [215]
    The plaintiff filed affidavits in support of her claim from various witness to support the reputation and public aspect of the parties’ relationship.
  1. [216]
    Those witnesses included family members.
  1. [217]
    Those members however were unable to distinguish any real differences between the relationship which the parties had prior to the purchase of the Woodstock Rd property and subsequently and did little to assist the plaintiff’s case.
  1. [218]
    Indeed, the plaintiff’s mother confirmed that in her view the parties had been living in a de facto relationship since 1994, which was contrary to the plaintiff’s own case.
  1. [219]
    The plaintiff’s brother in law also gave evidence contrary to that of the plaintiff, in that he was of the view that the parties had been in a de facto relationship after the parties had moved into together in Sheriff St and that part of his view was based on the fact that at Sheriff St there was only one bedroom in use whereas at Woodstock Rd there were two bedrooms set up for use.
  1. [220]
    The plaintiff’s sister noted only a ‘slight’ difference between the relationship that existed between the parties after they had moved in to Woodstock Rd and she was also of the view that the parties had been in a de facto relationship even at Sheriff St.
  1. [221]
    A friend of the plaintiff also gave evidence that it was the plaintiff who had told her that the parties were in a de facto relationship even at Sheriff St.
  1. [222]
    The evidence of the plaintiff’s brother (who was not required for cross examination) was also of limited assistance.
  1. [223]
    His evidence is consistent with the relationship which had existed already between the parties for many years prior to the Woodstock Rd property being purchased.
  1. [224]
    The Plaintiff also relied on the evidence of Mr De Paauw, the tradesman involving the renovations of the upstairs kitchen.
  1. [225]
    The plaintiff makes the submission that it would be difficult to imagine a more recognisable scene of a couple in a de facto relationship that a couple arguing over their kitchen design.
  1. [226]
    The evidence available shows that the defendant admits that the plaintiff and him argued over the kitchen in respect of what work had to be done. That fact alone however does not support in my view, a finding that the parties must have been a de facto couple.
  1. [227]
    Indeed, there is no dispute that the plaintiff (an interior designer) who was living there full time, had been organising some tradesmen and was supervising them in some respects those renovations and that the defendant had argued with her over the design.

Determination of Issue 1

  1. [228]
    Having dealt with each of the circumstances set out in s. 32DA Acts Interpretation Act 1954, and having taking into account of the evidence available, I find that the plaintiff has not proved, on the balance of probabilities, that a de facto relationship did exist between the parties at any time between June 1999 and 26th October 2002 as alleged.
  1. [229]
    I am satisfied that the evidence, when taken as a whole, does not support the plaintiff’s contention.

Credit issues

  1. [230]
    As in most cases of this nature, the credit of the witnesses who gave evidence to the Court assist in determining disputed questions of fact.
  1. [231]
    A correct determination in this case has therefore involved an examination of the credit of the plaintiff and the defendant.
  1. [232]
    A major issue which arose in this case as it related to the parties’ respective credit was in respect of the evidence which each gave regarding their conduct of their financial affairs during the material time.
  1. [233]
    For example, the plaintiff conceded under cross examination that the payments which she said had been made by her as instalments and interest payable under the mortgage into the joint mortgage account was untrue.
  1. [234]
    Indeed, the payments made in that regard were demonstrated, under cross examination, to be payments which she had tax deducted on behalf of her company as rent that had been paid directly into the defendant’s own account.
  1. [235]
    The defendant, on the other hand, was cross examined at length about his tax returns during the relevant period.
  1. [236]
    The plaintiff made the submission that the defendant had been less than candour about the true motivation behind why he had only had his 2001 and 2002 tax returns amended (to reflect the rent that he had received from the plaintiff during her occupation at Woodstock Rd) at a time only after the plaintiff had filed her claim.
  1. [237]
    The plaintiff also made the submission that the defendant had an obligation to disclose any amendment to those returns in his affidavit sworn 17th January 2006 which he did not.
  1. [238]
    Those submissions however ignores that the defendant had disclosed in his amended list of documents filed on the 13th July 2005, the amended assessments for the years 2001 and 2002 tax returns.
  1. [239]
    It also ignores the fact that the defendant had asked for an amendment with respect to his 2000 return however the Australian Tax Office advised that the time limit had past which allowed for such an amendment to be made (Ex 37).
  1. [240]
    The defendant also gave evidence, which I accept, that it was only after the errors relating to his tax returns had been drawn to his attention by his solicitor that he became aware of the problem and immediately set to remedy them. The appropriate tax was then paid.
  1. [241]
    The plaintiff also made the submission that the only (rental) property which the defendant sought to have that income declared in his amended tax returns was in respect of the Woodstock Rd property.
  1. [242]
    The plaintiff submitted that an adverse inference should therefore be drawn against the defendant as it was indicative of the true motivation behind the defendant’s request to have his tax returns amended only after the plaintiff had filed her claim.
  1. [243]
    In support of that submission, the plaintiff relies on the fact that the defendant conceded under cross examination that he was also earning rent at other properties (the Sheriff and Pratten Street properties) at the material time and that the dates which he had nominated in respect to those properties in his tax returns as being the date those properties were first rented, were not true.
  1. [244]
    The evidence available shows that the defendant was in fact earning rent at his other rental properties during the material time and that the dates nominated regarding their first rental were incorrect.
  1. [245]
    However that is not the end of the matter.
  1. [246]
    The evidence available shows that the defendant had not been declaring rental income as it related to Sheriff St or Pratten St during the year ending 1999 notwithstanding that he had been in receipt of such income during that financial year (and even prior).
  1. [247]
    The evidence also shows that the date nominated (1/9/99) in the defendant’s tax returns for the years 2000, 2001, 2002, 2003 and 2004 for Sheriff St as its’ first rental, was incorrect. .
  1. [248]
    The evidence available also shows that the date nominated (27/1/03) in respect of Pratten St in the tax return years ending 2003 and 2004 as its’ first rental was also incorrect.
  1. [249]
    The evidence also shows that the date nominated (1/7/2001) in respect of Woodstock Rd in the tax returns years ending 2002, 2003 and 2004 as its’ first rental was also incorrect.
  1. [250]
    However, a Rent Schedule had been submitted in respect of Woodstock Rd for income received by the defendant for the tax return years ending 2002, 2003 and 2004.
  1. [251]
    Those returns show that rental income was declared by the defendant from at least 1/7/2001 to the Australian Taxation Office, a date well before the plaintiff filed her claim on the 6th August 2004.
  1. [252]
    Indeed, the evidence also shows that the defendant had not been declaring his rental income in his tax return for the year ending 1999 (whether that be due to error or be it deliberately) even in respect of Sheriff St.
  1. [253]
    In other words, the defendant had not been declaring rental income in respect of at least one of his other rental properties even prior to the Woodstock Rd purchase taking place.
  1. [254]
    Accordingly, the plaintiff’s submission that the defendant’s failure to declare rental income in respect of the Woodstock Rd property during the years ending 2000 and 2001 carries little force where the evidence available shows that the defendant had not been making the requisite declaration in respect of at least one of his other rental properties which was also earning rental income at a time well before the Woodstock Rd property was even purchased.
  1. [255]
    The plaintiff also relied on the first nominated rental dates contained in the respective tax returns in support of the submission that those dates to demonstrate that the defendant was not a witness of truth.
  1. [256]
    It is difficult to accept that submission.
  1. [257]
    The defendant conceded during cross examination that those dates were wrong (as was his date of birth recorded) however said that he was unaware that the dates were wrong until it was pointed out to him during trial.
  1. [258]
    I accept the defendant’s evidence on this point.

Property Adjustment Order

  1. [259]
    In the event that a different view may be taken elsewhere in respect of my determination of Issue 1, I shall briefly deal with the question of what property adjustment order, if any, should have been made in this case.
  1. [260]
    The Court must only make an order that is just and equitable. s. 286 Property Law Act 1974.
  1. [261]
    The court is required to consider certain matters s. 291 – 294 Property Law Act 1974:

291 Contributions to property or financial resources

(1) The court must consider the financial and non-financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to—

(a) the acquisition, conservation or improvement of any of the property of either or both of the de facto partners; and

(b) the financial resources of either or both of the de facto partners.

(2) However, the non-financial contributions of a child of the de facto partners must be considered only if the child’s contributions are substantial.

(3) It does not matter whether the property or financial resources mentioned in subsection (1) still belong to either or both of the de facto partners when  the court is considering the contributions made.

292 Contributions to family welfare

(1) The court must consider the contributions, including any homemaking or parenting contributions, made by either of the de facto partners or a child of the de facto partners to the welfare of—

(a) the de facto partners; or

(b) the family constituted by the de facto partners and 1 or more of the following—

(i) a child of the de facto partners;

(ii) a person who is—

(A) accepted by either of the de facto partners into the household of the de facto partners;

and

(B) dependent on either of the de facto partners.

(2) However, the contributions of a child of the de facto partners must be considered only if the child’s contributions are substantial.

293 Effect on future earning capacity

The court must consider the effect of any proposed order on the earning capacity of the de facto partners.

294 Child support

The court must consider any child support under the Child Support (Assessment) Act 1989 (Cwlth) provided, or to be provided, by a de facto partner for a child of the de facto partners.

  1. [262]
    The family case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79 Family Law Act 1974.
  1. [263]
    That approach involves a four inter-related steps.
  1. [264]
    This approach has been adopted under Part 19 Property Law Act 1974 (NFO v PFA [2005] QSC 176; BLM v RWS [2006] QSC 139; LF v RA (No 2) (2006) QSC 072)
  1. [265]
    The only property subject of dispute between the parties is the Woodstock Rd property.
  1. [266]
    Its value as at January 2006 is $570,000 according to the valuation (Ex 27).

Financial contributions

  1. [267]
    The plaintiff contends that she made the following financial contributions:

(i)   reduction in the mortgage $45,950

(ii)  renovations of $711

(iii) trade discounts $7721

Re (i)

  1. [268]
    The evidence shows that the whole of this amount was claimed as a tax reduction by the plaintiff on behalf of her company as rent. The whole amount was also included in the relevant company’s tax returns and as a consequent she received a benefit.
  1. [269]
    How then should this amount now be treated?
  1. [270]
    The defendant submits that the plaintiff should not be allowed to contend in these proceedings that the rent paid were in fact contributions which she made to the mortgage in the context of a de facto relationship.
  1. [271]
    The defendant relies on certain case law (In the Marriage of Dawes (1990) FLC 92-108, Elias v Elias (1977) FLC 90-267, Tinker v Tinker (1970) 2 WLR 331, Gascoigne v Gascoigne (1918) 1 KB 223 and Re Emery’s Investment Trusts (1959) 1 Ch 410) to support that submission and in particular, what is commonly referred to in those cases as the Elias principle:

‘The court has always been reluctant to allow a party who has made representations of fact to third parties and gained an advantage from doing so, they cannot in subsequent proceedings under s. 79 of the Family Law Act lead evidence which contradicts those representations’.

  1. [272]
    That case law was subsequently examined however by Chisholm J in (in the marriage of Jordan and Jordan (1997) FLC 92-736 sitting alone.
  1. [273]
    He came to the conclusion that the Elias principle should be sufficiently stated as follows:

‘when a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s. 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations’

  1. [274]
    That conclusion was against the weight of some of the earlier case law which had been decided by the Full Court of the Family Court (Dawes and Dawes, Lee Steere and Lee Steere, Ferraro and Ferraro) who had given approval of the initial Elias principle stated.
  1. [275]
    Accordingly, Jordan and Jordan, relied upon on behalf of the plaintiff, must be viewed in that context.
  1. [276]
    Does that principle apply here?
  1. [277]
    There is no reason in my view to exclude the application of the principle in these proceedings.
  1. [278]
    The undisputed evidence in this case is that the plaintiff made representations of fact to a third party (revenue authority) and gained an advantage from doing so. Those representations were made over a long period of time. The defendant had acted on those representations (albeit later) to his detriment. He has paid tax on the rental income which has been paid to him by the plaintiff.
  1. [279]
    Even if I was to accept that the Elias principle should not be read strictly as contended by the plaintiff, I decline to accept from the plaintiff the evidence which she has sought to lead in these proceedings which in essence was, that she had paid those amounts as contributions to the mortgage in the context of the subsisting de facto relationship between the parties.

Re (ii)

  1. [280]
    Similarly, I am of the view the same approach should be taken in respect of this amount to the extent of $550.
  1. [281]
    The plaintiff conceded under cross examination that she had also tax deducted this amount on behalf of her company as a business expense.

Re (iii)

  1. [282]
    It is difficult to accept the quantification given by the plaintiff in respect of this amount.
  1. [283]
    The evidence provided by plaintiff did little to assist the court. Indeed, the evidence by the plaintiff did not substantiate the amounts claimed in any tangible way.

Non-financial contributions

  1. [284]
    The plaintiff gave evidence that she has made contributions as a home-maker and expended considerable time during the course of the relationship towards the interior design and renovation of the property.
  1. [285]
    The evidence shows that any contributions made as a home-maker were limited in light of the respective living arrangements which existed at the material time.
  1. [286]
    The evidence also shows that the time spent searching for an appropriate property, negotiating the purchase of it and obtaining a mortgage facility were not quantified with reference to any real tangible evidence.
  1. [287]
    The plaintiff gave evidence that she didn’t write down the hours she spent on these tasks in her diary yet the diary notes exhibited to her affidavit exhibit extraordinary detail.
  1. [288]
    Most, if not all of the time spent as referred to was, in any event, prior to the commencement of any de facto relationship between the parties (a date from or after 9th August 1999).
  1. [289]
    The plaintiff also gave evidence that she had also been involved in organising tradesmen and supervising the interior design and renovation at the property.
  1. [290]
    Again, there was no evidence placed before the court of a tangible nature that might assist in quantifying these activities.
  1. [291]
    Even if this court was to accept the hours nominated in the plaintiff’s affidavit at paragraph 71, the total (excluding the other items already dealt with earlier) amount of hours expended is 58.
  1. [292]
    Accordingly, it would appear that the evidence shows that any non-financial contributions made by the plaintiff were, at best, minimal.

Other factors

  1. [293]
    The evidence shows that the parties’ earnings during the relevant period were equal initially but the plaintiff’s have exceeded the defendant’s for a number of years.
  1. [294]
    The plaintiff submits that there is a significant disparity between the income, property and financial resources of the parties.
  1. [295]
    The evidence does not show any significant disparity in earnings at the material time according to the financial records available.
  1. [296]
    The plaintiff seeks a 25% adjustment order in favour of the plaintiff against the current value of the Woodstock Rd property. ($142,500).
  1. [297]
    It is difficult to accept that submission.
  1. [298]
    Even ignoring the lack of any financial contributions made by the plaintiff, an adjustment in that order would not, in my view, be just and equitable in all the circumstances.
  1. [299]
    The relationship was not of a long duration.
  1. [300]
    The parties have no children.
  1. [301]
    The parties are in good health and aged 46 and 59 years respectively.
  1. [302]
    The only property subject of dispute for consideration in these proceedings is the Woodstock Rd property.
  1. [303]
    The limited nature of any non-financial contributions to the property of financial resources or to the family welfare by the plaintiff.
  1. [304]
    The fact that any order made will have little, if any, effect on the plaintiff’s future earning capacity.
  1. [305]
    The relationship had no effect on the plaintiff’s earning capacity.
  1. [306]
    The allowance that should be made regarding the monetary benefit which the plaintiff received during the period of the relationship in that she was able to reside and run her business at a cheaper rental than she had while at Woodstock Rd.

Issue 2 – The Deed

  1. [307]
    The plaintiff seeks to rely on the deed signed between the parties, in particular Clause 6 .
  1. [308]
    The plaintiff seeks damages for breach of the Deed by the defendant.
  1. [309]
    The evidence shows that it cannot be said that the defendant breached the agreement between the parties embodied in the terms of that document.
  1. [310]
    Indeed, the evidence shows that the plaintiff failed to fulfil her obligations under the Deed in respect of Clause 7.
  1. [311]
    The evidence does show however that the initial two mortgage payments made by the defendant (on the 9th August and September 1999) are capable of being viewed, in my view, as financial contributions made by the plaintiff pursuant to that deed while she was still a joint tenant in common.
  1. [312]
    Even on the defendant’s own case, he concedes that the rental arrangement of $1375 per month paid by the plaintiff only arose after those initial two mortgage payments had been paid by the plaintiff. (paragraph 30 of his affidavit).
  1. [313]
    The plaintiff had also made other financial contributions in the order of $711 of which $550 was tax deducted.
  1. [314]
    Accordingly, does the defendant hold on trust for the plaintiff those amounts?
  1. [315]
    The evidence shows that the plaintiff claimed a tax deduction in respect of these two payments and in respect of $550 as it related to work done to the downstairs part of the residence.
  1. [316]
    However, that does not, in my view, disentitle her now to receive those amounts pursuant to the terms of the deed.
  1. [317]
    The Elias principle, it would seem, would not prohibit in such circumstances, as the entitlement arises in accordance with the deed’s terms.
  1. [318]
    However that is not the end of the matter.

Counter Claim

  1. [319]
    The defendant seeks to recover an amount of $4125 calculated as the agreed rental of $1375 per month that the plaintiff would have paid during the occupation of Woodstock Rd during August, September and October 2002.
  1. [320]
    The plaintiff gave evidence that she did not pay the rent for those (3) months because she was on holidays.
  1. [321]
    There was also evidence from the plaintiff that she understood that her family were staying there, with the defendant’s permission, rent free during that period.
  1. [322]
    That understanding must be viewed in light of the true situation. The plaintiff had gone on holidays and some of her family members were staying there to look after the residence while she was away up at Bribie Island. The defendant was already overseas.
  1. [323]
    Accordingly, there is no basis in my view why judgment should not be entered in respect of the counter claim in the defendant’s favour.

Constructive Trust

  1. [324]
    While this was not sought as relief by the plaintiff during the proceedings, I consider it appropriate as a matter of completeness to deal with this issue.
  1. [325]
    A constructive trust may be imposed irrespective of the parties’ intentions.
  1. [326]
    Nor is it necessary that a de facto relationship exist before a trust of that nature may be imposed by the court.
  1. [327]
    The doctrine of constructive trust arises where it would be unconscionable for one party to retain the benefit of the equitable as well as the legal interest in the property where the common endeavour between the parties failed without attributable fault. (Swettenham v Wild (2005) QCA 264.)
  1. [328]
    Having determined Issue 1 in the manner that I have, it is difficult to consider that a constructive trust would arise under the particular circumstances of this case whether there was a de facto relationship or not existing between the parties at the relevant time.

Orders

  1. The plaintiff’s claim is dismissed in respect of the relief sought pursuant to the Property Law Act 1974.
  2. The plaintiff’s claim be allowed in respect of the alternative relief for breach of the deed dated 9th August 1999
  3. A declaration that the defendant holds on trust for the plaintiff the sum of $4686.94 together with interest calculated at 9% from 12th November 1999 for a further sum of $2919.03
  4. The defendant’s counter claim be allowed in the sum of $4125.00 together with interest of 9% from 26th October 2002 for a further sum of $1471.78.

Costs

I shall hear the parties on the question of costs to be received by me in writing within 28 days following the delivery of this judgement.

Close

Editorial Notes

  • Published Case Name:

    TD v GP

  • Shortened Case Name:

    TD v GP

  • MNC:

    [2006] QDC 367

  • Court:

    QDC

  • Judge(s):

    Ryrie DCJ

  • Date:

    11 Oct 2006

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
BLM v RWS [2006] QSC 139
1 citation
Jump To
Cite 1 - [2006] QSC 139
Elias v Elias (1977) FLC 90-267
1 citation
Jump To
Cite 1 - (1977) FLC 90-267
Gascoigne v Gascoigne (1918) 1 KB 223
1 citation
Jump To
Cite 1 - (1918) 1 KB 223
Gascoigne v Gascoigne (1959) 1 Ch 410
1 citation
Jump To
Cite 1 - (1959) 1 Ch 410
In the Marriage of Dawes (1990) FLC 92-108
1 citation
Jump To
Cite 1 - (1990) FLC 92-108
Jordan & Jordan (1997) FLC 92-736
1 citation
Jump To
Cite 1 - (1997) FLC 92-736
LF v RA (No 2) [2006] QSC 72
1 citation
Jump To
Cite 1 - [2006] QSC 72
NFO v PFA [2005] QSC 176
1 citation
Jump To
Cite 1 - [2005] QSC 176
PY v CY [2005] QCA 247
2 citations
Jump To
Cite 1 - [2005] QCA 247
Cite 2 - [2005] QCA 247
Swettenham v Wild [2005] QCA 264
1 citation
Jump To
Cite 1 - [2005] QCA 264
Tinker v Tinker (1970) 2 WLR 331
1 citation
Jump To
Cite 1 - (1970) 2 WLR 331

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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