CL v JMG[2007] QSC 169

SUPREME COURT OF QUEENSLAND 

1. This was an application under Part 19 of the Property Law Act 1974 (PLA) for a just and equitable property distribution at the end of a de facto relationship between the plaintiff CL and the defendant JMG.^[1]  Part 19 of the PLA was enacted as a result of recommendations made by the Queensland Law Reform Commission in its 1993 De Facto Relationships Report No. 44.  The Commission recommended that eligible de facto partners should have, as far as is practicable, the same property rights and responsibilities as married partners on the dissolution of their relationship.^[2]

The de facto relationship

2. Ms L is 53 years old and JMG, 49. There was no dispute that they were in a de facto relationship. However there was a dispute as to the duration of the relationship. JMG says that it lasted approximately eight years and Ms L says that it was approximately 11½ years.

3. Unlike a marriage, which commences on a defined day, when a de facto relationship commences and when it ends can be the subject of some uncertainty. A de facto relationship tends to develop over a period of time. Nevertheless the court must determine whether or not and, if so, when a de facto relationship has been established.

4. Section 261 of the PLA provides that “a de facto relationship is the relationship between de facto partners.” Section 260 of the PLA provides that a reference to a “de facto partner” is a reference, inter alia, to s 32DA of the Acts Interpretation Act 1954:

“Meaning of de facto partner

(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.”

5. These sections have recently been the subject of scrutiny by the Queensland Court of Appeal.^[3]  All of the factors mentioned in s 32DA (2) of the Acts Interpretation Act are relevant to whether or not there was a de facto relationship.  The question to which they are relevant is whether or not the parties were “living together as a couple on a genuine domestic basis”.  In this case, the answer to that question primarily depends on when they commenced living together.  They maintained separate households for a period during the early part of their relationship.  Nevertheless two people who maintain separate households may be considered to have a de facto relationship if they live together on a genuine domestic basis, albeit in more than one residence.  There is no general rule that a couple must maintain one joint household to be living together as a couple on a genuine domestic basis.

6. The differences in the recollections of Ms L and JMG of the length of their relationship were partly due to their different understanding of what was happening in the relationship, partly due to the usual different personal recollections of the beginning and end of a relationship^[4] and partly due to the inevitable effect on recollection engendered by their opposing interests in this litigation.

7. Ms L deposed in her affidavit filed in these proceedings that the relationship commenced on 21 October 1992. She said at that time she was living at Nerang with her son, K, and a female friend who was her business partner. At that time she started a business which was a ladies’ clothing boutique. She said she met JMG when his firm, QSS Pty Ltd, was engaged to fit out the business. Her business opened in November 1992. His recollection was that they first met at a restaurant in Surfers Paradise. This difference in recollection is irrelevant to the determination of these proceedings although it, as well as other differences between them, appears to have contributed to the vigour with which the litigation has been conducted.

8. On 15 November 1992, Ms L, her son and her business partner moved from Nerang to a new residence, the Moorings apartments, where she lived until March 1993. During that period JMG maintained his own residential property at Runaway Bay (“the Runaway Bay property”). He was not the legal owner of the property. It was owned by a company in which he had an interest. However during that period they began to stay overnight at each other’s residence more regularly, more often at hers than at his. In January 1993, JMG travelled to New Zealand for a month, although he was in regular telephone contact with Ms L expressing his growing love, affection and commitment to creating a family relationship with her and her son.

9. In March 1993 Ms L, K and her business partner moved to a home in Broadbeach. JMG was not a party to that lease and still maintained his residential property at Runaway Bay. Ms L said, and I accept, that from March until May 1993 she spent approximately 20 per cent of her time at JMG’s property at Runaway Bay and 80 per cent of her time at her premises at Broadbeach and that throughout the period from 15 November 1992 until May 1993 neither she nor JMG were spending 100 per cent of their time at each other’s residential address.

10. In May 1993, Ms L relinquished the rented premises at Broadbeach and moved her furniture and personal belongings into the defendant’s Runaway Bay residence. From that time Ms L, her son and JMG commenced to reside together. In my view that was the point at which the nature of the relationship changed so that it became a de facto relationship. Their lives had so “merged”^[5] that they were from that point onwards two persons living together as a couple on a genuine domestic basis.  While their sexual relationship commenced in October 1992, their relationship did not mature into a de facto relationship until May 1993.

11. At the time they commenced living together in a de facto relationship Ms L was 39 years old and JMG was 35. K was 11 years old and was treated by both of them as their son. When they commenced living together the plaintiff, Ms L, was in a poor financial situation, the ladies’ clothing boutique having failed, but that is not the reason they moved in together. It is clear that love and affection and a desire to form a family relationship were the reasons why they commenced cohabitating together in May 1993. They lived together from May 1993 to January 1997 at the Runaway Bay property and from January 1997 to 18 March 2004 at a home at the Parkway, Hope Island (“the Sanctuary Cove property”). Its real property description was Lot 8, GTP 1701, Parish Coomera.

12. The plaintiff alleged that the relationship ended on 18 March 2004. The defendant on the other hand alleged in the Defence that the relationship ended in March 2001^[6] when the couple separated under the one roof until she left the home in March 2004.  The defendant alleged in the Defence and Counterclaim that annually until 2001 the parties considered whether or not they would continue to cohabit for another year and that from 2001 Ms L told JMG that she intended to leave the home as soon as her son completed his university studies.  I do not accept that there was an annual review of the relationship nor that the relationship was viewed as being over in 2001.  Until she moved out of the home in March 2004, both parties continued to be committed, to a greater or lesser extent, to making the relationship, which by then was ailing, continue to work.  This is so notwithstanding the fact that they did not have sexual intercourse after March 2001 and Ms L had a sexual relationship with another man from August 2003 to March 2004 when she left the de facto relationship.

13. The couple continued to live together until March 2004 on a genuine domestic basis. They lived in the same residence, continued to support each other financially and emotionally and to socialise and undertake holidays together. They continued to attend yoga together on a twice weekly basis. In December 2000, Ms L’s niece, DH, holidayed at their Sanctuary Cove home for three weeks. She found a happy family relationship. In January 2002 Ms L and JMG holidayed together in New Zealand for 3½ weeks; in August 2002 they went to Noumea for a week.

14. Ms H lived with JMG, Ms L and K for three months from March 2003 while she worked as a nurse at private hospitals on the Gold Coast. She again observed a happy marital and family relationship. Ms H observed that Ms L went to work each day at QSS at between 9.30am and 4.30pm and on Fridays she would be at home to assist the cleaners and get the house ready for the weekend and do the weekly grocery shopping. She said Ms L cooked the evening meal for the family every night except when they went out to eat once or twice a week when JMG would pay for the meal. She heard JMG and Ms L discussing their plans for the future with JMG talking about buying another block of land at Sanctuary Cove and purchasing a BMW 4 wheel drive for himself and a Holden Astra for Ms L. They also talked about their plans to visit New Zealand to see JMG’s family in the near future.

15. In October 2003 JMG paid for 20 guests to attend Ms L’s 50^th birthday and then paid for her to travel to New Zealand to spend a week with his sister and her child, who was Ms L’s godson.  He bought her a birthday present consisting of $2,000 worth of shares in ABC Learning Centres.  In January 2004 they again holidayed in New Zealand for three weeks.  However on 18 March 2004 the plaintiff left the residence severing the relationship.  That was when the relationship ended.  The de facto relationship lasted, therefore, for slightly less than 11 years from May 1993 to March 2004.

Application for property distribution

16. The application for a just and equitable property distribution at the end of the de facto relationship was made pursuant to s 283 of the PLA which provides that after a de facto relationship has ended, a de facto partner may apply to the court for an order adjusting interests in the property of either or both of the de facto partners. The court is empowered under s 286(1) to make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interests of those partners in the property. This is similar to the power of the Family Court under s 79(2) of the Family Law Act 1975 (FLA).  The court exercising its powers under the PLA is required, in deciding what is just and equitable pursuant to s 286(2), to consider the matters mentioned in Subdivision 3 of Division 4 of Part 19 of the PLA.  Ms L is eligible to make an application for such an order because she lived in a de facto relationship with JMG for at least two years: see PLA s 287(a).

17. Section 289 of the PLA provides that any party to a proceeding for a property adjustment order must disclose the party’s financial circumstances as required by the court. The section also provides that a court may make a property adjustment order in favour of the party only if the party has complied with the requirement to disclose that party’s financial circumstances.

18. The matters set out in Subdivision 3 of Division 4 of Part 19 which the court must consider in deciding what is just and equitable, are the contributions, financial and non-financial, made by the partners to the welfare, property and financial resources of the couple and the effect of an order on their future earning capacity. Those matters specifically are:

• The financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to the acquisition, conservation or improvement of any of the property of either or both of the de facto partners (s 291(1)(a));^[7]

• The financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to the financial resources of either or both of the de facto partners (PLA s 291(1)(b));

• The non-financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to the acquisition, conservation or improvement of any of the property of either or both of the de facto partners (PLA s 291(1)(a));^[8]

• The non-financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to the financial resources of either or both of the de facto partners (PLA s 291(1)(b));

• 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 the de facto partners or the family consisting of the de facto partners and Ms L’s son, K (PLA s 292);^[9]

• The effect of any proposed order on the earning capacity of the de facto partners (PLA s 293);^[10]

• The matters mentioned in subdivision 4 to the extent they are relevant in deciding what order adjusting interest in property is just and equitable (PLA s 296).

19. The matters in subdivision 4 which are relevant to this matter include:

• The age and state of health of each of the de facto partners (PLA s 297);^[11]

• The income, property and financial resources of each of the de facto partners (PLA s 298(a));^[12]

• The physical and mental capacity of each of the de facto partners for appropriate gainful employment (PLA s 298(b));^[13]

• The commitments of each of the de facto partners necessary to enable the de facto partner to support himself or herself (PLA s 300);^[14]

• The standard of living which is reasonable for each of the de facto partners in all the circumstances (PLA s 303);^[15]

• The contributions made by either of the de facto partners to the income and earning capacity of the other de facto partner (PLA s 304);^[16]

• The length of the de facto relationship (PLA s 305);^[17]

• The extent to which the de facto relationship has affected the earning capacity of each of the de facto partners (PLA s 306);^[18]

• If either de facto partner is cohabiting with another person, the financial circumstances of the cohabitation (PLA s 307);^[19]

• Any fact or circumstance which the court considers to the justice of the case requires to be taken into account (PLA s 309).^[20]

20. Financial resources are defined under s 263 of the PLA to include the following:-

“A person’s financial resources include the following –

(a)a prospective claim or entitlement under a scheme, fund or arrangement under which superannuation, resignation, termination, retirement or similar benefits are provided to, or in relation to, the person;

(b)property that, under a discretionary trust, may become vested in, or applied to the benefit of, the person;

(c)property the disposition of which is wholly or partly under the control of the person and that may be used or applied by or on behalf of the person for the person’s benefit;

(d)any other valuable benefit of the person.”

21. The types of orders that a court may make are set out in Division 6 of Part 19 of the PLA. The court is given extensive power to ensure that it may make appropriate orders to give effect to a just and equitable distribution of property between the de facto partners. The duty of the court in those circumstances is to make orders that, as far as practicable, will end the financial relationship between the de facto partners (PLA s 337).

22. In determining what orders are necessary to effect a just and equitable distribution of property it is necessary to consider each of the statutory factors. The Court of Appeal in FO v HAF^[21] referred with approval to the approach of the Family Court to the exercise of discretion found in the equivalent section to s 286(1) of the PLA:

“It has frequently been emphasised that the judicial discretion conferred by s 286(1) of the PLA and its analogues in other statutes should not be constrained by pre-determined guidelines.^[22]  It is essential, however, that the matters referred to in the provisions set out above be taken into account, and that they are "seen, in the reasons for judgment, to have been taken into account".^[23]  To this end, the four step approach explained by the Full Court of the Family Court in Hickey v Hickey^[24] provides a useful discipline to ensure clarity of thought and transparency of judicial reasons.

The Full Court of the Family Court explained in Hickey and Hickey,^[25] in relation to the Family Court Act analogue of Pt 19 of the PLA, that the first step in making a property adjustment order is the identification and valuation of the property, resources and liabilities of the parties.  The second step is the identification and assessment of the contributions of the parties to their pool of assets and the determination of their contribution-based entitlements in accordance with s 291 to s 295 of the PLA.  The third step is the identification and assessment of the factors in s 297 to s 309 of the PLA to determine the adjustment to the contribution-based entitlement.  The fourth step in the process is consideration of the result of these earlier steps to determine whether that result is just and equitable in accordance with s 286 of the PLA.”

It is not necessary to follow this order slavishly no matter what is best suited to the individual case.  The judgment of the Full Court of the Family Court in Hickey and Hickey is an example of the way in which a court may properly exercise its discretion which was described by the High Court in Norbis v Norbis ^[26] with reference to the discretion found in the FLA as follows:

“Section 79(1) of the Act provides that the Court may make such order as it thinks fit altering the interests of the parties to a marriage in the property of the parties or either of them.  In so providing, the Act confers a very wide discretion on the Court.  But that discretion is not unlimited.  Its exercise is conditioned on the requirement that it is just and equitable to make the order (s 79(2)), and that the Court takes into account  the matters specified in s 79(4) and the general principles embodied in ss 43 and 81, so far as they are applicable.”

In this case it is more convenient to start with the contributions made by the parties, financial and non-financial, as the identification and valuation of the property, resources and liabilities of the parties at the end of the relationship depends in this case on an assessment of their initial contributions and the change in their property and financial resources during the relationship.

Contributions by the parties

Contributions to family welfare

23. The plaintiff, Ms L, was the person who was most responsible for homemaking and parenting during the subsistence of the de facto relationship. She provided emotional and physical support for the family. She cooked meals. Ms L, JMG and K also ate out regularly and JMG paid for those meals. During the period of the de facto relationship, the couple employed people to clean the home and do washing and ironing. She supervised their work. She also did some washing and ironing of JMG’s clothes, tidied and neatened the house and did grocery shopping. She was responsible for general upkeep and maintenance of the properties. Whilst a gardener was employed by QSS Pty Ltd for two hours a fortnight to do gardening in their home, Ms L was also a keen gardener. She was responsible for entertaining friends and business acquaintances throughout the relationship and the purchase of clothes, birthday and Christmas presents.

24. JMG was substantially responsible for the family expenses during the period of the de facto relationship. He was able to afford an affluent lifestyle because of the distributions he received from estates and trusts in New Zealand and the income from QSS Pty Ltd.

25. Ms L was the primary care giver for K. She attended to his care including washing his clothes, cooking his food, driving him to and from school and to and from after school sporting activities. She attended to his parenting needs. JMG paid for his living expenses and contributed to schooling activities, text books, sporting interests and overseas school excursions. Both during the relationship and after it ended, he made substantial financial contributions towards the upbringing and education of K, employed him in the business and in every way treated him as a son. His affection was reciprocated and K in turn treated JMG as a father. Their relationship has continued notwithstanding the breakdown in the de facto relationship.

Contribution to financial resources and property

Ms L’s property

26. When the couple commenced their de facto relationship their financial resources were very different. She had exhausted her savings but she had a house full of furniture and a motor vehicle. She was working at a Chinese restaurant however she had to leave when she had a hernia operation. The furniture and household effects were worth approximately $30,000 and the motor vehicle was a Daihatsu Applause which was worth about $15,000. She moved the furniture to the Runaway Bay property. She used a ring she owned to pay a debt of $7,331. I accept her evidence that about a year later, JMG repurchased the ring for $3,665.50 and gave it to her.

27. Not long after the relationship commenced, Ms L’s car was traded in and the trade in value of $10,000 was put towards the purchase of a Mitsubishi Lancer for her use, but the car was not owned by her. It was purchased in the name of QSS Pty Ltd. In 1997, QSS Pty Ltd sold the Mitsubishi Lancer and purchased a Toyota RAV 4 motor vehicle which was used by Ms L. Although owned by QSS Pty Ltd it was registered in the name of BJG, JMG’s step-mother. After the relationship ended, JMG demanded its return. There was a dispute between the parties as to who was responsible for insuring the vehicle and whether the registration sticker would be handed over by JMG to Ms L. This dispute was unresolved and the vehicle was uninsured when it was damaged in a collision on 9 November 2006 while being driven by Ms L. The key to the vehicle has been sent to JMG’s solicitors by Ms L’s solicitors.

JMG’s property

28. JMG on the other hand was apparently relatively wealthy when the relationship commenced. He had emigrated to Australia from New Zealand in 1978. He was the beneficiary of family trusts in New Zealand which had accumulated significant wealth as a result of the estate of his late grandfather, HMG, and his late great-uncle, MPM. JMG and his father, KMG, had made various investments particularly in residential property.

29. Information about JMG’s financial affairs came from JMG, his father, KMG, and his oldest brother, PMG. PMG underwent an operation in hospital during the trial and so was not available to appear. His affidavit was therefore not tested by cross-examination. That of course lessens the weight that could be attributed to it. In addition, evidence was given by Daniel Virtue, the accountant for the G family New Zealand interests and Ian Jolly who is the accountant for the Australian entities and individuals associated with JMG, KMG, and AMG.

30. It has been difficult to determine precisely what JMG’s assets were at the beginning or the end of the relationship or at the time of trial because the complexity of the financial arrangements within the G family and also because of the reluctance by JMG to comply with his duty to disclose his financial circumstances.

31. JMG was the fourth of five children of KMG and his first wife BSG. JMG’s three older brothers were PMG, DMG, and MMG. In addition he had a younger sister LJG. KMG’s second wife was BJG.

32. In order to consider JMG’s financial contributions to the relationship it is necessary to consider what his financial position was at the beginning of the relationship, how it changed during the relationship and what it was at the end of the relationship.

JMG’s property at the commencement of the relationship

33. JMG has deposed, without displaying evidence to support it, that when the de facto relationship commenced he had savings in a New Zealand bank account of approximately $100,000. He did not disclose with which bank he held that account. He deposed that, as at 31 March 1994, he had $122,418 in his ANZ Bank account. He did not disclose whether or not this was separate to the money which was said to have been in the New Zealand bank account at the commencement of the de facto relationship in May 1993. He also deposed that as at 31 March 1994 he held Telecom shares worth approximately $3,000.

34. JMG’s oldest brother, PMG, deposed that as at 31 March 1994 the balance of funds in JMG’s ANZ bank account in New Zealand was $118,933.88. I infer that this was the bank account referred to by JMG and was the whole of the cash held in the bank by him at that time.

Companies

35. As well as assets that were in the name of JMG himself, there were other assets which were owned by companies associated with JMG. None of the companies was in a healthy financial state.

QSS

36. JMG established the QSS business in 1985. QSS markets and sells storage technology solutions and products for office, retail and wholesale clients. It was originally carried on a sole proprietorship by JMG under the business name of QSS which was registered on 28 March 1985. The company, QSS Pty Ltd, was incorporated on 25 February 1993. JMG holds 21,118 ordinary shares and his father holds the remaining one issued share on trust. JMG was appointed a director and secretary of QSS Pty Ltd on its incorporation on February 1993. The latest company search available to me, which was dated 16 March 2005, shows JMG as its sole director and its secretary. Mr Jolly said that JMG was responsible for all decisions in relation to QSS Pty Ltd.

37. At the end of the financial year immediately before the relationship commenced, i.e. the financial year ending 30 June 1992, the balance sheet of JMG trading as QSS shows the net asset value of QSS as $105,710.76, which JMG estimated as the net worth of QSS Pty Ltd at the commencement of the relationship. Those assets included loans of $49,065.49 to AP Pty Ltd (“AP”) and $28,394.10 to TC Pty Ltd. Its liabilities included a $10,000 loan from G Management Pty Ltd. It would not appear that any of those loans were secured and AP, at least, was not in a position to repay its loan at that time. The financial position of QSS Pty Ltd was therefore very poor. On 18 June 1993 the National Australia Bank Limited took a registered fixed and floating charge over the assets of QSS Pty Ltd to secure credit facilities extended by it.

AP

38. The company which became AP was first incorporated on 23 November 1970. KMG, JMG’s father, became its director on 20 October 1972. JMG became a director on 10 April 1987 and its name was changed to AP on 6 December 1988. It has four issued shares, two owned by JMG and two by KMG. They are both company secretaries, as is Mr Jolly the accountant. Since its inception, its main activities have been investing and buying and selling properties.

39. As at 30 June 1992, the balance sheet of AP showed that its liabilities exceeded its assets in the sum of $154,745.87. The position had deteriorated from the previous year where the excess of liabilities over assets was $82,023.89. During the year ending 30 June 1992, it had divested itself of its residential property at Sundance Way, Runaway Bay (Lot 598) (the “Sundance Way property”) which was valued at $142,089.59, increased its bank overdraft by $16,000 and reduced its debt to JMG from $277,324.65 to $186,049.02. At 30 June 1992, AP owed QSS Pty Ltd $49,065.49.

G Management

40. G Management Pty Ltd (“G Management”) is another company of which JMG is a director. He became a director on 30 September 1991. The company was incorporated on 27 April 1988. JMG deposed that the other director of G Management is his father, KMG, and that KMG and an apparently unrelated person, RM, are the shareholders of G Management. The balance sheet of G Management as at 30 June 1992 shows in that year that it had purchased the Sundance Way property which it valued at $139,787.31. It reduced its “other debtors” from $164,774.11 to $10,000; it increased its shares in listed public companies by $18,226.80; it acquired a bank overdraft of almost $60,000 and increased its loan from JMG from $1,000,153.54 to $1,049,096.10. As at 30 June 1992, it had an excess of liabilities over assets of $936,231.99; which had increased from $828,100.07 in the previous year. A substantial amount of resources that might otherwise have been available to JMG were tied up in this company of which he was not a shareholder. Mr Jolly said that the company was used as a vehicle for JMG’s trading activities during the late 1980s, mainly in speculative property and listed shares, but is now dormant.

MDS

41. JMG was also a director of a company, MDS Pty Ltd (“MDS”) from 20 April 1988 until 8 July 1992. JMG held 30,000 or one-third of the shares in MDS; KMG and AMG jointly held one-third; and the remaining one-third was held by two other parties. The business of MDS failed and the company was deregistered on 10 May 2000.

Company assets

Wewak Avenue, Runaway Bay

42. The Runaway Bay property had been purchased by M Pty Ltd a company apparently owned by members of the G family in 1987 for $255,000. On 29 April 1996, well after the relationship commenced, AP sold the Runaway Bay property to JMG for $285,000. A search of the Runaway Bay property did not reveal how or when AP came to be the owner. However it is shown as an asset of AP in its balance sheet as at 30 June 1992 and as having been an asset of AP as at 30 June 1991, when its value was shown as $365,726.29. Its value as at 30 June 1992 was shown as $370,921.07. Why AP sold it to JMG in 1996 for $85,000 less than the value attributed to it in 1992 was not explained.

Sundance Way

43. The Sundance Way property was purchased by AP on 14 November 1990 for $135,000 and sold to an unrelated buyer on 13 January 1995 for $377,500 by G Management. The property search, once again, does not reveal when or how the property was transferred by AP to G Management.

Cockleshell Court

44. There was another residential property at Cockleshell Court, Runaway Bay (“Cockleshell Court”). It appeared in the balance sheet of AP as at 30 June 1991 and 1992 as being an asset of AP. However, JMG says, without disclosing any evidence to support it, that the Cockleshell Court property belonged to him. He deposed that he purchased it on 18 July 1987 for $81,750 and sold it on 27 July 1993 for $215,000. It was valued in the AP balance sheet of 30 June 1992 at $93,631.18.

Trust and estate property

45. In addition to the companies and properties in Australia, JMG had a beneficial interest in estates, partnerships and as a discretionary beneficiary of trusts in New Zealand.

Estate of HMG

46. The estate of HMG was administered in accordance with a will dated 12 July 1962. No evidence was given of the date of death of HMG. One half of his residuary estate was to be held on trust for his eligible grandchildren, of whom JMG was one of eight. JMG was entitled to half of his share when he attained the age of 25, on 6 December 1982, and the remaining half when he attained the age of 35, on 6 December 1992. He was therefore entitled to receive the second tranche just before the commencement of the de facto relationship. All drawings and distributions from the estate were in New Zealand currency. The accounts for the estate of HMG as at 31 March 1993 showed that the capital distribution to JMG that year was $114,189. His income distribution for the year was $14,623. He had drawn $66,855 during the year and there was $255,431 standing to his credit. Under the terms of the will, he was then entitled to that money.

47. Mr Virtue has been an accountant to the G family for almost 50 years. He said that as at 31 March 1992, JMG’s share was worth $154,993 and that his current capital account balance was $193,474. In the year ending 31 March 1992, JMG received income distributions of $14,182 and drawings of $10,800. It also appears from Mr Virtue’s affidavit that further moneys were distributed and paid to JMG in the following years. This appears to be notwithstanding his entitlement having crystallised on 6 December 1992.

Estate of MPM

48. In addition to that estate, JMG was a beneficiary of the estate of MPM, who died on 25 October 1991. His estate was administered in accordance with MPM’s will made on 8 May 1988. His residuary estate was to be divided equally between the children of his nephews, KMG and AMG, living at the date of his death. All drawings and distributions from the estate were in New Zealand currency.

49. In the year ending 31 March 1992, according to Mr Virtue, $930,000 was advanced to the M Family Property Trust. The balance sheet for the year ending 31 March 1994, showed that the capital of the estate as at 1 April 1992 was $8,175,517. Estate duty accounted for $3,071,892. JMG deposed that he was entitled to one-seventh of the estate of MPM which was worth $665,834. However, one-seventh of the capital of the estate, $8,175,517, less estate duty, $3,071,892, is $729,089.28. $2,000,000 in cash and $1,659,329 worth of shares were distributed in the year ending 31 March 1993, of which JMG was entitled to $457,416 and $373,333 was advanced to the M Trust (It appears that that trust was in fact the MPM Trust). $125,189 cash was distributed to 31 March 1994, leaving $872,456 as the balance of the estate as at 31 March 1994. It appeared that JMG received an income distribution from the estate of MPM in 1994 of $17,884.

50. Mr Virtue calculated that as at 31 March 1992, JMG’s interest in this estate was worth $1,021,939. That calculation was based on one-eighth of $8,175,517. It was the gross value before death duties were deducted. JMG himself said he was entitled to one-seventh of the estate. Mr Virtue also said that JMG received a capital distribution from this estate of $504,083 in the year ending 31 March 1992.

Loan

51. JMG exhibited to his affidavit a document dated 3 August 2005 which purported to acknowledge a loan made by KMG to JMG in 1991/92. It is in the form of a facsimile transmission from KMG to “J”. It is in the following terms:

“You agree that during 1991/92 the sum $1,050,000 was advanced to you, by me, to enable you to participate in various ventures.

This arrangement was informal.  This money has not yet been repaid.

Under the present circumstances I think it would prudent if you were to provide me with a formal acknowledgement of the debt.

I doubt that it is necessary to take legal advice on the matter.  However, I would like you to acknowledge that the debt to me does exist.

I, JMG agree the above is correct.

Signed…………………

Date…………………

Witness…………………

Adress [sic]…………….”

The document has not been signed, dated or witnessed.

52. JMG’s evidence as to the loan was vague and unsatisfactory. He said that the loan was made between the 1980s to the early 1990s, not in 1991-1992 as stated in the acknowledgement. KMG said the loans were made in the late 1980s. JMG said that moneys were transferred from his father’s bank account to his own bank account in smaller amounts, to quote his evidence “I imagine it came in amounts of 100,000 or so.” I was not satisfied that any such payments were made by KMG to JMG. KMG admitted in cross-examination that he did not know what money he had advanced to JMG or when he had done so.^[27]

53. From both estates referred to earlier there was about $1million available to JMG by 31 March 1993. This money available to be distributed to JMG from the estates of which his father was a trustee was in my view in spite of his denials the source of the $1,000,000 his father supposedly lent to him 1991/92. If it in fact went to JMG, then it should properly be characterised as an early informal distribution from the estate or at least a pre-payment by KMG to JMG of the moneys which JMG expected to receive on the distribution of the estates. This could not be characterised as a loan made by KMG to JMG which is required to be repaid. But the matter does not end there. The company that apparently received the benefit of the $1,000,000 was G Management, a company in which JMG did not have a proprietary interest and which had a massive excess of liabilities over assets. In this way the moneys remained in a company of which KMG rather than JMG was a shareholder. It was not moneys available to JMG to use for other purposes. The moneys were then said to be owing by G Management to JMG. It is difficult in all of the circumstances to see how that could be properly characterised as a loan to JMG.

54. What happened was that moneys due to JMG from the estates of HMG and MPM were paid into G Management either from the estates or by his father as an advance of those moneys and were then accounted for as a loan from JMG. KMG kept some measure of control by paying the moneys into a company in which he, rather than JMG, was a shareholder. The payments to G Management were the receipt by JMG of his entitlements under the wills of HMG and MPM. In that case, there was no outstanding loan to his father.

55. I formed the conclusion that the oral evidence of JMG and KMG and the document created in August 2005 purporting to be an acknowledgement was designed to give the appearance of a loan not because there was one but rather to reduce the pool of property that might be divided to give effect to a just and equitable distribution of property pursuant to Part 19 of the PLA.

Family Trusts

56. There were also a number of family trusts of which JMG was a beneficiary. The trusts listed below are in New Zealand and the distributions unless otherwise indicated were in New Zealand currency. KMG deposed that the “trusts and other entities” in New Zealand are managed by a company known as G Holdings Ltd (“G Holdings”). KMG and AMG are directors and its managing director is PMG, the oldest son of KMG and JMG’s oldest brother. The everyday decision making, operations and management are carried on by PMG. None of the other beneficiaries has any control or exercise any decision making over G Holdings. This may well be so but it can be seen that distributions to beneficiaries have usually been made on the basis of equality of entitlement notwithstanding that the trusts are discretionary. The distributions and potential distributions to JMG under these trusts are part of his financial resources pursuant to s 263(b) of the PLA.

57. The pattern of distributions and payments from the trusts held in New Zealand, whether vested or discretionary, is similar. Moneys were distributed to JMG and other beneficiaries generally on the basis of equality of entitlement and credited to their individual accounts from which drawings were made. From time to time moneys were paid from one trust to another trust or partnership and then distributions and drawings made from that new entity.

M Family Property Trust

58. The M Family Property Trust was the first to which JMG referred in his affidavit filed in these proceedings. In paragraph 142, he deposed, “I calculate my interest in the M Family Property Trust as at the commencement of cohabitation … as follows.” No figure is given. In paragraph 304, he discloses receipt of a capital distribution of $219,422.50 in 1996.

59. Mr Virtue said that this trust was settled by MPM on 28 March 1991. The trustees were KMG, AMG and PMG. It was a discretionary trust and JMG was a beneficiary. Mr Virtue has no accounts prior to those for the year ending 31 March 1995. The trustees resolved to wind up this trust on 27 September 1996. It therefore had no value at the end of the relationship.

ICMG Family Trust

60. Another trust of which JMG was a beneficiary was the ICMG Family Trust, settled by his grandmother, Iris G, on 22 June 1962. The trustees were her sons KMG and AMG. It was a discretionary trust and the beneficiaries were her grandchildren, which included JMG. The distribution date of the trust was 8 August 1994 (20 years after the death of Iris G). There is some documentary evidence as to distributions under that trust.

61. Mr Virtue deposed that JMG received $16,958 in income distribution in the year ending 31 March 1992 and had drawings of $15,600. The balance sheet for the year ending 31 March 1993 shows JMG received an income distribution of $16,389 and took drawings of $17,820 in that year, leaving $789 to his credit. It appears likely that the annual appropriation of income to each beneficiary was around $16,000. JMG deposed that, based on his family’s accountant’s advice, his interest in the ICMG Family Trust when the de facto relationship began was $349,684. This is supported by Mr Virtue in his affidavit. JMG deposed that the capital of the ICMG Family Trust was transferred to the ICMG Partnership. No accounts show the amount received when the trust was wound up in August 1994. However, JMG also deposed to receiving drawings and distributions from this trust in 1994 and 1995 and there are financial documents which support that. It would not appear that JMG had any financial interest in this trust at the end of the relationship.

M Family Trust

62. The M Family Trust was settled by MPM on 8 May 1988. The trustees were KMG, AMG and PMG. It was a discretionary trust and the beneficiaries were the children of KMG and AMG living as at 8 May 1988, which included JMG.

63. The balance sheet for the M Family Trust for the year ending 31 March 1992 shows that one of the assets of the M Family Trust as at 31 March 1991 was a $475,000 advance to G Management that had risen by 31 March 1992 to $515,375. In the year ending 31 March 1992, $132,000 was advanced to the MPM Trust. One of the liabilities was an advance by MPM of $3,156,092 and an advance by the M Family Property Trust of $112,208. The advance by MPM happened before 31 March 1991. The advance by the M Family Trust happened during the year 1 April 1991 to 31 March 1992.

64. JMG calculated, on advice from his accountant, that his interest in his share of the M Family Trust at the commencement of cohabitation was $210,134. As it was an ongoing discretionary trust, he had no entitlement to such a “share”. However it does fall within paragraph (b) of the definition of financial resources found in s 263 of the PLA. He deposed to receiving distributions from this trust in 1995 and 1996.

65. Mr Virtue said that JMG’s interest in this trust as at 31 March 1992 was worth $109,197 being one-eighth of the net assets of $873,574. There was no evidence as to the value, if any, of his interest at the end of the de facto relationship.

MPM Trust

66. The next relevant trust was the MPM Trust settled by MPM on 1 August 1978. The trustees were KMG, AMG and PMG. The discretionary beneficiaries were KMG’s first wife, BSG, and the children of KMG and AMG. In the year ending 31 March 1991, G Management received an advance of $NZ 280,000 from the MPM Trust; by the year ending 31 March 1992, that amount had been reduced to $106,000.

67. Mr Virtue calculated JMG’s interest in the MPM Trust as at 31 March 1992 as being $173,150, being one-ninth of the net assets which were worth $1,394,940. He also said that JMG took drawings of $12,000 in each of the years ending 31 March 1992 and 31 March 1993.

68. The distribution date of the trust was 27 June 1993, which was just after the de facto relationship commenced. The schedule of beneficiaries’ accounts of the MPM Trust when the estate of MPM was distributed shows that the amount of $373,333 referred to earlier in the estate of MPM was distributed to the beneficiaries under the MPM Trust. JMG was entitled as a result of that to $46,667 in the year ending 31 March 1993. The total available to JMG on the distribution of the MPM Trust was $203,432. He deposed that the MPM Family Partnership was established with the remaining capital of the MPM Trust. He also deposed that he received a capital distribution of $182,665 in 1994 from the MPM Trust.

KMG Trust

69. The next trust to which JMG referred was the KMG Trust, a discretionary trust of which JMG was a beneficiary. No other details were given by JMG. It was asserted in paragraph 178 of JMG’s affidavit that it had no value to JMG at the commencement of cohabitation.

70. Mr Virtue said that this trust was settled by AMG on 28 March 1960. JMG’s beneficiary loan account balance as at 31 March 1992 was $26,369.

KMG Trust No. 2

71. JMG also referred to the KMG Trust No. 2 which is another discretionary trust of which he is a beneficiary. He produced no documentation with regard to that trust and in paragraph 168 of his affidavit said that his interest in it at the commencement of cohabitation was ($7,962). In paragraph 178 of his affidavit, he deposed that he had no interest in it at the commencement of cohabitation.

72. Mr Virtue said that this trust was also settled by AMG on 28 March 1960. He said that as at 31 March 1992, JMG’s beneficiary loan account balance was $19,468. He also owed half of the loan account of himself and his father. His half was $27,430.

KMG Insurance Trust

73. According to Mr Virtue, this trust was settled by KMG on 7 March 1991. It was a discretionary trust and JMG was a beneficiary. By 31 March 1992 no distributions had been made. The trustees were KMG, AMG and Mr Virtue.

HB Partnership

74. Another entity in which JMG had an interest was the HB Partnership (“HBP”) which was established on 1 April 1984. JMG says that his interest in the partnership was a one-tenth share and it was held by JMG Trust Ltd. No details were given by him of the ownership of JMG Trust Ltd. Mr Virtue said that all the shares in the JMG Trust were owned by PMG and its directors were KMG and PMG. JMG deposed that his interest in HBP as at the commencement of cohabitation, based on advice from his family’s accountant in New Zealand, was $215,923. This appears to be contradicted in items 12 and 20 paragraph 178 of JMG’s affidavit where he said that the estimated value of his interest in the capital of HBP at the commencement of cohabitation was nothing.

75. Mr Virtue said that in the year ending 31 March 1992, JMG received income distribution of $11,940 and took drawings of $10,800. In the year ending 31 March 1993, JMG received income distribution of $14,222 and drawings, once again, of $10,800.

76. Mr Virtue said that JMG’s capital account as at 31 March 1992 was $61,351 and his one-tenth interest was $154,572 which was one-tenth of the net assets of HBP. JMG sold his interest in HBP to the J G Family Trust on 1 April 1996 according to Mr Virtue.

Summary of JMG’s financial position at the commencement of the de facto relationship

77. Mr Virtue calculated JMG’s interest in the G family entities in New Zealand as at 31 March 1992 as $2,226,656 or $2,449,038 in New Zealand dollars. JMG asserted in his affidavit that his initial contribution of property and financial resources was the springboard to the current property and financial resources of himself, Ms L and his related entities and that his initial contributions were comparatively of the same value as the current value of the net property and financial resources of himself and his interests in the Australian entities. However it can be seen that most of the financial resources available to him were tied up in the trusts and companies of the G family. It appears that the only business controlled by him was QSS Pty Ltd which made a loss in 1991 of $4,792.63 and a profit in 1992 of $12,665.54. One can conclude that his living expenses were covered by his drawings from the trusts in New Zealand.

78. Mr Virtue deposed that JMG had distributions from the New Zealand estates, trusts and HBP in the two years ending 31 March 1992 of $706,586 of which he had drawings of $156,675.

Change in financial position during the relationship

Family residence

79. JMG did not own the Runaway Bay property at the beginning of the relationship but acquired it from AP for $285,000 in 1996, during the relationship. It was the home in which the family, JMG, Ms L and K, lived. JMG told Ms L that he was purchasing the Runaway Bay property so that it would be their home. He sold it on 21 January 1997 to an unrelated purchaser for $300,000. JMG deposed that the Runaway Bay property secured a loan to AP from Natwest Finance Pty Ltd (“Natwest”) in the sum of $370,000. Perhaps that is the explanation for why its value in the AP balance sheet and the sale price to JMG were so different. Ms L did not contribute to the purchase price but did contribute to its conservation through her taking responsibility for the general upkeep and maintenance of that property.

80. On the sale of the Runaway Bay property, JMG purchased the Sanctuary Cove property as a residence for the family consisting of himself, Ms L and K. The Sanctuary Cove property was purchased solely in JMG’s name for $500,000. The sale was effectively by way of a swap of the Runaway Bay property together with $200,000 for the Sanctuary Cove property. An interior decorator was employed to furnish the Sanctuary Cove property and much of Ms L’s furniture was left in the Runaway Bay property as part of the swap. JMG told Ms L when they moved into the Sanctuary Cove property that it was to be put in both names because it was to be their home and they were building their future together. It was only some time later that she found out it was only in his name. When she asked him why, he told her that he was protecting her in case he had financial difficulties in the future. He told her that he did not believe women were capable of handling finances. He kept control of all of the finances. He told her she would always be taken care of financially.

81. JMG is still living at the Sanctuary Cove property. He has obtained a quote from a construction company, Dallow Developments Pty Ltd (“Dallow”) for repairs to the Sanctuary Cove property in the amount of $221,742. This quote was dated 17 May 2006. By the time of swearing his affidavit on 4 August 2006, JMG deposed that he had paid a deposit of $10,000. The Sanctuary Cove property was valued by PRP Valuers at $1,500,000 as at 22 January 2007 i.e. as it was prior to any repairs being undertaken. Notwithstanding JMG’s criticisms of it, I accept this valuation evidence as reliable.

82. There was significant capital gain in this and other property after the de facto relationship commenced. Ms L did not contribute financially to the purchase of the Sanctuary Cove property but she made significant non-financial contributions to its conservation and improvement as well as contributing financially to the general welfare of the family through her assistance in building the success of the business of QSS Pty Ltd. She also made significant non-financial contributions to family welfare. Apart from JMG’s initial financial contribution to purchasing the property, the capital gain of $1million is not due to any greater contribution by one partner over the other.

Ereton Drive

83. JMG deposed that he purchased commercial property situated at Ereton Drive, Labrador (the “Ereton Drive property”) from W Pty Ltd for $160,000. He said that the property was purchased in his name and settled on 19 October 1993. That property was purchased after the de facto relationship commenced. Mr Calabro said that the business of QSS Pty Ltd is conducted from rented premises which are also at Ereton Drive, Labrador.

84. JMG deposed that the Ereton Drive property remained his. A warehouse was built on the property. The balance sheet for QSS Pty Ltd for the year ending 30 June 2003 shows it as an asset of QSS Pty Ltd worth $256,018. The cost of $324,211 was borne by QSS Pty Ltd with funds of $300,000 borrowed from Mercantile Mutual Life Insurance Company Limited (“Mercantile Mutual”). The loan was secured by a registered mortgage over the property. That mortgage was transferred to ING Mercantile Mutual Bank Limited (“ING”) on 4 April 1996. In 1999, QSS became the lessor of two leases at the warehouse to Nuplex Resins (Aust) Pty Ltd. The rental payments and outgoings appear in the accounts of QSS Pty Ltd.

85. The Ereton Drive property was valued by Ray Allsop of PR Valuers and Consultants as at 22 January 2007 at $1,200,000. Again it has had a substantial increase in capital value during the relationship due partly to the changes in the property market as well as the endeavours of JMG and QSS Pty Ltd. JMG and QSS Pty Ltd made all of the financial contribution to that property. Ms L did not make a direct contribution to that property but her contribution to family welfare and to the success of the business QSS Pty Ltd enabled JMG to engage in the business endeavour which contributed to the increase in value.

QSS

86. From about April 1995, Ms L started helping JMG in his office at QSS Pty Ltd on a daily basis during the week. She commenced formal employment with QSS Pty Ltd in 1996 and worked there until 2004 when the relationship ended. She contributed to the profitability of the business. The business of QSS Pty Ltd improved markedly during the period of the de facto relationship.

87. The balance sheet for the year ending 30 June 2003 showed total assets of $885,714.40 with unappropriated profit of $181,902.39. Amongst the assets was $399,085.28 in a NAB Business Investment Direct Saver account. After liabilities, its net asset position was $203,021.39. Its net operating profit before tax for the year ending 30 June 2003 was $137,470.10 and after tax, $97,689.80. It had retained profits of $84,212.59 (which was the total of the retained profits and net profit for 2002). QSS Pty Ltd retained profits of $181,902.39 for the year ending 30 June 2003.

88. During the financial year ending 30 June 2004, the de facto relationship ended. The before tax operating profit of QSS Pty Ltd dropped to $14,322.80, and the after tax profit to $7,113.20. The net profit before tax in the year ending 30 June 2005 was $33,566; but QSS Pty Ltd made a net loss in the year ending 30 June 2006 of ($9,589).

89. Ms L contributed to the success of QSS Pty Ltd by working in the business. JMG calculated that her average annual sales figures were $93,473.69. She estimated her contributions to the total income of QSS Pty Ltd amounted to approximately $1,000,000. It is difficult to tell if this estimate is accurate. However, it appears to be correct to say that her contribution to the business was more than just the sales she made. She became an integral part of the business. She was paid a weekly wage, commencing at $445.05 gross and rising to $528.65 gross. Her annual salary was therefore about $26,000 per annum. This was contributed to the household as well as covering her personal expenses.

90. Ms L deposed, and I accept, that after the de facto relationship commenced, JMG referred to QSS as “our business”. It seems more consistent with the way her involvement with the business developed that this was more likely to have happened once she commenced formal employment in the business in 1996.

91. KM who was an employee of QSS Pty Ltd from November 2000 to May 2003 said that Ms L had her own office and was not required to undertake a number of the regular duties and responsibilities of other employees. She was able to come and go from the work place as she pleased and usually worked in the business only four days a week and attended to personal as well as business matters when she was at the work place. Mr M said he never heard JMG refer to the business as “our business” meaning his and Ms L’s. He said it was made very clear that JMG owned and ran his business.

92. However, I am more persuaded by the evidence called from MB who was the administrator of QSS Pty Ltd from March 1996 until 2003. She gave evidence of the work done in the business by Ms L. She said that on the installation of a computer with a MYOB programme, for example, she and Ms L spent many hours rearranging the warehouse, labelling, sorting, recording and counting stock. She said this was a very long, hard, dirty, tedious job as the warehouse was in a total mess. Being a shelving company there were a huge number of different brands and components of shelving to be sorted, labelled and recorded on to the computerised stock list.

93. Ms L was also heavily involved in sales work. She had to operate the forklift (or walker/stacker), help build and carry heavy shelving, go on site and do “measure and quotes” for jobs as well as be the administrative support.

94. Ms B said that for approximately five years Ms L was paid a net sum of $350 per week which was recorded as wages and taxes were deducted but no superannuation was paid until many years later. JMG referred to this as her “housekeeping money”.

95. Ms B said that over the years that she was there, the business grew and expanded into a very successful and profitable business and that Ms L helped contribute to this with her hard work in the sales area. She said Ms L handled all the commercial clients and JMG handled the industrial clients. Ms L also continued her administrative support and also assisted in the biannual stock takes. She was also “in charge’ at any time when JMG was away. On cross-examination she described Ms L as the owner’s partner: “she was part of the business”. Ms B described them as being partners in a relationship and partners in business. It can be seen from this that while Ms L worked in the business and was treated in some ways like an employee, in other ways she was more like a proprietor of the business being JMG’s partner in that business.

96. It appears that from the ledger of QSS that many household and private expenses were met by QSS Pty Ltd and yet accounted for as if they were business expenses.

97. Mr Calabro, who was the court appointed expert, valued QSS Pty Ltd on its net asset backing. He determined that the business had no good will and an appropriate capitalisation rate for the business was 32.5%. He valued it at $221,294, all of which was still owned by JMG. That sum was made up of assets of $481,354 in cash plus loans of $398,776 to related entities, being $52,142 to AP, $314,026 to JMG Trust Ltd, $40,108 to JMG and ($7,500) to Ms L. Included in the liabilities was a loan of $300,000 from “Ereton Road” (which was presumably the loan from Mercantile Mutual to build the warehouse which is part of the land owned by JMG) and payables of $430,633. The payables included a large increase in bank overdraft. It appears that JMG has been borrowing money from QSS Pty Ltd to pay for his living expenses. The unsecured loans made by QSS Pty Ltd increased by $115,000 in the financial year ending 30 June 2006. JMG deposed that he had “drawn” a further $172,228.66 from his “loan account with QSS” since 30 June 2006. This must however be considered an asset of QSS Pty Ltd.

Other property

MPM Family Partnership

98. JMG deposed that the MPM Family Partnership was established with the remaining capital of the MPM Family Trust transferred to the partners in equal shares upon the winding up of the MPM Family Trust. The date of winding up of the MPM Family Trust was 27 June 1993.

99. Mr Virtue deposed that in June 1993 $203,432 was transferred to the MPM Family Partnership by JMG (which I note was JMG’s capital entitlement on the distribution of the MPM Family Trust). JMG drew $3,000 from the MPM Trust in the year ending 31 March 1994.

100. Mr Virtue said that in the year ending 31 March 1994, there was income distribution from the MPM Family Partnership to JMG of $11,445, and drawings of $9,000; in the year ending 31 March 1995, income distribution of $21,005 and drawings of $16,000; in the year ending 31 March 1996, income distribution of $21,538 and drawings of $20,892.

101. In the year ending 31 March 1997, Mr Virtue said that JMG transferred his share in the partnership’s buildings at Tauranga and Takapuna, Auckland to the J G Family Trust for $224,439. The J G Family Trust became the entity into which JMG transferred much of his interest in the partnerships and trusts.

ICMG Partnership

102. JMG deposed that the ICMG Partnership was established on 8 April 1994. It was to have a duration of 25 years. The partners were PMG, DMG, MMG, JMG Trust Ltd, LJG, LMG and JLD. The initial capital of the ICMG Partnership was said by him to be the remaining capital of the ICMG Family Trust transferred to the partners in equal shares upon winding up of the ICMG Family Trust. JMG deposed that the ICGM Partnership had subsequently been wound up although he provides no details of when that happened or what benefit he obtained from it.

103. However, the financial documents for the ICMG Family Trust show that it was not wound up in 1994 and, as I have listed in paragraph [105], distributions were made to and drawings taken by JMG and the other beneficiaries in 1994 and 1995. When it was wound up in 1995, JMG received $185,000 distribution of trust capital according to the Schedule of Beneficiaries Accounts of the ICMG Family Trust for the year ending 31 March 1995. That figure was confirmed by Mr Virtue in his affidavit who said that it was advanced by JMG to the ICMG Partnership.

104. However in addition to the distributions from the ICMG Family Trust referred to by JMG in his affidavit, Mr Virtue disclosed other income distributions by and drawings from the ICMG Partnership by JMG. In the year ending 31 March 1996, income distribution to JMG was $22,260 and drawings $12,000; in the year ending 31 March 1997, income distribution of $23,553 and drawings of $12,003; in the year ending 31 March 1998, income distribution of $29,850 and drawings of $16,203; in the year ending 31 March 1999, income distribution of $32,807 and drawings of $17,043. In the year ending 31 March 2000 JMG transferred his interest in the ICMG Partnership to the J G Family Trust for $189,210.

Other New Zealand estates and trusts

105. JMG deposed that during the course of the relationship he received, in New Zealand dollars, the following distributions and drawings from the estates and trusts in New Zealand. Unless otherwise indicated, these figures are supported by Mr Virtue’s affidavit evidence.

(1)$17,884 income distribution from the estate of MPM in 1994 (this figure is not mentioned by Mr Virtue);

(2)$182,665 capital distribution from the MPM Trust in 1994.  Mr Virtue said that capital distribution to JMG occurred on 30 June 1993.  The balance then owing to JMG from the MPM Trust was $203,432.  That amount was transferred to the MPM Family Partnership when the MPM Trust was wound up.

(3)Distributions from the ICMG Family Trust of $14,958 in 1994, and $2,840 in 1995 (in fact the correct figure from the financial documents of that trust and from Mr Virtue’s affidavit appears to be $17,410)^[28]; and drawings from the ICMG Family Trust of $15,766 in 1994, and $30,034 in 1995.  Mr Virtue deposed that the drawings in 1995 were in fact $10,339;

(4)Capital distributions from the M Family Trust of $64,695 in 1995 and $163,577.50 in 1996 (Mr Virtue says that it was $163,575.50); and

(5)Capital distribution to JMG of $219,422.50 from the M Family Property Trust in 1996 which effectively wound up the trust.  The financial documents of the M Family Trust show that the trustees resolved on 28 September 1996 that the capital of the M Family Trust be distributed with JMG receiving $163,577.50.

JMG deposed that the total distributions received during the course of the relationship were $NZ 666,042 and total drawings, $NZ 45,800.

106. In addition to these distributions and drawings, JMG deposed that “from time to time, funds were transferred to me from New Zealand estates and trusts”. He then listed four transfers as follows:

107. An explanation was given of the first, second and fourth transactions by PMG. He explained them as transfers by PMG on behalf of JMG from JMG’s bank account in New Zealand (the ANZ bank account referred to earlier in these reasons) and subsequently from JMG’s loan account with the J G Family Trust to JMG or one of his related entities in New Zealand, sourced from his interests in New Zealand.

108. Mr Virtue also referred to the first, second and fourth transactions in his affidavit. His evidence was that JMG had a balance in an ANZ Bank account in New Zealand standing at $118,933.88 as at 31 March 1994. PMG was a signatory to that bank account and able to transact upon that bank account in JMG’s absence from New Zealand, in accordance with JMG’s directions to PMG. Mr Virtue said that from 17 November 1994, the date of the first transaction, funds were transferred from JMG’s bank account in New Zealand, and subsequently from his loan account with J G Family Trust to JMG or one of his related entities in Australia, sourced from his interests in the G Group in New Zealand. He said that included in those transfers were the first, second and fourth transfers referred to above. That was a total amount of $774,763.16. Mr Virtue does not say that this was all of the transactions or similar transfers.

109. The only explanation of these transactions offered by JMG was of the last. The transfer of $NZ 233,714.46 ($AUD 199,983), the fourth transaction, was explained by JMG as a transfer “from my related entities in New Zealand” to an account with Wilson HTM in his name, on behalf of QSS. He deposed that this was a loan to QSS from the J G Trust. He said the funds, combined with other funds, were withdrawn from the account on 20 August 2002 and the sum of $283,000 was deposited into a St. George account (the full details of this account are given). He also said that subsequently those funds, combined with other funds, were withdrawn from that account on 1 April 2004 and the sum of $320,181.78 was deposited to a “related” Suncorp account (the details of this account are not given in his affidavit).

110. There are a few aspects of that explanation that warrant examination. JMG says that he was awaiting confirmation of his accountant, Ian Jolly, as to the accounting treatment of this transaction. The financial documents of QSS Pty Ltd reveal what the accounting treatment was. They do not appear to bear out JMG’s explanation.

111. The QSS Pty Ltd balance sheet for the year ending 2003 shows as a current liability as at 30 June 2002 a loan from JMG Trust Pty Ltd of $121,881.64. As at 30 June 2003, this liability had been reduced to $80,141.19 (i.e. it had been reduced by only $41,740.45). This was inconsistent with JMG’s explanation in paragraph 307 of his affidavit but not with paragraph 308 of the affidavit where JMG refers to various funds being loaned between his “related entities” prior to and during the course of the de facto relationship. In listing those loans he refers to a loan in 2003 from the J G Family Trust to QSS in the amount of $80,141.19. He said that as at 2004, however, the J G Family Trust owed QSS, $147,103.

112. The transfer on 1 April 2004 from the St. George account, of which full details are given, to the Suncorp account, of which no details are given, happened within a fortnight of the end of the de facto relationship. The Suncorp account is not referred to at all in the respondent’s financial statement filed on 21 September 2004 to satisfy the requirement of Practice Direction 33/1999. The only sums of money he disclosed as being held in cash or in accounts with banks or financial institutions was $17,153.13 held in an ANZ bank account. It would be difficult to avoid the conclusion that he was not being truthful about what happened to the funds to try to diminish the moneys available on a property distribution.

Other estates, trusts and partnerships

113. As well as the trusts and estates to which JMG referred in his affidavits there were distributions made and monies paid from various New Zealand estates, trusts and partnerships which were not referred to by JMG. These amounts were in New Zealand dollars unless otherwise specified.

Estate of HMG

114. Mr Virtue refers to income distributions made and drawings taken from the estate of HMG to JMG. Mr Virtue deposes that in the year ending 31 March 1994, there was an income distribution to JMG of $31,784 and he took drawings of $24,012; in the year ending 31 March 1995, he had income distribution of $34,278, and drawings of $36,943; in the year ending 31 March 1996, there was income distribution of $35,158, and drawings of $30,748; in the year ending 31 March 1997, there was income distribution of $30,029, and drawings of $31,286; in the year ending 31 March 1998, there was income distribution of $23,322, and drawings of $26,400; in the year ending 31 March 1999, there was income distribution of $32,474, and drawings of $13,296. In the six month period ending 30 September 1999, there was an income distribution to JMG of $47,821.

115. On 30 September 1999, according to Mr Virtue’s affidavit, $336,556 was distributed to JMG to purchase his share of land and buildings at Wairau Road, Glenfield, Auckland. Mr Virtue said the partnership formed to hold this property was the Wairau Partnership. Mr Virtue did not say who were the other members of this partnership.

HBP

116. Mr Virtue deposed that JMG had income distributions made to him by and drawings from HBP. In the year ending 31 March 1994, JMG received income distribution of $14,517 and took drawings of $20,800; in the year ending 31 March 1995, income distribution of $13,556, and drawings of $10,800; in the year ending 31 March 1996, income distribution of $10,179, and drawings of $13,800. Mr Virtue said that during the year ending 31 March 1997, JMG transferred his share in the partnership building at Takapuna, Auckland to the J G Family Trust for $81,000.

J G Family Trust

117. JMG asserted that the trust which used his name, the J G Family Trust, was a discretionary trust which was settled by Mr Virtue on 4 March 1996. Mr Virtue’s affidavit confirmed that JMG was a trustee until he resigned on 30 April 2002. He deposed that the trustee is JMG Trust Ltd, whose directors are KMG and PMG. Mr Virtue said all the shares in the JMG Trust Ltd are owned by PMG. JMG deposed that he was one of the beneficiaries of the J G Family Trust and that he had been informed by the trustees that they intended to wind it up within the 12 months following the swearing of his affidavit, 14 August 2006. Mr Virtue said that JMG was not the primary beneficiary of this trust but was included in the class of discretionary beneficiaries.

118. It appears that assets were transferred into the J G Family Trust during the course of the relationship. Mr Virtue said that in the year ending 31 March 1997 there was a transfer of equity in HBP and the MPM Family Partnership by JMG into the J G Family Trust in the amount of $305,439. During the year ending 31 March 1999, JMG transferred his publicly listed shares to the J G Family Trust at a value of $97,888. In the year ending 31 March 2000, JMG transferred his equity of $385,000 in the Wairau Partnership, his equity of $189,210 in the ICMG Partnership and personal funds of $41,962 to the J G Family Trust. As a result, he transferred funds and equity in the amount of $616,172 in the year ending 31 March 2000 to the J G Family Trust. In the year ending 31 March 2003 JMG introduced capital into the J G Family Trust of $38,995.

119. In the year ending 31 March 2000, JMG took drawings of $14,189 from the J G Family Trust; in the year ending 31 March 2001, he took drawings of $7,523; in the year ending 31 March 2002; drawings of $8,264; in the year ending 31 March 2003, drawings of $284,939; in the year ending 31 March 2004, drawings of $7,754; and in the year ending 31 March 2005, drawings of $73,639.

120. Mr Virtue said that JMG had not received any distributions of capital or income from the J G Family Trust and that its trustee had not made any distributions of capital or income in favour of any beneficiary. However it would appear to me that JMG would be regarded by the trustee as beneficially entitled to the moneys he paid into his trust less the drawings he has made. The evidence shows he put $1,058,494 into the J G Family Trust of which he has drawn $396,308, leaving him a financial resource of $662,186. This trust is in New Zealand and was not included in the assets valued by Mr Calabro.

KMG Trust

121. Mr Virtue said that this trust was wound up on 31 March 1998 and the assets and liabilities as at that date were transferred to the KMG Trust No. 2. JMG’s beneficiary credit account balance which was transferred was $43,117.

KMG No. 2 Trust

122. Mr Virtue refers to drawings from the KMG No. 2 Trust which I assume is the same trust as that referred to as the KMG Trust No. 2. All that JMG said about this trust was that he had no interest in it at the commencement of cohabitation or that his interest was ($7,962). Mr Virtue’s affidavit shows that during the six years to the year ending 31 March 2005, JMG had drawings from the KMG No. 2 Trust. In the year ending 31 March 2000, drawings of $6,686; in the year ending 31 March 2001, drawings of $686; in the year ending 31 March 2002, $686; in the year ending 31 March 2003, $2,486; in the year ending 31 March 2004, $6,086; and in the year ending 31 March 2005, $686.

123. Mr Virtue said that JMG received a distribution from the KMG No. 2 Trust of its share of land and buildings at Byron Avenue, Takapuna and HBP was formed to hold this property. That property was transferred in the year ending 31 March 1997. Mr Virtue said that JMG’s share had a book value of $48,812 as at 31 March 1984. I presume that the date given was in error.

TOP

124. JMG was appointed director and secretary of TOP when it was incorporated on 28 June 2000. He deposed that he holds 100 shares in TOP. A former director of TOP, Dennis Todd Dickman, holds the remaining 100 shares. JMG said that Ms L was briefly appointed as a director “for the purposes of signing.” He asserted that “the appointment was so brief (i.e. up to one hour) that it was not registered with ASIC.”

125. TOP made an operating profit in the year ending 30 June 2002 of $45.38 and an operating loss in the year ending 30 June 2003 of $10,956.97. JMG deposed that it is a dormant company.

126. Mr Calabro valued it on the basis that it does not trade and is in the process of being deregistered. He ascribed no value to it.

AP

127. On 20 February 2001, AP purchased two blocks of land at Marine Drive North, Hope Island (Lots 120 and 121, GTP 107031, Parish Coomera) for $250,000 each (the “Marine Drive properties”). JMG deposed that the purchase of those properties was financed by a loan of $50,000 from KMG and $50,000 from himself and a loan from NAB in the sum of $400,000 for “construction costs”. The NAB loan was secured by a mortgage over 121 Marine Drive North. The Marine Drive properties were described in the AP balance sheet as “Land Held for Resale”. It appears from the 30 June 2004 balance sheet of AP, that Lot 120 was sold in that financial year for $947,202.94. As a result AP went from operating losses of $40,463.56 in the year ending 30 June 2002 and $37,171.98 in the year ending 30 June 2003 to an after tax profit in the year ending 30 June 2004 of $503,070.29. By then AP had an accumulated loss of $325, 72.78 leaving $117,317.51 available for distribution.

128. The remaining block, Lot 121, was valued by PRP Valuers as at 22 January 2007 as being worth $895,000.

129. The liabilities of AP changed during the period for which the court was given records – 30 June 2002 to 30 June 2004. As at 30 June 2002, the current liabilities were loans from KMG Trust and JMG Trust each in the amount of $208,304.05 and $208,304.04 respectively. In the year ending 30 June 2003, these liabilities increased to $228,304.05 and $228,304.04 respectively. In the year ending 30 June 2004 AP had $952,931.13 on Suncorp term deposit. Its current liabilities nevertheless increased. The loan from KMG Trust in the amount of $228,304.05 was replaced by a loan for the same amount from Westwater Trust. The loan from JMG Trust was replaced by a loan for the same amount from JMG Trust Ltd. There was an additional loan of $50,000 from KMG and a loan from QSS Pty Ltd of $52,525.81. The balance sheet of QSS for the year ending 30 June 2004 lists that loan to AP as an asset. However, anomalously, the balance sheet for QSS also refers to there having been a loan from it to AP for the year ending 30 June 2003 in the amount of $40,072.55. This is not found in the corresponding balance sheet of AP where there is no corresponding liability by AP to QSS Pty Ltd for the year ending 30 June 2003.

130. JMG deposed that as at 30 June 2006 AP held a portfolio of shares in a number of public companies: 5,327 in ABC Learning Centres [Mr Calabro shows 537 shares]; 10,500 in Baycorp Advantage; 2,265 in Babcock & Brown; 10,000 in Boom Logistics; 6,350 in Cabcharge [Mr Calabro shows 6,250]; 575 in Macquarie Bank; 2,915 in Newcrest Mining; 2,000 in Rinker; 480 in Rio Tinto; 1,800 in Westpac Bank; 910 in Woodside Petroleum and 3,920 in Zinifex. Mr Calabro showed their value as at 8 February 2007 as $530,036.13.

131. Mr Calabro adopted the asset approach in valuing JMG’s 50 per cent interest in AP discounted for his lack of control. He valued JMG’s interest at $235,317, being 50 per cent of $553,687 less 15 per cent discount for lack of control. Its total assets as at 30 June 2006 were $1,872,845, with liabilities of $1,319,158 including $657,632 in loans from related parties. Those loans were $227,745 owing to KMG Trust, $227,745 owing to JMG Trust, $150,000 owing to Westwater Trust and $52,142 owing to KMG. There was no loan outstanding from QSS Pty Ltd.

The Westwater Trust

132. The Westwater Trust is not explained except that Mr Virtue deposed that in the year ending 31 March 2004, JMG had drawings of $5,400; and in the year ending 31 March 2005, $10,800. In oral evidence JMG said that he believed that the Westwater Trust was his father’s trust. KMG confirmed that he was a beneficiary of the trust and while he said he “imagined” that the loan from the Westwater Trust to AP would have happened at this request or instigation, he could not recall anything about it.

G Management

133. JMG deposed that “in conjunction with my father we continued the conduct of the investment operations of G Management during the relationship”. This was the company of which JMG was a director but not a shareholder. Why it was considered by him as a joint investment operation was not explained. It appears likely that he had at some stage an undisclosed beneficial interest in G Management. The balance sheet as at 30 June 2004, shows that the loan from JMG of over $1,000,000 had been repaid. That balance sheet revealed that GM by then had no assets. Its assets in 2003 had been $4,260 worth of shares in listed companies. It had a deficiency in shareholders funds of $147,178.08 which was shown as a loan from JMG.

134. In paragraph 308 of his affidavit, JMG deposed that during the de facto relationship funds were transferred between his related entities. He said that in 2003 there was a loan from G Management to AP in the sum of $115,804 which was subsequently consolidated with a loan from JMG to G Management. The balance sheet of G Management for the year ending 30 June 2004 shows no loan from G Management to AP, although it does show that as at 30 June 2003 the current liabilities of G Management included a loan in the sum of $151,430.08 from JMG. The balance sheet of AP for the year ending 30 June 2003 does not show any loan from G Management or from or to JMG, in his personal capacity.

135. This company was valued by Mr Calabro on the basis that it no longer operates and is in the process of being deregistered. He ascribed no value to it.

JMG Superannuation Fund

136. JMG deposed that the JMG Superannuation Fund was settled on 27 June 2003. It was a self-managed superannuation fund of which he was the beneficiary. He asserted that that date was post-separation but, as I have found, the de facto relationship did not end until March 2004. Its net assets at 30 June 2003 were $29,867 and, as at 30 June 2004, $78,852.

Shares

137. On 1 February 1999, JMG purchased 30,750 shares in Cromwell Corporation Limited, a listed property investment company. He said he had not traded in them but as at the time of trial held 27,303 shares. As at 5 February 2007 those shares were worth $32,763.60.

Current property of the parties

138. By the commencement of trial, the tax returns for JMG for the financial years ending 30 June 2003, 30 June 2004, 30 June 2005 and 30 June 2006 had not been completed. Neither had the tax returns for the Australian companies in which JMG had a controlling or 50 per cent interest for the years ending 30 June 2005 or 20 June 2006. This is in spite of the fact that on 13 November 2006, Lyons J ordered that JMG cause to be prepared (in so far as he had not already done so) tax returns, balance sheets, profit and loss statements, business activities and the like for the years 2002 – 2006 for:

1. himself;

2. QSS Pty Ltd;

3. AP Pty Ltd;

4. G Management Pty Ltd;

5. any other entity in which the defendant had a controlling interest.

139. JMG deposed that following that order he instructed his accountant Mr Jolly to prepare the 2005 and 2006 financial statements and tax returns for QSS Pty Ltd, AP and TOP and he caused his accountant to prepare the financial statements for G Management, a company in which he has no shareholding. Mr Jolly said that he received the information necessary to complete the tax returns during January 2007. The tax returns were prepared and sent to JMG for execution in early February 2007. However, they had not been signed by JMG. As at the date of trial JMG had not yet complied with the order made by Lyons J on 13 November 2006. Only after the evidence was completed was an unsigned copy of his tax returns given to Ms L’s legal representatives.

140. After the commencement of this litigation, he did not file tax returns for himself, QSS Pty Ltd, G Management or AP in spite of committing offences against Commonwealth laws by not doing so. In my view that was because of his reluctance to be candid about his financial resources.

141. Norbert Calabro was appointed a single expert pursuant to r 429J of the Uniform Civil Procedure Rules 1999 (UCPR). His report was dated 9 February 2007 (the “first expert report”). He produced supplementary reports on 13 and 14 February 2007 (the “first and second supplementary reports”). Mr Calabro was appointed to undertake a valuation of JMG’s assets and liabilities and in particular his shareholding in QSS, AP, G Management and TOP. In his first expert report, Mr Calabro concluded that the value of the parties’ financial interests was $1,694,071, of which JMG’s net worth was $1,687,246 and Ms L’s net worth was $6,825. The figure for her net worth was not changed in the supplementary reports but the figure for his net worth was changed in the first supplementary report to $1,672,469 and in the second supplementary report to $1,758,749. Mr Calabro’s methodology was for the most part unimpeachable. The changes in the figures reflected different factual scenarios asserted by the defendant.

142. His report deals only with the Australian assets. He was not provided with any information about JMG’s financial resources in New Zealand. He also included as a liability the alleged loan from KMG which I was not satisfied was moneys owing from JMG to his father. He also allowed for the cost of repairs to the Sanctuary Cove property and the Ereton Drive property. However I am satisfied that the valuation of those properties was conducted on an “as is” basis so the cost of future repairs should not be deducted from that valuation. In those circumstances, the adjusted value of JMG’s current assets in Australia is $3,221,341.

143. Mr Calabro did not consider the value to JMG of his interests in New Zealand. They were valued at approximately, $2.5 million at the commencement of the de facto relationship. JMG’s evidence was that he had been told by his brother that he had exhausted all his funds in New Zealand. However it can be seen that he still has financial resources in New Zealand. PMG did not appear at the trial because of his medical condition and was not able to be cross-examined on this important matter.

144. The value of the property which may become vested in him or applied to his benefit from the J G Family Trust is $662,186. None of the resources in New Zealand resulted from any contribution, direct or indirect, made by Ms L. I am satisfied that JMG has other resources in New Zealand apart from the potential distribution from the J G Family Trust but I have been unable to ascribe a value to them. Accordingly, I intend to treat them as part of the discretionary considerations going to the factors relevant to the just and equitable property distribution rather than as an asset to be divided between them,^[29] but to add to the property the $662,186 which has been able to be identified.  This amount is in New Zealand dollars.  Its current value in Australian dollars is approximately $587,055.  JMG’s adjusted assets are therefore worth $3,808,396.

Other Factors relevant to property distribution

Age and health

145. As previously stated Ms L is 53 years old and JMG 49 years old. She is in good health. JMG suffers from psoriatic arthritis. There is nothing about this condition that which will prevent him for working in the future.

The financial resources of each of the de facto partners

146. Ms L has the capacity to work in relatively low paid employment and has been offered no other property or financial resources. JMG on the other hand has kept all the property and financial resources which were in his name during the relationship including the business of QSS Pty Ltd. He has substantial financial resources in New Zealand.

The physical and mental capacity of each of the de facto partners for appropriate gainful employment

147. Ms L has the capacity to earn income as a sales person. JMG has retained his business of QSS Pty Ltd which enables him to earn an income through appropriate gainful employment.

Appropriate standard of living

148. JMG says that his standard of living is equal to that enjoyed by him during the de facto relationship. Ms L’s standard of living on the other hand has dropped below what might be considered appropriate.

Contributions made by either of the de facto partners to the income and earning capacity of the other de facto partner

149. There is no doubt that Ms L contributed as I have said to the success of the business of QSS Pty Ltd. JMG has retained all the proprietary interest in that company. On the other hand, Ms L has, as a result of working with QSS Pty Ltd, a history of steady employment in the retail and sales industry. The circumstances in which she left, being the end of the relationship, diminish the advantage of this work history for her future employment capacity.

The length of the de facto relationship

150. This was a de facto relationship which continued for a significant period of time. It lasted for almost 11 years. The contributions made by the parties during a relationship this length diminishes to some extent the effect of the substantial initial contributions made by one party. As the Full Court of the Family Court held in Marriage of Clauson:^[30]

“Whilst it is not possible to even pretend that under the current legislation with its wide discretion, it is possible to be mathematical or scientific about these matters, the fact remains that the substantial initial contributions of the husband were gradually being eroded in their ultimate significance by intervening circumstances.  The extent to which that occurs and the ultimate impact of that process depends largely upon the circumstances of the individual case, taking into account the period of time involved and the competing contributions which each party has made over that time.  Here the period of time was not insignificant.  In the circumstances of this case it would not, in our view, be possible to conclude other than that the contributions of the parties during the marriage were each substantial and should be seen as equal.  Although the nature of those contributions was disparate – the husband’s largely although not entirely financial and the wife’s largely but not entirely indirect – any other conclusion would, in our view, be out of the question for reasons discussed at some length in Ferraro’s case, supra, and which do not require further analysis here.”^[31]

Financial dealings since the end of the relationship

151. JMG made some financial contributions to Ms L after the end of the de facto relationship. He provided $405 per week for 14 weeks being $5,670; six months motor vehicle insurance and registration for the vehicle she drove; petrol for the vehicle until August 2004; $800 for bond and one week’s rent in advance of $200 on the property she rents at Chevron Island. JMG deposed that the weekly salary payments of $405 made to Ms L from QSS Pty Ltd after the relationship ended were made by way of loan only. However I accept that $405 per week was a wage paid by QSS Pty Ltd and not a loan.

152. In March 2004 pursuant to the defendant’s request, Ms L transferred 1,600 Telstra shares and 525 ABC shares to JMG. He requested she do so so that it could be managed in a group portfolio. Ms B, the administrator of QSS at the time says that QSS bought shares in the Telstra float for both Ms L and her son K and the cost was recorded as a loan to them on the balance sheet of QSS Pty Ltd.

153. JMG deposed in paragraph 421(8) of his affidavit that the Telstra shares were purchased by QSS Pty Ltd in the names of Ms L and K on trust for QSS Pty Ltd. He asserted that the Telstra shares were purchased for her to be held on trust for him due to limited allocation and that she received all dividends from those shares but he concede that she did transfer them back to him. He denied that he asked her to transfer shares back to put into a group portfolio because he has never been involved in a group share portfolio and could not recall if the ABC shares were in Ms L’s name because he purchased a number of shares for her in his name. He has not disclosed what are the shares of which he says he is the legal owner and she is the beneficial owner. She has had no benefit from them since the end of the de facto relationship.

154. Since the end of the de facto relationship Ms L has been employed for most of that period working in relatively poorly paid sale positions, although for a short period she was unable to work because of anxiety and depression and for a period of time received Centrelink benefits.

Conclusion

155. I have weighed all the relevant factors set out in PLA s 291, s 292, s 293, s 296, s 297, s 298, s 300, s 303, s 304, s 305, s 306, s 307 and s 309, to determine the just and equitable distribution of the property. In view of the length of the relationship, the complexity of the financial affairs and JMG’s reticence to disclose all his assets and the disparate contributions, financial and non-financial, made by each party it would be invidious to try to value each consideration separately. It is an appropriate case in which to employ a broad brush or global approach to determine what is a just and equitable distribution of the property taking into account all the relevant factors set out in Part 19 of the PLA.

156. The appropriate exercise of discretion in my view suggests that the division should be 30 per cent to Ms L and 70 per cent to JMG. Her 30 per cent is made up of 20 per cent for s 291 to s 295 factors and a further 10 per cent for s 297 to s 309 factors; but could in my view be just as accurately described as 30 per cent overall taking into account all the relevant factors prescribed by statute. This is a just and equitable division of the property. Ms L is entitled to 30 per cent of the parties’ assets of $3,815,221 ($4,808,396 + $6,825), that is $1,144,566.30. She presently has $6,825 so JMG must transfer $1,137,741 to her. I will hear submissions as to the way in which this should be done.