Piatek v Piatek[2010] QSC 412

SUPREME COURT OF QUEENSLAND

1. Douglas J:  Renata Piatek and Stanislaw Piatek were married in Poland on 5 February 1983 and were divorced some years ago by a Polish court.  Their matrimonial property dispute now extends over three continents, Australia, America and Europe.  The main legal issue outstanding in the two cases being heard together before me is whether these disputes, essentially relating to property located in Australia or derived from property once located here, should be determined in this jurisdiction or in proceedings on foot in Poland dealing generally with their matrimonial property.

2. The property remaining in Australia consists of $1.4 million with accretions paid into this Court in 2006, two houses at Sandstone Point and Caboolture in Queensland and a Mercedes-Benz motor vehicle now in storage.  The houses at Sandstone Point and Caboolture are registered in the name of Magdalena Siudy, Mr Piatek’s then lover and now his second wife.  She is the second defendant in matter number BS654 of 2007.  Those houses were bought with the proceeds of sale of a house and land registered in Mr Piatek’s name at Paradise Point which he and Mrs Renata Piatek had used as one of their residences when they visited Australia.  When it was sold the proceeds of $3,115,000 were distributed in a variety of ways, partly to fund the purchase of the houses at Sandstone Point and Caboolture, also to purchase a house at Buckley, Washington State in the United States of America, which is itself the subject of proceedings there and also to a number of bank accounts associated with Mr Piatek.  There is a useful diagram showing the movement of the money on p. 6 of Ex. 29, a report of a forensic accountant, Mr Loots who was called as a witness for Mrs Piatek.   

3. The discovery by Mrs Piatek that the house at Paradise Point had been sold without her knowledge precipitated the institution of matter number BS3439 of 2005.

4. Most of the factual issues are not contentious because they were either admitted or deemed to have been admitted on the pleadings or deemed to have been admitted by Mr Piatek’s failure to respond to notices seeking the admission of facts. The authenticity of the documents in Ex. 1 had also been admitted. He was represented by lawyers earlier in the proceedings and had agreed to the matter being set down for trial in spite of his having been deemed to have made those admissions but has been representing himself for some time including for the whole of the trial. He had applied through his lawyers to be excused from the consequences of the deemed admissions but was refused leave by Daubney J some weeks before the commencement of the trial.^[1]

5. The relevant facts can be summarised essentially, therefore, by reference to the pleadings and the deemed admissions in the written submissions for Mrs Piatek and that summary provides a convenient starting point for the factual background to the dispute.

Summary of the facts

6. In both the 2005 and 2007 proceedings the plaintiff relies upon the sale by the defendant, Mr Piatek, of land situated at 29 to 31, The Peninsula, Paradise Point. The plaintiff alleges, and it is now admitted, that the defendant, Mr Piatek, sold that land without the plaintiff’s knowledge and approval to Carmel Byham, on or about 19 February 2005, for a selling price of $3,115,000, with a deposit of $309,000. Mr Piatek and Ms Byham entered into a vendor finance agreement, on 15 March 2005, and Ms Byham executed a mortgage in favour of the defendant, Mr Piatek, on 9 March 2005. Pursuant to the mortgage the principal sum of $1.4 million was to be repaid no later than 21 March 2006.

7. On or about 8 August 2006, Ms Byham, who was the second defendant in the 2005 proceedings until those proceedings were discontinued against her, paid the amount of $1.4 million into court to await the outcome of those proceedings.

2005 Proceedings

8. Some of the relief now sought in the 2005 proceedings was:^[2]

1. that the defendant account to the plaintiff for her half-interest in the moneys already received from the sale of the Paradise Point land;

2. that the defendant be ordered to pay the plaintiff the amount due and owing to her for that half-interest;

3. further, or alternatively:

1. a declaration that the defendant held his interest in the mortgage on trust for the plaintiff;

2. a declaration that the plaintiff was entitled, at all material times, to a one-half share in the proceeds of sale of the Paradise Point land and holiday home;

3. a declaration that the plaintiff was entitled, at all material times, to a one-half share in funds deposited into the Australian joint accounts referred to in sub-paragraphs 7(b)(iii) and 7(b)(iii)(A) of the Third Further Amended Statement of Claim;

4. an injunction to restrain the defendant from disposing, or parting with possession of, or otherwise dealing with, the sum already received;

5. further, an order that the amount of $1.4 million, paid into Court on or about 8 August 2006, be paid out to the plaintiff together with all accretions.^[3]

Relief Sought in the 2007 Proceedings

9. The relief sought by Mrs Piatek against Mr Piatek and Ms Siudy in the 2007 proceedings included declarations that the second defendant, Ms Siudy, held her interest in the Sandstone Point land and the Caboolture land on trust for the plaintiff and, alternatively, a declaration that the second defendant held her interest in those properties on trust for the plaintiff and the first defendant, in equal shares. She also sought vesting orders for the land, declarations about the ownership of bank accounts and other personal property including the Mercedes-Benz, damages and a half share of the rent paid for the properties.

The admitted facts

10. The admitted facts can be summarised as follows: the plaintiff is a citizen of Poland and the United States of America and the estranged wife of Mr Piatek^[4].  The defendant, Mr Piatek, is a citizen of Poland and the United States of America and the estranged husband of the plaintiff^[5] and the former registered owner of the Paradise Point land.^[6]  Ms Byham was the registered proprietor of the Paradise Point land and was the mortgagor under a mortgage.^[7]

11. The second defendant in the 2007 proceedings, Ms Siudy has been, on and from 22 April 2005, the registered proprietor of the Sandstone Point land and has been, on and from 23 June 2005, the registered proprietor of the Caboolture land.^[8]

12. Mr and Mrs Piatek were married in Poland on 5 February 1983.^[9]  From in or about the date of their marriage, Mr and Mrs Piatek held a common intention that they would use their joint endeavours to form a family unit, and that they would both contribute their time and efforts, both financially and in kind, to the best of their respective abilities, towards the common goal of the advancement of the family unit, which they had formed, including the acquisition of property for their joint benefit.  Pursuant to that intention, Mr and Mrs Piatek, during the course of their relationship, conceived and Mrs Piatek gave birth to two children, namely, Peter Piatek born in Poland on 25 August 1983 and Nicole Piatek born in the United States of America on 6 April 1995.  From in or about the date of the birth of Nicole, it was the common intention of Mr and Mrs Piatek that Mrs Piatek would devote as much of her time and effort as was required to the care of the children, the homes in which the family unit resided, and the advancement of the family unit.^[10]

13. Mrs Piatek was at all material times the primary care giver with respect to both children of the marriage.^[11]  Pursuant to the common intention referred to above, from in or about the date of their marriage, Mr and Mrs Piatek pooled their respective resources, efforts, capital and income towards the normal household expenses of the family formed by them and their children the acquisition, conservation and improvement of assets particularised in the pleading.^[12]

Jointly Owned Property

14. Some important admissions as to the acquisition of jointly owned property were that a number of properties were purchased from 1997 onwards in Australia by Mr and Mrs Piatek using joint funds and the proceeds of sale were generally invested in other properties and in jointly owned bank accounts in Australia. The admissions included that a luxury 40 ft motor vessel registered number PL-547Q9 (“the motor cruiser”) was purchased by Mr and Mrs Piatek in July 1998 in the United States of America in joint names from funds held in their United States joint account. That vessel was later moved to Australia and used when the Piatek family were staying at the house they had built on the Paradise Point land on vacation from 2001 and onwards until the sale of the motor cruiser by Mr Piatek, without the knowledge and approval of Mrs Piatek, for an amount of A$308,000.00 on or about 8 July 2004 to a man called Vivian John Botsford.^[13]  It was also admitted that, as occasions required, moneys were transferred from the Australian and United States joint accounts and accounts of companies controlled by Mr Piatek and/or Mr and Mrs Piatek and other accounts including a joint account held by Mr and Mrs Piatek at the Commonwealth Bank of Australia at Broadbeach in Australia. 

15. Further admissions were that in or about February 2000, Mr and Mrs Piatek purchased the Paradise Point land as part of three vacant allotments for an amount of A$860,000.00; that all of the funds used to purchase the Paradise Point land came from the United States joint account^[14]; that subsequent to the purchase of the three vacant allotments Mr and Mrs Piatek entered into building agreements with Roth Developments Pty Ltd for Roth Developments to build a luxury holiday home on two of the lots to be used as a vacation property for the Piatek family when visiting Australia and a smaller house on the third lot.^[15]

16. It was admitted that the funds used to pay for the construction of the holiday house and the smaller house came from the Australian joint account and the United States joint account,^[16] that the holiday house was finished in either late 2000 or early 2001 and that the Piatek family visited Australia and stayed in the holiday house on a number of occasions thereafter in 2001, 2002 and 2003, that the smaller house was finished shortly after the holiday house was finished and was sold to Mr and Mrs Feenstra as joint tenants with settlement effected on 7 May 2002, with the proceeds of settlement being substantially paid to the Australian joint account and with an amount from the proceeds of sale being sent to Pacific Enterprises RS Spolka z O, a company in Poland controlled by Mr Piatek. 

17. It is also now admitted^[17] that at all material times it was the common intention of Mr and Mrs Piatek that both of them would enjoy the benefit of the income and capital created by their respective contributions to the joint assets referred to in paragraph 7 of the 2005 and 2007 Statements of Claim in equal shares.^[18]

18. It is now also admitted that Mr and Mrs Piatek contributed resources, efforts, capital and income to the acquisition, conservation and improvements of the Paradise Point land and holiday house, that Mrs Piatek made the contributions referred to in para 7(b) of the 2005 and 2007 Statements of Claim in the expectation that she would share in the benefits of the capital income created thereby and that Mr Piatek knew or ought to have known that Mrs Piatek was making the said contributions in the expectation that she would share in those benefits.^[19] 

19. It is admitted on the pleadings that the marital relationship between Mr and Mrs Piatek irretrievably broke down in or about March 2003. It is also admitted, on the pleadings, that Mrs Piatek started divorce proceedings in Poland on or about 10 January 2005, and started divorce proceedings in the United States of America on or about 21 January 2005^[20].

Unauthorised Sale 29-31 The Peninsular, Paradise Point

20. It is now admitted, as a result of admissions made in the defences and further admissions obtained in the notices to admit facts,^[21] that, without the knowledge or approval of Mrs Piatek, Mr Piatek entered into a contract of sale of the Paradise Point land and holiday house to Ms Byham on or about 19 February 2005 for a purchase price of $3.115 million with a deposit of $309,000.00 (“the sale price”).^[22]  The relevant conditions relating to the sale contract are pleaded in paragraph 13 of the Second Further Amended Statement of Claim in the 2005 proceedings and the Amended Statement of Claim in the 2007 proceedings and are admitted.

21. It is also admitted on the pleadings that Mr Piatek and Ms Byham entered into a vendor finance agreement on 15 March 2005, and executed a mortgage on 9 and 15 March 2005 to secure payment of the balance owing of $1.4 million^[23]  and that, pursuant to the mortgage, the principal sum of $1.4 million was to be paid no later than 21 March 2006.

22. It is also now common ground that, pursuant to the order made by Muir J on 23 June 2006, Ms Byham caused her solicitors to pay the amount of $1.4 million into court on or about 8 August 2006; that the mortgage was discharged on or about 11 August 2006 and the second caveat lodged by the plaintiff to protect her interests in relation to the mortgage was removed on or about 11 August 2006.

23. It is admitted that the Paradise Point land was transferred by Mr Piatek to Ms Byham on 29 March 2005.

Caveats

24. It is common ground that a caveat was lodged with the Registrar of Titles on behalf of Mrs Piatek on 18 March 2005 claiming an interest as owner of the interests of Mr Piatek, being an estate in fee simple in the subject land, on the grounds that Mr Piatek was a constructive trustee by virtue of the contributions made by Mrs Piatek to the improvement of the subject and the contributions made by Mrs Piatek towards the outgoings in respect of the subject land.

25. It is admitted on the pleadings that the 2005 proceedings were commenced on 28 April 2005 and the Registrar of Titles was given notice of the commencement of the proceedings on 28 April 2005.^[24]  It is admitted that the Registrar of Titles removed the first caveat on 29 April 2005.  It is admitted that the Registrar of Titles registered transfer No. 708538020 and the mortgage on a date no later than 18 May 2005.

26. It is admitted that, on or about 15 September 2005, the solicitors for the plaintiff lodged a caveat claiming an interest as beneficial owner of the interest of Mr Piatek as mortgagee in registered mortgage No. 708538024 in the Paradise Point land (“the second caveat”) on the grounds pleaded in subparas 21(a)(i) to 21(a)(v) of the Second Further Amended Statement of Claim in the 2005 proceedings.

Application of net proceeds of sale

27. It is admitted, in the 2007 proceedings, that an amount of A$1.7 million out of the proceeds of sale of the Paradise Point land was paid to Mr Piatek by Ms Byham, on or about 17 March 2005.^[25]  It is admitted, as a result of the defendants’ failure to respond to the first Notice to Admit Facts in the 2007 proceedings, that, on 11 April 2005, the first defendant caused an amount of $390,000.00 from the proceeds of sale of the Paradise Point land to be paid into the Commonwealth Bank account of EMP Pacific Enterprises Pty Ltd, being Account No. 0644510450932.^[26]  It is admitted, on the pleadings, that EMP is a company incorporated in the State of Queensland on 10 March 2000 with Mr Eugene Piatek, the brother of Mr Piatek, as its sole director and shareholder.

28. It is now admitted, as a result of deemed admissions arising from the defendants’ failure to respond to the first notices to admit in the 2005 and 2007 proceedings, that, on 29 March 2005, Mr Piatek caused to be paid into an account in the name of Ms Siudy, held with Westpac Banking Corporation (“Westpac”) at Morayfield (“the Westpac Morayfield accounts”) amounts totalling $1.2 million out of the proceeds of sale of the Paradise Point land as follows:

1. the amount of $200,000.00 was deposited into a cash management account, investor option in the name of Ms Siudy being account No. 034640202140;

2. an amount of $1 million was deposited into a Max-i Direct account No. 034640202159^[27].

3. an amount of $110,000.00 out of the proceeds of sale of the Paradise Point land was applied by Mr Piatek for his own purposes^[28].

29. It is also admitted, as a result of the defendants’ failure to respond to the first Notice to Admit in the 2007 proceedings, that Mr Piatek caused to be opened in the name of Ms Siudy bank accounts at Suncorp Metway Limited (“Suncorp”) being account No. 201239317^[29] (“the Suncorp account”) and a Commonwealth Bank Account No. 06440510472496^[30], being a cash investment account, on or about 21 June 2006 and 11 August 2006, respectively, in which Mr Piatek caused to be deposited, for the benefit of himself and Ms Siudy, amounts which were the joint property of Mr and Mrs Piatek, without the knowledge or approval of Mrs Piatek^[31].

Sandstone Point/Caboolture land

30. It is admitted, on the pleadings, that by a caveat executed on 18 January 2007 and lodged with the Registrar on the same date under Dealing No. 710269237, Mrs Piatek claimed an interest as owner of the interests of Mr Piatek in the Sandstone Point and Caboolture land.^[32]

31. It is admitted on the pleadings that by a contract of sale dated 19 May 2005 between Stockland Developments Pty Ltd (“Stockland”) and Ms Siudy, Stockland agreed to sell and Ms Siudy agreed to purchase the Sandstone Point land for a purchase price of $172,000.00.

32. It is now common ground that by a contract of sale between Eugene and Anita Piatek as vendors and Ms Siudy as purchaser, Eugene and Anita Piatek agreed to sell and Ms Siudy agreed to buy the Caboolture land for a purchase price of $152,000.00^[33].

33. It is admitted, as a result of admissions arising from the defendants’ non-compliance with the First Notice to Admit in the 2007 proceedings, that the Sandstone Point land and the Caboolture land were purchased with funds jointly owned by Mr and Mrs Piatek, without Mrs Piatek’s knowledge or approval.^[34]

34. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that Mr and Mrs Piatek contributed resources, efforts, capital and income to the acquisition, conservation and improvement of the Sandstone Point land, and the Caboolture land, and the dwellings constructed on it^[35], using joint funds of Mr and Mrs Piatek.^[36]

35. It is admitted, as a result of the defendants’ failure to respond to the first Notice to Admit in the 2007 proceedings, that Mrs Piatek made the contributions referred to in paragraph 7(b) of the Amended Statement of Claim in the expectation that she would share in the benefits of the capital and income created thereby, and Mr Piatek knew or ought to have known that Mrs Piatek was making those contributions in the expectation that she would share in those benefits.

Other Property

36. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that at all material times prior to the unauthorised sale of the Paradise Point land by Mr Piatek, on or about 29 March 2005, a number of items of jewellery and clothing and other personal property belonging to Mrs Piatek were located at the subject land.^[37]

37. It is admitted, as a result of the defendants’ failure to respond to the first Notice to Admit in the 2007 proceedings, that the items of jewellery included a necklace, a St Christopher medal, a bracelet, a heart pendant and a chain with a cubic zirconia pendant; that the clothing included a handbag, shoes, sports clothing, blouses, vests, sweaters, a Canadian white and red vest, Australian and Las Vegas sweat shirts, sweat shirts and jackets of various sorts, evening dresses, casual summer dresses; and that the personal effects and furniture included two giraffes, artificial flowers with pots, artificial plants in pots and a statue of an angel on a lamp, statues of sailors, table decorations, vase, artificial flowers, pelican statue, artificial trees in pot, dining table, dolls, “Pondering” woman’s statue, “Stretching” woman’s statue, mother and baby and Indian girl statues, a sailing boat and rotating globe and bedroom furniture set, bedding and a storage dresser.^[38]

38. It is admitted, as a result of the defendants’ failure to respond to the first Notice to Admit in the 2007 proceedings, that, without the knowledge or consent of Mrs Piatek, Mr Piatek caused the property just listed to be removed from the Paradise Point land, in or about February 2005, and stored at the property of Eugene Piatek at 27 Schofield Court, Caboolture.^[39]  It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings that, later in February 2005, that property was removed to the Sandstone Point land.^[40]

39. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that Mr Piatek has failed, neglected and refused to return that property or make arrangements for its collection from the Sandstone Point land. It is also admitted, as a result of the defendants’ failure to respond to the first Notice to Admit in the 2007 proceedings, that, by reason of Mr Piatek’s retention of that property, Mrs Piatek has suffered loss and damage.

Impounded Vehicle

40. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that Mrs Piatek is and was at all material times, the owner of a Mercedes-Benz 2001 model ML320 Station Wagon motor vehicle, former registered number 425-GAK, which had been located at the garage facility at the Paradise Point land.^[41]

41. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that, in or about February 2005, Mr Piatek caused the motor vehicle to be removed from the Paradise Point land and the motor vehicle was, until recently, located at the Sandstone Point land.^[42]  It is also admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that Mrs Piatek personally, and through her representatives had demanded the return or delivery up of the motor vehicle to her or a representative.

42. It is admitted, as a result of the defendants’ failure to comply with the first Notice to Admit in the 2007 proceedings, that Mr Piatek has failed, neglected and refused to return or deliver up possession of the motor vehicle to Mrs Piatek and that, by reason of the detention of the motor vehicle, Mrs Piatek has suffered loss and damage and is incurring storage costs with respect to the storage of the said motor vehicle at the rate of $11 per day inclusive of GST.^[43]

Other evidence

43. The submissions for the plaintiff also helpfully summarised the oral evidence given in the case.

Expert Evidence

44. The plaintiff relied upon the evidence of a number of experts. Albert Loots of PKF Chartered Accountants provided a report dated 30 October 2009.^[44]  Janusz Psiuch is Renata Piatek’s Polish lawyer who provided evidence about Polish law.^[45]  Britenae Pierce is Renata Piatek’s lawyer in the United States of America.^[46]  Mal Missingham is a registered valuer.^[47]  Irving Sonkin was Mr Piatek’s lawyer in respect of the dispute relating to the property in Washington State.  I shall discuss Mr Loots’ evidence after summarising the evidence of the other witnesses. 

Janusz Psiuch^[48]/Mr Turczyn^[49]

45. Mr Psiuch has been acting for Mrs Piatek in Poland for some time.  He was admitted to practice in 1990, and has practised consistently since then.  He has the carriage of, and day to day conduct of, civil proceedings in the Republic of Poland on behalf of Mrs Piatek, including proceedings that involve Mr Piatek.  He has sufficient expertise in Polish law to give evidence in relation to relevant matters, and has previously provided an affidavit in respect of the Supreme Court proceedings, which is exhibited to his latest affidavit. 

46. He has provided a number of short opinions over the years in relation to relevant provisions of Polish law, and he exhibited copies of those opinions to his latest affidavit. He has also exhibited to his affidavit a certified English translation from Polish of the original petition filed by Mr Piatek in Poland, on 20 December 2007, in relation to separation of assets, and a certified translation from Polish into English, and the original Polish document, produced by Mr Psiuch in reply.

47. He has expressed the view that the proceedings in Poland in relation to division of property are not likely to be concluded for a number of years, possibly two to three years.^[50]  He confirmed that the reports and affidavit which he has previously provided were true at the time that they were prepared and provided, and remain true, and that the Polish Court does not have jurisdiction with respect to the two parcels of real estate in Australia (the Caboolture land and the Sandstone Point land) because the real estate is located abroad.  

48. He refers to the provisions of Article 1102 and now 1103 of the Polish Civil Code. He said that the dispute Mr Piatek has regarding the A$1.4 million paid into Court in the 2005 proceedings and the other matters, which are the subject of the 2005 and 2007 proceedings, were not mentioned by Mr Piatek and his attorney in his original petition filed in the Polish Court on 20 December 2007.^[51]  Exhibited to his affidavit are a letter dated 30 April 2010 and an earlier letter dated 3 April 2008.

49. In the letter dated 30 April 2010, Mr Psiuch summarises the effect of some recent observations by the Polish District Court Judge Klemke, on 27 March 2009. It seems clear that, although the Polish Court would have jurisdiction to deal with movable property outside of Poland, the court may choose not to exercise that jurisdiction having regard to Article 1098.

50. Mr Turczyn suggested that Article 1098 was not applicable to this case because the petition seeking division of property had been filed before that Article came into operation. This was not put to Mr Psiuch by Mr Piatek.

51. Mr Psiuch deals with the effect of the order made by the Regional Court on 30 November 2007, and affirmed by the District Court, on 11 March 2008, regarding the date for the cessation of joint property (1 January 2005) in his letter of 3 April 2008, at pages 2 to 4:^[52]

“In the regard, the court decision to establish marital property with the retroactive date, i.e., January 1, 2005 has limited legal significance.  Regardless of whether dispositions of property were made by Stanislaw Piatek during the period of the spousal community property or subsequent to January 1, 2005 during the period of a likely fractional joint ownership, each time they related to the joint property and they required the co-operation and consent of Renata Piatek in order to be legally valid.  Stanislaw Piatek would have to unambiguously show that subsequent to January 1, 2005 he obtained any revenues or valuable property constituting his separate property (Article 33 of the Family and Guardianship Code) including:  objects of property acquired prior to the marriage, objects acquired through inheritance, bequest or gift, inalienble rights, objects serving to satisfy exclusively personal needs or compensation for work, individual achievements and others listed in this rule. 

Only a showing by Stanislaw Piatek that the element of property, that is the object of the dispute, was acquired from the above listed sources can justify the dismissal of Renata Piatek’s claims to that property.”

52. Mr Turczyn does not clearly state any contrary proposition.^[53]  At paragraph 7 he says:

“If any component part of the property occurred after 31 December 2004 and was acquired in exchange of a component of the joint property which existed on 31 December 2004, only what existed as at 31 December 2004 can be divided;  if there was any component of the joint property on 31 December 2004. … If there was any component of the property on the day when the marital joint property ceased to exist, and was after that day consumed, exchanged for another property component, then only an equivalent in money can be divided of this property component which existed on 31 December 2004.” 

Ms Pierce^[54]/Mr Sonkin^[55]

53. Ms Pierce provided a two page affidavit dated 26 April 2010. She represented Mrs Piatek in connection with a case in the United States District Court for the Western District of Washington, at Tacoma, styled Renata Piatek v Magdalena Siudy. 

54. That matter involved a dispute as to possession and ownership of real property situated in Buckley, Washington, legally described as Lot 84 of White River Estates, as per Plat recorded November 29, 2004, under recording No. 2004, 11295001, records of Pierce County Auditor situated in the County of Pierce, State of Washington.

55. Mrs Renata Piatek was successful in obtaining a final order that the property vested in her.^[56]  Ms Siudy appealed that decision to the United States Court of Appeals for the Ninth Circuit but was unsuccessful^[57].  The costs incurred in relation to the first instance proceedings and the appeal total US$193,744.37 in legal fees and outlays.

56. After Mrs Piatek won ownership of the house in that case in October 2008, Mr Piatek and his parents, Walentyna and Eugeniusz Piatek, filed a law suit against Mrs Piatek seeking ownership of, or at least an ownership interest in, the same Buckley property that was part of the prior law suit. That action was filed in the Washington State Court, the Superior Court of Washington in and for Pierce County.  Ms Pierce represents Mrs Piatek in that action also. 

57. A motion to dismiss that action summarily was successful^[58] but the counterclaim of Mrs Piatek is yet to be determined and was set for trial on 20 October 2010.  To date her firm has incurred US$57,846.31 in legal fees and costs acting for Mrs Piatek in that law suit.  Fees continue to be incurred as the matter progresses.

58. The Pierce County Assessor-Treasurer assesses the value of the real property in Pierce County Washington every year. In 2010, the value of the Buckley property has been assessed at US$378,300.00. Every year real property taxes are assessed against the Buckley property. Ms Pierce exhibits to her affidavit a true copy of records showing the assessed value of the property and the property taxes assessed for the property from 2007 to 2010.

59. This evidence is relevant because Mr Piatek, in his defences and counterclaims in the 2005 and 2007 proceedings, has asserted through his solicitors that Mrs Piatek has been successful in obtaining ownership of that property, which was purchased with part of the proceeds of sale of the Paradise Point land in Australia, and that the value of that property ought to be taken into account in determining Mrs Piatek’s entitlements in equity in relation to the remaining assets in Australia.

60. It is common ground that the Buckley property was purchased with part of the proceeds of sale of the Paradise Point land in Australia (no more than A$390,000.00 which passed through EMP to a company called Alexpol Pty Ltd).  It was argued for Mrs Piatek that ownership of that property has yet to be finally determined in the United States courts as Mr Piatek and his parents still assert ownership rights over the property.  Mr Piatek has indicated that he intends to appeal and the time for instituting the appeal does not run until the counterclaim has been decided.^[59] 

61. Until the ownership issue is finally determined, it was submitted for Mrs Piatek that the value of that property should not be taken into account, but, that, in any event, the value is considerably less than the original cost which exceeded A$579,000.00. The evidence of value came from the Pierce County Assessor-Treasurer’s assessment of the value of the property. It was not made clear for Mrs Piatek whether that value was the improved or unimproved value of the land.

62. There was some controversy concerning whether the lis pendens^[60] over the Buckley property remains in place. Ms Pierce was adamant that it did and Mr Sonkin was equally adamant that it did not.

63. It seemed likely that Mr Piatek will lodge an appeal against the judgment of the Washington State Court and he can apply for a stay of the orders made by it albeit on payment of a bond possibly equivalent to the value of Mrs Piatek’s interest in that property. Title to the property, it was submitted, therefore remains an issue to be resolved on appeal on Mrs Piatek’s case. That does not seem to me to be accurate as Mrs Piatek is the beneficiary of an existing final order in the United States District Court vesting the property in her. There is, no doubt, the possibility that that order may be overturned in favour of a declaration that Mr Piatek and his parents actually own the property, but that is not the current position.

64. It seems to me, therefore, that the position is that the A$390,000.00 used in the purchase of that property has been traced to it and Mrs Piatek has a final order vesting it in her. In my view that sum should be deducted from the calculation of the sum owing to Mrs Piatek arising from the sale of her Australian property interests. She has successfully traced it and obtained ownership rights to it in the American proceedings.

Mr Missingham^[61]

65. Mr Missingham is a registered valuer who has recently prepared valuations of the Sandstone Point land and the Caboolture land. He gave evidence as to the present value of those parcels of land. He was unable to gain access to either property so his valuation is limited in that respect. He said it would still be accurate with an allowance of plus or minus 5%.

66. He values the premises as follows:

1. 10 Cremorne Court, Sandstone Point$480,000.00;

2. 31 Kingma Crescent, Caboolture$360,000.00.

Mr Glowczyk^[62]

67. Several further issues were raised by Mr Piatek through his solicitors in his Amended Defences and Counterclaims. It was submitted for Mrs Piatek that none of them were relevant in relation to these proceedings and that even if I were to accept the truth of the allegations made in those pleadings, that they would not be capable of amounting in law to a set-off and would not attract the operation of the doctrine of equitable set-off.

68. It was also submitted that, in any event, the falsity of almost all of the allegations has now been admitted, as a result of the defendant’s failure to respond to the Notice to Admit Facts in relation to the Further Amended Reply and Answer to the Defence and Counterclaim, dated 10 October 2008 (“the second Notice to Admit in the 2005 proceedings”) and the Notice to Admit Facts in relation to the Amended Reply and Answer to the Defence and Counterclaim of the defendant, dated 10 October 2008 in the 2007 proceedings (“the second Notice to Admit in the 2007 proceedings”).

69. Mr Glowczyk gave evidence about some of those issues, particularly relating to the source of funds used to purchase a property in Florida in August 2005 where he sometimes lives with Mrs Piatek.^[63]  He said that he paid for the property, not Mrs Piatek.  He backed that up with convincing documentary evidence and there was no reason to disbelieve him.  

Mrs Renata Piatek

70. Mrs Piatek gave evidence in relation to the two Commonwealth Bank accounts referred to in the report of Mr Loots, being account nos 10234621, in the name of Stan and Renata Piatek, and 208490 in the name of Stan and Renata Piatek. She also gave evidence in relation to Bank of America account No. 82355868, which was a joint account held by her and Mr Piatek, and No. 85772226, in the name of Mr Piatek but admitted to be jointly owned.

71. She gave evidence that there was never any agreement between her and her husband with respect to sale of the Paradise Point land and that the land was sold without her knowledge and approval by her husband and the proceeds applied by him for his own purposes, including the purchase in the name of Ms Siudy, of the Sandstone Point land, the Caboolture land and the land situated in the United States, at Buckley. She confirmed that $1.4 million of the proceeds of sale was the subject of a vendor finance arrangement and has now been paid into Court.

72. Mrs Piatek gave evidence denying an allegation, in paragraph 10(o) of the Further Amended Defence and Counterclaim in the 2005 proceedings, that approximately US$270,000.00 in cash belonging to her and her husband was taken and converted by her and Mr Glowczyk from their former United States marital home at Maple Valley, Washington State.

73. Mrs Piatek gave evidence in relation to allegations contained in paragraph 10(s) of the Further Amended Defence and Counterclaim in the 2005 proceedings that, during the period from 1997 to the present, Mrs Piatek transferred approximately US$200,000.00 from her and her husband’s money to her parents and did not account to Mr Piatek for his share. She denied those allegations and there is no evidence to support them.

74. Mrs Piatek gave evidence in connection with the clothing and jewellery taken from the holiday house by Mr Piatek and his brother, Eugene, and never returned to her despite demand having been made on her behalf.

75. Mrs Piatek gave evidence in relation to the vague allegation, which appears in paragraph 10(g) of the Amended Defence and Counterclaim of the defendants in the 2007 proceedings, (a similar allegation appears in the 2005 equivalent pleading) that, in or about 1997, Mrs Piatek transferred from their joint bank accounts in the United States to her accounts in Australia approximately US$1.1 million, for which sum she has never accounted to Mr Piatek, even though the money comprised part of their marital estate.

76. Her evidence is that the actual amount was in the vicinity of US $900,000.00 and that she transferred it at Mr Piatek’s direction. It was to be used for future investment purposes in Australia.  The money came from Pacific Enterprises in the United States of America.  The money was used for the purchase of property in Australia with Mr Piatek’s knowledge and approval.^[64]

77. Mrs Piatek also gave brief evidence in relation to an allegation concerning a property at Zakole Street, Koszalin, Poland sold in 2004, referred to in paragraph 10(h) of the Amended Defence and Counterclaim in the 2007 proceedings.  There was a similar pleading in the 2005 proceeding.  Proper particulars have never been provided of these allegations, but Mrs Piatek’s evidence is that she did not retain the proceeds of sale of that property.  In any event, it was submitted for her that any such sales are completely irrelevant to the deliberations of the Court in relation to these proceedings.

78. Mrs Piatek gave evidence in relation to allegations contained in paragraph 10(l) of the Amended Defence and Counterclaim in the 2007 proceedings. The pleading is that on 17 August 2005 she applied joint money in the sum of US$3.15 million to purchase a property at 2532 Sea Island Drive, Fort Lauderdale, Florida and registered the title in Mr Glowczyk’s name.  In fact, as I have already found, Mr Glowczyk purchased the house from his own money.^[65]

79. Mrs Piatek gave evidence, insofar as she was able to, in relation to the very vague and unparticularised allegations contained in sub-paragraph 10(u) of the Amended Defence and Counterclaim in the 2007 proceedings that she misappropriated an amount of between US$1.5 million and US$2 million for her and Mr Glowczyk’s use. No evidence was produced by way of disclosure of documents, or otherwise, from the defendants to substantiate this unparticularised allegation. In any event, it is irrelevant to the proceedings in this Court.

80. Mrs Piatek gave evidence in relation to the allegations contained in sub-paragraph 12(b) of the Amended Defence and Counterclaim in the 2007 proceedings (similar allegations are contained in paragraph 12(b) of the Further Amended Defence and Counterclaim in the 2005 proceedings) regarding alleged discussions between her and her husband about the sale of the subject land.

81. It was submitted for her that it was noteworthy that the allegations vary between the 2005 and 2007 proceedings. In the 2005 proceedings the allegation by Mr Piatek is that Mr and Mrs Piatek agreed that the proceeds of sale of the Paradise Point land would be used to repay money which he and Renata Piatek owed to his mother and his brother, to construct a new house on their property at Maple Valley, Washington State and to put the remainder towards their joint living, child rearing and business expenses.

82. In the 2007 proceedings the allegation changed in that it was alleged there that part of the proceeds were to be used to repay money which Mr and Mrs Piatek owed to Mr Piatek’s mother. There is no mention of any moneys owed to his brother, Eugene, in the 2007 proceedings. In any event, it was submitted, the allegations are false.

83. It was submitted for Mrs Piatek that I should accept her evidence and that it had not been affected by her lengthy cross-examination at the hands of Mr Piatek. It was correct that much of his cross-examination was largely unhelpful and often irrelevant and I saw no reason to doubt Mrs Piatek’s evidence. Many of the issues covered in the cross-examination were not live issues in the case because of the admissions and deemed admissions. It proved difficult to make Mr Piatek aware of the problems he faced because of his earlier conduct of the litigation.

Mr Eugene Piatek^[66]

84. Eugene Piatek, Mr Piatek’s brother, received a subpoena to appear and give evidence and produce documents. His evidence confirmed the accuracy of his affidavit in the 2007 proceedings^[67] and the depositions to the United States District Court at Tacoma.^[68]  His evidence was that he did not receive any part of the proceeds of sale of the Paradise Point land and holiday house, and that he assisted Mr Piatek, to repatriate most of the A$1.625 million received by him from that sale to accounts controlled by Mr Piatek in the United States of America and Poland.

85. He confirmed that Mr Piatek tried to hide the proceeds of sale of the Paradise Point land through an elaborate system of accounts in Ms Siudy’s name and by sending funds off-shore through EMP and Alexpol. This was also the effect of Mr Loots’ forensic analysis of the relevant bank accounts.

86. It was submitted that there was no reason why I should not accept Eugene Piatek’s evidence, a submission with which I agree.

Mr Stan Piatek

87. It was submitted for Mrs Piatek that the evidence of Mr Piatek should not be accepted. It was true, as was submitted, that his demeanour throughout the course of the trial left a great deal to be desired. He was uncooperative, argumentative and at times belligerent when cross-examining the plaintiff’s witnesses (especially the plaintiff).

88. He asked very many irrelevant questions despite numerous objections from counsel for the plaintiff and despite numerous rulings by me in favour of those objections. He also repeatedly attempted to introduce new documents which had not been disclosed despite repeated directions from me about his obligations in relation to disclosure. In representing himself he was at a disadvantage as a non-lawyer struggling with the English language, with which he was reasonably familiar, but certainly he was not a fluent speaker.

89. His evidence during cross-examination was also unimpressive and Mrs Piatek’s counsel submitted that several matters were worthy of note as affecting his credibility:

1. In relation to Ex. 41, Mr Piatek was, it was submitted, particularly evasive in relation to the name of the account holder of the account at Bank Zachodni WBK SA W Polsce (payments made on 27 May 2005 in the amount of A$100,030.00 and on 29 January 2007 in the amount of A$110,030.00 from Max-i Direct Account No. 20-2159^[69]).  He eventually and very reluctantly revealed that the account was either in his and Ms Siudy’s name or in her name alone;^[70]

2. He was criticised as evasive and disingenuous in his answers in relation to the Mercedes-Benz S class motor vehicle purchased by Cheque No. 72 on 30 November 2002 from Grand Motors Mercedes-Benz for A$168,000.00^[71] (including a statement that he was positive that the vehicle had been sold before 2 September 2003 notwithstanding that the vehicle was not sold until 2 March 2004);^[72]

3. He was also criticised as having given dishonest answers in relation to the transfer from Commonwealth Bank Account No. 208490 to the account in his name at the Bank of America, Account No. 85772226, and the transfer shortly after 14 January 2004 (on 2 February 2004) to an account at the Washington Mutual Bank in Mr Piatek’s name (account No. 0092-0000355853-2 an account of which Mrs Piatek had no knowledge until discovered by her lawyers);^[73]

4. His evidence in relation to the sale and disposition of the proceeds of sale of the vessel called Spirit of Poland was criticised as disingenuous and dishonest;^[74]

5. He was said to have no plausible explanation for his unilateral decision to re-register the Mercedes-Benz ML320 which is the subject of the order of Mackenzie J made on 1 February 2007 from his wife’s name and into his name;^[75]

6. He was also criticised as having no plausible explanation for the numerous accounts opened in the name of Ms Siudy;^[76]

7. He had no satisfactory explanation, it was said, for the failure by his solicitors to mention the payment of A$1.2 million out of the proceeds of sale into two accounts in Ms Siudy’s name; the purchase of the Sandstone Point and Caboolture properties in her name, the transfer to EMP and then onto Alexpol of the A$390,000.00 from the sale proceeds;^[77]

8. He failed to give any plausible explanation for false statements made in his letter dated 27 September 2009 to the District Court at Koszalin in Poland^[78] and in particular, his false accusation against his former wife^[79] concerning the property at 3 Chichester Drive, Arundel;^[80]

1. Particularly revealing, it was submitted, was his answer to the following question:^[81]

“You are prepared to make any allegation at all concerning your former wife whether you have any foundation for it at all, aren’t you?  And vice versa.”

90. I agree with the submission that Mr Piatek’s evidence should not be accepted save where it is consistent with evidence given on behalf of other witnesses or with documents in Ex. 1 to which he was taken in cross-examination, for example, his evidence in relation to rental of the Caboolture property and the Sandstone Point property is supported by contemporaneous documents and can be accepted for that reason.^[82]

Albert Loots^[83] and the plaintiff’s claim

91. Mr Loots’ report was based on a number of assumptions about the evidence which were justified on the admissions made or deemed to be made and other evidence that I accept. There is no doubt that Mrs Piatek is entitled to a 50 per cent share of the sale proceeds of the Paradise Point land and holiday house. It was admitted to have been purchased from jointly owned funds the parties brought from America.  She is also entitled to a 50 per cent share of the net amounts deposited into the Commonwealth Bank joint accounts and not used for legitimate joint purposes. 

92. As Mrs Piatek’s counsel submitted the best evidence, in that connection, is the evidence of Mr Loots, which was prepared having regard to all available cheque butts and bank statements. Mr Piatek did not produce all relevant cheque books and Mrs Piatek has produced all cheque books which she could produce. The evidence of Mrs Piatek was that each of them had two cheque books in relation to the cheque account and that she has produced the cheque stubs relating to her two cheque books, but Mr Piatek only belatedly produced one set of cheque stubs on the fifth day of the trial.^[84]  Mr Loots analysed the additional information in Ex. 35 and adjustments were made to Mrs Piatek’s claim to reflect that information.  That resulted in Mrs Piatek’s claim in respect of Account 10234621 reducing to a figure of $683,506.35.  Her claim in relation to Account 208490 was $192,327.82.  That claim is made out on the evidence. 

93. Mr Piatek’s assertions in relation to a sum of A$420,000.00 which was transferred from the latter account to his account at the Bank of America and then paid into his account at Washington Mutuale, Maple Valley were that they were spent on the building of a jointly owned house at Maple Valley. 

94. He did not produce any documents to back that up. Mrs Piatek’s evidence was that she had obtained and inspected bank statements from that bank but had only received a couple of cheques from it.^[85]  In the absence of documentary evidence I am not prepared to accept that the money was spent partly or at all for the benefit of Mrs Piatek.  It seems very likely that Mr Piatek tried to hide those moneys from Mrs Piatek as I accept her evidence that she did not know of the existence of the Washington Mutuale account until 2005 or 2006. 

95. There is also no doubt, on the evidence, that Mrs Piatek is entitled to half the net sale proceeds of the Spirit of Poland in the amount of $144,000.00 after an allowance was made for payment of her share of the agent’s commission. Those moneys were again paid into Mr Piatek’s Washington Mutuale account and, again, in the absence of documentary evidence of the application of those funds I do not accept that any of them were applied for the benefit of Mrs Piatek.^[86]  

96. There is no doubt on the admissions and the evidence that Mrs Piatek is entitled to the value of jewellery, clothing and furniture taken from her by Mr Piatek and never returned. She is also, on the pleadings and the admissions, entitled to either the Mercedes-Benz ML320 motor vehicle, or the value of that vehicle.

97. She is also entitled to damages for the unlawful detention and/or conversion of the jewellery, clothing, car and furniture. She is entitled to a half share of the rental income derived by Mr Piatek and Ms Siudy from the Sandstone Point and Caboolture properties. The amount was $37,800.00 at the time of the trial but rental income continues to be derived.

98. The result of Mr Loots’ evidence, which I accept, is that Mrs Piatek is entitled, for her share of the relevant assets, to $264,311.53, as set out in the table in Mr Loots’ report at para 5.006 in respect of the value of the Mercedes-Benz, boat, clothes and jewellery less $10,000.00 for her share of the commission paid to the selling agent.

99. There was a further entitlement to $2,838,181.02, described in the table at para 5.007. The plaintiff did not pursue a claim mentioned there for $411,777.81 in respect of money in a Bank of America account. As I mentioned earlier, her counsel adjusted down the figure of $1,339,698.80 shown at the start of that table in respect of the joint funds in the Commonwealth Bank account no 10234621 to $683,506.35 in light of the evidence referred to in Ex. 30 and Ex. 35 because many of the sums going out of that account appeared to be for expenses incurred, it seemed to me, for the benefit of both parties.  Much of the evidence in respect of those outgoings only became available after Mr Piatek made further disclosures of documents during the trial consisting of cheque stubs held by him which, clearly, he should have disclosed long before.  I have also made further adjustments totalling $13,646.55 to take account of bank charges, taxes, Energex and Telstra bills paid from that account, again, it seemed to me for expenses incurred for the benefit of both parties.  Therefore the value of the plaintiff’s half share of the amounts deposited into that account becomes $669,859.80.

100. A further amount of $700,000.00, being Mrs Piatek’s share of the moneys held in court should be added to those figures as should a claim for storage costs of the Mercedes-Benz of $26,994.00 as at 4 May 2010 and which continue to accrue at $33 per day. There is also a claim for $10,000.00 for detention or conversion of the jewellery, clothing, car and furniture which seems to me to be a reasonable amount to allow for that claim.

101. The total monetary claim for the plaintiff at the time of the trial was, therefore, $2,720,875.74.^[87] 

102. There are claims for interest at 10 per cent per annum claim also made on the pleadings and to which the plaintiff is prima facie entitled on a significant proportion of the amount claimed by her. The amount of the principal in respect of which interest is claimed and to which she is entitled is, on my calculations, based on schedule “A” to the plaintiff’s written submissions, $1,775,089.39. Interest on that sum from, for example, the time of the settlement of the sale of the Paradise Point property on 21 March 2005 at 10 per cent per annum until the time of the trial amounted to $909,081.17 on Mr Loots’ calculation. With interest the total claim made for Mrs Piatek at the trial was $3,629,956.91.

103. There may be the need for further submissions as to the appropriate percentage for interest on some of the amounts claimed. For example the claim for interest on the $37,800.00 rental obtained for the Caboolture and Sandstone Point properties should be averaged over the period at 5 per cent rather than 10 per cent. Similar considerations apply to the storage costs of the Mercedes-
     Benz because those losses have been incurred cumulatively over the period but the exercise I have done is enough to show that a significant amount is owed to Mrs Piatek over and above the assets in this jurisdiction. 

104. The assets available in Australia consist of the following:

1. The $1.4 million paid into court plus accretions, whose current value is in excess of $1.65 million;

2. The Caboolture property, current value $360,000.00^[88];

3. The Sandstone Point property, current value $480,000.00^[89];

4. The Mercedes-Benz motor vehicle, former registered number 425-GAK, current value approximately $30,000.00.^[90]

105. The total of the available Australian assets is valued at something above $2,520,000.00 depending on the amount of the accretions on the money in court.

106. Therefore, the available assets in Australia now are significantly less than Mr Loots’ calculation of Mrs Piatek’s entitlements arising out of the disposal by Mr Piatek of jointly owned property in Australia, which is the subject of the 2005 and 2007 proceedings and the interest claimed on those figures.  Mr Loots’ evidence is not challenged by any expert evidence relied upon by Mr Piatek. 

107. The claim based on Mr Loots’ evidence needs to be reduced by $390,000.00, however, because of my view that Mrs Piatek has successfully traced that sum into the property vested in her at Buckley in Washington State. It seems to me that she has elected to pursue those rights in that jurisdiction and should be held to that election. Mrs Piatek’s counsel argued that I should only deduct the net amount after the deduction from the $390,000.00 of her legal costs of vindicating her claim in those proceedings. It seems neater, in my view, however, to leave the financial resolution of that issue to the American courts and it was not clear to me that the valuation evidence of the Buckley property was so reliable as to demonstrate that Mrs Piatek would not receive her entitlements to that sum from it. Otherwise there is too strong a chance that she will be reimbursed twice for the same loss. If there is a loss to her from that American litigation then that would, I expect, be relevant to the final resolution of the Polish matrimonial property proceedings.

108. It was submitted, in any event, that, even if the $390,000.00, less costs incurred by Mrs Piatek in the proceedings to recover title to that property, were to be taken into account, Mrs Piatek would still be entitled to all of the remaining property in Australia, based on the analysis prepared by Mr Loots.  On his analysis, as adjusted above, however, the deduction of $390,000 from the $2,720,875.74 calculated to be hers leaves a figure of $2,330,875.74 which is less than the $2,520,000.00 value of the Australian property the subject of these proceedings.  The claim for interest, however, will clearly result in an amount greater than the calculated value of the property still here.  Interest at 10 per cent to the time of trial, adjusting Mr Loots’ figures in Schedule “A” to the plaintiff’s submissions to take into account the reduction of the amount of the principal by $390,000.00, would be $708,310.95 which, when added to the principal, results in a claim for $3,039,186.69.

Legal issues

109. The main legal issues to consider are what is the appropriate choice of law to apply to the resolution of the dispute and whether, as Mr Piatek submitted, I should leave the resolution of this dispute to the Polish courts or deal with these aspects of the many disputes between him and Mrs Piatek in this jurisdiction. Then I must consider the appropriate remedy to apply to the facts I have found to exist.

Choice of law

110. To determine which is the applicable law, the following questions should be asked:

1. What are the legal issues in dispute?

2. What are the applicable conflict of law rules?

111. In Macmillan Inc v Bishopsgate Investment Trust Plc (No 3)^[91] Aldous LJ described this process as follows:

“Any claim… may involve a number of issues which may have to be decided according to different systems of law. Thus it is necessary for the court to look at each issue and to decide the appropriate law to apply to the resolution of that dispute.”

112. The pleadings seek a variety of different and alternative claims for relief, which raise a number of different issues. It is significant that, while the plaintiff’s claim is primarily concerned with real property located in Queensland including payment of the part proceeds of the sale of the Paradise Point land which is now in Court, it also seeks an account in respect of money held in two bank accounts, the balance of several other bank accounts, a declaration of title to a car, and damages in respect of the conversion or detinue of clothing, and jewellery. This presents an issue in that immoveable property may, on a choice of law analysis, be treated separately from moveable property.^[92]  Further issues are raised by the fact that the plaintiff’s claim is for a variety of forms of equitable relief. 

Claims in respect of immoveable property

113. The law I choose to apply may depend on the nature of those claims. With respect to the land, the law of the place where the land is situated must be referred to in the first instance. “Real property has always been treated specially in the conflict of laws because it is essential to acknowledge the capacity of the lex situs to render futile any conflicting law with respect to title to such property.”^[93] 

114. Although the lex situs must be referred to in the first instance, if the parties have entered into a marriage contract, the law governing that contract will also determine their rights in relation to immoveable property, so long as the lex situs permits it.^[94]  This is the approach adopted in De Nicols v Curlier,^[95] and followed most recently in Australia by Spigelman CJ in Murakami v Wiryadi.^[96] In Murakami v Wiryadi Spigelman CJ provided a useful analysis of this approach and concluded by saying:^[97]

“Subject to the laws of the forum with respect to dealing with interests in land … such a contract will be enforced in New South Wales [the forum]. Like any other contract, immoveable property is governed by the proper law of the contract, provided that that is permitted by the lex situs.”

115. However, the application of a marriage contract to immoveables outside the jurisdiction of the contract will not occur in the absence of clear contractual intent or expert evidence that the applicable law has that effect.^[98]  Therefore, the reasoning adopted by Spigelman CJ is unable to be applied in this case, as the question of whether or not the parties’ relationship was governed by a marital contract was not addressed on the pleadings and no evidence was led to suggest that Polish law, being the law of the matrimonial domicile, has the effect of implying a marital contract as between the parties. 

Claims in respect of moveable property

116. Where the parties do not agree to the contrary, the matrimonial property regime governing their moveable assets is initially determined by the law of the matrimonial domicile at the time of marriage.^[99] 

Equitable claims

117. Traditionally under Australian law, it has been held that, notwithstanding the existence of international elements, any equitable claims in respect of which an Australian court has jurisdiction are to be governed solely by the law of the forum, on the basis that equity acts in personam on the conscience of an individual. As Holland J said in National Commercial Bank v Wimbourne:^[100]

“In my opinion, it is, prima facie, a complete answer to this contention that the plaintiffs are claiming equitable rights and equitable remedies.  The Equity Court has long taken the view that because it is a court of conscience and acts in personam, it has jurisdiction over persons within and subject to its jurisdiction to require them to act in accordance with the principles of equity administered by the court wherever the subject matter and whether or not it is possible for the court to make orders in rem in the particular matter.  In short, if the defendant is here, the equities arising from a transaction to which he is a party as ascertained by New South Wales law and the equitable remedies provided by that law will be applied to him.”

118. More recently however, doubt has been expressed over whether it is appropriate to apply the lex fori in such cases. In OZ-US Film Productions Pty Ltd (in liq) v Heath^[101] Young J said that: “The shrinking globe and the fact that international fraud and fraudsters flourish has meant that some of these concepts may be showing that their use by date has passed. Nonetheless, they still govern the approach of this Court.”  This approach was apparently rejected by Spigelman CJ in Murakami v Wiryadi^[102] on the basis that the focus should be on the underlying relationship between the parties, be it fiduciary, contractual or otherwise, rather than on whether or not an equity exists.

119. The issue of whether the law of the forum should govern the existence of an equitable right or remedy was also recently discussed in Nicholls v Michael Wilson and Partners Ltd.^[103]  In that New South Wales Court of Appeal decision, Lindgren AJA, with whom Basten JA and Young JA agreed, described the approach stated by Holland J in National Commercial Bank v Wimborne as the “lex fori only” approach and went on to discuss authorities which have established exceptions to this approach:^[104]

“[343] In Murakami, Spigelman CJ, with whom McColl JA and Young JA agreed, considered (at [131]) that the position with respect to fiduciary claims was as stated in the joint judgment of the Full Federal Court in Paramasivam v Flynn (1998) 90 FCR 489 (Paramasivam). The Full Court’s starting point was a recognition that where a court of equity had been prepared to assume personal jurisdiction over parties, it had applied its own principles, not foreign law, to determine whether a personal equity existed between them. The Full Court recognised exceptions, such as the exception that might arise where the source of the fiduciary obligation was a contract governed by law other than the law of the forum (at 503B). That is not the present case for reasons mentioned earlier. The Full Court also acknowledged (at 503F) that:

… where the circumstances giving rise to the asserted duty or the impugned conduct (or some of it) occurred outside the jurisdiction, the attitude of the law of the place where the circumstances arose or the conduct was undertaken is likely to be an important aspect of the factual circumstances by reference to which the Court determines whether a fiduciary relationship existed and, if so, the scope and content of the duties to which it gave rise.

[344] In Murakami, Spigelman CJ discussed ‘Choice of Law and Equitable Claims’ at [128]–[149]. The Chief Justice drew attention to a different ‘choice of law’ starting point supported by Professor T M Yeo in his book, Choice of Law for Equitable Doctrines (OUP, 2004) esp at [Intr 010–013], [Intr 020–021], [1.01]–[1.13], [2.10]–[2.17], and [8.17]. However, the Chief Justice also directed attention to the Foreword to that book, in which Justice Gummow wrote (at vi) that the question whether an equity exists in the plaintiff founded on the precepts and principles that inform the defendant’s conscience is not to be determined by a consideration of foreign law, despite connections with foreign legal systems.

[345] In Rickshaw Investments Ltd v Baron von Uexhell [2007] 3 LRC 223 ; [2006] SGCA 39, the Court of Appeal of the Supreme Court of Singapore, while agreeing with Professor Yeo that the “lex fori only” approach should not be maintained, accepted (at [81]) that in a case where equitable duties arose ‘from a factual matrix where the legal foundation is premised on an independent established category such as contract or tort, the appropriate principle in so far as the choice of law is concerned ought to be centred on the established category concerned.’”

120. The discretionary considerations discussed in Murakami v Wiryadi^[105] are not relevant here as there is no evidence before me identifying the consequences in Polish law of the matrimonial contract between the parties on their title to matrimonial property.  Certainly there is nothing to suggest that it would be inconsistent with an equal division of the property which Mr Piatek disposed of without accounting for the proceeds to Mrs Piatek.  Further the evidence about the establishment of the date for separate marital property does not seem to me to prevent me from applying the remedies sought for the plaintiff. 

121. In Murakami there was some relevant evidence of Indonesian law and the anticipation that further evidence may have been available had not the primary judge stayed the proceedings on the basis that the proceedings should be determined in Indonesia.  In overturning that decision the Court of Appeal made a number of useful comments including one that:^[106] “In determining a claim for an equitable interest under Australian law, this court will have regard to, and generally enforce, a relevant foreign element in the dispute.”  But the need to do that in this case does not arise as the relevant foreign elements are either not established on the evidence or not likely to affect the nature of the relief sought.  It is by no means a given, however, that, in claims for equitable relief, even those that concern property situated in Australia, if appropriate evidence of foreign law is available, that Australian law will necessarily be applied.

Applicable law in this case

122. In the present case the choice of law for the relevant claims would potentially have been between the law of Queensland as the forum and the place where the land registered in Ms Siudy’s name is located and Poland as the law of the matrimonial domicile. The absence of evidence of a matrimonial contract in fact or as implied by Polish law, and of any evidence of Polish law applicable to disputes of the nature of the cases before me, where the relief sought includes declarations that property should be held in trust for the benefit of one of the parties, or of any evidence as to the general rules for distribution of assets between parties to a marriage in Poland makes the choice of law question academic.  When judicial notice cannot be taken of a foreign law, as is the case here, the onus of proving it rests upon the party alleging that it is different from the law of the forum.^[107]  The presumption then, must be in this case that Polish law is the same as Australian law.

123. There was particular evidence, to which I have referred earlier, that Polish courts will not make declarations of title as to foreign land. There was also evidence about the Polish court’s decision to establish separate marital property with the retroactive date of 1 January 2005. As counsel for Mrs Piatek submitted, based on the evidence of Mr Psiuch, it does not follow from the decisions of the Polish courts that any dispositions and acquisitions made by Mr Piatek after 1 January 2005 are acquisitions only for the benefit of himself, bypassing Mrs Piatek’s interests. The establishment of separate property, regardless of the date that it began, does not cause any dispositions conducted unilaterally by Mr Piatek to be legalised.

124. That understanding of the evidence seems to me to be correct and to make logical sense. Otherwise the potential for abuse of the system would be obvious; the unauthorised sale of matrimonial property and its transfer into the name of one party to the marriage would take it out of the courts’ jurisdiction. Even if the evidence of Mr Turczyn was clear that I should apply Polish law to the resolution of this matter it does not appear, on my understanding of his evidence that I would be precluded from determining monetary compensation arising out of the unauthorised sale of the Paradise Point land.^[108] 

125. Counsel for Mrs Piatek also informed me that the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1984 (“the Convention”) was ratified by Australia in the Trusts (Hague Convention) Act 1991 (Cth), which commenced on 1 August 1992.  That Convention does not deal with the question of jurisdiction in respect of the administration of trusts and trust assets.  Moreover, trusts created by operation of law are not covered by the Convention although it is possible under Article 20 for a contracting State (including Australia) to declare at any time that the provisions of the Convention will be extended to trusts declared by judicial decision.  Australia has not, as yet, done so.  There is no facility to extend the Convention to trusts created by statute.^[109] 

126. In the circumstances, therefore, it seems to me that I should apply the law of Queensland to the resolution of all of the issues in this dispute.  The relevant real property is located here and Polish courts will not make declarations as to title to the land here.  The money is under the jurisdiction of this Court and the car is in the jurisdiction.  Moreover much of the relief sought is equitable and Mr Piatek and Ms Siudy held title to property in the jurisdiction the subject of these proceedings, have taken part in the litigation and should be taken to have submitted to the orders this Court may make. 

Counterclaim to stay proceedings

127. In Voth v Manildra Flour Mills Pty Ltd,^[110] the High Court held that an Australian court should only decline jurisdiction if it is satisfied that the forum selected is clearly inappropriate.  The various factors relevant in considering whether the forum is clearly inappropriate are usefully summarised as follows. None is conclusive by itself:^[111]

1. any significant connection between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the parties and the place where the subject matter of the suit is situated;^[112]

2. any legitimate and substantial juridical advantage to the plaintiff, such as greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced;^[113] and

3. whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law.^[114]

128. Unlike the English test adopted in Spiliada Maritime Corp v Consulex Ltd,^[115]  the question whether the local court is a “clearly inappropriate forum” focuses “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”.^[116]

129. Different considerations arise where the proceedings in the forum and those abroad are related, but raise different issues, either between the same parties, or because different parties are involved in each of the proceedings although they are based on a common sub-stratum of fact. In CSR Ltd v Cigna Insurance Australia Ltd,^[117] Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said:

“In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are ‘productive of serious and unjustified trouble and harassment’ or ‘seriously and unfairly burdensome, prejudicial or damaging’.”

130. In matrimonial proceedings, the need to treat issues between a husband and wife arising out of the matrimonial relationship and its breakdown as a single controversy can tell strongly against permitting parallel proceedings in more than one jurisdiction.^[118] However, it has also been held to be a significant factor favouring a particular jurisdiction if it, to the exclusion of the alternative, can effectively deal with a particular asset, such as immoveable property.^[119]

131. While it is less than desirable that this dispute is being litigated in Queensland, the United States of America and Poland, when there are matrimonial property proceedings on foot in Poland, the question here is not whether these proceedings should be heard in a more appropriate forum, but whether they are vexatious or oppressive.

132. In considering the issue whether this was an appropriate jurisdiction to hear the dispute on an earlier unsuccessful application by the defendants for a temporary stay of proceedings Martin J said:^[120]

“[10] It appears that the court in Poland currently hearing the matter relating to the matrimonial property is not a court whose judgments would be recognised in this country. The proceedings in Poland are not before a superior court. The regional court before which the matter is proceeding is not recognised as a superior court for the purposes of the reciprocal enforcement of judgments under the Foreign Judgments Act 1991 (Cth) and the Foreign Judgment Regulations 1992 (Cth).

Consideration

[11] A court in this country will normally only refuse to entertain proceedings brought before it if it is found that the jurisdiction sought to be exercised was a ‘clearly inappropriate forum’ such that continuing the proceeding here would be ‘oppressive or vexatious’.

[12] The respondent has regularly invoked the jurisdiction of this court and, thus, has a prima facie right to insist upon its exercise and to have her claim heard and determined. It is also appropriate to take into account the stage which has been reached by the competing proceedings. In Henry v Henry the High Court considered a situation where a husband and wife commenced separate divorce proceedings in Monaco and, after the husband’s proceedings were struck out in

Monaco, he commenced proceedings for the dissolution of the marriage in the Family Court of Australia. The wife applied to have the Australian proceedings stayed on the grounds of lack of domicile and forum non conveniens. It was held by the High Court that the test to determine whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum. In doing so, it was relevant to consider the stage which proceedings had reached in the other forum, and it was appropriate to take into account the general circumstances of the case including the true nature and full extent of the issues involved.

[13] There is no doubt that this court has jurisdiction to deal completely with the proceedings which have been commenced by the plaintiff. The Polish court can, on the arguments advanced to me, take into account, if it wishes, an order made in this court with respect to any further distribution of matrimonial property. It is clear that this court is the more appropriate court to deal with questions of the law of trusts in Queensland or the title to land situated in Queensland. It is a particularly weighty consideration that the second proceeding seeks orders against a person who is not a party to the proceedings in Poland.

[14] While the Polish court has now established the date upon which matrimonial property issues will be decided, there is nothing in the material which would allow any sort of estimate as to how long the proceedings in Poland will take. The applicant seeks a stay for only three months but there is no reason to be confident that the Polish proceedings will have concluded by then.

[15] The Supreme Court cannot, in these circumstances, be regarded as a clearly inappropriate forum. Therefore, I dismiss the application for a stay.”

133. Although the appropriate test may not have been whether this court is a clearly inappropriate forum but whether these proceedings are vexatious or oppressive, that decision was not challenged. The evidence available to me that the Polish courts will not determine questions of title to Australian land and the presence of assets in Australia against which judgment can be enforced also seems to me to create a legitimate juridical advantage in favour of the plaintiff bringing proceedings in this jurisdiction.  Taking into account the fact that there has now been a nine day hearing of the evidence relevant to the case it seems to me to be axiomatic that the issues should be determined in this Court. 

134. These disputes are largely in respect of title to and the proceeds of sale of property located in Australia.  The evidence was also clear that the Polish courts could take the result of this litigation into account in shaping the orders they might make in respect of the general matrimonial property dispute on foot in that jurisdiction.  For those reasons I do not consider that these proceedings are oppressive or vexatious, in the sense outlined by the High Court in Voth and I shall not stay the actions.

Remedy

135. The plaintiff’s counsel submitted that I should impose a constructive trust on the relevant properties in favour of Mrs Piatek on the basis of the principles discussed in Muschinski v Dodds^[121] and Baumgartner v Baumgartner.^[122]  In Muschinski v Dodds Mason and Deane JJ recognised that a court could impose a constructive trust consequent upon the failure of a joint venture between the parties because it was unconscionable for the man to assert his legal entitlement without recognising the considerable financial input from the woman.  Deane J said:^[123]

“In circumstances where the parties neither foresaw nor attempted to provide for the double contingency of the premature collapse of both their personal relationship and their commercial venture, it is simply not to the point to say that the parties had framed that overall arrangement without attaching any condition or providing any safeguards specifically to meet the occurrence of that double contingency.  As has been seen, the relevant principle operates upon legal entitlement.  It is the assertion by Mr Dodds of his legal entitlement in the unforeseen circumstances which arose on the collapse of their relationship and planned venture which lies at the heart of the characterisation of his conduct as unconscionable.  Indeed, it is the very absence of any provision for legal defeasance or other specific and effective legal device to meet the particular circumstances which gives rise to the need to call in aid the principle of equity applicable to preclude the unconscionable assertion of legal rights in the particular class of case.”

136. That approach was affirmed by all members of the High Court in Baumgartner v Baumgartner.^[124]  In their joint judgment, Mason CJ, Wilson and Deane JJ, based their decision on the proposition that, after the relationship had failed in circumstances where the property had been financed in part through the pooled funds of the parties, the man’s assertion of entitlement to the exclusion of any interest in the woman was unconscionable conduct which attracted the intervention of equity and the imposition of a constructive trust.  Toohey J reasoned that the constructive trust could in the circumstances be based either on unconscionable conduct or on the principle of unjust enrichment.

137. These questions were also considered extensively by the Court of Appeal in Swettenham v Wild.^[125]  Based on those decisions the submissions for Mrs Piatek were that here there is no doubt on the admissions and the evidencethat the whole of the purchase price of the Paradise Point land and the houses constructed on that land came from the parties jointly owned funds in the United States of America and in Australia.  There is also no doubt that the land and holiday house were sold by Mr Piatek without Mrs Piatek’s knowledge and approval.

138. Nor, they submitted, was there any doubt that Mr Piatek sought to hide the proceeds of sale from Mrs Piatek and prevent her from obtaining any benefit from that sale. He was thwarted because the solicitors acting for Mr Piatek were able to ascertain that a vendor finance arrangement had been entered into by Mr Piatek with the purchaser, Mrs Byham, and that it was still possible to lodge a caveat with respect to the mortgage. That was done and the 2005 proceedings were commenced in support of the caveat. On about 8 August 2006 arrangements were made for Mrs Byham to pay the amount of $1.4 million which was the subject of the vendor finance arrangement into court. 

139. At that stage, the solicitors for Mrs Piatek were still unaware of the whereabouts of the balance of $1.7 million paid by Mrs Byham to Mr Piatek on the purchase of the subject land and holiday house. Mr Piatek’s solicitors, on his instructions, wrote a letter on 22 June 2006 with completely misleading and false allegations as to the disposition of those moneys.^[126]  Mrs Piatek only discovered the true situation when Mr Piatek’s brother, Eugene, provided evidence as to the disposition of the $1.625 million which Mr Piatek had received from Mrs Byham as the net proceeds of sale of the subject land and holiday house^.[127] 

140. The 2007 proceedings were commenced to secure Mrs Piatek’s interest in relation to the Sandstone Point land and the Caboolture land purchased by Mr Piatek in the name of Ms Siudy out of part of the proceeds of the subject land and holiday house. Caveats were lodged to protect Mrs Piatek’s interest and the 2007 proceedings were commenced in support of the caveat.

141. At that stage, Mrs Piatek also discovered the whereabouts of the Mercedes-Benz ML320 which was later impounded by order of Mackenzie J made on 1 February 2007. Mrs Piatek also became aware that $390,000.00 of the proceeds of sale of the Paradise Point land and holiday house had been directed through EMP to Alexpol and then onto the United States and used by Mr Piatek to purchase the Buckley property in Washington State in the name of Ms Siudy. She therefore commenced proceedings in the United States to secure her interest in that property and so far has been successful, although the matter is not yet concluded.

142. They submitted also that I should calculate her loss based on Mr Loots’ evidence which I have done with the exception of making an allowance for the $390,000 used to help purchase the Buckley property and craft orders to ensure that all of the available assets in Australia become her property as the equitable result in the circumstances of this case. Given Mr Piatek’s history of duplicity and lack of cooperation with the rules of this Court in the conduct of these proceedings and the fact that Mrs Piatek’s entitlements in respect of the property previously owned by her and Mr Piatek here exceed the value of the assets still here that does appeal to me as the equitable result in the circumstances. The same object may be achieved, also, by ordering the sale of the Sandstone Point and Caboolture land and offsetting the proceeds against the money judgment I believe should be entered against Mr Piatek. No order for sale was sought but a vesting order was.

143. Part of the relief sought in the 2005 action included that the defendant account to the plaintiff for her half interest in the moneys already received from the sale of the Paradise Point land. A declaration was also sought that the plaintiff was entitled, at all material times, to a one-half share in the funds deposited into the Commonwealth Bank joint accounts. In my view it is appropriate on the evidence before me also to state an account in respect of the deposits in the Commonwealth Bank accounts so that the account would total $2,172,764.21 as follows:

1. Half of the money paid into court on or about 8 August 2006: $700,000.00;

2. Half of the balance of sale proceeds of the subject land amounting to $812,977.86 less $390,000.00 in respect of the Buckley land: $422,977.86;

3. Half of the net sale proceeds of the Spirit of Poland: $144,000.00;

4. Half of the net deposits in Commonwealth Bank account 10234621: $669,859.80;

5. Half of the net deposits in Commonwealth Bank account 208490: $192,327.82;

6. Interest earned on bank accounts: $43,598.73.

144. Interest was sought at 10 per cent per annum on the total of the first three of those items, $1,266,977.86, from the settlement date for the sale of the Paradise Point land. It is appropriate to award interest.

145. To avoid double recovery by the plaintiff, however, it should be made clear that the value of the plaintiff’s interest in the Sandstone Point and Caboolture land should be offset against the sum owing on the judgment on the account I shall state. I shall, therefore, offset the value of the properties in the amount of $840,000.00 based on the evidence in the case.

146. Damages in conversion and/or detinue were also sought in the 2007 proceedings in respect of the value of the jewellery and clothing as well as for the detention or conversion of those items, the car and some furniture. Those figures total $90,311.53. The storage costs of the car were also claimed as $26,994.00 as at 10 May 2010 which continued to accrue at $33.00 per day. That total at the time of delivery of this judgment is $32,868.00. In those proceedings half the rental income derived from the Caboolture and Sandstone Point properties is also claimed, totalling at the time of trial $37,800.00. Declarations as to the title to those properties and the Mercedes-Benz are also sought as is interest which I discussed earlier.

147. Part of the relief claimed in the 2007 action included a claim for a declaration that the balance of the bank accounts referred to in paragraphs 22 and 24 of the Second Further Amended Statement of Claim are the property of the plaintiff. The bank statements revealed that all the balances except for one were nil. The only account which included any money was a Westpac account no 034640202140 containing $5,790.74 at 29 December 2008. On the evidence it seemed clear to me that the money should be treated as the plaintiff’s, having been derived from the sale of the Paradise Point land but it was not clear to me that there continued to be money in the account that was pursued by the plaintiff or that she wanted an order for payment of that sum to her. If it is ordered to be paid then it too should be offset against the judgment in the 2005 proceedings.

Orders

148. Consequently I will make the following orders subject to submissions by the parties as to their form and content. I shall also hear the parties as to costs.

149. In the 2005 action I shall:

1. Declare that the plaintiff was entitled, at all material times, to a one-half share in the proceeds of sale of land situated at 29 to 31, The Peninsula, Paradise Point in the State of Queensland more particularly described as Lot 163, Title Reference 50310684 SP 121939, Parish of Barrow, County of Ward, Local Government Gold Coast City Council (“the subject land”) and the holiday home situated on that land, and the motor vessel, Spirit of Poland, referred to in sub-paragraph 7(b)(vii) of the Third Further Amended Statement of Claim;

2. Declare that the plaintiff was entitled, at all material times, to a one-half share in the funds deposited into the Australian joint accounts referred to in sub-paragraphs 7(b)(iii) and 7(b)(iii)(A) of the Third Further Amended Statement of Claim;

3. Order that the defendant account to the plaintiff for her share of the said proceeds of sale and funds deposited into the Australian joint accounts by payment of the sum of $2,172,764.21;     

4. Give judgment for the plaintiff against the defendant for payment of the said sum of $2,172,764.21;

5. Order, in part satisfaction of the said judgment and of the judgment in Action BS654 of 2007 together with interest and costs, that the amount of $1.4 million, paid into Court on or about 8 August 2006, be paid out to the plaintiff together with all accretions;

6. Further order, in part satisfaction of the said judgment and of the judgment in Action BS654 of 2007 together with interest and costs, that the sum of $840,000.00 representing the value of the Sandstone Point land and Caboolture land, the subject of contemporaneous orders in Action BS654 of 2007, be applied in reduction of the amounts owed pursuant to the said judgments;

7. Order that the defendant pay interest on $1,266,977.86 of the said judgment sum at the rate of 10 per cent per annum pursuant to the Supreme Court Act 1995 from 21 March 2005 until today. 

150. In the 2007 action I shall:

1. Declare that the second defendant holds her interest in the house and land situated at 10 Cremorne Court, Sandstone Point in the State of Queensland, more particularly described as lot 834 on SP 163330, County of Toorbul, Parish of Canning, being the land more particularly described on Title Reference No 50532226 (“the Sandstone Point land”) on trust for the plaintiff;

2. Declare that the second defendant holds her interest in the house and land situated at 31 Kingma Crescent, Caboolture in the State of Queensland more particularly described as Lot 133 on SP 163119 County of Canning, Parish of Canning being land more particularly described on Title Reference 50486143 (“the Caboolture land”) on trust for the plaintiff; 

3. Order, pursuant to section 82(2)(e) and/or section 82(l) of the Trusts Act 1973 (Qld) (“the Trusts Act”) and sub-section 90(1) of the Trusts Act that the Sandstone Point land and the Caboolture land vest in the applicant;

4. Direct the Registrar of Titles for the State of Queensland to execute any necessary document requiring execution to give effect to the transfer of title in the Sandstone Point land and the Caboolture land from the second defendant to the applicant;

5. Declare that the balance of the bank accounts referred to in paragraphs 22 and 24 of the Second Further Amended Statement of Claim are the property of the plaintiff;

6. Order that any balance remaining in the said bank accounts be paid by the second defendant to the plaintiff and applied in part satisfaction of this judgment and of the judgment in Action BS3439 of 2005 together with interest and costs;

7. Declare that the Mercedes-Benz motor vehicle 2001 model ML320 Station Wagon, former registered No 425-GAK (“the said motor vehicle”) is owned by the plaintiff;

8. Order that the defendants deliver up possession of the said motor vehicle to the plaintiff forthwith;

9. Order that the defendants pay the plaintiff $32,868.00 as damages in respect of the storage costs incurred by the plaintiff with respect to the said motor vehicle;

10. Declare that certain items of jewellery, more particularly described in paragraph 33 of the Second Further Amended Statement of Claim, are the property of the plaintiff;

11. Declare that certain items of clothing and personal items, more particularly described in paragraph 33 of the Second Further Amended Statement of Claim, are the property of the plaintiff;

12. Order that the defendants pay the plaintiff $90,311.53 as damages in respect of the unlawful detention and/or conversion of the said motor vehicle, jewellery, clothing and personal items referred to in paragraphs 33 to 38 of the Second Further Amended Statement of Claim;

13. Declare that the plaintiff is entitled to a one half share of the rent received with respect to the Sandstone Point land and the Caboolture land;

14. Order that the defendants pay the plaintiff an amount equivalent to a one half share of the rent received with respect to the Sandstone Point land and the Caboolture land;

15. Order that the defendants pay interest to the plaintiff pursuant to the Supreme Court Act 1995 at the rate of 10 per cent per annum in respect of the damages in the sum of $90,311.53 ordered to be paid by order 12 herein from 21 March 2005 until today. 

16. Order that the defendants pay interest to the plaintiff pursuant to the Supreme Court Act 1995 at the rate of 5 per cent per annum in respect of the damages in the sum of $32,868.00 ordered to be paid by order 9 herein from 1 February 2007 until today.

17. Order that the defendants pay interest to the plaintiff pursuant to the Supreme Court Act 1995 at the rate of 5 per cent per annum in respect of the order to pay one half share of the rent received with respect to the Sandstone Point land and the Caboolture land made in order 14 herein from 30 November 2007 until today.