Robinson -v- Thompson [2007] NSWSC 1148

Reported Decision : (2007) DFC 95-409

New South Wales Supreme Court

CITATION : Robinson -v- Thompson [2007] NSWSC 1148

HEARING DATE(S) : 29, 30 and 31 January 2007 (written submissions to 4 May 2007)

JUDGMENT DATE : 17 October 2007

JUDGMENT OF : Associate Justice McLaughlin

DECISION : 1. I order that the Defendant pay to the Plaintiff the sum of $30,000, such sum to bear interest at Supreme Court rates if not paid on or before 17 November 2007. 2. I order that the Defendant pay the costs of the Plaintiff. 3. The exhibits may be returned.

CATCHWORDS : Family Law. Relationship between parties. Whether a de facto relationship or a close personal relationship. Period of relationship. Respective contributions of parties. Acquisition of various pieces of real property. Adjustment of interests of parties in property.

LEGISLATION CITED : Property (Relationships) Act 1984

Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 CASES CITED : Davey v Lee (1990) 13 FamLR 688 Chanter v Catts (2005) 65 NSWLR 360 Bilous v Mudaliar [2006] NSWCA 38

PARTIES : Raymond Kenneth Robinson (Plaintiff) Peter Kenneth Thompson (Defendant)

FILE NUMBER(S) : SC 5662 of 2005

COUNSEL : Ms J. Pentelow (Plaintiff) Mr R. Greenaway (Defendant)

SOLICITORS : Friend & Co. (Plaintiff) Bull, Son & Schmidt (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 17 October 2007

5662 of 2005 RAYMOND KENNETH ROBINSON –v- PETER KENNETH THOMPSON JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 The proceedings were instituted by statement of claim filed by the Plaintiff, Raymond Kenneth Robinson, on 3 June 2004 in the District Court of New South Wales at Sydney. The proceedings were later removed into the Supreme Court. Subsequently, the statement of claim was amended on two occasions, the current pleading on behalf of the Plaintiff being the amended statement of claim filed on 6 March 2006. A defence to that pleading was filed by the Defendant, Peter Kenneth Thompson, on 29 January 2007, at the outset of the hearing. 3 By the foregoing amended statement of claim the Plaintiff not only seeks the adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act, but also asserts circumstances in the nature of a constructive trust (of the kind recognised by the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583, and Baumgartner v Baumgartner (1987) 164 CLR 137). In this regard it should be recorded that on 29 January 2007, the first day of the hearing, Young CJ in Eq by consent ordered that all issues in the proceedings be tried by an Associate Judge. 4 It should also here be recorded that, although the Defendant filed a cross-claim on 11 October 2004, he filed a discontinuance of that cross-claim on 9 June 2005. 5 It was the case for the Plaintiff that he and the Defendant lived in a de facto relationship from May 1983 until mid-2002. 6 Although in his earlier pleadings the Defendant denied that he had ever been in a de facto relationship with the Plaintiff, in his defence to the amended statement of claim, filed on 29 January 2007, the Defendant states, in paragraph 4 (in response to paragraph 4 in the amended statement of claim, alleging, inter alia, that the parties resided together in a bona fide de facto relationship from May 1983 until June 2002), The defendant denies the contents of this paragraph. The defendant admits that the parties both lived at Unit 13, 16 Alma Road, Padstow Heights, from mid 1984, and lived in a close personal relationship with the plaintiff until December 2001. 7 At the time when they first met in the early 1980s each of the Plaintiff and the Defendant was employed as a flight attendant by Qantas. The Plaintiff, who was born on 26 February 1944 and is presently aged 63, was then residing in a townhouse which he owned, situate at and known as Unit 13, 16 Alma Road, Padstow Heights ("the Alma Road property"). 8 The Defendant, who was born on 24 June 1947 and is presently aged 60, was at that time married, although experiencing marital problems with his wife. The parties commenced a sexual relationship in the early 1980s (the date was in dispute). Subsequently, in about May 1983 the Defendant, who by that time had separated from his wife and was paying maintenance for his children, moved into residence with the Plaintiff in the Alma Road property. That property consisted of a townhouse which was owned by the Plaintiff, subject to a mortgage to the State Building Society. At the time when the Defendant moved into residence the mortgage instalments were $292 a month. The Plaintiff paid the entirety of those mortgage instalments and also, according to the Plaintiff, paid all household expenses and outgoings during the period from May 1983 until June 1985 whilst the parties resided together in the Alma Road property. According to the Plaintiff, throughout that period the Defendant paid no rent or board and made no contribution towards the household expenses. The Plaintiff said that the Defendant, because of the child maintenance he was paying, could not afford to do so. 9 In January 1985 the Plaintiff purchased a house property at 28 Bushland Drive, Padstow Heights ("the Bushland Drive property"). The purchase price of $108,000 was funded by a borrowing of $104,000 which the Plaintiff made from the Qantas Staff Credit Union and which was secured by mortgage over the Bushland Drive property. In addition, the Plaintiff personally paid the sum of $10,800 by way of deposit on the purchase, and also paid $6384 for expenses associated with the purchase (including $4384 for legal costs). Part of the borrowing of $104,000, being an amount of $6800, was spent by the Plaintiff on immediate renovations to the Bushland Drive property. The Plaintiff paid all instalments on the housing loan, which was of a variable interest rate. In January 1985 the repayments were at the rate of $1212 a month. 10 The parties moved into residence in the Bushland Drive property in February 1985, and lived there together for 11 years, until 1996. 11 Several months after moving into the Bushland Drive property the Plaintiff in June 1985 sold the Alma Road property, receiving (after discharge of the outstanding mortgage indebtedness thereon) the net sum of $49,649. That money was used to reduce the amount outstanding on the Plaintiff's mortgage on the Bushland Drive property. 12 The Plaintiff remained in employment with Qantas until 1989, when he took early retirement, on account of ill health. In March and June 1989 the Plaintiff received superannuation payments totalling $111,421 from the Qantas Superannuation Fund. Those superannuation payments were used by the Plaintiff to reduce his mortgage debt on the Bushland Drive property, with the result that there remained a balance of $11,038 owing upon that property. 13 On 21 April 1986 the parties entered into a deed. Whilst the parties were now in dispute as to the reasons for the execution of that deed, nevertheless, the recitals thereto suggest that they wished to acknowledge the Plaintiff's financial contributions to the purchase of the Bushland Drive property, and the "non-financial" contributions of the Defendant. It would seem that the provisions of the deed regarding payment of outgoings (including mortgage payments) in the proportion of 66 per cent by the Plaintiff and 34 per cent by the Defendant were not enforced. The Plaintiff, as I have recorded, made the entirety of the mortgage payments on the Bushland Drive property. 14 After the Plaintiff's retirement from employment in 1989 the mortgage on the Bushland Drive property was refinanced on three separate occasions, to enable the parties to continue with the refurbishment and renovation of that property. Since the Plaintiff was then no longer employed by Qantas he was no longer able to avail himself of any borrowings from the Qantas Staff Credit Union. Accordingly, the refinancing of the mortgage and the additional borrowings were effected in the name of the Defendant. However, the Plaintiff continued to make the repayments in respect to those borrowings. 15 For some time after he ceased employment with Qantas in 1988 the Plaintiff received accident or sickness benefits, until 1990. From 1990 until about 1992 he had no income at all, and he then went onto a disability pension, which has continued to the present time (although, for a period of about six months in 1999-2000 the Plaintiff was in receipt of unemployment benefits, and thereafter his disability pension was reinstated). Although details of the Plaintiff's income from those social security payments in the period after he ceased employment with Qantas were not placed before the Court with any particularity, he agreed under cross-examination that it was certainly less than $252 a week (that being the amount which he was receiving from Centrelink in 2004). 16 Nevertheless, the Plaintiff was enabled to continue making the mortgage repayments on the Bushland Drive property as a result of his receiving during the period from 1988 until 1990 the sum of $52,000 a year from a loss of income policy which he had taken out with what is now AON Insurance. Those payments were applied to mortgage repayments on the Bushland Drive property and to household expenses. In addition, the Plaintiff also in the period 1990 –1991 received compensation in a total amount of $15,000 for a workplace injury which he had sustained whilst employed by Qantas. That sum was also used towards the living and household expenses of the parties. 17 In the early 1990s the parties decided to depart Sydney and to remove to South Australia. In February 1992 they purchased, in the name of the Plaintiff, land at Aberfoyle Park in South Australia for about $81,000, most of that sum being raised by way of a further variation of the mortgage on the Bushland Drive property. A further loan was taken out in the name of the Defendant in 1994, again the Bushland Drive property being the security. That property was sold in July 1996 for $290,000. The proceeds of sale were used to discharge the outstanding mortgage on the Bushland Drive property (in an amount of almost $178,000), to pay various debts (including the Defendant's Mastercard debt and $6420 to the Australian Taxation Office in respect to an indebtedness of the Plaintiff), the purchase of a Mitsubishi Verada motor vehicle (for $23,299 and the trade in value of the motor vehicle then owned by the parties) and other furniture and furnishings for the Aberfoyle Park residence, as well as for removal expenses. 18 The house property which was constructed for the parties on the land at Aberfoyle Park, was financed from the proceeds of a mortgage raised on that property in the joint names of the parties in an amount of about $243,000. The construction of that residence was completed in late 1998, and the parties entered into residence therein on Christmas Day of that year. In the interim the parties had resided in rented accommodation in Adelaide (sequentially in two properties). Shortly before their departure from Sydney one of the Defendant's sons had resided with the parties in the Bushland Drive property for a period of several weeks. Throughout the period whilst the parties were residing in rented accommodation in Adelaide the Defendant's two sons lived with them, and both continued to reside with them when the parties moved into the residence at Aberfoyle Park. At that time the Defendant's son Nicholas was aged 22 and his son Jonathon was aged 16. 19 The Defendant met the entirety of the mortgage payments on the Aberfoyle Park property, since the Plaintiff was in receipt of a very small income (essentially, social security payments from Centrelink) during the period whilst the parties were residing in South Australia. The totality of the net proceeds of sale of the Bushland Drive property was expended on meeting various debts of the parties, purchasing motor vehicles, and acquiring furniture and furnishings for the new residence. 20 The Defendant's younger son Jonathon was still at school for most of the period while the parties were living together in South Australia. It was the evidence of the Defendant that Nicholas and Jonathon paid board while they were residing with the parties. 21 Whilst they were residing in the Aberfoyle Park property the parties traded in the Mitsubishi Verada station wagon for $15,000 and purchased a Volvo 850 motor vehicle for $38,000, the outstanding balance being raised by way of a joint loan being taken out with the Savings and Loan Credit Union (SA) Limited. 22 The Defendant departed from the Aberfoyle Park property in May 2002, and subsequently sent an e-mail to the Plaintiff in early June of that year, stating he would not be returning. It will be appreciated that throughout the period of the relationship the Defendant continued his employment as a flight attendant with Qantas, and was thus regularly away from home for varying periods of up to ten days at a time. 23 Considerable evidence was given by each of the parties concerning their respective contributions during the course of the relationship. It is not necessary for me to make separate findings concerning each of the alleged contributions. Suffice it so say that I am in agreement with the assertion of the Plaintiff that throughout the period whilst the parties were living together the Plaintiff essentially attended to indoor activities whilst the Defendant essentially attended to outdoor activities, (including some construction work, maintenance and gardening). 24 At the termination of the relationship the assets of the parties consisted of their conjoint interest in the Aberfoyle Park property and their joint ownership of the furniture and furnishings therein, as well as their respective personal effects and possessions. In addition, the Defendant had a superannuation entitlement as a result of his employment with Qantas. 25 After the departure of the Defendant from the Aberfoyle Park property and his e-mail to the Plaintiff in early June 2002, the Plaintiff continued to reside in the Aberfoyle Park property and retained the Volvo motor vehicle. For a short period the Defendant continued to meet the mortgage payments on that property. Since the Plaintiff could not afford to make the mortgage payments, he and the Defendant agreed to sell the Aberfoyle Park property. It was sold in August 2003 for $380,000. After discharge of the mortgage and payment of various joint debts an amount of $103,500 was paid into an interest bearing account in the joint names of the parties. The amount held in that account had, in consequence of interest earned thereon, increased somewhat by the time of the hearing. 26 It is in the light of the foregoing facts and circumstances that the Court must approach the claim of the Plaintiff.