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Cressy

v Johnson (No 3) [2009] VSC 52 (25 February 2009)

Last Updated: 25 February 2009

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL AND EQUITY DIVISION

Not Restricted

No. 9665 of 2007 BETWEEN PIPPIN PATRICIA and HAROLD JAMES JOHNSON AND BETWEEN HAROLD JAMES JOHNSON and PIPPIN PATRICIA and DAVID HANLON and HARWOOD ANDREWS PTY LTD (ABN 98 076 868 034) Third Defendant by Counterclaim Second Defendant by Counterclaim CRESSY First Defendant by Counterclaim Plaintiff by Counterclaim Defendant CRESSY Plaintiff

--JUDGE: WHERE HELD: DATES OF HEARING: DATE OF JUDGMENT: CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: KAYE J Melbourne 2-5, 8-12 December 2008; 5 February 2009; 9-11, 13, 16, 17 February 2009 25 February 2009 Cressy v Johnson (No. 3) [2009] VSC 52 --PROPERTY – Application for adjustment of property interests under Part IX of the Property Law Act 1958 (Vic) – Whether parties in a domestic relationship – Assessing contributions – Financial and non-financial contributions – Constructive trust – Counterclaims for damages for trespass to goods, lodging caveat and abuse of process. --APPEARANCES: For the Plaintiff and First Defendant by Counterclaim Counsel Mr G Devries Solicitors Berry Family Law

For the Defendant and Plaintiff by Mr H J Johnson appeared in Counterclaim person For the Second and Third Defendants by Counterclaim Ms R Sofroniou Lander & Rogers

TABLE OF CONTENTS HIS HONOUR: 1 In these proceedings, the plaintiff makes a claim against the defendant, under Part 9 of the Property Law Act 1958 (Vic), arising from a domestic relationship which she alleges she had with the defendant between September 1998 and May 2007. The plaintiff’s claim is based on the acquisition of a number of properties in the name of the defendant during and after the conclusion of the relationship. Alternatively, the plaintiff claims that the defendant holds the properties, purchased in his name, on a constructive trust on behalf of herself and the defendant. The two claims by the plaintiff are made on the basis of contributions, both financial and nonfinancial, which the plaintiff alleges that she made to the relationship and to the properties for the benefit of herself and the defendant. 2 In particular, the plaintiff’s claims are based on the acquisition by the defendant of seven properties during or at the conclusion of the relationship. Those properties are as follows: (1) 2 Dorrington Street, Point Cook. (2) 10 Hawkeshurst Court, Hoppers Crossing.

(3) 12 Lisa Court, Hoppers Crossing. (4) 7 Inverloch Drive, Point Cook. (5) 166 Queen Street, Altona. (6) Unit 9, 2 Gibson Street, East Caulfield. (7) 7A Endeavour Street, Torquay. 3 In response to the plaintiff’s claim, the defendant has put in issue the existence of the domestic relationship between himself and the plaintiff, and the duration of any such relationship which might have existed between them. He has also put in issue the plaintiff’s allegations as to the contributions which she says she had made to the relationship and to the properties. In addition, the defendant has brought a counterclaim against the plaintiff. He joined David Hanlon, a solicitor as the second defendant to the counterclaim, and Harwood Andrews Pty Ltd (“Harwood Andrews”), a firm of solicitors of which Mr Hanlon is a member, as the third defendant to the counterclaim. 4 By his counterclaim the defendant has pleaded four causes of action, namely – (1) A cause of action based on an agreement which he says he entered into with the plaintiff for the occupation by the plaintiff of the Point Cook properties between March 2003 and June 2006, and the Altona property between June 2006 and November 2007. The defendant claims damages against the plaintiff arising out of alleged fraudulent representations by the plaintiff which he claims induced him to enter into the agreement, and, alternatively, on alleged breaches by the plaintiff of the terms of the agreement. (2) In paragraphs 15 to 21 of the counterclaim, the defendant claims damages against the plaintiff arising out of a caveat number AF085952B lodged by the plaintiff on 8 May 2007 over each of the properties (except the Torquay property) referred to in paragraph 2 above. (3) In paragraphs 22 to 26 of the counterclaim, the defendant claimed damages against Mr Hanlon, and further alternatively Harwood Andrews, and (it appears) against the plaintiff, arising out of a caveat number AF066328D lodged by Harwood Andrews on 9 May 2007 over the title to the Altona property. (4) In paragraphs 27 to 33 of the counterclaim, the defendant claims that between January 1995 and November 2007 the plaintiff stole personal and financial records of the defendant, two mobile phones of the defendant, and other items belonging to the defendant. He also claimed that Mr Hanlon, and further alternatively Harwood Andrews, were “intimately involved” in burglaries and thefts committed by the plaintiff on 16 November 2007. It is further alleged that Mr Hanlon and Harwood Andrews acted maliciously in subpoenaing the documents, recovered by the Victorian police from the plaintiff, and causing them to be lodged in the Federal Magistrates’ Court of Melbourne. The course of proceedings 5 The trial of the proceeding commenced before me on 2 December 2008. The plaintiff was represented by Mr G Devries of counsel. The defendant appeared in person. Ms R Sofroniou of counsel represented the second and third defendants by counterclaim. 6 At the outset of the proceeding, Mr Devries submitted that I should appoint a litigation guardian under Rule 15.01 of the Rules of the Supreme Court to conduct the proceeding on behalf of the defendant. He called Mr D

List, a clinical psychologist, and tendered some documents, in support of that application. In response, the defendant called Ms M Love, a psychologist, who had examined the defendant in January 2008. After hearing that evidence, I gave an ex tempore ruling, in which I decided not to accede to the unusual application made by Mr Devries. Having had the opportunity to observe the defendant during the long trial of this proceeding, I have remained of the view which I then reached, namely, that the defendant was not so affected by any relevant disability as to justify the Court taking the extraordinary step of appointing a litigation guardian to act on his behalf, particularly where the application for that appointment was made by an opposing party, and in circumstances in which it was opposed by the defendant. 7 The defendant was admitted to practice as a barrister and solicitor in 1990, and since that date has conducted practice as a solicitor.[1] He told me, on a number of occasions, that he had not conducted any litigation on behalf of his clients. Nevertheless, as I frequently observed during the trial, the defendant displayed a number of skills as an advocate. He told me that he had read about the principle in Browne v Dunn[2], and, in conformity with that principle, he put to the plaintiff, in cross-examination, a number of matters about which he subsequently gave evidence. He exhibited a ready appreciation of the rule against the admission of hearsay evidence. He adduced evidence from a number of witnesses without, generally, asking them leading questions. When the principle in Jones v Dunkel[3] was drawn to his attention, and I explained it to him, he readily understood it. I gained the impression that the defendant, at the least, is a very intelligent person. He has a quick and incisive intellect. In fact, for a person who professes never to have practised in Court before, he displayed a number of skills of a natural advocate. 8 On the other hand, throughout the trial, the defendant deliberately sought to introduce into the case a number of issues which were irrelevant to those pleaded in the action. Although, at one stage, he protested that I had the power to dispense with pleadings, on the other hand, on the second day of the proceeding, he objected to the plaintiff amending her statement of claim, stating “I had understood that the time for amending pleadings closed some weeks before the trial date”.[4] The defendant clearly understood the issues which were pleaded. Nevertheless, time and again he sought to expand the ambit of the proceeding well beyond those issues. He also indulged in tactics, frequently at the beginning of the day, which were designed to frustrate the case, and to delay the hearing of it. On a number of occasions, he made applications and long winded speeches about matters which were irrelevant to the proceeding. I cautioned him, repeatedly, that it was not in his interests to indulge in those tactics. Time and again, I reminded the defendant of the central issues in the case, which he was to address. I gained the clear impression that the defendant was seeking to wear me down, in order that he might seize control of the proceeding, and thereby run whichever issues he desired. I expressly warned the defendant that I was alert to that tactic, and that he was not capable of distracting me from the issues which I was to determine. 9 In particular, it was a constant refrain by the defendant, throughout the trial, that this proceeding should be combined with an entirely different proceeding instituted against him by Trust Company Fiduciary Services Limited (formerly known as Permanent Trustee Company Limited) in Proceeding No. 9263 of 2008. At the outset of the proceeding, I ruled against the submission of the defendant that the two proceedings should be so combined. In the other proceeding, Trust Company Fiduciary Services Limited has sued the defendant as mortgagee of the property at Dorrington Street, Point Cook. In response, the defendant delivered a counterclaim directed, not only to Trust Company Fiduciary Services Limited, but also to nine other different defendants to counterclaim. They include a member of counsel who had previously represented the plaintiff in the current proceedings, Mr Devries who represents the plaintiff in the current proceedings, a psychologist, the Minister for Human Services, the Federal Magistrate who has heard proceedings between the plaintiff and the defendant in the Family Court, the Legal Services Commissioner, and the Attorney-General for the State of Victoria. The counterclaim comprises 156 pages of florid allegations. Unsurprisingly, I ruled that the two proceedings should not be combined. They involve different parties. The other proceeding has not yet been set down for trial. Notwithstanding my ruling, the defendant constantly disregarded it, and railed against it throughout the case. He wasted a substantial amount of time in Court attempting to raise issues in the current proceedings which, if they

have any relevance at all (on which I express no view), seem to arise out of the counterclaim in the other proceedings. 10 The plaintiff’s case commenced on 2 December 2008. Mr Devries closed his case on 5 December. On the same date, the defendant called four witnesses on his behalf, and commenced his own evidence. Ultimately, his evidence in chief proceeded for two days. It was given in an orderly, methodical and logical manner. The defendant has an almost obsessive mind for detail. On the other hand, the defendant, during his evidence, again indulged in the tactics to which I have just referred, namely, seeking to expand the areas at large in the case. After Mr Devries cross-examined the defendant, he gave lengthy evidence in re-examination. On Friday, 12 December he called one further witness. In the meantime, Ms Sofroniou had foreshadowed making a no case submission at the conclusion of the defendant’s case. She had provided to the defendant a ruling which I had made in a previous case, which outlined some of the principles relevant to such an application. On Friday 12 December, after the defendant called his one witness, he then proceeded to indulge in what I then described as a tactic of filibustering. At one stage he foreshadowed calling a large number of additional witnesses. When he told me the topics which he wished to address with those witnesses, I indicated that it seemed that those witnesses would not be relevant to the issues in the case. Nevertheless, it did seem to me that three of the witnesses, who the defendant stated that he wished to call, may give evidence relevant to the issues between the defendant and the other parties in the case. Accordingly, I acceded to the application by the defendant that the matter be adjourned to 9 February 2009, in order to enable the defendant to have those witnesses available. 11 During the recess, the defendant subpoenaed a large number of persons to court to give evidence. A number of those persons applied to me to set aside the subpoenas. I acceded to those applications, as it was clear that the matters which the defendant intended to elicit from those persons were irrelevant to the issues contained in the pleadings. In the upshot, and after further filibustering by the defendant, he called two further witnesses, and gave additional evidence himself. After he closed his case on 10 February, Ms Sofroniou submitted that there was no case for her clients to answer on the counterclaim against them. On 11 February, I delivered a ruling, upholding Ms Sofroniou’s submission. Accordingly, I dismissed the defendant’s cross-claim against Mr Hanlon and Harwood Andrews.[5] In a further ruling, I ordered that the defendant pay the costs of Mr Hanlon and Harwood Andrews on a solicitor-client basis [6]. 12 After I had made orders dismissing the counterclaim against Mr Hanlon and Harwood Andrews, the defendant then made a lengthy final address to me, in circumstances which I shall describe later in these reasons. His final address took approximately one and a half days of the trial. At the conclusion of his final address, he sought my leave to withdraw from the case. Notwithstanding my advice to him that he should stay, and that I would be amenable to permitting him to make a reply to Mr Devries’ final address, the defendant departed the Court. He did not return to it for the remainder of the proceedings. However, I note that, pursuant to a direction which I gave at the commencement of the trial, the transcript in the case was, and remained, available to the defendant, including the transcript of Mr Devries’ final address. Part 9 of the Property Law Act 1958 13 The primary focus of the proceeding was on the plaintiff’s claim under Part 9 of the Property Law Act. That claim is also relevant to the counterclaim of the defendant based on the caveat lodged by the plaintiff over the six properties. I shall deal with that aspect of the proceeding first before returning to the first and fourth causes of action pleaded by the defendant in his counterclaim. 14 It is useful to commence by setting out the key relevant provisions in Part 9 of the Property Law Act. Section 285(1) of that Act provides:

“(1) A Court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to — (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partners or to the welfare of the family constituted by the partners and one or more of the following — (i) a child of the partner; (ii) a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and (c) any written agreement entered into by the domestic partners.” 15 Section 282 provides that, except with the leave of the Court, an application for an order under Part 9 must be made within two years after the day on which the relationship ended. Section 281(1) provides that, subject to subsection (2), a Court may only make an order, if it is satisfied that the domestic partners lived together in a domestic relationship for a period of at least two years. Section 275(1) defines “domestic relationship” to mean — “The relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis (irrespective of gender).” 16 Section 275(2) specifies a number of factors which the Court takes into account in determining whether a domestic relationship existed between the parties. I shall return to that provision later in this judgment. Introduction to factual issues 17 Although the parties are in conflict over a number of matters in the case, there are some common threads to the evidence. It is common ground that a personal relationship, of some sort, commenced between the plaintiff and the defendant in late 1998. The circumstances in which the relationship commenced are in dispute. However, it appears that, at least at the outset, it was a romantic relationship. It is also common ground that whatever the nature of the relationship, it came to an end in April or May 2007. There was one child of the relationship, a daughter, Illyana Patricia Cressy , born 9 June 2000. 18 The plaintiff’s case is that the parties commenced to cohabit from late 1998. From that time until 2001, she claims that they lived together at two rented premises in Geelong. The defendant denies that that is the case. The defendant claims that, during that period, he did move to rented premises in Geelong, but lived separately from the plaintiff. It is common ground that the parties did live together at rented premises in South Yarra between 2001 and March 2003. During that time the property at Dorrington Street, Point Cook was purchased as vacant land in the name of the defendant. A house was constructed on it. It is also common ground that the plaintiff and the defendant moved in together to the Dorrington Street property when the construction of it was completed. However, the defendant claims that, after a few months, he moved out, and commenced to live in an apartment in Bourke Street, Melbourne, at which he also had his offices. The plaintiff claims that the defendant continued to live with her at the Dorrington Street address. She also claims that in 2006 they then moved together to the address at 166 Queen Street, Altona, which was purchased in the name of the defendant. That evidence is

disputed by the defendant. It is common ground that the seven properties, to which I have referred, were all purchased in the name of the defendant. Further, the defendant was the sole borrower in respect of the loans for the acquisition of those properties, and for the construction of houses on the properties at Dorrington Street, Lisa Court and Hawkeshurst Court. There is an issue as to whether the plaintiff made any financial contribution to the payment of the deposits for those properties. It is common ground that, otherwise, the defendant made all the payments in respect of the loans secured over the properties. The plaintiff’s evidence 19 The plaintiff met the defendant in the latter part of 1998. At that time the plaintiff was living in rented premises at Illouera Avenue, Grovedale. Those premises were made available to the plaintiff by the Salvation Army as crisis accommodation. The plaintiff was then a young single mother with a son, Treece aged 3½, and a second infant son, Skye, who was a few months old. The plaintiff’s mother, Gail Cressy , also lived with the plaintiff. Gail Cressy at that stage had a daughter (Rose) who is a half sister to the plaintiff. Subsequently, Gail Cressy gave birth to a second daughter, Grace, in mid 1999. At that time the defendant was a solicitor employed by a large Melbourne firm of solicitors. He was married and had three children. According to the plaintiff, when she met the defendant, he was then very unhappy in his marriage. 20 The plaintiff stated that shortly after they met, they commenced to date together. Within about six weeks, the defendant left his wife and commenced to live with the plaintiff at the Illeura Avenue address. The plaintiff was then supporting herself by selling handmade jewellery and crafts at local markets. That income was supplemented by a pension. The plaintiff states that she did all of the housekeeping work at the Illeura Avenue address. On occasion, the defendant’s three children would stay with them at that address. 21 The plaintiff further gave evidence that, in 1999, she and the defendant moved to rented premises at Gheringhap Street, Geelong, together with the plaintiff’s two children. The lease was in the name of the defendant. They lived together at that address for about 12 months. During that time, the plaintiff commenced an art gallery fashion boutique business called The Gallery of Artemis. The defendant had commenced working for the Barwon Water Authority. The plaintiff states that she undertook all of the housekeeping and upkeep of the family and the house at Gheringhap Street. 22 In 2001, the plaintiff and the defendant moved to rented premises at Nicholson Street, South Yarra. Those premises were also rented in the name of the defendant. The plaintiff stated that she did all of the parenting of Illyana and her two sons. At the same time she commenced a consultancy business. The defendant commenced work for Prime Life Corporation, and also continued to work with the Barwon Water Authority. The plaintiff stated that the income which she derived from her business went to the household and the family. She commenced work as a sex worker part-time in 2002, in which capacity she earned $40,000 per annum. During that time she was also studying part-time. In 2006, she completed her studies and worked full-time as a sex worker, in which capacity she earned between $70,000 and $100,000 per annum. 23 The plaintiff stated that both she and the defendant located the property at Dorrington Street, Point Cook. They selected the land and jointly chose a Metricon house to build on the land. She stated that she and the defendant together chose the colourings, fittings and fixtures for the house. The property was purchased in the defendant’s name. Nearly the whole of the purchase price, including for both the land and the house, was borrowed, but the defendant and the plaintiff paid a small deposit from their joint funds. After the property was built there were a number of adjustments which needed to be made. The plaintiff dealt with the maintenance supervisor appointed to attend to defects arising during the maintenance period. The plaintiff stated that she also purchased and installed curtains, towel rails and fittings, that she painted the feature wall to the house, and that she and her mother rendered the external brickwork of the house. She also claimed that she did all of the

landscaping of the garden including building rockery gardens, planting vegetable gardens, planting fruit trees and the like. 24 The plaintiff stated that she and the defendant resided at the Dorrington Street property for three years. The defendant’s children stayed with them at that property every second weekend. The plaintiff looked after all of the children. During that time, the defendant opened his own practice in Apartment 909, 166 Bourke Street, Melbourne. He also had a home office at the Dorrington Street property at which he worked. 25 The plaintiff stated that she and the defendant then moved to the property at 166 Queen Street, Altona in about 2006. The plaintiff had negotiated the price of the house with the estate agent. A deposit of $50,000 was paid out of the joint funds of the plaintiff and the defendant, and the balance of the purchase price was borrowed. The property was purchased in the name of the defendant. The property was badly run down and required substantial renovation. The plaintiff stated that she carried out a large amount of the renovation works. She removed the carpets and pulled out the timber which covered the floorboards. She hired a tradesman to sand and polish the floorboards. She also purchased and paid for the installation of a new kitchen at a cost of $30,000. She paid an electrician to remove and replace the electrical lights. The plaintiff removed all the old curtains and installed new curtains and curtain rails. The plaintiff remained in the Altona property until July 2008. At that time, pursuant to the order of Hansen J made on 16 July 2008, the plaintiff and her children commenced to reside at the Dorrington Street premises. 26 Shortly after the purchase of the Dorrington Street property, the Lisa Court and Hawkeshurst Court properties were purchased in the name of the defendant. Both properties were purchased as a house and land package from Devine Pioneer Homes. The plaintiff stated that she gave the defendant about $3,000 or $4,000 towards payment of the deposits for both houses. Each property was purchased in the name of the defendant. The loans in respect of them were in the name of the defendant. When the Lisa Court property was completed, the plaintiff’s mother, and her two children, resided in it. The plaintiff did a small amount of gardening on that property and helped with some paving. The plaintiff’s mother paid some rent, which was insufficient to meet the mortgage payments. The defendant paid the mortgage payments in respect of that property and the Hawkeshurst Court property. 27 The plaintiff stated that she twice landscaped the Hawkeshurst Court property. She initially installed a garden before the house was leased. However, the first tenants to the property did not look after it properly, and as a result a number of plants died. In addition, the tenants damaged the interior of the house. Accordingly, the plaintiff replanted the garden. She also plastered the walls and organised for Carpet Court to replace the stained carpet. The plaintiff stated that she paid for those repairs. 28 While the plaintiff and the defendant were living at Dorrington Street, the plaintiff noticed that the adjoining property at the rear was for sale. Accordingly, that property, 7 Inverloch Drive, Point Cook, was purchased in the name of the defendant. The purchase price was borrowed, and added to the mortgage secured over the Dorrington Street property. 29 The plaintiff also gave evidence that while she and defendant were living together, the defendant purchased a property at Unit 9, 2 Gibson Street, Caulfield East. The plaintiff did not have any involvement in the purchase of that property or in any work carried out to it. At the conclusion of their relationship, the plaintiff’s solicitors placed a caveat on that property on her behalf. The defendant wrote to the plaintiff’s solicitors, requesting that the caveat be removed, to enable the property to be sold. The plaintiff agreed to that request, and the caveat was removed from that property. However, the defendant did not sell the property, but, rather, refinanced it, and used the further funds to purchase another property, in his name, at 7A Endeavour Street, Torquay. 30 The plaintiff stated that throughout their relationship she did all the family shopping, and paid all the household expenses. She also normally paid for the cost of their outgoings together. On the other hand, the

defendant assumed responsibility for payment of all the expenses relating to the properties, including the mortgages, insurances, and utilities. 31 The plaintiff was cross-examined at some length by the defendant. The salient parts of the evidence of the plaintiff under cross-examination may be summarised as follows:
• •

• •

The plaintiff denied that she met the defendant when she was working in a brothel in Geelong in September 2008, while the defendant was attending a taxation conference in Lorne. The plaintiff denied that when the defendant commenced to reside at Gheringhap Street, Geelong, she remained at Illouera Avenue. Rather, she said that in the first half of 2001, she was asked by the landlord to leave the Illouera Avenue premises, on the grounds that she was no longer in crisis, because she was then dating a lawyer who had adequate means to pay rent. Accordingly, the plaintiff moved to live with the defendant at the Gheringhap Street premises. The plaintiff agreed that while she and the defendant, and the plaintiff’s children, were living at the South Yarra premises, the plaintiff’s mother, Gail Cressy , also resided at those premises with her two other daughters. When the construction of the Dorrington Street premises was completed, the plaintiff, the defendant, the plaintiff’s three children, Gail Cressy and her two children all moved to Dorrington Street. The plaintiff denied that, from July 2003 to July 2006, the defendant’s primary place of residence was Apartment 909, 668 Bourke Street, Melbourne, and, subsequently, an apartment on the 23rd floor of those premises. The plaintiff denied that she was an employee of the defendant in the business known as the Gallery of Artemis in Geelong. Rather, she stated that she and the defendant jointly owned that business, that she worked there, and did not receive any payment for her work. The plaintiff denied that when Illyana was three or four months old, she resumed work as an adult sex provider at brothels in South Melbourne. She stated that she did work at a brothel in South Melbourne in 2002 and 2003, while they were still living at South Yarra. She said that she last worked at that institution in 2004 or 2005. The plaintiff agreed that when she worked for the defendant, performing office administration work, she was paid in cash. She agreed that most of the defendant’s income was used to pay instalments of the mortgage debts, and to pay expenses such as rates, insurance and utilities on the properties. She denied that the defendant gave her the cash which she used to pay for household expenses and the like. The plaintiff denied that the defendant did not live at, but rather was only a regular visitor to, the Dorrington Street premises, and, subsequently, the Queen Street, Altona premises. The plaintiff agreed that in February 2007 she had the three children booked into extended after hours care while she was working. She denied that she had a relationship with any other man during her relationship with the defendant.

32 The other witness who gave evidence for the plaintiff was her mother, Gail Cressy . Mrs Cressy stated that she first met the defendant in 1998, when he visited the house where she and the plaintiff were living in Grovedale. She said that the defendant commenced living in those premises one month later. The defendant remained in that property, until the plaintiff and he moved to the Gheringhap Street premises. Mrs Cressy visited those premises from time to time, and saw the defendant there. From that time until the middle of 2007, Mrs Cressy visited the plaintiff regularly. During that time, the plaintiff and the defendant were together. She described the plaintiff and the defendant as a couple, and said that the defendant had never suggested to her that they were not a couple. 33 Mrs Cressy stated further that she subsequently lived in the Dorrington Street property for about six months, while the house at Lisa Court was being constructed. She then moved into the Lisa Court property, for which she paid rent. She carried out some rendering work to the outside of the Dorrington Street house.

34 In cross-examination Mrs
• •

Cressy

stated:

She helped the plaintiff in the business called the Gallery of Artemis in Geelong. However, she was not employed at those premises. The defendant also employed her, and paid her, for 15 hours per week housekeeping at the Dorrington Street property, and she also used those premises to carry out some legal work for the defendant.

The defendant’s case 35 The defendant gave lengthy evidence, and also called five witnesses on his behalf. 36 The defendant stated that he is a barrister and solicitor, that he was admitted to practice in 1990, and that he had always practised as a solicitor. 37 The defendant stated that he first met the plaintiff on 12 September 1998, while she was working at a licensed brothel called Lorraine Starr in Malop Street, Geelong, which he visited on that occasion. Thereafter, he courted the plaintiff over a period of six weeks. They first went out together on their first date on Melbourne Cup Day in 1998. At that time, the defendant was living with his wife and three children at their home in Belgrave, and was working long hours with a large firm of Melbourne solicitors. 38 The defendant stated that, at that stage, his contact with the plaintiff tended to be late in the evening on a week day, or in the middle of the day at the Lorraine Starr premises. He first visited the plaintiff at her home in Illeura Avenue, Grovedale in December. He denied that he resided at those premises, but stated that he did visit them, and on occasions remained there overnight. 39 The defendant stated that subsequently, in January 1999, he commenced to lease the premises at Gheringhap Street, Geelong. The plaintiff continued to reside at the premises at Illouera Avenue. However, she would visit and sleep at the house at Gheringhap Street with her children. The defendant denied that the plaintiff lived with him at the Gheringhap Street premises, but, he maintained, she continued to reside at the Illeura Avenue premises. 40 While the plaintiff was living in Geelong, he commenced employment with Barwon Water in October 1999. He also set up his own legal practice, Sutton Johnson. He used the name “Sutton”, because it is the surname of the plaintiff’s father. During that period, he also commenced a business called the Gallery of Artemis, which consisted of an art gallery, and also a shop selling ladies’ fashion clothing and accessories. He employed the plaintiff at those premises. He maintained that he established the business, and employed the plaintiff in it, in order to induce the plaintiff to cease working as a prostitute. 41 The defendant stated that the plaintiff’s insistence that she continue to work as a prostitute remained as a bone of contention between himself and the plaintiff. On New Year’s Eve 1999, they had an argument about the plaintiff’s intention to work in that capacity during the holiday period. Early in the new year, the plaintiff, the defendant, and the plaintiff’s two children, drove to South Australia on a holiday. On the return trip, the plaintiff and the defendant had another argument, because the plaintiff insisted on returning to work in the brothel. Thereafter, according to the defendant, they had no contact until May 2000, when the plaintiff contacted him and stated that she wished to resume their relationship. At that time, the Gallery of Artemis business was opened, and shortly thereafter Illyana was born. 42 The defendant stated that in 2001 he decided to move back to Melbourne, in order to increase his income. At the same time, the plaintiff was under pressure to leave the Illouera Avenue rented premises, which had been let to her as short term crisis accommodation. The defendant located premises in South Yarra which were available

for lease. As the plaintiff could find no alternative accommodation for herself and her children, the defendant permitted the plaintiff to move in with him. The defendant maintained that during that time the plaintiff had an affair with a man, to whom I shall refer as “CP”. The plaintiff, the defendant and the children remained at the South Yarra address until March 2003, when they moved into the Dorrington Street property. In the meantime, Mrs Gail Cressy and her two daughters had also moved into the South Yarra premises. 43 During that period, the defendant obtained employment with Prime Life Corporation. He stated that he was working 60 hours per week for Prime Life, and about 10 to 20 hours per week for Barwon Water. He was earning a large income with a good cash flow. Accordingly, he entered into the agreement to purchase the Dorrington Street property. As part of the purchase contract, a house was to be constructed on the property. When the house was built, the garden had been landscaped, and all fittings and fixtures were in place, including the carpet, tiles and fittings. The defendant stated that he paid all the deposit. He purchased the land for $79,500, on the basis that he contribute 20 percent of the purchase price, and the balance was borrowed. The construction price of the house was $178,100, of which the defendant borrowed 80 percent. The defendant denied that the plaintiff made any contribution to payment of the deposit of $50,000 for the purchase of the land and the construction of the house. He stated that he organised the finance through the Colonial State Bank. The defendant maintained that had he arranged the finance, and organised the design and the optional add-ins to the house, without advising the plaintiff. He stated that he did not tell the plaintiff of the purchase of the property, because at that time she was in a long-term intimate relationship with CP. The defendant claimed that he was contemplating cutting his ties with the plaintiff, because of her relationship with CP, and because she persisted in working in a brothel. 44 Ultimately, the defendant told the plaintiff about the house at Dorrington Street. The defendant, the plaintiff, the plaintiff’s three children, the plaintiff’s mother and her two children all moved into it in March 2003. 45 At that time, the defendant also purchased the two properties at Hawkeshurst Court and Lisa Court, Hoppers Crossing. They were also purchased as house and land packages. He purchased two properties, because he thought he would be more likely to secure finance, if he applied for loans for two rather than one property. He maintained that it was he who identified the two properties, one for the cost of $68,000, and the other for the purchase price of $64,000. The defendant organised finance for the purpose of the properties, and borrowed 80 percent of the purchase price of them. The construction price of the house at Lisa Court was $106,000, and the construction price of the house at Hawkeshurst Court was $99,000. The defendant borrowed 80 percent of the contract sums from AMP. He claimed that the borrowing structure was favourable to him, as he was only obliged to pay the last $20,000 on each contract. 46 The Lisa Court and Hawkeshurst Court properties were completed in early 2003. At that time, the defendant noticed that the property at 7 Inverloch Drive, Point Cook, which abutted the rear of the property at 2 Dorrington Street, was also for sale. He purchased that property for $115,000, 80 percent of which was financed by a loan from AMP. 47 When the Lisa Court premises were available, the defendant permitted the plaintiff’s mother, Gail Cressy , and her two other children, to live in those premises for some four years. The plaintiff’s mother agreed to pay rent which was equivalent to 50 percent of market rent, and the defendant paid the outgoings in respect of the property, including the mortgage liabilities. In July 2003, the defendant took a lease of Apartment 909, 668 Bourke Street, Melbourne. He stated that at that time, he moved into those premises by himself, and that, since that date, he has always lived on his own. At that stage, the defendant was working at Prime Life Corporation, whose offices were less than half a block away from the Bourke Street apartment. His children, by his marriage, would come and spend time with him at the apartment. The two bedrooms in the apartment were set up as offices. He used fold out couches as beds. He hired a personal assistant who worked for him in his legal practice at the premises for three days per week.

48 In 2006, the defendant moved to a larger apartment, Apartment 2302, at 668 Bourke Street. That apartment had three bedrooms. He wanted to have a larger apartment, because he was employing more staff to work there. He also used a serviced office in 140 William Street to meet clients. In the meantime, he was still working for Prime Life and also Barwon Water. During that period, the plaintiff’s three children also came to stay with the defendant at the Bourke Street premises. All three children of the plaintiff regarded the defendant as their father, and called him “Dad”. He stated in his evidence that he did not differentiate between the plaintiff’s two older children (of whom he was not the biological father) and Illyana, but treated them equally. He professed paternal affection for all three children. 49 In the meantime, the defendant would visit the plaintiff at the premises at Dorrington Street, Point Cook. On occasion, he would stay overnight at those premises, and sometimes he slept with the plaintiff. He stated that they had sexual relations infrequently. He said that if they went out for a meal together, he would pay for it. During that time, his principal place of residence was in the City. He also occasionally slept overnight at his wife’s house in Belgrave. In the meantime, between 2004 to 2006, he was dating a young lady called “Elizabeth”, who he described as his “main girlfriend”. In January 2007, he met a girl called “Stella”, who he dated for four months. While the plaintiff was living at the Bourke Street premises, he met a mortgage broker, Antonius Ioannou. In about 2004 or 2005, Mr Ioannou introduced the plaintiff to an investment opportunity, consisting of an apartment at 2 Gibson Street, Caulfield East. The plaintiff entered into a contract to purchase Unit 9 at those premises for the sum of $425,000. Ninety percent of the purchase price was financed. There was a delay in settlement of the contract, and ultimately it did not settle until June 2006. In the meantime, the value of the property had increased, so that the defendant in fact borrowed more money than he needed, and he was left with some cash in hand. At that time, he was earning a large income from Barwon Water and from Prime Life. 50 In about 2006, the defendant identified a site at 166 Queen Street, Altona as a good investment. The house was dilapidated, but the property was a good investment opportunity. He entered into a contract to purchase the property for $500,000. He borrowed 90 percent, and paid the deposit himself. When the purchase was settled, the plaintiff and the three children moved into those premises. The plaintiff cleaned the walls and ceiling of the premises and painted the walls. He denied that the plaintiff removed the old curtains. He helped the plaintiff to pull out the carpet. He stated that he purchased the new kitchen at a cost of $10,000. From June 2006 to October 2007, the plaintiff was the sole resident of the property, together with her three children. The defendant visited her there one or two nights per week, and he would stay over about two nights per fortnight. 51 The defendant stated that, in the meantime, he had been paying generous amounts of cash to the plaintiff, mainly in order to induce her to desist from working as a sex worker. He was paying the plaintiff $400 to $600 per week cash, to cover living expenses. At one stage, he was paying her $4,000 cash per month. In addition, he paid for the plaintiff to undertake some training courses at Stott’s College and also at Taylor’s College. The defendant also paid for the long-term childcare fees for the three children. 52 The defendant stated that before Easter 2007, he had discussed sharing a holiday with the plaintiff. However, the plaintiff refused to go on that holiday, so the defendant instead went to Byron Bay with his girlfriend Stella. When he returned, the plaintiff told him that she wanted to have a permanent relationship with him, but he rejected that proposal. It was at that time that, whatever relationship the defendant had with the plaintiff, it came to an end. 53 In the latter part of 2007, the defendant wished to re-finance the Gibson Street property. In his evidence, he stated that he did not consider that he would qualify for a re-financing, unless he justified it as a step to acquiring a new property. For that reason, he claimed, he entered into a contract to purchase the property at 7 Endeavour Street, Torquay on 18 September 2007 for the purchase price of $397,500. Settlement of that contract was due in April 2008. In the meantime, the defendant resided at those premises as a tenant.

54 The defendant was cross-examined at some length by Mr Devries, who appeared for the plaintiff. I shall return to some of the matters raised in cross-examination later in this judgment. The principal features of the cross-examination included the following:

The defendant identified a driver’s licence (Exhibit C), with an expiry date of 18 June 2001, endorsed with the 5 Illouera Avenue, Grovedale address. He also identified an AMP home loan application, signed by him (Exhibit D), in which he had noted the Illouera Avenue, Grovedale address as a “previous residential address”. The defendant identified a Valentine’s Card (Exhibit E), which he had sent to the plaintiff in February 2000, in which he protested his unqualified love for her, and in which he stated: “I’d like you to think about moving back to Gheringhap Street. I’ll move out”. He denied that that was an acknowledgement of the fact that the plaintiff had, before that time, lived with him at the Gheringhap Street property. The defendant agreed that he signed a large number of financial documents, including his income tax returns, in which he had stated the Dorrington Street, Point Cook address as his residential address between July 2003 and June 2006. The defendant agreed that the plaintiff and he lived in the same premises at South Yarra from 2001 to 2003. Although he disagreed that, at that time, they were in a “domestic relationship”, nevertheless he stated that he could “accept a finding” that he and the plaintiff were in a domestic relationship during that period of time.[7] The defendant agreed that it was possible that he also used 166 Queen Street, Altona as his residential address. He identified an application dated 19 September 2007 to redirect mail from that address signed by himself (Exhibit O). The defendant was cross-examined at some length on the contents of an affidavit sworn by him in the Federal Magistrates’ Court proceedings on 13 September 2007. In that affidavit, he stated (paragraph 4) that he and the defendant had “lived, or partly lived together from December 1998 to January 1999 and from May 1999 to June 2007”. He also stated (paragraph 6) that “since the respondent and I first met I have been a father to the children Treece and Skye”. In paragraph 7, he stated “since the respondent and I ceased living or partly living together I have continued to support her and the children”. In paragraph 8, he identified the times he had spent with the children “since June 2007 when the respondent and I ceased living together ... “. In cross-examination, the defendant denied that those parts of his affidavit were admissions by him that the plaintiff and he had lived together for the period 1998 to 2007. He stated that he had been troubled by the language used in the affidavit, and that he had sworn the affidavit based on the advice of the experienced solicitor then acting for him in the Family Law proceedings. The defendant was cross-examined at some length about his income and his financial commitments. That cross-examination was undertaken by Mr Devries to demonstrate that, with the financial commitments undertaken by him in respect of the mortgages of the various properties, he could not have provided to the plaintiff the financial support which he claimed, during the relationship between them. The defendant was also cross-examined about the work which the plaintiff had stated that she had done on the properties which he had purchased. He agreed that because he was very busy, he did not do much work on the properties himself. He agreed that generally the plaintiff had carried out the work on the property which she had described, but he stated that her evidence as to the quantity of that work was exaggerated. He also stated that the plaintiff did not fund the works. Rather, he gave her money for the work or reimbursed her later. In addition, he paid her for the work which she undertook on the properties. The defendant agreed that after re-financing Gibson Street, and applying some of the proceeds of the refinance for the purchase of the Torquay property, he had a balance of $98,000 cash, which he had banked into his account. The defendant denied that the plaintiff earned a substantial income during the period 1998 to 2007. He particularly denied that, if it were not for income brought in by the plaintiff during that period, the tight financial structure, comprising the seven geared properties, would have collapsed earlier. He denied that the plaintiff and he had been engaged in a joint venture in relation to those properties.

55 The defendant also called five witnesses in support of his case. 56 The first witness was Ms Larissa Dek Fabrikant. Ms Dek Fabrikant has lived at 178 Queen Street, Altona for 20 years. She stated that she first met the plaintiff in September or October 2006. In due course, she became friendly with the plaintiff and her children. In particular, it became her custom to visit the plaintiff’s house at about 6.00 am, in order to feed the plaintiff’s cat and dogs. Ms Dek Fabrikant would then return later in the evening with further food scraps for the plaintiff’s animals. 57 Ms Dek Fabrikant stated that she became a regular visitor to the plaintiff’s home from late 2006. Although the plaintiff’s children spoke about the defendant, referring to him as “James”, she did not meet him till some time later, when he visited Ms Dek Fabrikant at her home in relation to a lost kitten, which Ms Dek Fabrikant had found. She had gained the impression that the plaintiff and the defendant were separated, and that the defendant from time to time visited the Queen Street premises, in order to see the children of whom he was the father. She stated that she tended to visit the plaintiff’s house between 6.00 am and 7.00 am, and in the evening between 8.00 pm and 9.00 pm. She said that she was not “formally” introduced to the defendant until after 29 September 2007. Ms Dek Fabrikant stated that on many occasions on which she visited the plaintiff’s home, the plaintiff was not home, and the children would open the door. Very often, the children would be playing on the street at a late hour, when Ms Dek Fabrikant brought food for the animals. 58 The cross-examination of Ms Dek Fabrikant was directed principally to questioning the period of time to which Ms Dek Fabrikant’s evidence related. She agreed that in October 2007 she swore an affidavit, in which she stated “about six months ago the children started to drop over to visit me with their mother’s permission”. She therefore agreed that it was not until that time that the plaintiff’s children became visitors to her house. However, she stated that she had been visiting the plaintiff’s house at Queen Street before then. She said that she never saw the defendant in the house. She believed that the defendant was not living there in the period before May 2007, because she did not see him there, and she occasionally saw him bring the children there. 59 The defendant also called Mr Antonius Ioannou to give evidence. Mr Ioannou stated that he first met the defendant in about 2004. He stated that the defendant was then interested in purchasing a high rise apartment in the inner city of Melbourne. For that purpose, Mr Ioannou visited him at the Bourke Street apartment. Mr Ioannou understood that that apartment was the defendant’s then home. It had a couple of bedrooms and a kitchen. There were desks in the bedrooms, and some futon type couches. 60 Mr Ioannou also gave evidence concerning the circumstances of the purchase of the Gibson Street property. He helpfully produced copies of documents relating to the purchases by the defendant of that property, the Altona property, and the two Point Cook properties. In cross-examination, he noted that in the documents signed by the defendant for the purpose of financing Dorrington Street, and the purchase of the Inverloch Avenue premises, the defendant gave his residential address as 2 Dorrington Street. Mr Ioannou agreed that that notation on the loan application with that residential address was based on information given to him by the defendant. 61 Ms Karen Briggs also gave evidence for the defendant. She is the property manager employed by Mickham of Southbank. In that capacity, she became the manager of the property at 668 Bourke Street in 2006. At that time, the defendant approached her about moving into a larger apartment in the building, when one became available. She identified such an apartment for him, and accordingly the defendant moved from Apartment 909 to Apartment 2302. She stated that the defendant ran his business in Apartment 2302, and, as far as she was aware, he also lived there. She said that there were desks set up in that apartment. She could not remember whether there was a bed there also. In cross-examination, Ms Briggs acknowledged that all of the apartments in the building were set up as residential apartments, and it was not uncommon for tenants to use them also for business purposes.

62 The defendant also called Mr Kevin Enright, the principal of Altona Primary School. The plaintiff’s children have been enrolled at that school for a number of years, commencing in 2006. Mr Enright stated that they were enrolled by the plaintiff. The defendant was not involved in their enrolment. Mr Enright first met the defendant in 2006. During 2007, he became aware of difficulties in the relationship between the plaintiff and the defendant. Mr Enright had assumed that the plaintiff and the defendant were a “family partnership”, and that they were living together as a family unit, because the plaintiff and the defendant were noted as the parents on the enrolment form, and they had been observed together at the school. He said that, based on those facts, he would ordinarily presume that they were living together, unless he was told to the contrary. 63 The defendant also called CP to give evidence. He had alleged in his evdience that CP had had a relationship with the plaintiff in the years 2001 to 2003. Mr CP was subpoenaed to Court. He appeared quite bemused, if not bewildered, when he entered the Court. He had a speech difficulty and, in the course of his evidence in chief, told me that he had suffered a stroke in 2002, which had affected his memory. In his evidence, he denied that he knew the defendant. He was asked whether at any time he had known “a lady by the name of Pippin Cressy ”. He responded “I don’t know”. He was asked if he had ever assumed the defendant’s name, James Johnson. He responded “I’ve never met or known who you are. I’ve got no idea what I’m doing here”. The defendant put before him an email, which apparently identified the defendant’s hotmail account. Mr CP, again looking totally bemused, stated that he did not identify that account. The defendant did not ask Mr CP any other questions. He was not cross-examined. 64 Detective Senior Constable Jennifer Locke was subpoenaed by the defendant to give evidence in relation to the question whether CP did have a relationship with the plaintiff. She gave evidence that in 2002 she investigated a complaint that a person had been stalking the plaintiff. The stalking apparently consisted of a number of emails which had been sent from a computer to the defendant’s address. Ms Locke traced the source of the emails to a particular work site at which CP was employed. CP admitted that he had sent the emails, and pleaded guilty to a charge of stalking. Senior Constable Locke stated that she had taken a statement from the plaintiff in the course of her investigations. The plaintiff told her that she had met CP at a brothel known as “Harem International” in South Melbourne. The plaintiff had said that she had had a relationship “of some sorts” with CP at the time. In cross-examination, Senior Constable Locke said that the plaintiff had told her that CP had been a client of hers over a period of time, and that the connection or relationship between them had extended outside the brothel, because CP had followed her home. Ms Locke also stated that she had become involved in the dispute when the defendant had complained that his name had been used in emails. Ms Locke stated that, to her observation, the defendant and the plaintiff at that time were a couple. Missing documents 65 The presentation of the case for both the plaintiff and the defendant was, to some extent, limited by the lack of documentation tendered in evidence by either side to support their case. The plaintiff sought to explain the absence of documentation tendered by her, by alleging that in about August 2007 the defendant had broken into the Altona property, while she was absent, and removed her financial documents from it. On the other hand, the defendant alleged that the plaintiff, in November 2007, had stolen documents and other articles belonging to him from the Dorrington Street premises. That allegation forms part of one of the causes of action pleaded by the defendant against the plaintiff, and against Mr Hanlon and Harwood Andrews, in the counterclaim. In addition, the defendant alleges that in March 2008 the plaintiff had failed to make available to him a large part of the documentation, which he kept stored at the Altona property, contrary to an understanding reached between the parties in proceedings before Whelan J on 12 March 2008. Before examining the evidence of the witnesses in relation to the claim under Part 9 of the Property Law Act, it is convenient to deal first with the issue of the missing documentation. (i) The plaintiff’s missing documents

66 In her evidence, the plaintiff stated that she had kept a number of files in her bedroom at the Altona property. Those files contained her tax returns, financial institution documents, bank statements, insurance documents and work diaries for the last three years. In August 2007, she went on a short ski holiday with her children. While she was absent, all the financial documents belonging to her disappeared. There were no signs of forced entry into any of the rooms. None of the electrical equipment, and no items of value, such as her jewellery, were stolen. She stated that only the defendant and she had keys to the house. In cross-examination, the plaintiff maintained that she went on the ski holiday from Thursday to the Sunday, and not, as put to her, from Monday to Thursday. She conceded that, when her documents were stolen, none of the defendant’s documents, which were stored in a shed in the garden at the Altona property, had been removed. 67 In his own evidence, the defendant said that in August 2007 he had organised for an estate agent to look at the property at Altona, in order to give him a rental evaluation for it. When he arrived at the property, no-one was home. The defendant climbed the side fence. The house was not locked, and so he entered it through the back door. When he was in the house, he started to look for papers belonging to him, which had been missing since 2003, and which he believed were in the plaintiff’s possession. He went into her bedroom and saw two diaries under her bed, as well as some bank statements. He saw that the diaries contained references to a man who, he believed, was the boyfriend of the plaintiff. He photocopied those documents, using a printer attached to a photocopier at the Altona house. The defendant was not cross-examined on that aspect of his evidence by Mr Devries. 68 The allegation made by the plaintiff against the defendant is a serious allegation, and, in order to be satisfied of it, I would need to reach a high level of persuasion on the balance of probabilities.[8] It is common ground that the defendant did enter the premises at Altona while the plaintiff was absent. However, the defendant denies that he removed the plaintiff’s documents from the premises. I did not find the defendant’s account, in evidence in chief, to be particularly credible. Nevertheless, he was not cross-examined in relation to it. In addition, there is some force in the point made by the defendant that, if he had been minded to remove documents of the plaintiff from those premises, logically, he would also have removed his own documents, which were then stored in the shed at Altona. In those circumstances, I am unable to reach any conclusion as to whether the defendant removed the documents from the plaintiff’s premises. Nevertheless, the evidence is such that, in my view, it would be inappropriate to draw an inference in accordance with Jones v Dunkel[9] against the plaintiff by reason of her failure to adduce any such documentation. In the end, however, I am left with a paucity of documentary evidence produced by the plaintiff as to her income, her financial sources, and as to any expenses which she alleges that she incurred in respect of the properties acquired by the defendant. (ii) The defendant’s missing documents 69 The defendant stated that in August 2007 he had to move out of his Bourke Street apartment. A few weeks later, he secured a lease of the Torquay property which he had purchased. In the meantime, he persuaded the tenants at Dorrington Street to leave, so he could also use those premises. On 15 November 2007, he collected Illyana from school. That night they stayed at the Dorrington Street property. He said that the house was not locked. He had two mobile phones at the premises. He also had a number of boxes there containing tax returns, financial documents and similar documents. He said that that night he slept heavily. In the morning, when he awoke he noted that the telephones had been removed, and that the boxes containing his financial documents had also been removed. In addition, a modem card for his notebook computer had been taken. The defendant contacted the police and reported the theft. The police executed a search warrant at the Altona property, at which the plaintiff was then residing. The defendant inspected the documents which the police recovered. He stated that they had only comprised 70 percent of the documents which had been taken from the Dorrington Street property. 70 In the meantime, the defendant’s then solicitors, the second and third defendants to the counterclaim, caused a subpoena to be issued out of the Federal Magistrates’ Court, addressed to the police. As a result, the documents,

seized by the police, were produced to the Federal Magistrates’ Court, where they are currently lodged. The defendant also stated that the two mobile phones were recovered by the police and have also been lodged at the Federal Magistrates’ Court. Those telephones had a large number of photographs stored on them, which he wished to use as evidence in the Family Court proceedings. When he inspected the telephones in late January 2008, he noted that the photographs had been deleted. The defendant also tendered in evidence an affidavit sworn by the plaintiff on 11 March 2008, in which the plaintiff identified further documents which she had removed from the Dorrington Street premises on 16 March 2008. Attached to the affidavit were the residue of the documents which the plaintiff, in her affidavit, stated had not been seized by the police (Exhibit 20). 71 The defendant also stated that he had kept a large quantity of financial and legal documentation in one of three sheds, which he had had constructed in the rear garden at the Altona property. On 12 March 2008, the parties appeared in the Practice Court before Whelan J, on the hearing of a summons issued by the plaintiff seeking discovery of documents from the defendant. In the “other matters” section of his Honour’s order, it was noted that the plaintiff’s counsel had advised the Court that the defendant could collect the boxes of records presently in the shed at 166 Queen Street, Altona on 14 March 2008. The defendant stated that he attended at the premises at Altona on that date, and collected a large number of documents left in front of the house for his collection by the plaintiff. However, he claims that there were about 39 folders of documents which the plaintiff failed to make available to him. 72 In her evidence, the plaintiff gave brief, and in hindsight, rather cryptic, evidence in chief about the circumstances in which documents and other items were removed by her from Dorrington Street in November 2007. In response to the counterclaim, she said that she had not retained in her possession or control any of the defendant’s records or possessions. She said she had given records and possessions of the defendant to the Victorian police. She described the documents as “our joint financial information documents”. She said that they came into her possession at 2 Dorrington Street, Point Cook. She said she had also had possession of the defendant’s two phones, because they contained evidence of the defendant stalking her. She had taken possession of those documents temporarily to give to her lawyers for evidence, but the police took the documents and telephones from her before she could pass them on to her lawyers. She regarded the telephones as their joint property. She denied taking the defendant’s modem card. In cross-examination, the plaintiff agreed that the defendant had used a shed at the rear of the Altona property to store some of his legal files. She agreed that in the course of the hearing before Whelan J, her counsel had stated there were archived boxes of documents in that shed. She said that, pursuant to the indication given to Whelan J, she placed all of the documents contained in that shed at the front of the house. Some of the boxes containing the documents broke in the process, and she had to re-package them. She denied that she had retained any of those documents for her own use. In crossexamination by the defendant, she stated that there were still boxes containing files on shelves at the Dorrington Street, Point Cook property, but she did not know the contents of the files. 73 After the case resumed before me on 9 February 2009, the defendant gave further evidence. He stated that on 26 December 2008 he had found three bags of documents in the garage of the premises at 2 Dorrington Street, Point Cook. Those documents were tendered in evidence before me. Mr Johnson stated that those documents comprised some of the records which should have been returned to him pursuant to the notation of “other matters” in the order of Whelan J dated 12 March 2008. Mr Johnson also stated that, on the same date, he had found a green shopping bag which contained other documents, and a wireless modem, which had been taken from his premises in February 2006 by the plaintiff. The defendant was not cross-examined in relation to that further evidence given by him. 74 In the state of the evidence, it seems clear that the plaintiff has accepted that in November 2007 she did remove, from the Dorrington Street premises, documents and two mobile phones belonging to the defendant. I note that the defendant was not cross-examined in relation to his description of the circumstances in which those items were removed from Dorrington Street. On the other hand, as I have already stated, in hindsight, the plaintiff was rather reticent in describing how she came into possession of those items. I shall return to this

aspect of the case when I consider the defendant’s counterclaim against the plaintiff. However, my findings in relation to the circumstances in which the plaintiff removed the documents and the two mobile phones from the defendant’s possession do not reflect well on the plaintiff. 75 I am also concerned that, it would appear, not all of the documents so removed by the plaintiff were accounted by her to the police, when they executed the search warrant on her premises at Altona. It seems that the plaintiff had retained some of the documents, removed by her, until March 2008. Her affidavit of 11 March 2008, which was tendered in evidence on behalf of the defendant, does not contain any explanation why the plaintiff had not, earlier, accounted for those documents. 76 The defendant submitted that his further evidence, that, on 26 December 2008, he also found documents, and a modem, which had been removed by the plaintiff from the address at Dorrington Street, Point Cook, contradicts the affidavit sworn by the plaintiff on 11 March 2008 (Exhibit 20), to which she had attached the residue of the documents which she stated she had taken from the Dorrington Street property and which had not then been seized by the police. 77 The defendant was not cross-examined on the additional evidence given by him on those matters. Nor did the plaintiff seek to be recalled to give evidence in response to it. It may well be that Mr Devries made a tactical decision not to challenge the evidence, or recall the plaintiff, because of his understandable concern that the hearing of this case had become unduly protracted by reason of the matters to which I have already referred earlier in this judgment. Nevertheless, the fact remains that the defendant’s additional evidence was not put in contest, nor was it contradicted. In this respect, I do not accept Mr Devries’ submission that the plaintiff’s earlier statement in evidence in cross-examination, that there were further documents at the Point Cook property, referried to the documents she had removed from that property on 16 November 2007. Rather, it is clear that, in that part of her evidence, she was referring to the boxes of documents which the defendant had kept at those premises. In the circumstances, I accept the defendant’s evidence that, on 26 December 2008, he found at Dorrington Street further documents taken by the plaintiff from those premises on 16 November 2007. I also accept the submission made to me by the defendant in final address that, in those circumstances, the additional evidence of the defendant as to the documents which he found at the Dorrington Street property on 26 December 2008, is relevant to my assessment of the credibility of the plaintiff, both in relation to this issue, and more generally. 78 In this regard, the defendant also referred to his further evidence, given after the trial resumed in February 2009, that on 26 December 2008 he found further documents at the premises at Dorrington Street, Point Cook which he had previously stored in the shed at 166 Queen Street, Altona. He submitted that his further evidence contradicts the evidence of the plaintiff that all the documents of the defendant contained in that shed had been made available to the defendant in March 2008, pursuant to the “other matters” notation to the order of Whelan J of 12 March 2008. 79 However, as Mr Devries correctly pointed out in final address, the plaintiff, in cross-examination, did state that there were further boxes, containing files, at the Point Cook premises. I accept her evidence that she was ignorant of the contents of those files. Therefore, I do not accept that her evidence was contradicted, in that respect, by the fact that the defendant found further documents at the Point Cook property on Boxing Day 2008. 80 Finally, I should note that the defendant sought to repair the hiatus caused by the missing documents, by having Mr Ioannou produce some documents which had been given to him by the defendant, in support of applications for mortgage finance in respect of the properties acquired by the defendant. Those documents included some of the contracts of purchase, and some of the loan documentation, relating to the properties. Final submissions by parties: defendant’s submissions

81 At the conclusion of the evidence, and after I had ruled in favour of the no case submission by the second and third defendants to counterclaim, the defendant made a final address to me. He initially submitted that Mr Devries should first address me on behalf of the plaintiff. However, I ruled that I perceived no unfairness to the defendant by requiring him to adhere to the normal practice that, having called evidence on his behalf, the defendant should first address me. The defendant then made a lengthy final address to me over a period of one and a half days, which occupied some 200 pages of the transcript. A large part of the final address was, unfortunately, irrelevant. The defendant persisted in seeking to reopen issues relating, not only to the counterclaim which I had dismissed against Mr Hanlon and Harwood Andrews, but also to issues which, if they have any relevance at all, have a connection with the allegations made by him in his counterclaim in the other proceeding commenced by Trust Company Fiduciary Services Limited against him. In addition, the defendant spent a substantial part of his final address seeking to denigrate the plaintiff and her legal advisers. I cautioned him that I was not impressed by his conduct in doing so, and that his persistent repetition of such opprobrious allegations only reflected adversely on his own credit. 82 Throughout the defendant’s final address, I endeavoured to direct him to the relevant issues on which he needed to address me. From time to time he did adhere to that direction, and made some submissions on his behalf. At the conclusion of his final address, he sought leave to withdraw from the case. I told him, as I had advised him before he commenced his final address, that I would be sympathetic to an application by him to reply to the final address by Mr Devries, in particular to cater for any matters raised by Mr Devries which he might not have anticipated. I therefore encouraged him to remain during Mr Devries’ address. Notwithstanding my admonitions to him, when Mr Devries rose to his feet to commence his final address, the defendant packed up his papers, and left. 83 The following is a summary of the points made by the defendant in his final address which might have relevance to the issues in this case. In making that summary I have reordered those points into a more logical framework, in order to ensure that I do justice to the arguments made by the defendant. 84 The defendant submitted, on a number of occasions, that the plaintiff had failed to adduce any objective evidence establishing either that they had cohabited at any of the residences purchased by him, or that she had made any contributions to them. The defendant submitted that I should reject the plaintiff’s evidence that he had stolen her documents. He further submitted that, whatever the reason for the plaintiff’s lack of documentation, she could have repaired it by obtaining copy documentation, such as copy pay slips from her employer, copy tax returns, and copy bank statements. 85 The defendant denied that he had lived with the plaintiff in Geelong. He drew my attention to the birth certificate of Illyana (Exhibit 9) in which the plaintiff’s address was given as 5 Illouera Avenue, Grovedale, and the defendant’s address as 142 Gheringhap Street, Geelong. The defendant also submitted that the plaintiff had been inconsistent in her evidence as to when she had moved from the Illouera Avenue address to the Gheringhap Street address. He submitted that, although the parties did live together in South Yarra, the arrangements at those premises were not typical of a domestic relationship between himself and the plaintiff. Mrs Gail Cressy also lived at the same address with her children. Further, he submitted that the only evidence that he lived at the Queen Street, Altona address was the application by the defendant to re-direct mail from the Queen Street address dated 19 September 2007 (Exhibit O). He referred to the evidence which he gave that he signed that document to ensure that all bills which were sent to the Queen Street address were forwarded to him so that he could pay them. He referred to the fact that the plaintiff had not called any evidence of neighbours, friends or relatives who had observed them living together at the Queen Street address (or at the Point Cook property). He further referred me to the driver’s licences which he had tendered in evidence, and which disclosed that the address given by him to VicRoads was not the Queen Street address but, rather, the address of the office at Bourke Street, Melbourne. He submitted that I should accept that he used the Bourke Street premises as his home. The two clients for which he predominantly worked (Barwon Water and Primelife) provided office space

to him for his work there, and therefore it was not necessary for him to lease large city offices for the purposes of that work. 86 In addition, the defendant attacked the credibility of the plaintiff. He submitted that because of the admitted theft by her of his documents from the Point Cook property, her credibility had been severely damaged. That damage had been exacerbated by her failure to reveal, in her affidavit of March 2008, that she still retained other documents taken by her. In addition, the plaintiff had failed to abide by the agreement noted in the order of Whelan J of 12 March 2008, that she make available to him the documents stored in the Queen Street property sheds. 87 The defendant also attacked the credibility of Mrs Gail Cressy . He submitted that I should reject her evidence that she did not know, until 2003, that the plaintiff worked as a sex worker. He submitted that Mrs Gail Cressy was not truthful when she gave that evidence to me. He also submitted to me that Mrs Gail Cressy was discredited by the fact that she failed to abide by the agreement she had made with the defendant to pay him rent for her use of the Lisa Court premises, but, rather, had used her money to purchase a motor vehicle. 88 The defendant submitted that the plaintiff had been untruthful in her evidence as to how they met. He submitted that a document which he tendered during his further evidence, consisting of extracts from a diary or note book entered by the plaintiff, supported his version of events that they met in a brothel in Geelong, rather than on the beach, as claimed by the plaintiff. The defendant submitted that the evidence of Senior Constable Locke supported his account that, when they lived at South Yarra, the plaintiff had an affair with CP. He also submitted that the plaintiff had an affair with a gentleman called “Mark” who is referred to in the plaintiff’s diary. In addition, the defendant submitted that the plaintiff had not been truthful in her evidence as to when she commenced work as a sex worker. 89 On the issue of the contributions made by the parties to the alleged relationship and to the properties, the defendant stressed the lack of documentation tendered by the plaintiff to support the claim that she had contributed financially to the purchase and maintenance of the properties, and to the household expenses. In fact, the only documents tendered in relation to the purchase and financing of the various properties were introduced by the defendant, largely through the witness Mr Ioannou. The defendant submitted that the financial documents which were tendered by him indicated that he had a high income during the period in which the properties were purchased. In particular, he submitted that the documentation indicated that his income was sufficiently substantial that financiers had been prepared to lend him approximately $2,000,000, in order to purchase the seven properties which are the subject of this proceeding. The fact that he was able to fulfil his obligations under all the mortgages until early 2008 supports the defendant’s evidence that he had a large income which was sufficient to bear the expenses of the properties and also of the plaintiff and her children. By contrast, the plaintiff has failed to adduce any evidence which supports her viva voce evidence as to the large income which she claimed to derive as a sex worker. The defendant stressed that the plaintiff bore the onus of proving the relevant contributions made by the parties and that she had failed to discharge that onus. He submitted to me that if there is any gap in the evidence which he has adduced as to his income I should not infer, from that hiatus, that it was the plaintiff who bore some of the expenses. He submitted to me that any such inference would be contrary to the onus of proof which lies on the plaintiff to prove the contributions made by her. 90 Finally, the defendant made submissions on the issue as to the plaintiff’s contribution relating to the care of the three children. He submitted that there was evidence that the plaintiff’s parenting had been deficient. In this respect, he relied on the evidence of Ms Dek Fabrikant that, on a number of occasions, it appears that the plaintiff had left the young children unattended at the Queen Street property. Final submissions by parties: plaintiff’s submissions

91 Mr Devries commenced his final submissions by contending that, in the main, the issue whether the plaintiff and the defendant had had a domestic relationship depended on an assessment by me of the credit of the plaintiff and the defendant. He submitted that there are a number of reasons why I should find that the defendant was an untruthful person and witness. In particular, he relied on a number of answers given by the defendant, in his evidence, in explanation for the contents of an affidavit sworn by him in the Family Court. (I shall refer in greater detail to that affidavit in due course). He submitted to me that the defendant’s responses to questions in cross-examination, and to questions put by me to him, demonstrated that he had a flexible view as to what constitutes the truth. 92 Mr Devries submitted that the defendant had a similar view of what constitutes the truth in his commercial dealings. He drew my attention to a letter on Sutton Lawyers’ letterhead to Mr Ioannou dated 30 November 2007[10], purporting to be signed by one “Andrew Hawking” on behalf of Sutton Lawyers, certifying that the defendant was a “valued employee” of Sutton Lawyers, who currently had a gross salary of $300,000 per annum. In cross-examination the defendant admitted that he had signed the letter, and not Andrew Hawking. Further he accepted that he was not an employee of Sutton Lawyers, but, rather, the sole principal of it. He also conceded in cross-examination that the contents of the letter “stretched” the truth. Mr Devries made a similar point in respect of a letter written by the defendant to Mr Hanlon of Harwood Andrews dated 29 October 2007[11], by which the defendant induced the plaintiff to withdraw her caveat over the Gibson Street, Caulfield East property. Mr Devries submitted that the letter falsely represented that Gibson Street was subject to a contract of sale, whereas his true reason for requesting that the caveat be withdrawn was so that he could re-finance Gibson Street, and thereby finance the purchase of the Torquay property for himself. 93 Mr Devries then returned to the question whether the parties were in a domestic relationship during the period claimed by the plaintiff, from 1998 to 2007. He submitted that the affidavit sworn by the defendant in the Family Court proceedings, and to which I have just referred, contained clear admissions by the defendant as to the evidence of such a relationship in that period. Similarly, Mr Devries referred me to a report of Ms Marianne Love, a psychologist, dated December 2007, tendered by the defendant, which recorded that the defendant told her that he had had a nine year “intermittent relationship” with the plaintiff. 94 Mr Devries then referred to a number of aspects of the relationship between the plaintiff and the defendant, which, he submitted, demonstrated that the two were indeed living together as a domestic couple during the period claimed by the plaintiff. He referred to the fact that the defendant had formed a strong relationship with the plaintiff’s two sons, who regarded him as their father. He paid expensive education fees for the plaintiff. When the relationship failed, he made an application dated 13 September 2007 for an order that the plaintiff and he have “equal shared parental responsibility” for the plaintiff’s two sons and for Illyana. At no time did the defendant amend, or withdraw, that application. 95 Mr Devries then submitted that there was a large body of evidence which supported the plaintiff’s testimony that the defendant had lived with her at the premises at Illouera Avenue, Grovedale. He referred me to a loan application made by the defendant to AMP (Exhibit D), in which the defendant stated that his previous residential address (at which he had resided until November 2000) was “45 Illouera Avenue, Grovedale”. He also referred me to a tenancy application made by the defendant in respect of the premises at 45 Nicholson Street, South Yarra dated 1 November 2000, in which the defendant described his present address as “5 Illouera Avenue, Grovedale”, and stated that he had lived there for two years. He referred me to a copy of a driver’s licence of the defendant which expired in June 2001 which also recorded his then address as “5 Illouera Avenue, Grovedale”. 96 Mr Devries further pointed out that the defendant had, in cross-examination, accepted that it was a reasonable proposition that he and the plaintiff had lived in a domestic relationship during the two years in which they both resided at the South Yarra premises. He drew my attention to a plethora of financial documents in which the

defendant had recorded the Dorrington Street property as his residential address from 2002 onwards. He submitted that the mail re-direction signed by the defendant (Exhibit O) supported his client’s evidence that the plaintiff did reside with her at the premises at 166 Queen Street, Altona. 97 Mr Devries then made a number of submissions to me concerning the contributions, which, he submitted, I should find the plaintiff made both to the properties and to the relationship, both for the purposes of the claim under Part 9 of the Property Law Act, and also for the purposes of the alternative claim to an entitlement by the plaintiff under a constructive trust. Essentially, Mr Devries referred to three types of contribution made by the plaintiff. First, he submitted that it was common ground that the plaintiff had assumed the principal, if not sole, responsibility as the homemaker and parent for her own two sons, and also for Illyana, during the period of the relationship. The defendant did not contest the evidence that it was the plaintiff who looked after the three children during that period of time. The plaintiff and the defendant were in agreement that during that period the defendant worked long hours, and therefore could not devote much time to parenting the three children. In this connection, Mr Devries referred me to the recent decision of the Court of Appeal in Kenyon v Akeroyd[12], in which the Court of Appeal stated that, ordinarily, a court would be entitled to assess the contribution of the sole homemaker as being equal to the contribution made by the other partner who acted as the sole or predominant breadwinner. 98 Secondly, Mr Devries submitted that the plaintiff had played a role in locating some of the properties, and in carrying out some improvement and maintenance works to them. Thirdly, he submitted that I should accept the plaintiff’s evidence that she, and not the defendant, had been responsible for paying most of the household expenses of the family unit. In that respect he submitted that although the plaintiff had not tendered evidence as to her income, there was no argument that she had in fact worked during the period of the relationship. In fact, as I have already stated, it had been a point of contention between the plaintiff and the defendant that she had insisted on returning to work as a sex worker. Mr Devries also pointed to documentation tendered by the defendant, consisting of some of the plaintiff’s work diaries (Exhibit 3), which contained some information and evidence relating to the plaintiff’s earnings in that occupation. 99 On the other hand, Mr Devries submitted that, on the defendant’s own evidence, he would have had little, if any, funds from his income after he had met his commitments under the various mortgages, and also his commitments to his wife and the three children of his marriage. Indeed, he referred me to the evidence of the defendant that his payments in respect of the mortgages, his taxation obligations, and his commitments to his former family, cost approximately $25,000 per month. Mr Devries submitted to me that on the declared income of the defendant, he would have had little if any spare money to help support the household. Mr Devries submitted that I should take into account that, by looking after the family, and by using her earnings to pay the day to day household expenses of the family, the plaintiff enabled the defendant to use his income to pay for the mortgages, and to use his time in purchasing, financing and overseeing the properties, which are the subject of this proceeding. 100 Mr Devries submitted that, based on those contributions, and in accordance with the dictum of the Court of Appeal in Kenyon v Akeroyd[13], I should treat the plaintiff as having made an equal contribution to the properties and revenues of the parties, to the welfare of the defendant, and to the welfare of the family constituted by the plaintiff, the defendant and the three children, for the purpose of s 285(1) of the Property Law Act. He then made submissions as to the particular orders which, he submitted, would be just and equitable having regard to those contributions. I shall return to those submissions later in these reasons. Domestic relationship

101 The first issue, in respect to the plaintiff’s claim under Part 9 of the Property Law Act, is whether the plaintiff and the defendant were domestic partners for all or some part of the period. That issue also is relevant to the alternative claim made by the plaintiff based on the principles of constructive trust. 102 I have already referred to the definition of “domestic relationship” in s 275(1) of the Property Law Act, as a relationship between two people who, although not married, are living or have lived together “as a couple on a genuine domestic basis”. Section 275(2) provides: “(2) For the purposes of the definition of domestic relationship in sub-section (1), in determining whether a domestic relationship exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case – (a) the duration of the relationship (b) the nature and extent of common residence; (c) whether or not a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (e) the ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the reputation and public aspects of the relationship.” 103 The concept of a domestic relationship, and the definition of that relationship, were inserted into s 275 by the Statute Law Amendment (Relationships) Act 2001[14]. Item 9.4 of Schedule 1 of that Act has the effect that the 2001 amendments apply to a relationship, previously commenced, but which had not come to an end, at the time of the commencement of the Act. For completeness, I note that s 72 of the Relationships Act 2008 has repealed Part 9 of the Property Law Act 1958. However, s 74(3) of the Relationships Act provides that if an application for an order under Division 2 of Part 9 of the Property Law Act 1958 was made before the commencement day of the Relationships Act, the application is to be determined in accordance with the provisions of Part 9 of the Property Law Act. 104 In essence, the case of the plaintiff is that she and the defendant commenced a relationship in 1998, which continued until 2007. They lived together, and made a home together, at two Geelong residences, at the South Yarra premises, at Dorrington Street, and then at the Altona premises. The defendant was the main income earner, and he was responsible for payment of the expenses relating to the properties. On the other hand, the plaintiff assumed responsibility for the care of the three children. By contrast, the defendant denies that at any time he was in a relationship with the plaintiff which could qualify as a “domestic relationship” under s275 of the Property Law Act. In cross-examination, he conceded that reasonable minds might take a contrary view in respect of the period of cohabitation between the plaintiff and the defendant at the South Yarra premises between 2001 and 2003. Otherwise, his evidence was that the parties lived at separate residences, notwithstanding that they did have a personal relationship of some sorts up to 2007.

105 In assessing the plaintiff’s evidence, it is necessary for me to take into account the fact that she was not cross-examined by an experienced advocate. Nevertheless, as I have already remarked, the defendant is not altogether deficient in that respect. He was prepared to challenge aspects of the plaintiff’s evidence, and he did cross-examine her at some length. In general, I have some reservations about the evidence of the plaintiff. In particular, as I shall explain later, I consider that her evidence was somewhat exaggerated as to the amount of work which she claimed to have done on the various properties purchased by the defendant. She was not forthcoming as to the circumstances in which she removed the defendant’s documents and mobile telephones from the Dorrington Street premises. As I have stated, her credibility has also been affected by the additional evidence of the defendant that he found documents on 26 December 2008, for which the plaintiff had previously claimed she had fully accounted. However, and notwithstanding those reservations, I found the plaintiff’s evidence, as a whole, to be credible as to the existence and duration of the relationship, which she alleges she had with the defendant. I do not consider that the relationship between the defendant and the plaintiff was as ordered or regular as that sought to be portrayed by the plaintiff. Clearly, the defendant lived a somewhat hectic, if not chaotic, lifestyle, in which he worked for two major clients for a substantial period of time (Prime Life and Barwon Water), maintained contact with the three children of his marriage, ran a city office, purchased and financed properties, and worked long hours. There were other unusual features of the relationship. However, and taking into account those reservations, nonetheless the evidence of the plaintiff was cogent, and consistent, as to the circumstance that, during the period from 1998 to 2007, she and the defendant did live together in a personal relationship at the addresses described by her, and that the relationship was based on mutual attraction and affection. 106 In this respect, the evidence of the plaintiff is supported by the evidence of her mother, Mrs Gail Cressy . Her evidence was that from 1998 until 2007, she had regular contact with the plaintiff. During all of that time the plaintiff and the defendant lived together and were, to Mrs Cressy ’s perception, a couple. During the whole of that period, the defendant never suggested to Mrs Cressy that he and the plaintiff were not living together. I considered Mrs Gail Cressy to be a credible and reliable witness. Indeed, the defendant did not seriously challenge her evidence in cross-examination, although he did, nevertheless, seek to attack her credit in final address. 107 In addition, the plaintiff’s evidence is also supported, to a lesser degree, by the evidence of Mr Enright. It was not until 2007 that Mr Enright became aware of any difficulties in the relationship between the plaintiff and the defendant. Before then, he had had no indication that the plaintiff and the defendant were not living together in a relationship. While the evidence of Mr Enright, on this aspect of the case, is quite limited, it does, to that extent, add some support to the evidence of the plaintiff and Mrs Cressy senior on this aspect of the case. 108 On the other hand, there are a number of matters, established by the evidence, which lead me to reject the defendant’s assertion that he did not cohabit with the plaintiff, on a regular basis, between 1998 and 2007. 109 It is clear, even on the evidence of the defendant, that the relationship between the plaintiff and the defendant commenced as a romantic relationship between them. In his own words, in late 1998, the defendant courted the plaintiff. He described their first date as Melbourne Cup Day, and he gave a detailed description of that occasion. Notwithstanding that he was then working in Melbourne, and that his marital home was in Belgrave, he pursued the plaintiff in Geelong. At some stage he chose to live in Geelong. While he was residing there, he established a business, the Gallery of Artemis. It is not necessary for me to resolve the issue whether he employed the plaintiff in that business, or whether she was a co-partner with him in it. On the defendant’s own evidence, he established that business as a means by which the plaintiff might, ultimately, become gainfully employed. In the meantime, he commenced his own legal practice there under the name “Sutton Johnson”. As I have already stated, he chose the name “Sutton”, because is the surname of the plaintiff’s father. All of those circumstances are demonstrative of the romantic attachment which the defendant then had to the plaintiff. Indeed, the Valentine’s Day Card which the defendant sent to the plaintiff in February 2000 is redolent with protestations by the defendant of his undying

love for the plaintiff. At that stage, there had been a rift in the relationship between the plaintiff and the defendant, and in the warmest terms he was entreating her to return to him. 110 As I have stated, the defendant, in his final address, sought to attack the credibility of the plaintiff’s account of the circumstances in which she said that she first met the defendant. In doing so, he referred to extracts from a diary or note book maintained by the plaintiff. It is not necessary for me to resolve the differences in the evidence of the plaintiff and the defendant in this respect, since, on any view, a romantic relationship did commence between them in late 1998. I do observe, in passing, that it is not unusual for parties who have had such a relationship, and who have subsequently fallen out in bitter circumstances, to each have different recollections as to the circumstances of their first meeting. In any event, there were aspects of the defendant’s account which were, to say the least, somewhat bizarre and unreal. Notwithstanding the contents of the document to which the defendant drew my attention, if it were necessary for me to resolve the difference in the two accounts, I would prefer the account given by the plaintiff, rather than that of the defendant, on that aspect of their evidence. 111 It is also common ground that the plaintiff and the defendant lived together in the rented premises in South Yarra between 2001 and 2003. While he claims that, even at that stage they were not living in a “domestic relationship”, nonetheless he also agreed in his evidence that reasonable minds might take the contrary view. That concession, in my view, conveys the fact that they were, on any view of the fact, living together as man and woman, on a regular domestic basis, at that stage. There is no evidence that, when the couple left the South Yarra premises, there was any rift in their relationship. To the contrary, on the defendant’s own evidence, they all moved from those premises to the Dorrington Street residence together in March 2003. 112 The defendant further agreed that the two sons of the plaintiff (Treece and Skye), together with Illyana, regarded him as their father. He agreed that in every respect he acted as a loving father to the three children. Mr Enright’s evidence supports the evidence of both the plaintiff and the defendant in that respect. In his affidavit in the Federal Magistrates’ Court, the defendant stated that “since the respondent (the plaintiff) and I first met I have been a father to the children Treece and Skye. I have supported them, cared for them and continue, despite the fact that their mother and I are no longer in a relationship, to spend significant periods of time with them. I regard them as my children and during our relationship the respondent and I talked about me adopting the children”. 113 In my view, the defendant was stating the truth in that part of his affidavit before the Federal Magistrates’ Court. In his evidence, the defendant stated that while the plaintiff and the children were living at Dorrington Street, he and the plaintiff would regularly take the children to the beach during the summer. He organised a membership of the Altona Lifesaving Club for the plaintiff, himself and the three Cressy children. He also took out family memberships for the plaintiff, himself and the three Cressy children for the Aquarium, the Melbourne Zoo, the Rialto Level 55 Observatory, the Werribee Zoo, the Melbourne Museum and the National Gallery. Such was the defendant’s relationship with all three children that Mr Enright, at all times, understood that the defendant was the father of them. 114 In the course of his final address, the defendant submitted to me that the plaintiff had had an affair with CP while he and the plaintiff were living together in South Yarra. I reject that submission. The evidence before me does not satisfy me that the plaintiff had any such relationship with CP. The defendant did not put that allegation to the plaintiff in cross-examination. The evidence of Constable Locke does not establish that there was any such relationship between CP and the plaintiff. Indeed, it is significant that it was the defendant who reported to the police that the plaintiff had been, apparently, the subject of stalking, on the internet, by a person who turned out to be CP. 115 The defendant also submitted that I should accept that the plaintiff had had a relationship with a man called “Mark” since 2006. That proposition was put to the plaintiff in cross-examination, and she denied it. The

references to “Mark” in the diaries of the plaintiff, which were tendered in evidence, are not sufficient to establish the existence of any such relationship to my satisfaction. I therefore reject the suggestion that the plaintiff did have such a relationship with “Mark” during the time in which she alleges that she had a relationship with the defendant. 116 In addition, it is clear that, from 1998 to 2007, the defendant did provide financial and other support to the plaintiff and her family. I shall return to the detail of that matter when considering the issue of contributions. Indeed, such was the defendant’s generosity that he permitted Gail Cressy and her other two daughters to live at the Lisa Court premises for some four years, while paying a particularly low rental. During that time, the defendant bore all the expenses relating to that house, including the mortgage payments, utilities, and the like. 117 In cross-examination, the defendant agreed that, from as early as 2000, and for some years, he was given to describe himself as the “husband” of the plaintiff. The Valentine’s Day card of February 2000 was accompanied with flowers, and a further card in which the defendant described himself as “your husband, lover and friend”. The plaintiff and the defendant went on holidays together, such as to Kangaroo Island in 2000. Even as late as 2007, they discussed having a joint Easter holiday together in the Whitsundays. In addition to the shared activities which I have described, they jointly renovated the Queen Street, Altona property, and the defendant assisted the plaintiff to work on the Hawkeshurst Court garden. He also took a keen interest in the plaintiff’s welfare and education. While they were living at South Yarra, he paid for her education fees at both Stott’s College and Taylor’s College. 118 Further, there is a plethora of documents which support the proposition that the defendant did reside with the plaintiff at the addresses identified by the plaintiff. In cross-examination, he identified his driver’s licence which had an expiry date of 18 June 2001. On the rear of that licence is endorsed the address “45 Illouera Avenue, Grovedale”. In re-examination, he claimed that he had the licence so endorsed because he had moved out of Belgrave, and he needed to endorse the licence with another address. That explanation is illogical, unless the defendant was, to some extent at least, then in residence in Illouera Avenue. The defendant also identified in cross-examination a home loan application to AMP (Exhibit D), in which he gave his then address as Nicholson Street, South Yarra, and his previous residential address (until November 2000) as 5 Illouera Avenue, Grovedale. 119 In his further evidence the defendant tendered a folder of documents (Exhibit 1G) which contained (inter alia) a Tenancy Application dated 1 November 2000 with the defendant’s characteristic signature, in respect of the premises at 45 Nicholson Street, South Yarra. In that document he stated that his previous address (for the last two years) was “5 Illouera” Avenue, Grovedale. I observe that, in that document, he stated that those premises were “owned by partner”. 120 As I have already stated, the Valentine’s Day card of February 2000 sent by the defendant to the plaintiff contained the request by the defendant that “I’d like you to think about moving back to Gheringhap Street”. That sentence implies that the plaintiff had previously lived at the Gheringhap Street premises with the defendant. The defendant sought to explain that sentence, by stating that he was then under great pressure because the plaintiff, while pregnant, continued to work in a brothel, and he wanted to show his commitment to her. That motive, whether true or not, does not explain why he referred, in the card, to the plaintiff moving “back” to Gheringhap Street, if she had not lived there previously. 121 In final address, the defendant placed particular emphasis on the birth certificate of Illyana (Exhibit 9) in which the plaintiff’s then address was given as 5 “Illovera Avenue” (sic) Grovedale and the defendant’s address as 42 Gheringhap Street, Geelong. There is no evidence as to the identity of the person by whom the birth of Illyana was registered. Certainly, there is no evidence that Illyana’s birth was registered by the plaintiff, and therefore the contents of the register (recorded in the birth certificate) could not constitute any admission by the plaintiff. If the birth was registered by the defendant, the contents of the register might be admissible either

pursuant to s 55 of the Evidence Act, or as a public document[15]. However, whatever the evidentiary status of the document, it does not, in my view, outweigh the force of the matters to which I have referred, and in particular the plethora of documents, signed or authored by the defendant, stating that the defendant had, until November 2000, resided at the premises at 5 Illouera Avenue, Grovedale. 122 The defendant, in cross-examination, also acknowledged that there were a large number of financial documents, either signed or proffered by him, in which he identified the Dorrington Street premises as his principal place of residence from 2003. In particular, his income tax returns for each year described the Dorrington Street property as his place of residence. In a loan application to the Guardian Mortgage Corporation (Exhibit N), the defendant described his principal residence as Dorrington Street, Point Cook. All those documents support the evidence of the plaintiff and her mother that the defendant did reside with the plaintiff, at the addresses referred to by the plaintiff, during the period 1998 to 2007. 123 Finally, it is necessary to refer, in a little detail, to the affidavit sworn by the defendant on 13 September 2007 in the Federal Magistrates’ Court. As I have already stated, in that affidavit, the defendant swore that he and the plaintiff had lived or partly lived together from December 1998 to January 1999 and from May 1999 to June 2007. I have already quoted paragraph 6 of the affidavit in which the defendant referred to the relationship which he had with the plaintiff. In cross-examination, the defendant stated that he had agonised over the affidavit, and that he had discussed the contents of the paragraphs, to which I have just referred, with his solicitor on a number of occasions. He stated that he could accept that what he said in those paragraphs was sufficiently accurate, because he interpreted those words as meaning something different from living together in a domestic relationship.[16] In re-examination, the defendant sought to elaborate his explanation for the affidavit. In essence, he stated that he was guided by the advice of his solicitor in the drafting of the affidavit. He then gave the following explanation which is, in my view, illuminating as to the attitude taken by the defendant to giving evidence on oath. In answers to some questions from me, he agreed that he knew the contents of the affidavit before he swore it, and that if it was untruthful, he would not have sworn it. I asked him whether, therefore, I was entitled to regard the admissions made by him in the affidavit as truthful admissions on oath. To that question the defendant responded: “... Yes Your Honour. The – the tide mark fluctuates up and down according to high tide, low tide. It’s still the tide mark. ... Now the truth can be told um within a band of descriptions. You could put the truth at its strongest or you could put it the truth at its weakest. It remains the truth Your Honour. ... I say there’s not the material – there is not such a material difference between what was encapsulated in those paragraphs ... and also in the true situation – those paragraphs of – those affidavit of mine - ... I’m saying they’re consistent. There is a discrepancy, but it’s like the discrepancy between the high tide and the low tide, it’s still the tide, it’s still the truth Your Honour.”[17] 124 That explanation given by the defendant moved me to ask the defendant whether he regarded that there are “shades of truth” when he stated something on oath. He denied that that was his attitude. He went on to explain that there is “no such thing as absolute truth” and that what he said in the affidavit “falls within the boundaries of truth”. 125 Two points are relevant from the foregoing part of the defendant’s evidence. First, it contains an acknowledgement (albeit reluctant and equivocal) of the truth of the contents of the defendant’s affidavit. In that affidavit, the defendant admitted that, in the period claimed by the plaintiff (late 1998 to about Easter 2007), he and the plaintiff had had a relationship in which they lived together on a domestic basis. Secondly, and revealingly, it discloses an ambivalent and flexible attitude by the defendant to telling the whole truth on oath. The defendant’s attempt, in re-examination, to explain away the contents of the affidavit sworn by him, fifteen months earlier, in the Federal Magistrates’ Court, was, of itself, a telling insight into the credibility and reliability of the defendant as a witness. In the plainest terms, it is clear that the defendant does not regard himself bound,

under oath, to tell the truth pure and simple. Rather, as I detected in other parts of his evidence, he considered himself entitled to stretch and obscure the truth as and when (to his perception) it suited his case to do so. 126 The defendant’s “flexible” attitude to the truth was, in my view, an attitude which I had earlier discerned, in the defendant’s approach to explaining a number of the events which occurred in the course of his relationship with the plaintiff. For example, the defendant sought to explain his generosity to the plaintiff, and to explain why he set up the Gallery of Artemis, by claiming that he had adopted the role of a “Henry Higgins” to an “Eliza Doolittle” in seeking to reform the plaintiff for her own sake. He cast himself in the role of an altruistic yet ever loving father of the plaintiff’s three children. His grandiose descriptions of himself were, I consider, transparent attempts by him to avoid the real truth of the matter, namely, that for almost one decade he did share a romantic relationship with the plaintiff. 127 In saying that, I do not downplay, nor demean, the fact that the defendant, both during and after his relationship with the plaintiff, has been a good and caring father to all three children of the plaintiff. In fact, it is to the defendant’s credit that he has acted in that way. However, in my view, he has simply tried to recast his role in the relationship, in order to evade a number of facts which strongly establish the type of relationship contended for on behalf of the plaintiff. 128 One circumstance, relied on by the defendant as militating against the existence of a domestic relationship, concerns the lease by him of the apartment in Bourke Street, Melbourne. The evidence shows that the defendant, in or about 2004, leased Apartment 909, 668 Bourke Street, Melbourne. In 2006 he leased a larger, three bedroom, Apartment 2302 in the same premises. Those premises were designed as residential premises. The evidence, however, disclosed that the defendant had furnished them with desks, computers and the like, in order that he could conduct at least part of his work practice there. Indeed, he stated that he employed a part-time assistant three days per week at the premises. He said that he moved to Apartment 2302 because he wanted more staff to work at that location. While Mr Ioannou thought that the defendant lived at the premises, he only met the defendant at the premises at 668 Bourke Street on one occasion. He stated that he drew the conclusion that the apartment was both the home and an office of the defendant. His evidence was of little value, on this aspect of the case, given his limited opportunity to observe how the defendant used the premises. Ms Briggs did state that she considered that the defendant lived and ran his business at Apartment 2302. However, she could not remember whether there were any beds in that apartment. She recalled that there were desks set up there. Her knowledge was confined to the fact that the defendant had applied for a residential apartment and stated that he was going to work in it. 129 The other witness relied on by the defendant is Ms Dek Fabrikant. The defendant called Ms Dek Fabrikant, in order to establish that he was not living at the Altona property at the time at which Ms Dek Fabrikant knew the plaintiff and her children. It is clear, from her cross-examination, that Ms Dek Fabrikant became more familiar with the plaintiff and her family in 2007. It was not until about April 2007 that the children commenced to visit her at her house. Ms Dek Fabrikant stated that when she visited the plaintiff’s house in the morning, she did not enter it, but left the food at the door. Thus, it is unlikely that she would have seen the defendant, even if he was present at the premises at that time. She did state that she would go into the house in the evenings. However, it is common ground that the defendant did work long hours in his practice. In this context, it is relevant to note that, while, in his evidence, Mr Johnson stated that he did stay at the Queen Street address approximately two nights per fortnight, Ms Dek Fabrikant did not see him there.[18] I regard Ms Dek Fabrikant as a sincere and honest witness. However, in light of those matters, I do not consider that her evidence does support the proposition that the defendant was not residing at the Queen Street, Altona premises in late 2006 and early 2007. 130 In his submissions, the defendant contended that the only evidence that he lived at the Queen Street, Altona address was the application by him to Australia Post dated 19 September 2007 to re-direct mail from that address to a post office address in Geelong. The defendant also relied on his current driver’s licence (expiring in June

2011) which is currently endorsed with his Torquay address. His evidence was that hitherto it had been endorsed with the Dorrington Street, Point Cook address and the address at Bourke Street, Melbourne (which addresses are obscured by the Torquay address endorsement on the licence). He submitted that the fact that the licence had not been endorsed with the Altona address militates against the plaintiff’s evidence that the defendant resided with her at that address. 131 Notwithstanding the matters relied on by the defendant, I am satisfied on the balance of probabilities that the defendant did live with the plaintiff at the Altona address until April 2007. A number of factors lead me to that conclusion. First, the affidavit sworn by the defendant in the Federal Magistrates’ Court is a clear admission by him that he lived with the plaintiff in a relationship until June 2007. Secondly, as I have already found, the relationship between the plaintiff and the defendant had continued throughout the time in which the plaintiff lived at the Point Cook property. There is no evidence that there was any rift in that relationship during that time. There is no reason therefore why the defendant would not have continued to reside with the plaintiff after the Altona property was purchased by the defendant. Indeed, the only evidence by the defendant of a rift between himself and the plaintiff related to the events of April 2007. Thirdly, as I have already stated, I do not regard the defendant as a reliable witness. Rather, as I have already observed, the defendant, on oath, regarded himself as being under liberty to weave his account to suit the evidence, and to further his own case. Fourthly, the mail redirection by the defendant to Australia Post supports the proposition that he had used the Queen Street property as a residence, until the relationship between himself and the plaintiff broke down in April 2007. Finally, as I have already stated, I regard Mrs Gail Cressy as an honest and reliable witness, and her evidence supports the proposition that the plaintiff and the defendant did live together in a relationship until early 2007. 132 Thus, based on the evidence which I have detailed at some length, I am satisfied that the defendant did cohabit with the plaintiff at the addresses at Illouera Grove, Geelong, Gheringhap Street, Geelong, Nicholson Street, South Yarra, Dorrington Street, Point Cook, and Queen Street, Altona, during the periods from late 1998 to about Easter 2007. I accept that, from time to time, the defendant stayed overnight at other places, and he slept overnight from time to time at his offices in Bourke Street. However, in my view his substantial place of residence, throughout that period, was at the addresses to which I have just referred. I am also satisfied that, during that period of time, the defendant lived at those residences because he was in a relationship with the plaintiff. The relationship was a sexual relationship. There was clearly a degree of financial dependence or interdependence between the parties. The plaintiff relied on the defendant to pay the mortgage expenses, the rental expenses (when they were living at Gheringhap Street and South Yarra), rates, insurances and the like relating to each property. As I shall indicate later in these reasons, I also accept that the defendant provided some financial support to the plaintiff. On the other hand, the plaintiff was the prime carer for Illyana, as well as for her own two sons, to whom the defendant readily became a father. The plaintiff, the defendant and the three children shared a number of outings and interests together, as conceded by the defendant in his evidence. Mrs Gail Cressy and Mr Enright both regarded the plaintiff and the defendant as living together as a couple. Thus, the relationship bore the hallmarks of a domestic relationship indicated in the factors specified in s 275(2) of the Property Law Act. I am satisfied, on the balance of probabilities, that the plaintiff and the defendant did live together as a couple on a genuine domestic basis for the period commencing late 1998, and terminating at about April 2007. 133 The next question which, accordingly, arises is whether the plaintiff has established an entitlement to an adjustment of the interests in the properties, of which the defendant is the registered proprietor, pursuant to s 285 of the Property Law Act. 134 In general, it is convenient to approach that question by what the New South Wales Court of Appeal in Kardos v Sarbutt[19] has described as a “three step process” in the following terms: “The first is the identification and valuation of the property of the parties, which determines ‘the divisible pool of property’ – that is ‘the property of the parties to the relationship or either of them’ ... which may be the subject of

an adjustive property order ... The second is the evaluation and balancing of the respective contribution of the parties of the types referred to in [section 285] and typically though not invariably results in an apportionment between the parties on a percentage basis of the overall contributions of the types referred to in [the legislation] of each of them, made to the date of hearing. The third is the determination of what order is required sufficiently to recognise and compensate the applicant’s contributions, and typically results in an order which leaves the applicant with that percentage identified in the second step of the divisible property identified in the first step.”[20] 135 The principles relating to the application of s 285 have been recently considered by the Court of Appeal in Giller v Procopets[21]. For the purposes of this case, the relevant principles may be summarised as follows: (1) In determining the contributions made by each party, full value must be given to the role of either party to the relationship in his or her role as a homemaker[22]. (2) The plaintiff is not required, under s 285(1)(b), to establish a link between contributions made by her in the capacity of homemaker or parent and the value of the assets in relation to which she makes her claim.[23] (3) Contributions by either party after the termination of the relationship are relevant for the purposes of s 285(1). Thus, the ongoing role of the plaintiff as the primary carer for the three children is a relevant contribution for the purpose of that section.[24] (4) Generally, the Court values the relevant property as at the date of the trial.[25] (5) In determining the parties’ contributions, and determining what adjustment, if any, is just and equitable, the judge is entitled to adopt what has been described as a “global” approach or an “asset by asset” approach or both. Generally, preference has been expressed for the global approach, as it is more consonant with the way in which parties in a relationship conduct their affairs over a period of time.[26] (6) In determining a just and equitable division of property under s 285, the “focal points”, by reference to which the relevant discretionary judgment is to be made, consist of the contributions identified in subparagraphs (a) and (b) of s 285(1). Nonetheless, other factors are relevant as contextual matters in determining what is just and equitable. They include a range of factors, depending on the facts of each case, such as the needs and means of the relevant parties, the length of the relationship, the expectations of the parties, and like matters.[27] Thus in Conn v Martusevicius[28] Vincent J stated: “... the Court is vested with a wide discretion and must attempt to arrive at a result which is just and equitable in the circumstances. Accordingly, it must have regard to the whole of the relevant context within which an application is made. Any assessment of the significance and value of the assistance and support provided by defacto partners which did not place them within a framework provided by all of the circumstances of the relationship, would introduce a measure of unreality into the process and a degree of tension would arise between the adoption of a restrictive approach to the factors to be taken into account, and the duty of the Court to attempt to achieve equity between the partners.” Identification of assets 136 In accordance with those principles, it is convenient, first, to identify the assets which are the subject of the application. The task of identifying the specific assets is simple. However, there is a marked paucity of evidence as to the current status of the properties. No evidence has been adduced as to their values. Little evidence has

been put before me as to the amount of debt secured over them. The current status of some of the properties is uncertain. Nevertheless, the following is a summary of the information which can be gleaned from the evidence as to each of the seven properties in respect of which the plaintiff makes her application. (1) 2 Dorrington Street, Point Cook. This property was purchased in about 2002, and settlement took place on 7 March 2003. According to the defendant, the price of the combined land and building package was $257,600. A deposit of $50,000 was paid, and the balance was financed by a secured mortgage. The current status of the property is uncertain. The plaintiff stated that the mortgagee has served a notice under s 77 of the Transfer of Land Act in relation to that property. The mortgagee has also commenced proceedings against the defendant for possession of that property. It is in those proceedings that the defendant has delivered the very lengthy counterclaim, against a large number of defendants, and to which I made reference earlier in these reasons. (2) 7A Inverloch Drive, Point Cook It appears that the settlement of the purchase of Inverloch Drive took place in about April 2003. The purchase price was $115,000, 80 percent of which was financed by a loan secured by a mortgage. As I understood the evidence of the plaintiff, the mortgagee may have taken action to gain possession of that property also. (3) 12 Lisa Court, Hoppers Crossing This property was purchased in early 2003. The purchase price for land and building was $170,000. A 20 percent deposit was paid and the balance was subject to a secured loan to AMP. In late January 2008 the Lisa Court property was sold. The proceeds of the sale were sufficient to extinguish the debt secured over the Lisa Court property, and to reduce the debt secured over the Hawkeshurst Court property. (4) 10 Hawkeshurst Court, Hoppers Crossing This property was also purchased in about 2003. The price of the combined land and building package was $167,000. A 20 percent deposit was paid, and the balance was borrowed from AMP on a secured mortgage. The defendant told me that as a result of the sale of the Lisa Court property in late January 2008, the debt secured over the Hawkeshurst Court property had then reduced to $111,000. In his evidence he estimated that the current debt is about $120,000. In cross-examination he stated that there was about $30,000 net equity in the property. (5) 166 Queen Street, Altona This property was purchased in February 2006 for $500,000. A 10 percent deposit was paid. The balance of the purchase price was financed by a loan secured by a mortgage. In addition, the defendant was required to pay $26,000 stamp duty. In his evidence, the defendant stated that the property had been sold by the mortgagee in November 2008. He believed that the property had been sold for $627,000. In her evidence, the plaintiff stated that she understood that, as a result of the sale, there was a balance of $103,000 after discharge of the mortgage. However, the mortgagee claims to be entitled to $55,000 of that sum to cover its expenses. (6) 9/2 Gibson Street, East Caulfield This property was purchased under contract dated 3 June 2005 for $450,000. A deposit of $22,500 was payable. The balance was financed by a secured loan. The defendant told me that because of the delay in the settlement of the purchase, he was able to re-finance it, and thus ended up not being required to pay any money for the

property at all. He also told me that he understands that the current debt secured over the property is $540,000 principal, plus arrears of $27,000. (7) 7A Endeavour Street, Torquay This property was purchased on 18 September 2007. The purchase price was $397,500. The deposit consisted of a five percent deposit bond. The defendant arranged finance for the whole of the purchase price of the property by re-financing the Caulfield property. Contributions 137 I must next reach a conclusion as to the evidence relating to the various contributions, which both the plaintiff and the defendant claimed to have made, in terms of s 285 of the Property Law Act, between 1998 and 2007. There was, in particular, a conflict in the evidence as to whether the plaintiff made a financial contribution to the purchase of some of the properties, and to the cost of some of the renovations and other works carried out to the properties. The defendant also put in issue the plaintiff’s evidence as to the amount of work which she carried out on the properties. There is also a difference in the evidence between the plaintiff and the defendant as to the financial contributions made by both the plaintiff and the defendant to the welfare of the family. Finally, the defendant put in issue, to some extent, the extent of the plaintiff’s parenting of the three children. I shall deal with each of those issues seriatim. Contributions to purchase of properties 138 The plaintiff, in her evidence, maintained that she paid part of the deposit for the purchase of the Dorrington Street property. She stated that she gave the defendant $3,000 or $4,000 cash to assist with payment of the deposits for the purchase of the Hawkeshurst Court and Lisa Court properties. She also stated that she contributed $29,000 of the $50,000 deposit paid for the purchase of the Altona property. She stated that she paid the sum of $2,000 cash to the agent, and contributed a further $27,000 from her Westpac account. On the other hand, the defendant maintains that he paid all of the deposit monies himself. 139 There is little objective evidence available for me to assess the competing evidence of both parties. Some of the tax returns of the defendant were tendered in bundles of documents produced by Mr Ioannou. The defendant had provided those documents to Mr Ioannou when applying for loans to fund the purchase of the various properties. I shall return to the detail of those tax returns in due course. However, it is sufficient to state that they do disclose that the defendant was earning a healthy income for the years in question, although, it would seem, his income was not as substantial as that sought to be portrayed by him in his evidence. On the other hand, the plaintiff did not produce any documentation to establish the income earned by her, or the nature of her assets, during the period in question. At the commencement of the relationship she was twenty years of age. She was then a young woman in distress, living in accommodation provided by the Salvation Army, with two young sons. She claims to have earned some income during those years by making and selling handmade crafts and the like, but, on all accounts, it does not seem that she derived much by way of income from that pursuit. She stated in her evidence that she commenced to work part-time as a sex worker in 2002, in which capacity she earned $40,000 per annum. Later, in 2006, she worked full-time as a sex worker. However, by then the properties, to which I have referred, had already been purchased. 140 The defendant tendered in evidence, through Mr Ioannou, a bundle of documents relating to an application by the defendant for finance for the purchase of the Queen Street property. Those documents comprised Exhibit 5. Within that exhibit are a number of documents which support the evidence of the defendant that it was he who paid the deposit for the purchase of the Queen Street property. The exhibit includes a receipt from the estate agent acknowledging payment of $1,000 from “Johnson”. It also contains a letter from the defendant to Mr

Ioannou dated 17 February 2006 stating that he would pay the balance of the deposit from monies in his AMP and ANZ bank accounts. The documentation includes a statutory declaration made by the defendant on 23 February 2006 stating that he paid the $1,000 cash to the agent on 14 February 2006, a personal cheque for $7,000 to the estate agent on 20 February 2006, and a bank cheque for $42,000 to the vendor’s agent on 20 February 2006. The next document comprises a copy of two receipts from the agent acknowledging payment of a cheque from the defendant for $7,000, and a further cheque for $42,000. Attached to the receipts is a photocopy of an AMP cheque, drawn on the defendant’s account, for $7,000, and an ANZ bank cheque for $42,000. The bank statements for the defendant’s ANZ trading account, which are contained in Exhibit 5, show a withdrawal of $7,000 on 13 February, and a further withdrawal of $35,010 (by card entry) on 20 February 2006. That evidence provides some support for the testimony of the defendant that it was he who paid the whole of the deposit for the purchase of the Queen Street property. On the balance of probabilities, I am satisfied that the defendant did pay that deposit. I am also satisfied that he alone funded the deposits for all the other properties purchased by him, including the Dorrington Street, Hawkeshurst Court and Lisa Court properties. Role of plaintiff in purchase of properties 141 There was also a conflict in the evidence between the plaintiff and the defendant as to whether the plaintiff played any role in the acquisition of any of the properties purchased by the defendant. The plaintiff stated that she and the defendant together located the property at Dorrington Street, Point Cook, chose the land, and selected the house. They jointly chose the colourings, fittings and fixtures. On the other hand, the defendant stated that he identified the purchase, and undertook it, without informing the plaintiff. He denied that the plaintiff played any role in organising the works carried out on the property. The plaintiff stated that she negotiated the purchase of the Altona property, bargaining the vendor from an asking price of $600,000 down to a final contract price of $500,000. By contrast, the defendant stated that it was he who identified the property at Altona as a suitable investment property. The defendant stated that he bargained the vendors down from their asking price to $520,000. He then chose to switch tactics by having the plaintiff negotiate with the vendors for a final purchase price of $500,000. The plaintiff claims that she and the defendant identified the two Hoppers Crossing properties (Lisa Court and Hawkeshurst Court), and that she and the defendant jointly organised the construction of the houses on those properties. The defendant maintains that he alone was responsible for the purchase of those properties and for organising the construction of the homes on them. 142 It is difficult to reconcile the difference in the accounts of the plaintiff and the defendant on this issue. Both were given to exaggerate their roles in a number of respects. On the balance of probabilities, I accept that the plaintiff and the defendant were jointly involved in looking for and purchasing the Dorrington Street property. At that stage, as I have found, they were a couple, and it is natural that the plaintiff would have accompanied the defendant, when he inspected the property and made plans to build a house on it. He told me that the house constructed on the property was a large five bedroom dwelling. It is most unlikely that the defendant would have planned that house without consulting the plaintiff, particularly since, as I have found, they were then a committed couple to each other. 143 On the other hand, I do accept that it was the defendant, and not the plaintiff, who possessed the commercial and financial acumen. The plaintiff was then quite young. She is an intelligent woman, but she did not give any evidence as to any education, or previous employment, which would have given her any particular expertise in identifying appropriate investment properties in the western suburbs. By contrast, the defendant presents as a person who, to put it mildly, is particularly entrepreneurial by bent, with a sharp eye for an investment, and with an almost extraordinary capacity to persuade financiers to lend him monies to purchase those properties. I therefore accept that it was the defendant, and not the plaintiff, who exercised the skill and judgment in identifying and locating the various properties, although I do not consider that the plaintiff was left in the dark, or was entirely quiescent, in the process. I also accept the defendant’s evidence, in preference to that of the plaintiff, that the defendant did most of the negotiating for the purchase of the Queen Street property, and that the plaintiff completed the negotiations as a useful change of tactics.

Contributions to renovations, repairs and works to properties 144 I have already summarised some of the evidence of the plaintiff as to the works which she stated she carried out, and the expenses she claims to have incurred, in respect of the Dorrington Street property, the Altona property, the Lisa Court property and the Hawkeshurst Court property.[29] In response, the defendant stated that the Dorrington Street property and the two Hoppers Crossing properties were all house and land packages, and that few works needed to be done to them after settlement. He stated that each property was fully landscaped. The Dorrington Street property only had a small back yard, and the defendant carried out some gardening works to it. He accepted that the plaintiff had repainted part of the interior of the Dorrington Street property, although the colours she used were not to his liking. He said that he and Mrs Gail Cressy had rendered the front of the house, and that the plaintiff did not participate in that work. He stated that he and the plaintiff jointly did some painting at the Hawkeshurst property after the tenants had left it damaged, and that he paid a landscape gardener for the garden at that property. He accepted that the plaintiff had cleaned the inside walls of the Altona property, and that she had repainted the interior of it. However, he said that he paid for the installation of a new kitchen, which cost $10,000. He said that he helped the plaintiff pull out the carpet, and he denied that the plaintiff replaced the curtains at the Queen Street property. As I have already stated, in cross-examination, the defendant broadly accepted that the plaintiff did carry out the work, which she had claimed to have done on the property, but he said that she had exaggerated the nature and quantity of the work carried out by her. He also denied that she paid for any of the work out of her own pocket. He said that he gave her the money for that work, or later reimbursed her for it. 145 In the context of a claim under Part 9 of the Property Law Act, it is not necessary for me to descend to minute detail in resolving the differences between the two parties to which I have just referred. I am satisfied that the plaintiff carried out some work on the Dorrington Street property, but not to the same extent as that maintained by her. As the defendant stated, the property was purchased as a house and land package. It is significant that Mrs Gail Cressy stated that she rendered the outside of the property, and not the plaintiff. The defendant had promised to pay Mrs Cressy for that work, but Mrs Cressy stated that he had failed to do so. I note that Mrs Gail Cressy did not give evidence as to any works carried out by the plaintiff at the Lisa Court property. I accept that the plaintiff did carry out some work to the garden and to the interior of the Hawkeshurst Court property, particularly after the first tenants had vacated it in a damaged state. I also accept that the defendant, and not the plaintiff, paid the expenses in connection with those repairs. I further accept that the plaintiff, with some limited assistance from the defendant, did carry out some repair works to the interior of the Altona property, but I was not impressed by her evidence that she paid for an expensive new kitchen to be installed into it. I accept the evidence of the defendant that he paid for that item. Thus, looking at the matter globally, I accept that the plaintiff did carry out some works to the Dorrington Street property, to the Hawkeshurst Court property, and to the Queen Street property, but not to the extent claimed by her. I do not accept that the plaintiff paid anything substantial towards the expenses in relation to that work. I accept the evidence of the defendant that he funded those expenses. Payment of mortgage, utilities, insurances and the like in respect of properties 146 It was common ground between the plaintiff and the defendant that the defendant bore the sole responsibility for payment of all outgoings in respect of the properties, including mortgage commitments, rates, utilities, insurances, and the like. It would appear that, notwithstanding that the defendant committed himself very heavily financially by the acquisition of so many properties in such a short period of time, nevertheless he was able, by and large, to meet those commitments, at least until the termination of the relationship. On the other hand, it would seem that there have been defaults in the payment of the mortgage instalments, at least in respect of the Dorrington Street property and the Altona property, since about late 2007. Contributions to household expenses

147 As I have stated, the plaintiff, in her evidence, claimed that normally she paid for all of the household expenses. She stated that the family food shopping cost her $300 per week. In cross-examination, she said that sometimes the defendant gave her monies, and indeed sometimes she gave the defendant cash for his outgoings. On the other hand, the defendant stated that during the relationship he generally withdrew $9,000 from the bank each Monday. He used that money to pay the mortgages, and also to deposit money into the bank account of his wife. He stated that he would give the plaintiff between $400 and $600 per week to cover living expenses. At one stage, he said he gave her $4,000 per month. The defendant was cross-examined at some length by Mr Devries on this aspect of his evidence. That cross-examination was designed to demonstrate that, in light of the other financial commitments undertaken by the defendant, he would not have been able to afford to pay to the plaintiff the sum of $400 to $600 per week as claimed by him. 148 As I have stated, the evidence of both parties in relation to financial issues is largely unsupported by any independent financial documentation. Some financial documentation relating to the defendant’s earnings was put in evidence in the bundles of documents tendered through Mr Ioannou. Exhibit 5 (consisting of documents provided by the defendant to Mr Ioannou to secure finance for the purchase of the Altona property) and Exhibit 6 (consisting of documents provided by the defendant to Mr Ioannou to re-finance the properties at Dorrington Street and Inverloch Drive, Point Cook) contained the defendant’s tax returns for the financial years ending 30 June 2001 to 30 June 2005. In summary they disclose the following information. For the year ending 30 June 2001 the defendant had a taxable income of $117,398. For the year ending 30 June 2002 he had a taxable income of $165,603. For the year ending 30 June 2003 the defendant had a taxable income of $87,904 (with a gross income of $137,335). For the year ending 30 June 2004 the defendant had a taxable income of $226,698 (with a gross income of $302,754). Finally, for the financial year ending 30 June 2005 the defendant had a taxable income of $246,167 (with a gross income of $352,803). 149 In his evidence, the defendant maintained that in about 2006 his income peaked, as he was working very long hours for Prime Life, and he was also supplementing his income with work for Barwon Water. However, no income tax returns, or any other financial documentation, were produced for the financial years ending 30 June 2006 and 30 June 2007. The defendant’s latest income tax return, for the financial year ending 30 June 2008, was tendered in evidence, disclosing a gross income of $28,250, and a net tax loss of $158,036. In his evidence in chief, the defendant told me that he had ceased working with Prime Life Corporation in December 2006, and that, as a consequence, he had suffered a two-thirds reduction of his income. 150 It is unnecessary for me to set out, at length, the cross-examination undertaken by Mr Devries in relation to this aspect of the case. The defendant stated that when he settled the Queen Street property, his mortgage commitments rose to $12,000 per month. In addition, he was paying rent of $1,600 per month for Apartment 909 in Bourke Street. When he moved to Apartment 2302 in July 2006 his rental increased to $2,345 per month. At the same time he was paying $600 per month (as a minimum) to maintain a serviced apartment in William Street. During that period the defendant had incurred a debt to the Tax Office of some $200,000, which he managed to reduce to $50,000. He was paying $2,200 per month to his wife, and was also paying credit cards, employees’ wages and motor vehicle expenses. In cross-examination, he agreed that his monthly commitments in respect of the payment of the mortgage instalments, payment of rent, and payments to his wife, totalled $25,000 to $30,000. In light of the declared income for the five years preceding June 2005, it is difficult to see how the defendant could have made a significant contribution to the financial support of the plaintiff and her children at the same time. I acknowledge that the defendant seems to have been somewhat deft in juggling his financial liabilities, and in keeping his financial ship afloat, notwithstanding the heavy financial burdens he was loading on to it. Nevertheless, the stark fact remains that, given his heavy commitments, he has not satisfied me that he had sufficient income to make the payments to the plaintiff and her children which he claims to have made. Indeed, in this respect I note that the defendant stated that the payment of income to him from both Barwon Water and Prime Life was “lumpy” and irregular.

151 As I have already stated, the evidence by the plaintiff as to her income sources during the period of the relationship is unsatisfactory. Although both sides were somewhat ambivalent about the topic, the evidence does emerge, both from the plaintiff and the defendant, that the plaintiff did work as a sex worker, at least from 2002 onwards. Indeed, the defendant, in evidence, stated that the plaintiff’s insistence on working in that occupation was a source of ongoing dispute between the plaintiff and himself. In evidence in chief, she stated that she earned $40,000 per annum in that capacity part-time from 2002, and, from 2006, she was able to earn $100,000 per annum when she commenced working full-time. Although she did not produce any documents or records to substantiate those figures, there is some, albeit limited, evidence as to her work in that period, contained in the extracts from her diaries which were tendered (as Exhibit 3) by the defendant. 152 In cross-examination, the plaintiff did acknowledge that the defendant bore all the expenses relating to the properties including mortgage commitments, rates and the like. She also acknowledged that, from time to time, she gave the defendant some cash, and that from time to time he gave her some money for her support. I accept that throughout the period of their relationship the defendant, and not the plaintiff, was the primary income earner. I do accept, on the balance of probabilities, that from time to time he did provide some assistance with household expenses. However, I do not accept his evidence that he was regular in doing so. On the balance of probabilities, I find that it was the plaintiff, and not the defendant, who was primarily responsible for payment of household items such as food, clothing and the like. In reaching that conclusion, I do not imply that the defendant was, in any way, deficient in his commitment to the relationship which he had with the plaintiff and her children. Rather, as the plaintiff stated in cross-examination, she and the defendant were a partnership, in which the defendant took responsibility for the expenses and outgoings relating to the properties, and in which she took prime responsibility for the upkeep of the family. By and large I accept, on the balance of probabilities, that the plaintiff’s evidence to that effect is a fair reflection of the nature of the arrangements between the plaintiff and the defendant during their relationship. 153 I add that since the termination of their relationship, the defendant has ceased to pay any monies towards the upkeep of the plaintiff and the three children. He stated that the last payment made by him was a sum of $800 in August 2007, and he conceded that he has not paid any further monies to the plaintiff or to the three children since that date. On the other hand, the plaintiff continued to reside, with the children, first in the Altona property, and then at Dorrington Street, at the expense of the defendant. The plaintiff was required to vacate Dorrington Street in late 2008 by the mortgagee. In addition, it is relevant that, when the plaintiff lived with the defendant at the South Yarra residence, the defendant paid the rental for those premises. Contributions as homemakers and parents and to welfare of the family 154 I turn, finally, to consider the evidence relating to the respective roles of the plaintiff and the defendant in maintaining the welfare of the family, including the three children, during and after their relationship. That issue is particularly relevant to evaluating the contributions of both parties in accordance with s 285(1)(b) of the Property Law Act. 155 It is common ground that, throughout the relationship, the defendant treated the plaintiff’s two sons, Treece and Skye, as his own children. As I have stated, they regarded him, and still regard him, as their father, and he assumed the responsibilities of a father towards them. In her evidence, the plaintiff stated that, during their relationship, she was the primary, if not sole, carer for the three children. She took the responsibility for the parenting aspects in relation to the children, particularly when they were infants. 156 To a large extent, that evidence of the plaintiff was uncontroversial. It was common ground that, during the relationship, the defendant worked long hours in his employment. As such, the primary responsibility for the care of the children was undertaken by the plaintiff. Nevertheless, some qualifications need to be added to that proposition. For some time, which was not identified in the evidence, the defendant paid the plaintiff’s mother,

Gail Cressy , to do some 15 hours per week housekeeping at the Dorrington Street property. Mrs Cressy stated that she drove the children around, and assisted with looking after them. Further, during their school years, the children were involved in before school and after school programs. In the meantime, while the family was living at South Yarra, the plaintiff was involved in part-time educational pursuits. As I stated, from 2002 she commenced to work part-time as a sex worker. Thus, while the plaintiff was the primary carer of the children, it is clear that she was not involved in that capacity on a full-time basis. 157 Further, the evidence also demonstrates that, although the defendant did work long hours, nevertheless he managed to set aside time to spend with the three children of the plaintiff. As I stated, it is not in dispute that the defendant has a close relationship with all three children, to whom he is quite attached. To that, albeit limited, extent, the defendant did make a contribution in the sense described in s 285(1)(b) of the Act. In addition, the defendant made a contribution by encouraging the plaintiff to undergo further education, for which he paid. He was supportive of her attempts to better herself, and, as part of those efforts, established the Gallery of Artemis business in Geelong. Assessment and comparison of contributions of plaintiff and defendant 158 It is difficult to estimate, with any precision, the value of the financial contributions made by the plaintiff in the acquisition of the seven properties which are the subject of the plaintiff’s claim. Based on my summary conclusions as to the assets, which I have stated in paragraph [136] above, the defendant paid or became liable for deposits, in respect of the seven properties, totalling $212,000. However, it is not clear that the defendant paid all of those amounts. For example, he re-financed the Dorrington Street property in order to fund the purchase of Inverloch Drive. As I understood his evidence, that re-financing enabled him to pay the deposit out of the loan money so advanced to him. Nevertheless, the figure of $212,000 is a useful, if imprecise, guide as to the total amount contributed by the defendant in payment of the deposits for the seven properties with which this case is concerned. 159 Very little evidence was put before me as to the ongoing liabilities of the defendant in respect of the loans secured over the seven properties. Some information is contained in the sets of documents produced by Mr Ioannou in his evidence. Exhibit 6 (relating to the re-financing of the Point Cook properties) contains some documentation relating to the AMP loans by which the two Point Cook properties and the two Hoppers Crossing properties had been financed. Those documents reveal that, as at September 2005, the debts secured over those four properties totalled just over $630,000. The same set of documents disclose that, in mid 2005, the defendant was liable to pay monthly instalments totalling $4,286 (that is $50,000 per annum) in respect of the loans secured over those properties. In addition, as I stated in paragraph 98 above, in 2006, the defendant borrowed over $400,000 for the purchase of the Gibson Street property. A document in Exhibit 4 (comprising documents relating to the purchase of the Gibson Street property) indicates that the interest rate in respect of that loan was 6.99% per annum. Thus, notionally the defendant was liable to pay approximately $28,000 per annum by way of interest in respect of the loan he acquired for the purchase of Gibson Street. I have no information as to the amount of monthly repayments which he was required to make. In fact, it seems from the defendant’s evidence that the situation relating to Gibson Street is somewhat more complex, because he subsequently re-financed Gibson Street to assist with the purchase of the Torquay property. As I understand the defendant’s evidence, he borrowed the whole of the purchase price for Endeavour Avenue, namely $400,000, from the same financier. If I were to assume that he was obliged to pay the same rate of interest, then he has been liable for interest payments (excluding any capital repayments) of almost $30,000 per annum in respect of that property. 160 Finally, it would seem that the defendant borrowed at least $450,000 to fund the purchase of the Altona property. In fact, a document contained in Exhibit 5 (comprising documents relating to the acquisition of the Altona property) seems to indicate that the defendant borrowed $491,000 at an interest rate of 6.82% per annum.

In round terms, the defendant was thereby committed to paying interest (independent of capital repayments) of over $30,000 per annum. 161 Thus, at the peak of the defendant’s borrowing, it would seem that he was committed to paying mortgage instalments amounting to over $130,000 per annum. (Indeed, in cross-examination, the defendant estimated that after the purchase of the Altona property, he had mortgage commitments of $12,000 per month). That figure is, of course, imprecise. Further, the figure had grown during the period of the defendant’s relationship with the plaintiff. However, the information which I have derived from the evidence is sufficient to indicate that the defendant did undertake a very significant burden in borrowing the funds, to finance the purchase of the seven properties, which are the subject of this case. It seems from the evidence that the defendant did continue to meet all the payments due under the various mortgages until about late 2007, as well as paying for all other expenses relating to the properties such as rates, taxes and insurance premiums. 162 As I have already stated, I have also concluded that, while the parties did undertake some work and improvements to some of the properties, those works were relatively minor. Further, I have accepted the defendant’s evidence that he, not the plaintiff, paid for the outgoings in respect of the various works and improvements carried out to the properties. While the plaintiff made some contribution to the properties by the work which she undertook on them, that contribution was minor in comparison with the financial burdens undertaken by the defendant in the acquisition and financing of those properties. 163 Furthermore, as I have concluded, the defendant made a contribution to the acquisition of the property by using his skill and expertise in identifying the properties, and, more particularly, by using his acumen in organising the financing of those properties. It is common ground that the plaintiff had nothing to do with arranging finance for any of those properties. While one might question the wisdom of undertaking so many financial burdens in such a short period of time, nonetheless it was the defendant alone who managed to secure the finance which enabled the purchase of the properties to proceed. 164 In addition, it is a matter of no small consequence that it was the defendant alone who has borne the responsibility as the sole borrower of the funds used to purchase the properties. By doing so, the defendant has undertaken a very substantial financial risk. He alone, and not the plaintiff, is exposed, if he is unable to meet the payments due in respect of any of the properties. If, as seems likely, any of the properties are sold for less than the amount of the loan secured over them, the defendant will be liable to the financier for the balance of the outstanding debt. There is no evidence that the defendant has any substantial or worthwhile assets, from which he could meet such a liability. It is clear that the defendant has undertaken a substantial and significant risk in acquiring and funding the properties. 165 On the other hand, as I have already found, the plaintiff undertook the responsibility as the primary carer of the three children of the relationship of which the defendant was a part. As pointed out by Neave JA in Giller v Procopets[30], it is important not to undervalue or understate the role of a mother who has dedicated herself to the primary care, nurture and support of young children. That role is in itself a significant, and often very difficult, responsibility, particularly when the children are infants. It is clear on the evidence that the plaintiff undertook a substantial proportion of the parenting of the three children, subject to the qualifications which I have already stated in this judgment. The evidence of Mr Enright and Ms Dek Fabrikant reinforce the picture of a family consisting of a very busy and hard-working professional father, and a mother who, while remaining responsible for the care and upbringing of the children, supplemented the family income by working part-time. It is impossible – and indeed most undesirable – to even endeavour to quantify in monetary terms the value of the contribution of the plaintiff in undertaking that role. Nonetheless, I take into account that the plaintiff, by undertaking that role, did make a substantial contribution to the welfare of the family unit in which she and the defendant were the two parents, and, in doing so, enabled the defendant to work long hours to earn an income,

which was sufficient to meet the mortgage obligations of the properties he had purchased during the relationship with the plaintiff.[31] 166 In addition, it is important to take into account the fact that the plaintiff, by her part-time earnings, paid a substantial amount of the ongoing day to day expenses for the family, while she and the defendant shared a relationship together. It is difficult to quantify the amounts contributed by the plaintiff and the defendant to the upkeep of the family but, as I found, it was the plaintiff who contributed the majority of those monies. 167 In light of the very different roles assumed by the plaintiff and the defendant in the relationship, in my view it is only appropriate that I evaluate and compare the contributions of the plaintiff and the defendant, in accordance with the findings which I have thus far made, on a global basis. Without any adjustment under s 285(1) of the Property Law Act, the defendant is currently the sole owner of five of the seven properties which are the subject of the application, the Altona and Lisa Court properties having been sold. It is impossible to determine the value of the defendant’s equity in those properties. I suspect that the Hawkeshurst property has more equity in it than any other property, but that impression is not based on any firm evidence put before me. It is clear that when the properties were purchased, they were heavily geared. I am entitled to take judicial notice of the fact that, while the property market did continue to rise after the purchase of some of those properties, the more recent dramatic economic downturn may have had an adverse effect on their values. Taking those matters into account, the best that I can do, in the incomplete and unsatisfactory state of the evidence, is to assess the case on the basis that the total value of the equity of the defendant in the five remaining properties is unknown, but could not, by any means, be substantial. 168 Nevertheless, whatever the amount of value remains in that equity, I have reached the conclusion that, in the circumstances of this case, it is just and equitable that I should make an order under s.285(1) of the Act, so as to allow for the comparative contributions made by the plaintiff to the relationship of the nature which I have described above. In essence, the properties were acquired during (or shortly after) the relationship between the plaintiff and the defendant, in the course of which the defendant devoted the substantial part of his energies and efforts to the acquisition of the properties, while the plaintiff assumed the principal burden of caring for the family unit consisting of the plaintiff, the defendant and the three children. The plaintiff has been left with the care of the children, for which she receives no support from the defendant. On the other hand, the defendant has been left with the burden of the mortgages and debts secured by the properties. 169 As I have already stated, in Giller v Procepets[32] the Court of Appeal emphasised that in determining the contributions made by each party for the purposes of s 285, full value must be given to the role of the homemaker or parent in the relationship. Neave JA (with whom Maxwell P agreed) emphasised that the contributions of a defacto partner as homemaker and parent should not be regarded as inferior to the corresponding contributions of the other partner, nor should the contributions of a partner as homemaker or parent be valued by a reference to the commercial value of those services.[33] In Kenyon v Akeroyd[34], the Court of Appeal (consisting of Maxwell P, Redlich JA and Forrest AJA) referred to those principles, and stated: “As the origins and nature of particular assets must also be taken into account the circumstances of particular cases may warrant a different approach, but it will often be an appropriate starting point to treat the contributions of the partners, though different, as reciprocal – and equal.”[35] 170 In my view, the present case is an apposite example of the point made by the Court of Appeal in Kenyon v Akeroyd. It is impossible to put a realistic monetary value on the contributions made by the plaintiff as a homemaker.[36] Nor, for that matter, is it possible to value in money terms the contribution of the defendant in his encouragement and moral support to the plaintiff in her educational pursuits, and in his role and capacity as parent to the plaintiff’s two children, and to Illyana. As I have stated, the defendant has assumed an onerous burden in respect of the mortgage commitments for the properties. That burden, and the financial risk carried by

him, must be given full value. Conversely, the plaintiff has assumed principal responsibility for the care of the children, and, during the period of the relationship, she contributed substantially to the day to day expenses of the household. Taking all those matters into account, and bearing in mind the admonitions of the Court of Appeal to give full value to the contribution of the homemaker and parent, in this case I am satisfied, for the purposes of s 285(1) of the Property Law Act, that the contributions of the plaintiff and the defendant were equal. In reaching that conclusion, I take into account the ongoing and continuing contribution by the plaintiff as parent and homemaker for the three children, and the lack of any financial or other contribution by the defendant since about late 2007. Relief under Part 9 of the Property Law Act 171 I turn, then, to consider what relief is to be granted to the plaintiff in respect of her claim against the defendant under Part 9 of the Property Law Act. 172 Section 285(1) empowers the Court to make an order adjusting the interests of the domestic parties in the property of one or both of them “that seems just and equitable”, having regard to the three types of contributions referred to in that subsection. Section 291 sets out a broad range of orders which the Court may make in exercising those powers. 173 Mr Devries submitted that, if I should determine that the plaintiff and the defendant made equal contributions for the purposes of s 285(1) of the Act, I should make orders securing to his client the payment of the sum of not more than $129,000. He submitted that the order should direct payment to the plaintiff of the balance of the proceeds of the Altona property ($48,000). In addition, I should order the sale of the Hawkeshurst Court property, and out of the net proceeds thereof (after discharge of all outstanding mortgage and other debts secured over the property) the payment to the plaintiff of a sum, not exceeding $81,000. 174 In support of that submission Mr Devries contended that I should proceed on the basis that the relevant “pool of assets” from the relationship, should be valued at $258,000. He submitted that that sum is calculated as follows: (a) The defendant, on his own evidence, received a sum of $11,000 from the settlement of the purchase by him of the Caulfield East property. The defendant had given evidence that the settlement of the purchase was delayed, and in the meantime the value of the property had increased. Accordingly, he was able to borrow $11,000 in excess of the sum required by him to settle the purchase of the property. (b) In addition, the defendant gave evidence that he received the sum of $98,217 cash on 31 December 2007 when he re-financed the Caulfield property for the purposes of funding the purchase of the Torquay property. He tendered a bank statement which demonstrated that that amount was deposited into his bank account on 31 December 2007. (c) The plaintiff gave evidence that the defendant had received the sum of about $25,000 out of the proceeds of sale of the Lisa Court, Hoppers Crossing property. (d) The defendant gave evidence that he had superannuation which, as at about December 2007, had a balance of $80,000. He also stated that he had not contributed to that fund for some five years (that is, since 2003). Mr Devries submitted that, accordingly, the amount “saved” by the defendant, in his superannuation fund, during the term of his relationship with the plaintiff should be calculated at approximately $35,000.

(e) The defendant also gave evidence that he sold his 1999 Landrover in September 2007 for approximately $10,000. He gave evidence that he had previously purchased that vehicle for $54,000 (obviously during the period of the relationship). (f) The defendant, in cross-examination, estimated that he had a net equity in the Hawkeshurst Court property of approximately $30,000. (g) Finally, it is common ground that, after allowing for the mortgagee’s costs, a sum of $48,000 was available for distribution from the sale of the Altona property. 175 Mr Devries submitted that the plaintiff should be entitled to a sum of 50% of the total of the above six items, which he calculated at $129,000. 176 Section 285(1) of the Property Law Act vests the Court with a wide discretion. Ultimately, that discretion is to make such order as is just and equitable, having regard to the contributions defined in s 285(1). In reaching that determination, the Court takes into account the context of the relationship between the parties.[37] Further, as I have already observed, the assessment of the proportionate contribution of each party to the assets and resources of each other, and to the relationship while it endured, does not partake of mathematical precision. That evaluation involves an assessment of many intangibles and, at best, can only be approximate. 177 Bearing in mind those principles, I turn to the attempt by Mr Devries to compute the “pool of assets” which he submits I should regard as being available for distribution. On a number of occasions during the trial of the case I drew the parties’ attention to the fact that I had not received evidence which enabled me, with any degree of precision, to make findings about the value of each of the properties which are in dispute in this case, or as to the amount of equity in each of the properties after allowing for the mortgage debt secured over them. In the absence of that evidence, the task of doing justice and equity to the parties, broadly commensurate with my assessment of their relevant contributions, is difficult. If this were not a case involving the failure of a personal relationship in circumstances which, self-evidently, have caused at least one party (the defendant) to be antipathetic and antagonistic to the other party (the plaintiff), the simplest solution would have been to declare that the defendant is entitled to a one half interest in the equity of the properties, together with a one half interest in the proceeds of the sale of the Queen Street property. However, as the authorities make clear, it is undesirable for Court to adopt such a solution, particularly in cases such as this. Rather it is preferable – and indeed in this case highly desirable – that I endeavour to fashion orders, to do justice and equity between the parties, and so as to ensure that the parties do not share any particular asset.[38] 178 I turn then to the “pool of assets” which Mr Devries has submitted I should find as available for distribution between the parties. Strictly speaking, the amount of $11,000 received by the defendant from the settlement of the purchase by him of the Caulfield property, and the amount of $98,217 received by him from the re-financing of that property for the purpose of the acquisition of the Torquay property, would not, on an accounting basis, be considered as a net asset. For, they were matched by a corresponding increase in the level of debt owed by the defendant to the mortgagee of those two properties. However, in my view it is appropriate to take those two amounts into account as benefits already received by the defendant from the properties, in respect of which I would otherwise order that the plaintiff had a joint 50% interest. In other words, theoretically, if those two amounts had not been borrowed by the defendant for his own use, his net equity in the two properties would have been $109,000 greater than it is at present. The plaintiff would have been entitled to a 50% interest in that amount. Thus, in my view, it is appropriate to take into account those two sums in computing an amount to be awarded to the plaintiff as an adjustment of the interests of the defendant in the properties concerned. 179 The fourth item identified by Mr Devries comprises the defendant’s superannuation. The defendant stated that as at the end of 2007 his superannuation was valued at $80,000. He observed, with some justification, that

since that date the amount of his superannuation would have depreciated, because of the downturn in the global economy. The defendant also stated (as at December 2008) that he had not made any contributions to the fund for five years. Thus he only contributed to the fund during approximately one half of the period of his relationship with the plaintiff. In addition, the defendant had commenced work in 1991, and I am prepared to presume, in his favour, that he had made contributions to that fund during the period 1991 to late 1998. Taking those matters into account, and taking a conservative approach, I would act on the basis that an amount of $15,000, in the defendant’s current superannuation fund, is attributable to contributions made by him to the fund during the period of the relationship. 180 The defendant gave evidence that his net equity in the Hawkeshurst Court property was in the order of $30,000. Although the defendant is not a qualified valuer, nevertheless his evidence to that effect is admissible, and has weight, as an admission by the defendant of that fact.[39] The defendant is an experienced and confident real estate investor. He assumed sole responsibility for arranging finance in respect of the purchase by him of the seven properties. I therefore considered that his evidence as to the net equity in the Hawkeshurst Court property, while inexact, does have some weight. 181 On the other hand, I do not consider that the evidence establishes that the defendant did receive, in his hand, an amount of $25,000 from the re-financing of Lisa Court. While the plaintiff gave evidence to that effect, it is clear that she had not been involved in the sale of the property, and that her knowledge as to the outcome of that sale was limited. On the other hand, the defendant gave evidence that, while it was a net balance as a result of the sale of the Lisa Court property, that balance was credited to the mortgage debt secured over the Hawkeshurst Court property. As I am taking into account, as part of the pool of assets, the defendant’s estimate of the net equity in the Hawkeshurst Court property, it would be double counting to take into account, separately, the amount “received” as a result of the sale of the Lisa Court property. 182 Taking into account each of those matters, I am therefore prepared to proceed on the basis that the combination of the benefits derived by the defendant from the financing and re-financing of the Caulfield property, the amount of superannuation saved by him during the relationship, the proceeds of the sale of the vehicle, the net equity in the Hawkeshurst Court property, and the net proceeds of the sale of the Queen Street property, totals approximately $210,000. Under s 291 of the Property Law Act I have power (inter alia) to order a sale of property and distribution of the proceeds in any proportions I think fit, and to order payment of a lump sum to a party. In the circumstances of this case, in my view it is appropriate that I make orders of the kind contended for by Mr Devries, so as to ensure to the plaintiff the payment of an amount no greater than $105,000. I accordingly intend to make orders to the following effect: (1) That the defendant pay to the plaintiff $105,000. (2) In order to secure payment to the plaintiff of that sum (a) The net proceeds of the sale of the Altona property be paid to the plaintiff. (b) The Hawkeshurst Court property be sold, and out of the net proceeds thereof (after deduction of any amount due to the mortgagee of the property, of any other amounts secured over the property, and of the costs of the sale of the property) there be paid to the plaintiff of a sum which, when added to the net proceeds of the rule of the Altona property so paid to the plaintiff, results in the payment to the plaintiff of an amount no greater than $105,000. Alternative claim: constructive trust

183 As an alternative, the plaintiff claims that the defendant has held his interest in the seven properties, which are the subject of this proceeding, on trust for the defendant and herself in equal shares from the conclusion of their joint relationship. She bases that alternative claim on the proposition that the defendant’s legal ownership of the properties is subject to a constructive trust, imposed by the law, in her favour. Although I have found in favour of the plaintiff in respect of her claim pursuant to Part 9 of the Property Law Act, it is necessary that I also make findings in respect of the plaintiff’s alternative claim. Those findings are relevant, inter alia, to part of the counterclaim by the defendant against the plaintiff. 184 The plaintiff does not rely on a constructive trust arising from a common intention between herself and the defendant that the properties, purchased by the defendant, should be held by him subject to an interest by her in them. Rather, the plaintiff’s case is that she and the defendant conducted their relationship on the basis that they, in effect, pooled their assets, in such a way that she thereby contributed to the acquisition and maintenance of the properties acquired by the defendant. She submits that, on the failure of the relationship between the plaintiff and the defendant, it would be unconscionable for the defendant to assert his legal interest in the seven properties, to the exclusion of any interest by her in them. 185 The constructive trust thus relied on by the plaintiff derives, originally, from the judgment of Deane J in Muschinski v Dodds[40]. In that case, an unmarried couple purchased land in their joint names. The plaintiff paid the purchase price for the land from her own funds. The defendant agreed to renovate the cottage on it and to purchase a prefabricated house to be placed on the land. The relationship between the plaintiff and the defendant failed, before the defendant made his agreed contribution. The High Court, by a majority (Brennan and Dawson JJ dissenting), held that the parties held their legal interests on a trust whereby, after payment of any joint debts incurred in the improvement of the property, they were to repay to each other their respective contributions, and to hold the balance of the proceeds of the sale of the property in equal shares for each other. Gibbs CJ rejected the claim by the plaintiff appellant that, in the circumstances of the case, there existed a constructive trust. His Honour based his conclusion[41] on the proposition that the plaintiff and defendant, as joint contractors, had quasi-contractual rights of contribution inter se. On the other hand, Deane J (with whom Mason J agreed) concluded that, in the circumstances of the case, equity would impress the legal estate of each of the plaintiff and the defendant with a constructive trust. His Honour found that the existence of a constructive trust is not exclusively dependent upon the establishment of a common intention by the parties. Rather, the trust derives from the intervention of equity in order to prevent unconscionable reliance by a party to a relationship, which has failed, on his or her legal rights. The principle was stated by Deane J in the following passage in his judgment: “... The principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so. ... .”[42] 186 That principle was followed by the High Court in Baumgartner v Baumgartner[43]. In that case, the plaintiff and the defendant lived together in a defacto relationship. They commenced living with the defendant in a unit owned by him. At an early stage in their relationship, they pooled their joint incomes, in order to pay for their living expenses. From those combined resources, the defendant was able, on about four occasions, to make additional payments in relation to the mortgage secured over his unit. Subsequently, the plaintiff and the defendant purchased a house in the name of the defendant. The purchase was funded by the net proceeds of the sale of the unit, together with a mortgage in the name of the defendant. The parties lived at that house for three years. They continued to pool their resources for payment of ongoing expenses, including the mortgage. After they separated, the defendant asserted that he was the sole owner of the property. The trial judge dismissed the plaintiff’s claim for a declaration that the defendant held his interest in trust for her, on the basis that the plaintiff

had failed to establish a common intent between the parties to that effect. The Court of Appeal upheld the plaintiff’s appeal. It held that, on the evidence, the Court could infer the existence of a common intention between the parties to create a trust to the effect claimed by the plaintiff. The High Court held that the Court of Appeal erred in holding, on the evidence, that such a common subjective intention might be inferred.[44] However, the Court held that, in the circumstances of the case, the Court would impose a constructive trust, in order to prevent unconscionable conduct by the defendant in relying on his legal estate in the house to the exclusion of the plaintiff. In reaching that conclusion, the Court referred to, and expressly followed, the passage from the judgment in Deane J in Muschinski v Dodds, which I have quoted above.[45] 187 The judgment of Deane J in Muschinski v Dodds[46], and the joint judgment of Mason CJ, Wilson J and Deane J in Baumgartner v Baumgartner[47], each emphasised that the law does not impose a constructive trust in accordance with “idiosyncratic notions of what is just and fair”. Rather, the existence of a constructive trust, and its content, will only be recognised to the extent necessary to prevent conduct regarded as unconscionable, pursuant to equitable principles, upon the failure of a relationship between two parties. Hence, in Muschinski v Dodds, Deane J stated[48]: “... one is not left at large to indulge random notions of what is fair and just as a matter of abstract morality. Notions of what is fair and just are relevant but only in the confined context of determining whether conduct should, by reference to legitimate processes of legal reasoning, be characterised as unconscionable for the purposes of a specific principle of equity whose rationale and operation is to prevent wrongful and undue advantage being taken by one party of a benefit derived at the expense of the other party in the special circumstances of the unforseen and premature collapse of a joint relationship or endeavour.” 188 In the present case, the plaintiff did not make any direct financial contribution to the acquisition of the properties, nor did she make any payment in respect of the debts secured by the mortgages over the property. In addition, she did not bear any responsibility for payment of other ongoing expenses, such as rates, taxes, insurances and the like. I have found that she did some, relatively minor, work to the properties at Dorrington Street, Hawkeshurst Street and Queen Street, Altona, but that the large proportion of the expenses incurred in connection with that work were paid by the defendant. The question which arises is whether, in those circumstances, there nonetheless is imposed, on the failure of the relationship between the plaintiff and the defendant, a constructive trust of the kind referred to in Muschinski v Dodds and Baumgartner v Baumgartner. 189 Any such constructive trust would derive from the particular features of the relationship existing between the plaintiff and the defendant from 1998 to 2007. In particular, during that relationship, the roles of the parties evolved. In the course of the relationship, from about 2002, the defendant embarked on an enterprise of purchasing and funding a number of properties. He directed his energies and finances to that endeavour. During that time, as I have found, he lived in a domestic relationship with the plaintiff. In that relationship, the plaintiff was basically the homemaker, and the prime carer of the three children involved in the family unit. As I have also found, she bore the majority of the household expenses out of her part-time earnings. The plaintiff and the defendant each assumed and discharged certain roles, deriving from their joint relationship together. In those capacities, the plaintiff maintained the home and cared for the children, devoting her earnings and efforts to that part of the relationship. On the other hand, the defendant embarked on his role of investing in, and financing the purchase of, a number of properties. The question is whether, in those circumstances, the principles of equity, developed by the High Court, would impose a constructive trust, on the basis that it would be unconscionable for the defendant, on the failure of the relationship, to assert his sole legal interest in the properties, to the exclusion of any entitlement of the plaintiff in respect of them. 190 In Muschinski v Dodds and Baumgartner v Baumgartner, the plaintiffs had each made either direct or indirect financial contributions towards the payment for the properties which were the subject of the claims in those cases. As I have outlined, this case is somewhat different, in that the contribution of the plaintiff to the

properties was less direct. In essence, the case of the plaintiff, in favour of a constructive trust, is that it would be inequitable for the defendant to assert, to her exclusion, his legal interests in the properties, given that her role in their relationship facilitated the performance by the defendant of his own role, in purchasing and funding the debts over the seven properties. 191 Some support for the claim by the plaintiff to a constructive trust, in the circumstances outlined above, is to be found in the following passage from the judgment of Deane J in Muschinski v Dodds[49]: “As has been seen however, the relationship between the parties in the present case was not merely a commercial one. It was a mixture of the commercial and the personal. The personal relationship provided the context and explains the content of the planned commercial venture. If the personal relationship had survived for years after the collapse of the commercial venture and the property had been unmistakably devoted to serve solely as a mutual home, any assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a ‘defacto’ situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In the forefront of those considerations there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home making and family care. In fact, of course, the personal relationship also failed in the present case. The Picton property was not devoted to serve as a mutual home for a lengthy period after the collapse of the planned commercial venture. There is no consideration or combination of considerations arising from the personal relationship between the parties which could properly be seen as negating or overriding the unconscionable character of Mr. Dodds ' conduct in seeking, in the circumstances, to assert and retain the benefit of a full one-half interest in the property without making any allowance for the fact that Mrs. Muschinski has contributed approximately ten-elevenths of the cost of its purchase and actual improvement.” 192 That passage has been quoted in a number of later decisions by intermediate courts of appeal. However, the courts have given different emphasis and meaning to it. The high water mark, for a person in the position of the plaintiff, is the decision of the Full Court of the Supreme Court of South Australia in Parij v Parij[50]. In that case, the defendant and the plaintiff lived together in a defacto relationship for 17 years. In the course of that relationship, they purchased, in their joint names, a house in which they lived. At the same time, the defendant also purchased, in his own name, two other properties. The trial judge dismissed a claim by the plaintiff to an interest in the assets purchased by the defendant in his own name. The Full Court upheld the plaintiff’s appeal, holding that the plaintiff had a one-third interest in the two properties purchased by the defendant in his own name, together with the accounting business of the defendant. Debelle J delivered the principal judgment of the court. His Honour quoted, at some length, from the judgments in Muschinski v Dodds and Baumgartner v Baumgartner. He then expressed the relevant proposition in the following terms: “These decisions establish in unambiguous terms that, when determining whether it is unconscionable for one party to a defacto relationship to retain the sole beneficial ownership of property acquired in the course of the relationship, regard will be had to the manner in which the parties have conducted their relationship and the contributions each have made. When assessing their respective contributions, regard will be had to non-financial contributions as well as to financial contributions. The latter proposition is clear from the references to the ‘practical equation between contributions in money or labour and indirect contributions in other forms such as support, home making and family care’ in Muschinski v Dodds (at 622) and in the reference to ‘contributions either financially or in kind’ in Baumgartner (at 150).”[51] 193 However, the proposition thus stated by Debelle J in Parij has to some extent at least been qualified by decisions of the Court of Appeal of New South Wales and of Western Australia. In Green & Ors v Green[52] Gleeson CJ (with whom Priestly JA agreed) stated:

“It is clear that the mere existence of a matrimonial or defacto relationship, combined with express or implied undertakings to provide support and accommodation, will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the home occupied by the parties is created. ... In a legal system which does not include concepts of family or community property, and where an obligation on the part of a husband to house and provide for his wife is commonly regarded as an incident to the matrimonial relationship, an undertaking of the kind referred to cannot of itself confer upon a wife a legal or equitable interest in the matrimonial home. If the matter is considered in terms of a promise or representation by the husband, and an acting by the wife to her detriment on the faith of that promise or representation, then a claim made on the narrow basis set out above would normally fail at both levels. The acceptance of an obligation on the part of the husband to house his wife would not normally be regarded as an undertaking to give her a proprietary interest in the home in which they live, and wives usually have reasons for living with their husbands other than an expectation that they will increase their assets. Nevertheless, it is now well settled that there are circumstances in which a court of equity will intervene to declare the existence of a proprietary interest in a family home on the part of a spouse or defacto partner, and the unifying principle underlying the cases where such intervention is regarded as appropriate is that in the circumstances of the case, and in accordance with equitable doctrines, it would be unconscionable on the part of the person against whom the claim is set up to refuse to recognise the existence of the equitable interest ... .”[53] 194 In Stowe v Stowe[54], the Full Court of Western Australia (consisting of Ipp, Owen and White JJ) expressed a similar qualification, stating: “But on existing equitable principles, where there is no common intention to share all the property of one of the spouses, and there is no pooling involving all such property, and where only particular properties (but not all) owned by one spouse have been improved by contributions of the other spouse, contributions by the latter to the general welfare of the parties (whether to the general benefit of a family or to business activities carried on by them) cannot give rise to a constructive trust over all such property. ... Where the contributions of one spouse do not result in assisting or enabling the other to acquire particular property, or in improvements to particular property ... equitable relief of the kind sought is not available ... Accordingly, on recognised equitable principles, the contributions to family welfare, the contributions to Mr Stowe’s business activities, in general, and the detriment suffered by Ms Stowe, in the circumstances alleged in the statement of claim, do not found a claim of the kind made .... .”[55] 195 That passage in Stowe, and the passage which I have quoted from the judgment of Gleeson CJ in Green, were considered by the Full Court of the Supreme Court of Western Australia in Lloyd v Tedesco[56]. In that case, the Court emphasised that, in order to found a constructive trust of the kind discussed by the High Court in Muschinski v Dodds and Baumgartner v Baumgartner, the contribution made by the relevant party must go further than enhance the material wellbeing of the parties to the relationship, but must contribute to the acquisition, maintenance or improvement of the property in respect of which the trust is claimed.[57] Thus, Murray J (with whom Hasluck J agreed) stated: “The guiding principle is unconscionability. In this, as in every such case of a defacto relationship, there must be more than simply the performance by the plaintiff of the valuable role of the provision of love, care and support. The provision of such a contribution will be sufficient only if it is related in some factual way to the generation of wealth as part of a joint effort or endeavour to provide for the parties’ mutual material welfare and security. That need not, of course, be the only purpose of the provision of such assistance to the defendant, but it must be one of the material purposes because it is that which marks out the character of the joint endeavour as being one which will generate a claim, upon the failure of the relationship, without the fault of the plaintiff, to a share in the property created, acquired, maintained and improved during the course of the relationship, where the endeavour

can be seen to be related to particular items of property, or will generate a claim for compensation representing the value of the contribution made by the claimant to the increase in the material wealth which was intended to be enjoyed by the parties jointly. A joint endeavour of this character is one which has the aim of adding to the parties’ material wealth for their mutual benefit rather than being one where the plaintiff simply provides loving care and support to the defendant as a normal incident of a defacto relationship. In that sense it is right to say that the joint endeavour must be one intentionally or deliberately entered into for the purpose of advancing the parties’ mutual material wealth. Only if it bears that character will it be unconscionable to allow the defendant to retain the entirety of the beneficial interest in that wealth. To hold otherwise, and in particular to hold that it would be sufficient if in fact the efforts of the plaintiff advance the defendant’s capacity to acquire wealth, would, in my opinion, be to commit the error to which Deane J adverted in Muschinski of giving undue rein to the Court’s idiosyncratic notions of fairness and justice.”[58] 196 In my respectful view, the passages from Green, Stowe and Lloyd v Tedesco, which I have quoted above, reflect the reasoning of Deane J in his seminal judgment in Muschinski v Dodds. His Honour commenced by identifying the constructive trust which was under consideration, namely one which was fundamentally remedial in its operation.[59] He disavowed the proposition that equity would intervene, to provide such a remedy, based on any idiosyncratic notion of justice and fairness; rather, equitable relief by way of constructive trust would only be available “if applicable principles of the law of equity” should require that the person, in whom the ownership of property is vested, should hold it to the use or for the benefit of another.[60] His Honour then identified the relevant principles of equity. He did so by referring to the equitable principles which operate when legal relationships, such as partnership and joint ventures, fail without attributable blame. In particular, where the legal source of the relationship (such as the contract) does not provide for relief, equity intervenes to entitle each party to such a relationship to a proportion of repayment of capital contributions made by them to the particular venture.[61] Deane J observed that that remedy was based on a more general principle of equity which “operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct”.[62] That reasoning of Deane J immediately preceded the passage in his judgment, which I have already quoted[63], in which his Honour defined the circumstances in which equity would intervene to impose a constructive trust on the legal interests of the parties to a failed relationship. Thus analysed, the constructive trust identified by Deane J, and discussed in the interstate decisions to which I have referred, constitutes a remedy postulated on contributions made by parties in a relationship to property held by one of the parties to the relationship, where the relationship subsequently has failed without attributable blame, in circumstances in which the legal owner of the property would derive an unintentioned benefit at the expense of the other party, if not for the intervention of equity. 197 In other words, the remedy of a constructive trust is not a response by equity to a perceived unfairness where, on the termination of a personal relationship, the legal arrangements between the parties do not reflect the commitment and contributions of each party to that relationship. Rather, the equitable remedy of a constructive trust is available to adjust the legal interests in property of a party or parties to a relationship, where, during and on the basis of the continuation of the relationship, one party has made a contribution to the acquisition, maintenance or improvement of the property, such that it would be unconscionable for the other party, on the failure of the relationship, to insist strictly on his (or her) legal rights without an appropriate adjustment commensurate with the contribution made by the former party to the property. Accordingly, in order to be entitled to an interest under a constructive trust, the plaintiff must establish that the contribution, on which she relies, was not simply directed to advancing the welfare of the defendant, and of the family unit of which he was then a part. Rather, the contribution of the plaintiff, on which the constructive trust is to be based, must have been directed to the acquisition and maintenance of the assets in respect of which the plaintiff claims an interest under the constructive trust.

198 On the other hand, as expressly recognised by Deane J in Muschinski v Dodds[64], the context of the relationship between the parties is important in identifying the contribution by the party who claims rights under a constructive trust. In a “de facto” relationship, such as in this case, a contribution may be made in a different form, and in a less direct manner, than in a relationship which is wholly commercial in character, such as a joint venture or a partnership. As the decisions in Green, Stowe and Lloyd v Tedesco make clear, the contribution must not be solely directed to maintaining the personal relationship between the parties. However, in determining that question, it is important, of course, to take into account the realities of the type of relationship shared by the parties in a case such as this. Of its nature, such a relationship had, as its origin, the mutual love and affection on which it was based. It is that aspect of the relationship which was the source of, and which accounted for, the duration of the relationship. On the other hand, the nature of the relationship between the plaintiff and the defendant did, in time, evolve and develop, as personal relationships do. The first property purchased by the defendant – the Dorrington Street property – was, as I have found, the product of a shared concept between the plaintiff and the defendant. It was purchased and developed to be part of a family home shared by the parties. As the relationship developed and progressed, the plaintiff was sufficiently connected with the enterprise of the defendant, consisting of the purchase of the properties, to be involved in carrying out some works on them. Thus, she carried out some (albeit relatively minor) work on the Dorrington Street property, and subsequently carried out further work on the Hawkeshurst Court property and the Altona property. The fact that she worked on the Hawkeshurst Court property, notwithstanding that she did not live in it, demonstrates that she was not entirely detached from the investment enterprise undertaken by the defendant. 199 Further, although the plaintiff and the defendant did not, in a literal sense, pool their joint incomes, nonetheless the arrangements between them were such that they may be fairly described as a combination of their joint financial resources. By directing her part-time earnings to the maintenance of the defendant and the family, the plaintiff enabled the defendant to devote his income largely to the acquisition and maintenance of the properties. Equally, by undertaking the burden of prime carer for the three children, the plaintiff enabled the defendant to focus his efforts on acquiring, financing and maintaining the properties in his ever expanding portfolio. The contributions made by the plaintiff were, clearly, postulated on the continuation of her relationship with the defendant. To use the terminology of Deane J in Muschinski v Dodds[65], the relationship between the plaintiff and the defendant was the relevant “substratum” of the enterprise in which the defendant acquired and maintained the properties. 200 In my view, in that way the contributions made by the plaintiff were relevantly directed to the acquisition and maintenance of the properties in the sense described by the Full Court of Western Australia in Lloyd v Tedesco, and in the manner contemplated by the High Court in Baumgartner. If the Court were not to impose a constructive trust in the circumstances thus described, on the termination of the relationship between the parties, the defendant would be left to enjoy the benefit of the contribution made by the plaintiff to the acquisition and maintenance of the properties, without accounting for it to the plaintiff. The plaintiff’s contribution was predicated on the continuation of the relationship. It may be inferred that there was no intention by the plaintiff that the defendant should enjoy the fruits of the plaintiff’s contribution, without accounting for it, in the unforeseen event of the breakdown of their mutual relationship. In those circumstances, it would be unconscionable, in accordance with equitable principle, for the defendant to depart the relationship, holding the legal title to each of the seven properties, without any adjustment to his interest to allow for the contributions made by the plaintiff. In that sense, the imposition by the law of a constructive trust would not constitute the indulgence by the Court of any idiosyncratic or random subjective notions of fairness. Rather, in my view, in such a case, the interposition of a constructive trust would conform with sound principles in equity, as explained by Deane J in Muschinski v Dodds and by the High Court in Baumgartner. 201 In accordance with the authorities to which I have referred, the constructive trust would clearly extend to the two Point Cook properties, the two Hoppers Crossing properties, and the Altona property. In addition, it would cover the Caulfield property, which was purchased as part of the enterprise undertaken by the defendant in connection with his relationship with the plaintiff. However, the constructive trust would not affect the

defendant’s interest in the Torquay property, since that property was acquired after the termination of the relationship between the plaintiff and the defendant. 202 The determination of the content of the constructive trust is affected by the same difficulties, which affected my findings in relation to the claim under Part 9 of the Property Law Act, arising from the paucity of the evidence in the case. Certainly, a number of the factors which are relevant to the quantification of a claim under Part 9 of the Property Law Act are not relevant to the determination of the nature and extent of the constructive trust. Nevertheless, and bearing in mind the principles stated in the authorities to which I have referred, on the alternative claim of the plaintiff, I would make a declaration that the defendant holds his current legal ownership of the properties at 2 Dorrington Street, Point Cook, 7 Inverloch Drive, Point Cook, 10 Hawkeshurst Court, Hoppers Crossing, 166 Queen Street, Altona, and Unit 9, 2 Gibson Street, East Caulfield, on a constructive trust as to one third for the plaintiff. The plaintiff would also be entitled to a declaration, on her alternative claim, that the monies paid into Court upon completion of the sale of the property at Altona be paid, as to one third thereof, to the plaintiff, and as to the balance to the defendant. The defendant’s cross-claim against the plaintiff 203 I turn, then, to the defendant’s counterclaim against the plaintiff. As I outlined at the commencement of these reasons, the defendant has asserted three causes of action against the plaintiff in his counterclaim, which I have summarised in paragraph 4 of these reasons. 204 The first cause of action is contained in paragraphs 7 to 14 of the counterclaim. In paragraph 9 the defendant claims that he entered into an agreement with the plaintiff by which he permitted the plaintiff to occupy the Point Cook properties between March 2003 and June 2006, and the Altona property between June 2006 and November 2007, free of rent, and by which he also agreed to let premises to Gail Cressy on a concessional rental basis from June 2003 to July 2007. In paragraphs 10 to 12 the defendant pleaded that the plaintiff then occupied the Altona property, that Gail Cressy occupied the Lisa Court property until October 2007 and that she subsequently resided at the Altona property with the plaintiff. In paragraph 13 the defendant pleaded that he had been induced to enter into the agreement “by fraudulent misrepresentations made by (the plaintiff), full particulars of which will be provided prior to trial”. In paragraph 14 the defendant pleaded that he had suffered loss and damage as a result of those fraudulent misrepresentations. 205 The defendant did not provide any particulars of the fraudulent misrepresentations alleged by him in paragraph 13 of the counterclaim. He did not identify, at all, the nature and content of the “fraudulent misrepresentations” alleged by him. The generality of that allegation is characteristic of the manner in which the defendant made other similar allegations later in the counterclaim. It is also characteristic of the tendency of the defendant, during the trial in this case, to cast unsubstantiated aspersions on the character and integrity of other persons associated with this case. 206 Ultimately, in the course of the trial, it emerged that the defendant’s “grievance”, contemplated by paragraph 13 of the counterclaim, lay in the proposition that, during their relationship, the plaintiff had continued to work as a sex worker, notwithstanding his desire that she not do so. He did not, however, in his long and detailed evidence in chief, nor at any other stage, give any evidence at all of any representation made to him by the plaintiff that she would not work as a sex worker. Nor did he give any evidence that the reason why he permitted the plaintiff to reside at the various addresses to which I have referred, and the reason why he permitted Gail Cressy to reside at Lisa Court, was because of the alleged misrepresentation pleaded by him in paragraph 13 of the counterclaim. It was never put to the plaintiff in cross-examination that she had made any such representation to the defendant. Furthermore, even if any such representation had been made, it was never put to the plaintiff that such representation was, at the time of its making, fraudulent in the sense pleaded.[66]

207 At some parts of his evidence, the defendant sought to maintain that, at the relevant time, he was unaware that the plaintiff had resumed working as a sex worker. That evidence was, however, inconsistent with other evidence given by the defendant that he knew that the plaintiff was working as a sex worker, notwithstanding his desire that she should not do so. Indeed, he stated that that matter was the subject of an argument between himself and the plaintiff as early as Christmas and New Year’s Eve 1998. He also stated that the same issue caused the rift between him and the plaintiff in early 2000. He stated that, at the time at which he was contemplating moving back to Melbourne in 2001, the plaintiff was then working at a brothel in Geelong. Subsequently, he claimed that, while living in South Yarra, he purchased the Dorrington Street property because he was looking at cutting his ties with the plaintiff because she was working in a brothel and because of her alleged relationship with CP. In cross-examination, he stated that three or four months after Illyana was born in June 2000, the plaintiff returned to work at the Geelong brothel. He even suggested that, while they were living at South Yarra, the plaintiff at one stage went on a trip to Amsterdam in order to work as a sex worker. In crossexamination he said that he wrote the Valentine Day card in February 2000 (Exhibit E) because the plaintiff got pregnant and was continuing to work in a brothel and he wanted to show his commitment to her. He even stated that, in early 2000, he registered himself as a prostitute as part of a strategy to persuade the plaintiff to cease working in that capacity. He agreed that it was an ongoing point of contention between himself and the plaintiff that she continued to work as a prostitute. 208 In those circumstances, there is no evidence that the defendant was ever misled by the plaintiff as to her activities as a sex worker. To the contrary, the defendant was well aware of the work undertaken by the plaintiff. There is no evidence that the plaintiff at any time made any representation to the defendant to the contrary. Nor is there any evidence that he permitted the plaintiff to live at the Point Cook and Altona properties because of any such representation made by her. Rather, as I have found, she lived at those residences because they were the homes which she and the defendant shared in the course of their relationship together. There is no evidence that the defendant permitted Gail Cressy to live at the Lisa Court property, or at any other property, as a consequence of any such alleged representation to, or belief, by him. Rather, in his evidence in chief, he told me that he permitted Gail Cressy to reside at the Lisa Court property, at a reduced rent, because Mrs Cressy and her children had not, hitherto, lived at the same residence for two consecutive Christmases, and he wished to give them some stability in their lives. 209 Thus, the first claim asserted by the defendant, in his counterclaim, must fail. 210 The second claim by the defendant in his counterclaim is contained in paragraphs 15 to 21. In paragraph 15, the defendant pleaded that in May 2007 the plaintiff had “fraudulently and, further or alternatively, maliciously” executed and registered at the Land Titles Office caveat number AF085952B claiming a beneficial interest in the six properties then owned by the plaintiff. In paragraph 16 the defendant states that the plaintiff had occupied the Point Cook and Altona properties, but had not occupied the Caulfield property or the two Hoppers Crossing properties. In paragraph 17, he stated that he wrote many letters to the plaintiff’s solicitors in October and November 2007 demanding withdrawal of the plaintiff’s caveat, particularly as it affected the Caulfield property. Paragraph 18 recites that in November 2007 the plaintiff executed, and registered at the Land Titles Office, an instrument of withdrawal of the caveat in relation to the Caulfield property, but (paragraph 19) she had not provided to the defendant any explanation for the withdrawal of that caveat. The counterclaim also alleges (paragraph 20) that in January 2008 the plaintiff executed, and registered at the Land Titles Office, a withdrawal of the caveat insofar as it affected the Lisa Court property. Paragraph 21 alleges that by reason of the plaintiff’s registration, maintenance, delay and withdrawal of the caveat to the extent of the Caulfield and Hoppers Crossing properties, and refusal to release the other properties affected by the caveat, the defendant has suffered loss and damage. 211 It is not at all clear what cause of action the defendant intended to plead in alleging that the plaintiff “fraudulently and/or further and/or alternatively maliciously” executed and lodged the caveat of which he makes

complaint. I do not understand that that allegation forms a component of any relevant cause of action which could be envisaged by paragraph 15 of the counterclaim. However, and in any event, the defendant has failed to prove any fraud or malice on behalf of the plaintiff in executing and lodging the caveat. If the allegation of “fraud” is understood in its common law sense[67], there is no evidence that, at the time at which the caveat was lodged, or subsequently, the plaintiff knew that she was not entitled to claim the beneficial interests alleged in the caveat, or that she was recklessly indifferent to that circumstance. Indeed, as I have found, she was, at all relevant times, entitled to an equitable interest in all the properties, except the Torquay property. It is true that the plaintiff’s claim under Part 9 of the Property Law Act, which may then have been in contemplation, was not, on its own, an interest capable of being protected by caveat under s 89(1) of the Transfer of Land Act 1958 (Vic). [68] However, the interest of the plaintiff in the properties, by reason of a constructive trust, was an interest of the plaintiff capable of being protected by caveat.[69] 212 Accordingly, the second claim made by the defendant in the counterclaim must also fail. 213 The third claim, pleaded in the counterclaim, is a claim against the second and third defendants to the counterclaim, which I have already dismissed. The defendant also appears to have pleaded that cause of action against the plaintiff, by alleging that she (or Mr Hanlon) procured Harwood Andrews “to fraudulently and, or further and alternatively, maliciously” execute and register caveat AF066328D claiming a beneficial interest on behalf of Harwood Andrews in the Altona property. I have already ruled that there is no evidence of fraud or malice by Harwood Andrews in acquiring that caveat. Further, as I have found, the plaintiff did have an equitable interest in the Altona property. She executed a valid equitable charge, in respect of that interest in favour of Harwood Andrews to secure payment of the latter’s costs. Harwood Andrews were entitled to lodge a caveat protecting its interest under that charge. There is no evidence of fraud or malice, or any other wrongdoing, by the plaintiff, in executing the charge to Harwood Andrews. Thus, the third cause of action in the counterclaim against the plaintiff also fails. 214 The final cause of action pleaded by the defendant in the counterclaim is that set out in paragraphs 27 and following of the counterclaim. The defendant alleges that the plaintiff, between May and November 2007, unlawfully retained and refused to hand over to the defendant his records and possessions, and that on 16 November 2007, she committed a burglary and theft at the Dorrington Street property. 215 I have already dealt, in part, with the factual circumstances relating to this part of the counterclaim, when I considered the issues relating to the missing documents.[70] It is not in dispute that the plaintiff, on 16 November 2007, did remove documents belonging to the defendant, and his two mobile telephones, from the premises at Dorrington Street. I do accept the plaintiff’s denial that she took the defendant’s modem. The circumstances of the removal by the plaintiff of the telephones and documents on that date were not put to her in cross-examination. The plaintiff sought to justify the taking of those items by the claim that they were the “joint property” of herself and the defendant. She gave no evidence to support that claim to co-ownership of that and I reject it. She stated that she took the documents and telephones in order to preserve them, so that they could be available for evidence in the Family Court proceedings. She was not cross-examined in relation to that part of her evidence and I accept it. That explanation, given by the plaintiff, does not constitute a defence to a claim in tort by the defendant for trespass to goods. It does, however, negate the allegation made in the counterclaim that she was motivated by “malice”. 216 The defendant has stated that the plaintiff deleted from the mobile telephone a number of photographs which he had taken on them. That allegation was not put to the plaintiff in cross-examination. Indeed, the plaintiff said in evidence that she seized the two mobile telephones, because they contained evidence that the defendant had been stalking her. In those circumstances, I do not accept the allegation by the defendant that the plaintiff did delete any information which he had stored on the mobile telephones. I also accept that the majority of the documents taken, by the plaintiff on 16 November, were taken into possession by the police pursuant to the

search warrant, and are now lodged with the Federal Magistrates’ Court, together with the two telephones. The plaintiff’s solicitor did provide to the defendant’s solicitor further documents on 11 March 2008. Further, as I have already stated, the defendant, when recalled to give evidence in February this year, gave uncontradicted evidence that he had found, at the Dorrington Street premises, further documents which he stated had been taken from those premises by the plaintiff. 217 In the above circumstances, it is clear that the plaintiff took possession of the defendant’s documents and two mobile telephones, on 16 November 2007 at the Dorrington Street premises, without the permission of the defendant. In doing so, she committed a trespass to the defendant’s goods. I also accept that the plaintiff, in March 2008, failed to properly account to the defendant for them, despite her claim to have done so. The defendant has not proven that he sustained any loss and damage as a result of the removal by the plaintiff of those goods. However, the authorities suggest that the tort of trespass to goods is actionable per se, and does not depend on the proof of damage sustained by the person entitled to immediate possession of the goods.[71] In the absence of proof of any damage sustained by the defendant, it is appropriate that I award him nominal damages. Accordingly, I award the defendant $25 damages in respect of the trespass committed by the plaintiff. 218 The defendant has also claimed exemplary damages against the plaintiff arising from her actions. In light of the plaintiff’s explanation why she took possession of the documents and mobile telephones (which I accept), I do not consider that the plaintiff acted in such a high handed or contumelious manner as to warrant the award of exemplary damages against her.[72] 219 The defendant, in his counterclaim, also claimed the return to him of the documents and items taken by the plaintiff on 16 November 2007. However, he has not proven, to my satisfaction, that the plaintiff has in her possession any further documents or other items of the defendant. 220 The defendant also pleads, in this part of his counterclaim, that the plaintiff was motivated by malice in the issue of the subpoena, by Harwood Andrews, directed to the Victoria Police to produce the documents and mobile phones to the Federal Magistrates’ Court. It is not clear what cause of action is asserted by the defendant in this part of his claim. However, I shall assume, in favour of the defendant, that the allegation made by him is intended to plead the tort of abuse of process. In order to establish that tort, the defendant must prove that the plaintiff was motivated by an ulterior purpose, in causing her solicitors to issue the subpoena to the police. Further, the defendant must establish that improper purpose as the predominant purpose of the plaintiff.[73] The relevant principles were stated by the Queensland Court of Appeal (consisting of McMurdo P, Pinkus JA and Thomas JA) in Butler v Simmonds, Crowley and Galvin,[74] in the following terms: “In order to succeed in an action for collateral abuse of process it is not necessary to allege or prove that the initial proceeding has terminated in favour of the plaintiff, or that there was no reasonable and probable cause for instituting the initial proceeding. It is however essential for a plaintiff to show that the defendant instituted proceedings for a purpose or to effect an object beyond that which the legal process offered. Such a purpose of the defendant in instituting the earlier proceedings is of crucial importance. It is not sufficient to assert that the proceedings were instituted with an improper motive. The ulterior objective needs to be identified, and it also needs to be able to be seen as the predominant purpose of those proceedings and as outweighing any legitimate purpose that they might otherwise have.”[75] 221 In this case, the plaintiff swore that she took possession of the documents and the telephones in order to preserve them as evidence for the proceedings in the Federal Magistrates’ Court. She was not challenged in cross-examination on that aspect of her evidence. As I have already stated, I accept that the plaintiff’s evidence, to that effect, was truthful. I also accept that it was for that reason that the plaintiff caused a subpoena to be issued to the Victorian police, in order to have the documents available for her use in the Federal Magistrates’ Court. The documents consisted of financial documents, which no doubt would be relevant to a claim by the

plaintiff against the defendant for child support. Further, the plaintiff understood that the mobile phones contained photographs of her which, she considered, might establish that the defendant had been stalking her. I would expect that such evidence, if it did exist, may be relevant also to the evidence before the Federal Magistrates’ Court. It was not put to the plaintiff that she had any other motive in having the subpoena issued to the Victorian police. The defendant did not adduce any evidence that the plaintiff did have any such ulterior motive. Accordingly, the defendant has failed to make out a claim against the plaintiff based on the tort of abuse of process in respect of the issue of the subpoena on her behalf. Conclusion 222 For the reasons which I have set out in this judgment I have reached the following conclusions on the plaintiff’s claim against the defendant: 1. The plaintiff and the defendant were in a domestic relationship, for the purposes of Part 9 of the Property Law Act 1958, between 1998 and about Easter 2007. 1. The contributions of the plaintiff and the defendant, as defined by s 285(1), were equal, taking into account the financial and non-financial contributions by them to the property and resources of each of them, to the welfare of each other and to the welfare of the family unit comprising the plaintiff, the defendant and their children. 1. Having regard to those contributions, it is just and equitable that I make the following orders adjusting the interest of the defendant in property of which he is the legal owner, namely: (a) The defendant pay to the plaintiff the sum of $105,000; (b) In order to secure payment to the plaintiff of that sum (i) Order and direct that the net proceeds of the sale of the property at 166 Queen Street, Altona (after deduction therefrom of the mortgage debt secured over that property, the costs and expenses of the mortgagee, and the costs and expenses of the sale) be paid to the plaintiff. (ii) Order that the property at 10 Hawkeshurst Court, Hoppers Crossing be sold. (iii) Order and direct that, out of the net proceeds of such sale (after deduction of the mortgage debt secured on that property, the costs and expenses of the mortgagee and the costs of the sale of the property) there be paid to the plaintiff a sum which, when added to the net proceeds of the sale of the Altona property, results in the payment to the plaintiff of an amount no greater than $105,000. 223 On the alternative claim by the plaintiff based on the principles of constructive trust, I have concluded that the plaintiff would be entitled to a declaration that the defendant holds his current legal ownership of the properties at 2 Dorrington Street, Point Cook; 7 Inverloch Drive, Point Cook; 10 Hawkeshurst Court, Hoppers Crossing; 166 Queen Street, Altona; and Unit 9, 2 Gibson Street, East Caulfield, on constructive trust as to onethird thereof for the plaintiff. In addition, the plaintiff would be entitled to a declaration that the monies paid into Court on the completion of the sale of the property at 166 Queen Street, Altona be paid, as to one-third thereof to the plaintiff, and as to the balance, to the defendant. 224 On the defendant’s counterclaim against the plaintiff, I have reached the following conclusions: 1. The claims by the defendant against the plaintiff contained in paragraphs 7 to 14, 15 to 21, 22 to 26, and 28 to 32 of the amended defence and counterclaim dated 18 February 2008, should be dismissed.

1. In respect of the claim by the defendant against the plaintiff that the plaintiff unlawfully took papers and other items of the defendant from the premises at 2 Dorrington Street, Point Cook on 16 November 2007, I uphold the defendant’s claim for trespass to goods. The defendant has not established any loss or damage resulting from that trespass. He is entitled to an order that the plaintiff pay to him the sum of $25 nominal damages. Orders 225 I shall hear the parties on the formulation of appropriate Orders in accordance with those conclusions, including orders to effectuate the sale of the property at 10 Hawkeshurst Court, Hoppers Crossing and the distribution of the proceeds of that sale. I shall also hear the parties on the question of costs. ---

[1] During that time he was employed by two major national law firms and, subsequently, by two substantial corporations. [2] (1893) 6 R 67. [3] [1959] HCA 8; (1959) 101 CLR 298. [4] T 156. [5] [6] Cressy Cressy v Johnson (No 1) [2009] VSC 35. v Johnson (No 2) [2009] VSC 42.

[7] T 681; see also T 872. [8] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. [9] [1959] HCA 8; (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916, 929 (Newton and Morris JJ). [10] Exhibit J. [11] Exhibit A. [12] [2008] VSCA 236 especially at [27] to [28]. [13] Ibid. [14] Act No 27 of 2001. [15] R v Halpin [1975] QB 907, 915; Stohl Aviation v Electrum Finance Pty Ltd (1984) 5 FCR 187; Goggin v Moss [1983] 2 Qd R 486, 495. [16] T 699. [17] T 920.

[18] T 502. [19] [2006] NSWCA 11; (2005) 34 Fam LR 550, 558. [20] See also Evans v Marmont (1997) 42 NSWLR 70. See Conn v Martusevicius (1991) V Conv R 54-413 at 64, 942-3 (Vincent J); Robertson v Austin [2003] VSC 80, [36] (Nettle J); Rowe v Dassios [2007] VSC 218, [35] (Osborn J); Giller v Procopets [2008] VSCA 236, [314] (Neave JA). [21] Ibid. [22] [330] to [331] (Neave JA). [23] [275], [277] (Neave JA). [24] [261], [272] (Neave JA). [25] [317] (Neave JA). [26] [287] (Neave JA); Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 523 to 524 (Mason and Dean JJ); 530, 532 to 533 (Wilson, Dawson JJ); 541 (Brennan J). [27] Giller v Procopets (above) [344]–[349] (Neave JA); [108] (Ashley JA); Evans v Marmont (1997) 42 NSWLR 70, 75, 80 (Gleeson CJ and McLelland CJ in equity); Robertson v Austin [2003] 80, [38]-[40] (Nettle J). [28] (1991) V Conv R 54-413 at 64,942-3. [29] Paragraphs [23] to [28] above. [30] [2008] VSCA 236; See also Kenyon v Akeroyd [2008] VSCA 277, [24] (Maxwell P, Redlich JA, Forrest AJA). [31] Kenyon v Akeroyd (above), [26]. [32] [2008] VSCA 236. [33] Ibid, at [330] to [331]. [34] [2008] VSCA 277. [35] Above at para [28]. [36] Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 FamLR 550, 561 (Brereton J); Giller v Procopets [2008] VSCA 236, [331] (Neave JA). [37] Conn v Martusevicius (1991) V Conv R 54-413, page 64, 942; Kenyon v Akeroyd [2008] VSCA 277, [5], [7]; Evans v Marmont [1997] 42 NSWLR 70, 75 (Gleeson CJ, McLelland CJ in Eq); Giller v Procopets [2008] VSCA 236, [349] (Neave JA). [38] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 521.

[39] Lustre Hosiery Pty Ltd v York [1935] HCA 71; (1936) 54 CLR 134, 138; Reardon v Baker [1987] VR 887, 895 (Phillips J). [40] (1986) 160 CLR 583. [41] Ibid, 596. [42] Ibid, 620. [43] [1987] HCA 59; (1987) 164 CLR 137. [44] Ibid, 146. [45] Ibid, 148 (Mason CJ, Wilson and Deane JJ); see also page 152 (Toohey J), 157 (Gaudron J). [46] (1986) 160 CLR 583, 616, 621. [47] [1987] HCA 59; (1987) 164 CLR 137, 148. [48] Page 621. [49] (1985) 160 CLR 583, 621 to 622. [50] (1997) 72 SASR 153. [51] 163; see also Read v Nicholls [2004] VSC 66, [47] and following (Nettle J). [52] (1989) 17 NSWLR 343. [53] Ibid, 353. [54] (1995) 15 WAR 363. [55] Ibid, 374. [56] [2002] WASCA 63; (2002) 25 WAR 360. [57] See especially at [16], [30] to [31] (Murray J, with whom Hasluck J agreed); [86] (Pullin J). [58] [30] to [31]. [59] Page 614. [60] Pages 615 to 616. [61] Pages 618 and 619. [62] Page 620. [63] Above para [134].

[64] Page 622 (See para [191] above). [65] Page 620. [66] Compare Derry v Peek (1889) 14 App Cas 337, 374 (Lord Herschell). [67] Derry v Peek, above. [68] Bell v Graham [2000] VSC 142, [19] (Kellam J); Goldstraw v Goldstraw [2002] VSC 491, [27]-[28] (Dodds-Streeton J); Zhen v Mo [2008] VSC 300, [32] (Forrest J). [69] Taddeo v Catalano [1975] 11 SASR 492; McMahon v McMahon [1979] VR 239, 236 (Marks J); Goldstraw v Goldstraw [2002] VSC 491, [26] (Dodds-Streeton J); Riverview Projects Pty Ltd v Elleray [2007] VSC 150, [35] (Williams J). [70] Paragraph [65] and following, above. [71] Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 214 to 215 (Latham CJ); William Leitch & Co Limited v Leydon [1931] AC 90, 106 (Lord Blanesburgh). [72] Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1, 9; State of Victoria v Horvath & Ors [2002] VSCA 177; (2002) 6 VR 326, 349 [60]. [73] Williams v Spautz (1992) 174 CLR, 523, 529; Hanrahan v Ainsworth (1990) 22 NSWLR 73, 96 (Kirby P), 118 (Clarke JA); White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 159, 236-240 (Goldberg J); on appeal; Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 758-759 [59]-[64]. [74] [1999] QCA 475. [75] Ibid.
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