Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Jensen v Pearce [2013] NSWCA 247
• Hearing dates: 22 July 2013
• Decision date: 05 August 2013
• Before: Basten JA at [1]; Barrett JA at [65]; Emmett JA at [66]

Decision

(1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date.

(2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012.

(3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006.

(4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment:

(a) judgment for the appellant against the respondent in the sum of $13,000;

(b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962;

(c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment;

(d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984;

(e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property.

(5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial.

(6) Each party to bear its own costs of the appeal.

(7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: FAMILY LAW - de facto relationships - adjustment of property interests - whether adjustment with respect to the property of the parties was just and equitable - proper approach to determining claims - appellant owned property in Sweden - jointly owned property in NSW - whether respondent should be credited for first home owners' grant and stamp duty exemption - appropriate credit for contribution to increase in value of properties - indirect contributions to properties in Sweden and NSW - adjustment for occupation fee - Property (Relationships) Act 1984 (NSW), s 20; PROCEDURE - resolving conflicts in evidence - parties relied exclusively on affidavit evidence - neither party called or cross-examined - difficulty for trial judge in resolving conflict in evidence - appellant appeared in person - whether trial judge inappropriately judged appellant's evidence on basis of appearance in court - appellate court similarly placed to assess factual basis of claims and determine just and equitable outcome
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 133; Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), s 4; Constitution, s 51; District Court Act 1973 (NSW), ss 127, 134, 139; Family Law Act 1975 (Cth), ss 31, 39B, 40; Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Sch 1, item 86; Judiciary Act 1903 (Cth), s 78B; Property (Relationships) Act 1984 (NSW), ss 4, 5, 9-12, 15, 17, 18, 19, 20, 39, 56; Pt 2; Uniform Civil Procedure Rules 2005 (NSW), r 36.11
• Cases Cited: Baker v Towle [2008] NSWCA 73; Callow v Rupchev [2009] NSWCA 148; 14 BPR 27,533; Howlett v Neilson [2005] NSWCA 149; Jensen v Ray [2011] NSWCA 247
• Category: Principal judgment
• Parties: Steen Jensen (Appellant); Jillian Frances Pearce (Respondent)
• Representation: Counsel: Appellant self-represented; J A Ringrose (Respondent); Solicitors: Appellant self-represented; MBT Lawyers (Respondent)
• File Number(s): CA 2012/162190

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-03-28 00:00:00
• Before: Garling DCJ
• File Number(s): DC 2010/101489

Judgment

1 BASTEN JA: The appellant, Steen Jensen, is a national of Sweden. He met the respondent, Jillian Pearce, on a visit to Australia in late 2002. They commenced a de facto relationship which continued until April or August 2008. Geographically, the period of the relationship fell into two parts. During the first period (2003-2004) the parties lived at Mr Jensen's home in Trollhattan, Sweden. During the second period, and particularly from early 2006, the parties lived at 43 Pullen Street, Woolgoolga, which they purchased in the course of 2006.

2 In March 2010 Ms Pearce commenced proceedings in the District Court seeking declarations and orders under the Property (Relationships) Act 1984 (NSW). On 28 March 2012 Judge Garling made an order that Mr Jensen (the defendant at trial) pay Ms Pearce (the plaintiff) the sum of $94,310. Mr Jensen appealed.

3 For reasons to be explained below, the appeal should be allowed and the orders of the trial judge set aside. However, before reaching the merits of the claim, it is necessary to deal with a number of preliminary matters.

Jurisdiction of District Court

4 The Property (Relationships) Act confers jurisdiction to hear claims under the Act on the Supreme Court and the Local Court. Perhaps curiously, a matter can be transferred from the Local Court to the District Court, but there is no right in that Act for a party to initiate a claim in the District Court: Part 2, ss 9-12. However, the District Court has conferred upon it the same jurisdiction as the Supreme Court in respect of any application under the Property (Relationships) Act, by s 134(1)(g) of the District Court Act 1973 (NSW).

Jurisdiction with respect to appeal

5 A right of appeal lies to this Court from a judgment of the District Court in such proceedings: District Court Act, ss 127 and 139: Jensen v Ray [2011] NSWCA 247 at [7] (Brereton J). However, leave is required with respect to an appeal other than one that involves "a matter at issue amounting to or of the value of $100,000 or more" or "any claim ... respecting any property ... of the value of $100,000 or more": s 127(2)(c).

6 The respondent submitted that the appeal was incompetent and that leave was required. There are two reasons for rejecting that proposition. The first is that the amount realistically in issue on the appeal was worth $100,000. Although the monetary order was for a lesser sum, the whole of which was put in issue by the appellant, he also contended that the trial judge had ignored his cross-claim for property which he had not been able to recover from the house, which might readily have had a value of over $6,000.

7 Secondly, one of the orders made by the trial judge contingently required the sale of the property at Woolgoolga in which each party held a share, the appellant's share being 97%. It was not in dispute that that interest was worth well in excess of $100,000.

8 The respondent also submitted that the appeal was out of time. The appellant sought an extension of time. The respondent was given timely notice of an intention to appeal, but there was a failure to comply with the requirements for filing the notice of appeal, the various appeal books and the submissions. These failures resulted from the appellant being without legal representation and also being in Sweden at relevant times. As will be explained below, he was precluded, by court order, from occupying the house he owned in Woolgoolga. In the absence of evidence of significant prejudice to the respondent, there should be an extension of time to permit the appeal to proceed.

A constitutional issue

9 When the proceedings were commenced in the District Court, Mr Jensen had legal representation. By the time of the trial, he appeared for himself. At no stage since judgment has he been legally represented. Although he was proficient in English, he was, as he said in the course of his oral submissions, not familiar with the Australian legal system or culture. Much of his argument on appeal was directed to his status as a Swedish national and resident, his Swedish domicile and the absence (as he asserted) of any law in Sweden which would allow the partner in a de facto relationship to claim an interest in property owned by the other. Further, he claimed that the District Court lacked jurisdiction "due to the limitations of s 51(xxxvii) of the Australian Constitution".

10 Having raised a constitutional issue, notices under s 78B of the Judiciary Act 1903 (Cth) were duly served on the Attorneys General. Because the point was misconceived, that may not have been necessary. However, because the point loomed large in the appellant's case, it is desirable to explain why that is so and also how the appellant may have been misled into reliance on s 51(xxxvii).

11 The trial judge addressed separately, in a judgment dated 26 March 2012, the jurisdiction of the Court under the Property (Relationships) Act. He noted that the claim was brought under the State Act. No doubt because the argument had been put to him in terms relating to the residence of the defendant, the trial judge noted that the Court was empowered to make an order adjusting the interests of the parties with respect to property if either of the parties were resident within New South Wales on the day on which the application was made and they had lived together in the State for at least one-third of the duration of their domestic relationship: s 15. The jurisdiction of the Court was in fact conferred by s 9 of the Property (Relationships) Act and s 134 of the District Court Act, as noted above. Section 15 of the Property (Relationships) Act related to the power of the Court to make an order, and depended upon facts which, unless admitted, would need to be established in the course of the proceedings.

12 Section 51 of the Constitution identifies the matters with respect to which the Australian Parliament has power to make laws. The power extends to matters "referred to the Parliament of the Commonwealth by the Parliament ... of any State": s 51(xxxvii). As the trial judge correctly noted, the present proceeding was brought under a State law and not under a Commonwealth law. The misapprehension of the appellant that this provision had application to his case may have resulted from one or both of two factors. The first may have been a belief that the reference to "any State" included, as in international law, a foreign country. That possibility was suggested by the appellant's emphasis on his status as a Swedish national and resident and the absence of equivalent laws in Sweden.

13 The second factor concerns arrangements between the States and the Commonwealth with respect to the adjustment of financial arrangements between de facto partners. The legislative power expressly conferred on the Parliament by s 51 of the Constitution covers marriage and matrimonial causes, but not de facto relationships: s 51(xxi) and (xxii). However, by an Act which commenced on 22 September 2008, New South Wales referred relevant powers to the Commonwealth by the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW). In part, that Act referred "financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes": s 4(1)(a). Jurisdiction was then conferred on federal courts (including the Family Court of Australia) to exercise jurisdiction with respect to such matters pursuant to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) ("the 2008 Act"). That part of the 2008 Act which amended the Family Law Act 1975 (Cth) commenced on 1 March 2009, but the power to exercise jurisdiction under s 31(1)(aa) and s 39B of the Family Law Act did not exist until 11 February 2012. (The Family Court purported to exercise jurisdiction absent a necessary proclamation under s 40 of the Family Law Act, as then in force, from March 2009, making orders which required retrospective legislative validation.) Relevantly for present purposes, Schedule 1, Part 2, item 86 of the 2008 Act provided that the new jurisdiction did not apply in relation to a de facto relationship that broke down before the commencement of the Schedule. (The items in the Schedule did not in fact all commence on one date, but no relevant date was earlier than August 2008.) Accordingly, the Commonwealth laws had no application with respect to these proceedings.

14 For present purposes it is sufficient to conclude that the proceedings were properly brought under the State Act and no basis has been demonstrated to suggest that the exercise of jurisdiction by the District Court under State law was constitutionally invalid.

Orders at trial

15 The orders entered in the computer record, as identified in a certificate issued by the Registrar of the District Court, were in the following terms:

"Judgment:

STEEN JENSEN, First Defendant is to pay JILLIAN FRANCES PEARCE, First Plaintiff the sum of $94310.00.

The Defendant is to pay the Plaintiff's costs on an indemnity basis from 9/11/11.

The Court makes orders in accordance with the Minute of Proposed Orders signed by me and dated 28/3/12.

The Cross Claim is dismissed.

Each party is to pay their own costs of the cross claim."

16 The importance of clear, precise and unambiguous orders is central to the proper exercise of the judicial function. Both courts and parties should have regard to the provisions relating to the entry and enforcement of orders. A judgment or order of a court "may not be enforced until it has been entered in accordance with uniform rules": Civil Procedure Act 2005 (NSW), s 133(1). The Uniform Civil Procedure Rules 2005 (NSW) (to which s 133(1) refers) require that any judgment or order of the court be entered: r 36.11(1). Further, unless the court orders otherwise "a judgment or order is taken to be entered when it is recorded in the court's computerised court record system": r 36.11(2). The Court did not otherwise order in the present case. However, it is by no means clear that a statement, contained in the computerised record system that the Court "makes orders in accordance with" another document, the contents of which are not recorded in the computerised record system, involves the entry of the unrecorded orders.

17 The money judgment as entered did not provide for a time within which the amount was to be paid, although the minute of proposed orders did, order 1 requiring payment "within 42 days". The minute also provided for the plaintiff to transfer her right, title and interest in the Woolgoolga property to the defendant (Mr Jensen) upon payment of the amount referred to in "order 1", being order 1 in the minute. Order 3 in the minute required sale of the property, in the event that the "plaintiff/defendant" (presumably meant to refer to Mr Jensen) failed to comply with the terms of order 1 (being the payment of money within 42 days). Order 5 (relating to liabilities in the names of the parties) and order 6 (relating to the rights of each in respect of moveable property "in their possession" at the date of the minute), were not recorded. On the other hand, the orders for costs and the dismissal of the cross-claim were not contained in the minute.

18 Because the orders should be set aside, it is not necessary to consider the legal consequences of these concerns.

Resolving conflicts in the evidence

19 Ms Pearce was represented throughout the proceedings at trial, and on appeal. She bore the onus of establishing that an adjustment with respect to the property of the parties was just and equitable, for the purposes of s 20 of the Property (Relationships) Act. Both parties relied upon affidavit evidence which had been filed and presumably read in the proceedings. Neither party was cross-examined, nor called any oral evidence. There was no transcript of the proceedings available to this Court. Being represented by counsel, the plaintiff would have understood the significance of the failure to cross-examine on issues in dispute. Whether Mr Jensen was made aware of the role of cross-examination is not known.

20 To the extent that the evidence of the parties was in conflict, that gave rise to a difficulty for the trial judge. The judge was in no doubt as to the need to resolve conflicts in the evidence, which he identified in the following passage (Judgment, pp 4-5):

"The defendant in his affidavit evidence, and I should note that all evidence in this case was by affidavit, it was not by any oral evidence and no-one was required for cross-examination, the defendant sets out a totally different version to the plaintiff in that if one accepted his version that the plaintiff's contribution to their whole relationship as far as the material side of it was concerned was nil or very close to it, that is as opposed to those matters which I have previously set out. He sets out in his affidavit that the property [in Sweden] was purchased in 1993, he sets out what the property comprises and all the work he had done on it. Now that would appear to be totally opposed to what the plaintiff says. I have to make an assessment as to whose evidence I accept, that can always be difficult where parties are not called to give evidence."

21 The trial judge immediately noted that he had formed an impression of Mr Jensen whilst in the courtroom, stating (Judgment, p 5):

"In this case, of course, I had the advantage of the defendant appearing in person and his presentation of his case was really on the basis that this Court had no jurisdiction. Once I ruled to the contrary, other than his affidavit and some submissions he made, he did not address a number of the matters which the plaintiff had set out. He was not impressive in appearing and his attitude was not impressive but I do not think I can really use that because he was not at that stage subjected to any oath or affirmation but was simply addressing the Court."

22 Had the matter been left there, the remarks, though gratuitous, would not have been significant. However, it was not left there. The trial judge continued:

"However, during the course of that address he indicated two things in particular which would cause me to have great doubt about the value of his evidence. The first of those was that, having said at all times in the filed material, he had purchased the house with his money, he then indicated he wanted to make a claim for payments under a mortgage, the mortgage, as I understand it, being to his brother. There had been no mention of any mortgage, in fact the only mention I could find was that there was no mortgage. To the contrary, he had said he owned the house, he paid for the house and that claim was clearly contrary to all the evidence in the case. It is a serious claim and it is a serious matter to put forward and I do not accept it. There were other matters in his claim, for instance, that the plaintiff had not contributed at all except in the most minor ways which would appear to me to be contrary to commonsense. They were obviously in a relationship over a significant period of time, she was living with him in Sweden, she was obviously contributing in a lot of ways and in Australia was contributing. His affidavit, to my way of thinking, would indicate that she did very little, he did everything, he paid everything. I simply do not accept that. Again that, in my view, makes his evidence unreliable.

And there were other matters, there was a matter of a claim in relation to a ring, no valuation, a large sum of money claimed and no evidence. In the end I must say I have difficulty in accepting anything he says unless I can find other evidence to support it elsewhere.

That then allowed me to accept the plaintiff's evidence ...."

23 An important purpose of cross-examination is to allow a witness to be tested as to his or her statements before they are rejected. The experience of the adversarial system is that propositions which, unexplained, appear inexplicable may appear well based when the difficulty is raised and responded to. Although the trial judge had expressly eschewed judging the appellant's evidence on the basis of his appearance in court, he immediately judged it adversely on the basis of what he perceived to be a submission based on recent invention. Whether or not the appellant used the term "mortgage" before the trial judge is not known. It may be accepted that he did. However, in the circumstances of the case, the reference to a mortgage would have been a reference to a loan secured over the Woolgoolga property. In this Court, the appellant sought to tender a certificate evidencing such a loan. The tender was rejected because the loan was from his brother and there was no good reason why evidence of such a loan could not have been called at trial. To allow it to be called for the first time on appeal would have raised a significant new issue for the first time.

24 However, for present purposes, the lack of evidence of the loan was only part of the reason why the trial judge thought that the claim cast doubt on the appellant's credibility. It was the lack of any "mention" of a mortgage on any prior occasion which gave rise to the adverse inference.

25 Mr Jensen had stated in his affidavit that there was no mortgage over the Woolgoolga property (at par 56), a fact which was not in dispute. However, he listed as a liability, in paragraph 12 of his defence, a loan "over property at 43 Pullen Street, Woolgoolga" in an amount of $233,000. The trial judge was entitled to reject the claimed "liability" in assessing the assets of the appellant, being unsupported by evidence, but the statement that the reference in argument to a "mortgage" was a recent invention casting doubt on the credit of the appellant was based on a false premise.

26 The second matter which led the trial judge to reject the appellant's evidence to the extent that it was not corroborated was the assertion that "the plaintiff had not contributed at all except in the most minor ways" which he described as "contrary to commonsense". He referred to the appellant's affidavit as indicating that he (the appellant) paid everything.

27 This statement involved a significant level of exaggeration. In his verified defence, he admitted that Ms Pearce had made "direct financial contributions to the acquisition, conservation and improvement of the property and financial resources of the parties", but did not admit the quantum asserted by her. He also admitted that there were indirect contributions: defence, pars 16 and 19. With respect to the period of residence in New South Wales, he asserted in the defence (par 18) that he paid for 70% of food and groceries (she paying the rest), that he paid for his own clothes and assisted her in clothing purchases, that each party paid their own medical expenses and that she paid all the accounts for electricity, home telephone, water, home insurance and internet connection. In his affidavit, he conceded that whilst they were living in Sweden they shared domestic duties (par 30). He conceded that they shared domestic duties in Australia from November 2005 until April 2008: affidavit, par 62. It was not in doubt that Ms Pearce made minimal contributions to the purchase of the Woolgoolga home, as will be discussed further below.

28 An objective assessment of their respective affidavits and the supporting documentation which was available to the Court does not support the assessment made by the trial judge. It might be inferred that, despite assertions to the contrary, it was Mr Jensen's presentation of his case in court which inclined the judge to an adverse assessment of his credit. In any event, once that aspect of the matter is disregarded, as it should be, this Court is in as good a position as the trial judge to assess the factual bases of the claims and to determine a just and equitable outcome.

History of the relationship

29 The history of the relationship was important in this case because it was necessary:

(a) to establish that there was a domestic relationship involving cohabitation "for a period of not less than two years", for the purposes of s 17(1);

(b) having determined the period of the relationship, to identify that part during which the parties lived together in this State as a proportion of the whole, for the purposes of s 15;

(c) to identify the date of termination of the relationship, for the purpose of determining that the proceedings were commenced within two years after the relationship ceased, pursuant to s 18(1);

(d) to determine the resources of each at the commencement of the relationship;

(e) to determine the contributions of each during the course of the relationship, and

(f) to determine the assets of each at the termination of the relationship.

30 To be in a de facto relationship, the parties had to "live together as a couple" taking into account "all the circumstances of the relationship", including the various considerations identified in s 4 of the Act. The Act allows for an order to be made where the parties are in a "domestic relationship" which extends beyond a de facto relationship to "a close personal relationship ... between two adult persons ... who are living together, one or each of whom provides the other with domestic support and personal care": s 5(1).

31 Although the plaintiff had asserted that the relationship commenced on or around 25 November 2002, her own evidence did not support that claim. The parties met at a social gathering on that date. The appellant was then travelling in Australia with his disabled brother on a holiday. He said that he left Sydney the day after he and Ms Pearce met but that he returned for two weeks in December, which was consistent with her evidence that they "cohabited" between 10 and 23 December 2002. The appellant then returned to Sweden. He came to Australia again on 2 February 2003 at which time it appears that they made plans to continue living together in Sweden. He returned to Sweden on 8 April 2003, she following him on 2 May. The evidence supports a conclusion that the relationship commenced in about February 2003.

32 The parties lived together in Sweden from 2 May 2003 until 4 November 2004, when they returned to New South Wales. It will be necessary to return to the evidence as to the respective activities of the parties in Sweden during those 17 months as the plaintiff's claim rested heavily on improvements she claimed had been made to Mr Jensen's home in Sweden during that period. It will also be necessary to consider whether her activities conferred financial benefits on the parties and, if not, what adjustment should be made with respect to property in New South Wales.

33 From 6 November 2004 until they returned to Sweden on 16 March 2005, the parties lived in northern New South Wales, primarily in holiday accommodation in Ballina.

34 The parties returned to New South Wales eight months later, arriving on 11 November 2005. After a short period in Sydney, they rented a unit in Coffs Harbour but found a home to purchase at 43 Pullen Street, Woolgoolga in early 2006. They paid rent on the property until a subdivision was completed, allowing for completion of the purchase in August 2006. The title was registered in their joint names as tenants-in-common, the appellant holding a 97% share and Ms Pearce a 3% share. It is not in dispute that those shares corresponded with the financial contribution of each to the purchase of the property, although Ms Pearce's contribution was in the form of a first home owner's grant from the Commonwealth Government, which the parties had jointly applied for, but which they notionally attributed to her. On 25 August 2006 Ms Pearce signed a statutory declaration acknowledging the respective contributions of the parties. In her affidavit she claimed to have been "shocked" at Mr Jensen's request for such a document and felt "tired, stressed and pressured" at the time that she signed it, did so fearing that they would otherwise lose their deposit and did so without legal advice. Objectively, the declaration was favourable to her interests.

35 From settlement of the purchase on 25 August 2006, the parties lived together at Woolgoolga until about 17 April 2008. During that period, Mr Jensen returned to Sweden on two occasions for approximately six weeks each time, being from 5 September to 25 October 2006 and 9 May to 22 June 2007. His father died in April 2008, causing him to return to Sweden in mid-April and not return to Australia until 5 August. Mr Jensen's passport demonstrates that he arrived in Sydney on 5 August: in his affidavit he stated that he travelled to Woolgoolga by bus the following day, which is at least plausible. Ms Pearce stated in her evidence that the parties "separated on 6 August 2008": affidavit, pars 29-30. She sought an apprehended violence order from the police on 8 August 2008. Her statement that they cohabited for "about a week" before 6 August 2008 does not accord with the immigration records and should have been rejected. An interim AVO dated 12 August 2008 was made by the Local Court at Coffs Harbour, from which date the appellant was forbidden to go within 50 metres of the home at 43 Pullen Street, Woolgoolga. A final AVO made on 26 August 2008, in similar terms, was expressed to be in force for a period of two years.

Judgment below

36 Before turning to the evidence as to the respective contributions of the parties during the course of the relationship, it is convenient to identify the manner in which the trial judge dealt with the issues. As already noted, he accepted the evidence of the plaintiff in preference to that of the defendant, unless the evidence of the latter was independently corroborated.

37 It is well established that the appropriate way to deal with claims under the Property (Relationships) Act is by a staged process requiring:

(a) the identification and valuation of the property of each party at the commencement of the relationship;

(b) the contributions of each party to the acquisition, conservation or improvement of any property during the relationship, including non-financial contributions, and

(c) the identification and valuation of the property of the parties at the termination of the relationship.

These principles have been explained on a number of occasions by this Court, including in Howlett v Neilson [2005] NSWCA 149 at [25] (Hodgson JA, Ipp and McColl JJA agreeing) and in Baker v Towle [2008] NSWCA 73 at [42]-[49]. Depending on the circumstances, it may be possible to approach questions of contribution on a global basis or by reference to specific assets, or both. It is not possible to adopt a formulaic approach. Nor is valuation a matter of numerical calculation: non-financial contributions may be of significance and may not readily be translated into a monetary sum.

38 Although the trial judge commenced by having regard to the purchase of the property in Woolgoolga (Judgment, p 2), he explained his overall approach in the following passage at p 3:

"The plaintiff's case is argued in this very simplistic way; it is argued that what the Court should do is to look at her contribution, to the profit he made or the additional value which was placed on his home in Sweden, to calculate what percentage she contributed to the increased value and to then use that to calculate the actual amount she has put towards the Woolgoolga property and at the end of that, once one takes into account any deductions which should be made, I arrive at a simple verdict. I agree."

39 Whether or not such an approach might have given rise to a just and equitable result, the approach actually adopted was flawed. It involved the following steps.

40 First, having noted the respective shares in which the title to the Woolgoolga property was registered, the trial judge noted that the plaintiff claimed, in addition to her 3% interest, an allowance for the first home owner grant of $7,000 and for a stamp duty exemption in an amount of $6,890, together with $1,000 for her services in doing the conveyancing. The trial judge accepted this claim in an amount of $14,890: Judgment, p 2. The first step is fallacious for two reasons. One is that the first home owner's grant was double counted. In her affidavit, relating to the acquisition of the Woolgoolga property, she stated at par 44:

"We utilised my $7,000 first home owner's grant and obtained an exemption from stamp duty."

41 There was no evidence that she had or contributed a second amount of $7,000: it was the first home owner's grant from the Commonwealth which constituted her contribution to the purchase price, for which she was recognised as having a 3% interest in the property. The second point is that it was not her contribution. The application was made in joint names. Although at least one applicant had to be a permanent resident or Australian citizen (which was in fact Ms Pearce) that was her only unique contribution to the application. The cash was not in any sense provided by her, nor was the consequent stamp duty exemption. Neither of these amounts should have been credited as cash payments in addition to her 3% interest in the property. To the extent that she did the conveyancing, that may be accepted as a contribution to the acquisition of the property, and, if a notional amount is to be calculated, $1,000 should be accepted.

42 The second stage in the calculation is also contestable. The trial judge stated at p 4:

"The first thing I need to do is to assess the value of any improvements in the property in Sweden and then look at what part the plaintiff may have contributed to that. The valuation is done quite simply by looking at, I think it is, page 102 of the plaintiff's annexure to her affidavit where he has set out certain figures. ... The simple way to value it, if one takes his figures, is that the property prior to her living in Sweden was valued at AUD$286,000, the property is now valued at AUD$690,000, that is an increase in value of AUD$404,000."

43 The basis for the first step in this calculation was obscure. In her affidavit, Ms Pearce listed the appellant's assets at the commencement of cohabitation and annexed a letter written by the appellant to the case officer in the Department of Immigration and Multicultural Affairs dealing with his application for permanent residence in Australia, dated 4 April 2006, as a basis for valuing those items. Putting those documents together, one achieves the following assets and values:

(a) home at Myrtuvevagen 113, Trollhattan -	$220,000
(b) summer house at Velanda 10, Trollhattan -	$80,000
(c) antiques, paintings and jewellery -	$100,000
(d) stock portfolio -	?
(e) bank account in Sweden -	$120,000
	$520,000

44 It is unclear from the letter whether the stock portfolio was an asset separate from those valued at approximately $100,000, but if it had been, the value of the appellant's assets at the commencement of the relationship would have been in excess of $520,000. How the trial judge obtained a figure of $286,000 is not explained.

45 The second figure arrived at by the trial judge, as the value of the property "now" (presumably the time of the trial) is ascertainable. It was a summation of all the assets identified in the letter of 4 April 2006, excluding a summer house at Velanda 10, Trollhattan. However, that figure included the purchase price of the home at Woolgoolga and an amount of $10,000 used to furnish the home. The purchase price must have been sourced from his Swedish assets. That was presumably the reason for excluding the value of the summer house, the assumption being that the proceeds of sale contributed to the purchase in Woolgoolga. However, there remained an amount of $160,000 required for the purchase which was otherwise unaccounted for. If the amount of $250,000, expended in Australia, were added back into the pre-relationship assets, they would be valued at $536,000, not $286,000. The notional increase in value would then be $154,000, not $404,000. On the other hand, the calculation is also erroneous, against Ms Pearce's interests, because the present value of the house in Woolgoolga was agreed to be $300,000. On any view, treating values ascribed in April 2006 as accurate at the time of trial required explanation.

46 The difficulties with a global assessment in these circumstances are evident. The plaintiff complained that the reason for the difficulty was that the defendant had refused to arrange for valuations of his assets in Sweden. The trial judge noted that the defendant had been "put on notice" by a judge of the District Court at an interlocutory hearing that he was at "risk" of not getting a proper valuation, namely that the Court would value the property in other ways.

47 There is a more important difficulty with the global approach adopted by the trial judge. Although the plaintiff asserted that she assisted Mr Jensen "in doing research on" items of jewellery and antiques he sought to purchase both at live auctions and over the internet, and that Mr Jensen asked her "to research and read through, and give my opinion on his stock reports and also with regard to companies he was interested in investing in" she does not suggest she had an expertise in these areas, except to the extent that she could read English. There was no evidence that Mr Jensen was not sufficiently fluent in English to read such documents for himself. He denied that she provided assistance with such matters and, on the available evidence, it would not be possible to conclude that she made any significant contribution to his earnings from such activities.

48 So far as cash was concerned, there was undoubtedly an absence of information with respect to amounts in the appellant's bank accounts. It appears that he had accounts both in Sweden and in Luxembourg, the latter being identified only by a number and not a name. Why he wished to have an anonymous account is not revealed. He said in his letter, upon which the plaintiff relied, that he placed money in the account "in anticipation of moving to Australia and purchasing a home for Jill and I, with this money." If that were so, and it appears to have been part of the plaintiff's case that it was, in April 2006 that account would have contained the balance of the purchase price of the Woolgoolga home. The letter revealed the amount held in his Swedish bank account as at April 2006.

49 So far as financial contributions were concerned, with the exception of her work on the appellant's house at Myrtuvevagen, Trollhattan, there was no credible evidence of a direct contribution being made by the plaintiff to the value of assets the appellant brought to the relationship. This was not a case in which either of the parties had children, or other commitments, which were undertaken by one party, so as to allow the other freedom to earn money. Nor was it established that either took on the role as sole homemaker. It was only in Sweden that Ms Pearce alleged that she had undertaken work, on the house at Myrtuvevagen, which had contributed to its value. It will be necessary to return to that evidence shortly.

50 The evidence of the respondent is that she had no significant assets at the commencement of the relationship. In her affidavit, par 31, she listed her personal possessions in late 2002, but stated that these were sold in early April 2003 for the sum of approximately $5,000. She attached bank statements which indicated that as at 30 April 2003 she had a savings account with some $3,030 in it and a personal loan account with a debit balance of $8,800. She stated that she had received a payment when she terminated her employment of approximately $3,000, but it appears that that amount was included in the savings account balance as at 1 May 2003. Accordingly, her net assets were approximately equivalent to her liabilities.

51 At the termination of the relationship, the assets in the respondent's name were her 3% interest in the property in Woolgoolga and what she described, without identifying them, as "chattels in the home". She referred to a motor vehicle, but it was apparently purchased in late 2010 or early 2011: affidavit, par 64. Although the trial judge did not expressly find that she had no significant assets at the commencement of the relationship, nor at the termination, other than her interest in the Woolgoolga property, findings in those terms should be made.

52 The principal basis of the respondent's claim to an interest in the property owned by the appellant turned on work she undertook at Myrtuvevagen, Trollhattan, whilst living there in 2003-2004. She stated in her affidavit that while in Sweden, she "became increasingly frustrated, lonely and isolated, and was concerned that we may never achieve our goal of living in New South Wales": paragraph 24. It appears that she expected her time there to be temporary. She said that her earnings while living in Sweden, from employment as an English language teacher, amounted to $14,500. However, statements exhibited in support of that figure covered the period from September 2003 to June 2007, for the most part of which, after November 2004, she was not in Sweden. A letter from her solicitors in response to a request for particulars from the solicitors then acting for the appellant, stated that her income from teaching English and other positions in Sweden was approximately $3,000 per annum and was consumed in its entirety by the parties. The appellant stated in his affidavit that she had no resources to contribute to the purchase of the Woolgoolga property. As already noted, she did not contradict that proposition and it should be accepted.

53 Ms Pearce nevertheless stated that she made non-financial contributions with respect to the house at Myrtuvevagen whilst living there in 2003-2004. Given her lack of steady employment and social contacts, the trial judge was entitled to accept her evidence that she did most of the domestic work whilst the parties were living in Sweden. However, beyond cleaning a house which had not been lived in for some time and contained a lot of rubbish, the maintenance appears to have been "installing insulation in the roof, getting the heating up to standard" (par 49), attending to the garden, painting part of the exterior of the house (par 55) and assisting with the sale of the summer house. The trial judge dealt with this assistance on the basis that she should obtain 20% of the increase in value of the property over the period of the relationship. Although the evidence was lacking in detail, this approach should be accepted.

54 Her evidence as to her contributions in Australia was more limited. She stated that she undertook the majority of household tasks both in Australia and Sweden (par 63), which the trial judge also appears to have accepted. His calculation of the respondent's entitlements may have been intended to include a 20% share in the increase in value of the Woolgoolga property: if that were the intention it was, if anything, generous to the respondent, who gave little evidence relevant to her direct contribution to the acquisition, conservation or improvement of that property, other than the work done on the conveyancing. The increase in value was accepted as $60,000. Her entitlement from that source would therefore be $12,000, plus the $1,000 for the conveyancing, totalling $13,000.

55 Turning to the property of the appellant, the value of the house in Myrtuvevagen was ascertained by reference to the letter sent by Mr Jensen to the case officer in the Department. It stated no basis for the value ascribed. Annexed to the appellant's affidavit, was a tax declaration provided to the Swedish government in 2004 which valued the property at $109,000 (578,000 krona). The plaintiff attached to her affidavit a sale advertisement for the property from a Swedish journal or website stating an asking price of 950,000 krona which she calculated as approximately $170,000 (affidavit, par 65). The document is dated 22 January 2011, some two and a half years after the termination of the relationship. The price had not been met and the real estate agency agreement was terminated; it could be relied on to establish a ceiling, though not an actual value. These figures suggest that the figure given to the Department in April 2006 was inflated and that the real value at the end of the relationship may have been in the order of $150,000. If the estimate given in the tax declaration of 2004 was inaccurate, it was likely to be on the low side. Accepting that the value of the house at the commencement of the relationship was in the order $109,000 and, in the plaintiff's favour, at the end of the relationship was approximately $160,000, the increase in value was approximately $50,000.

56 The trial judge's allowance of 20% as the plaintiff's contribution to the increase in value of the appellant's property in Sweden, assessed at $50,000, would be $10,000.

57 Turning to the Woolgoolga property, the initial allowance of $14,890, referred to above, should be reduced to $1,000. The primary judge then took into account payments that the plaintiff had made during the period of her sole occupancy subsequent to the termination of the relationship, up to the date of judgment, being 28 March 2012. That was assessed in an amount of $21,100. The trial judge then allowed, against the plaintiff, an occupation fee calculated at $300 per week for 187 weeks. That gave rise to a figure of $56,100. The appropriateness of making such an allowance is not in issue: cf Callow v Rupchev [2009] NSWCA 148; 14 BPR 27,533. However, at the suggestion of counsel for the plaintiff, the judge reduced that by 38.6% which he described as "her entitlement to the house". That figure had been determined by treating the cash balance in her favour prior to the calculation of the occupation fee as equal to a proportion of the value of the Woolgoolga property at the date of termination of the relationship.

58 That calculation was flawed for a number of reasons. First, the plaintiff did not have such an interest in the house, either prior to or after the orders of the Court. Those orders were premised on the proposition that she had a 3% interest in the house. Secondly, her expenditure on rates, insurance and maintenance should also have been reduced by 38.6%, if those payments were made with respect to her interest in the property. Rather, the occupation fee to be allowed by the plaintiff should be reduced by 3% and the payments made by her, allowed to the appellant, should also be reduced by 3%. The result is, in round terms, an allowance of $34,000 as against any sum owing to her from the appellant: ($56,100 - $21,100 x 97%). Allowing the credits of $10,000 (for the Swedish improvements) and $13,000 (for Woolgoolga), would give a balance in favour of the appellant of $11,000. Further calculations would need to be made to bring that figure up to the date of this judgment, as the plaintiff apparently remains in occupation of the property.

59 Assuming that expenses and the occupation fee were to continue in the same proportion as before the judgment, the balance in favour of the appellant should increase by approximately $11,000 to the date of this judgment. A 3% interest in the property, at the agreed value, would be $9,000. Thus, if the property were to be transferred to the appellant, the plaintiff's debt would be reduced to $13,000. The plaintiff should be ordered to pay the appellant that amount and to transfer her interest in the Woolgoolga property to him, with vacant possession within two months.

60 The plaintiff originally sought the whole of the Woolgoolga property. Having been unsuccessful in obtaining any adjustment of the interests in the assets of Mr Jensen in her favour, the plaintiff should pay the costs of the trial.

Cross-claim

61 Although it is probable that some of the appellant's property was in the house and not recovered by him when the AVO was granted, the evidence before the trial judge did not allow a valuation of the goods and chattels lost. However, the appellant was successful in claiming an occupation fee, alleged to be of a similar value to the unsuccessful claim with respect to personal property. The trial judge, having allowed an occupation fee in diminution of the plaintiff's claim, dismissed the cross-claim with no order as to costs. There is no basis for interfering with those orders.

62 Pursuant to s 56 of the Property (Relationships) Act, the Court should make a declaration as to the existence and timing of the domestic relationship. It is also enjoined by s 19, so far as is practicable, to make orders which will "finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them". It is desirable in the circumstances to make an order (as did the District Court) that the respondent to the appeal, Ms Pearce, transfer the whole of her interest in the property at 43 Pullen Street, Woolgoolga to the appellant, Mr Jensen.

63 Although the appellant has been largely successful on his appeal, it was for reasons which were not clearly articulated until the hearing of the appeal and then not by him. He has not been represented at any stage of the proceedings in this Court. Accordingly, the tentative view of the Court is that each party should bear his or her own costs of the appeal. The opportunity to make submissions as to costs was sought by the respondent at the end of the hearing and the leave referred to above should extend to the costs of the trial and the appeal.

Orders

64 The Court should make the following orders:

(1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date.

(2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012.

(3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006.

(4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment:

(a) judgment for the appellant against the respondent in the sum of $13,000;

(b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962;

(c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment;

(d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984;

(e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property.

(5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial.

(6) Each party to bear its own costs of the appeal.

(7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal.

65 BARRETT JA: I agree with Basten JA.

66 EMMETT JA: This appeal is concerned with an application by the respondent, Ms Jillian Pearce under the Property (Relationships) Act 1984. On 28 March 2012, a judge of the District Court made orders under that Act in favour of Ms Pearce against the appellant, Mr Steen Jensen, who is a national of Sweden. Mr Jensen was not represented by lawyers at the hearing before the District Court. He lodged a notice of appeal. He had no legal advice in connection with the notice of appeal. Accordingly, it has not been a straightforward task to ascertain the precise issues raised by Mr Jensen on the appeal. However, it is tolerably clear that the exercise of the discretion conferred by the Act miscarried.

67 I have had the advantage of reading in draft form the reasons of Basten JA and the orders proposed by his Honour. I agree with his Honour's conclusions, the orders proposed by his Honour and the reasons advanced by his Honour for the proposed orders.

**********

Decision last updated: 05 August 2013