Perry v Gao

1. [1]

   These proceedings concern a property known as 129A Railway Street Parramatta (the “Parramatta Property”). The Plaintiff, Mr Graham Perry, claims that he has, or should be found to have, an interest of 50% in that property, and he seeks ancillary orders should the Court so hold or find that he has some percentage interest in it. The Plaintiff’s primary argument is based on equitable principles (the doctrines of resulting and constructive trusts, as well as undue influence and unconscionable conduct). The Plaintiff also makes a claim in the alternative pursuant to s 90SM of the Family Law Act 1975 (Cth) (the “FLA”), should he be unsuccessful on the primary claim.

2. [2]

   The Defendant, Ms Min Gao (also known as Anna Gao), is the registered proprietor of the Parramatta Property, and became so on 9 February 2010. At the time of entry into the purchase contract in December 2009 the Plaintiff paid the $66,000 deposit. The balance of funds ($594,000) came from the proceeds of sale of another property at Curl Curl (the “Curl Curl Property”), which was owned by the Plaintiff. The Plaintiff claims that having met the Defendant in April or March 2009 they had decided, by September 2009, to live together in a de facto relationship at the Curl Curl Property and then in the Parramatta Property, with settlement of the purchase of the Parramatta Property to take place in February 2010.

3. [3]

   On settlement of the sale of the Curl Curl Property, another $181,589 from the proceeds of sale was paid into a bank account operated by the Plaintiff and the Defendant with the NAB. A few days later the Defendant transferred $12,000 from the NAB account to an account solely in her name. Another $140,000 was transferred by the Defendant into term deposits in February 2010. Whilst not now pursuing a separate claim for these monies, the Plaintiff alleges that $133,000 was later transferred by the Defendant from those term deposit accounts into accounts held solely in the Defendant’s name and without his knowledge: see paras 27 – 28 of his affidavit of 24 June 2017 (his first affidavit). The Defendant does not deny that she has used some of that money for her own purposes, including expenditure on defending these proceedings, although she says that $50,000 of it held by her in cash was stolen from the Parramatta Property: see the Court Book p. 173 para 82 (the Court Book, marked Exhibit A, shall be referred to as “CB” in the balance of these reasons). The Defendant says that she did not report the theft to the Police. She asserts that the transfers from their joint names into her sole name were made with the knowledge and agreement of the Plaintiff, and she said that after the sale of the Curl Curl Property the Plaintiff said to her: “The remains of the sale proceeds are all yours” (para 49 of her affidavit, CB 169).

4. [4]

   The Plaintiff claims that he paid for the purchase of the Parramatta Property out of the Curl Curl Property proceeds, and the Defendant does not dispute that.

5. [5]

   The Plaintiff accepts that at a meeting on 14 December 2009 in relation to the purchase of the Parramatta Property the Plaintiff instructed a solicitor, Ms Alice Yang (of Alice Yang & Associates), in the presence of the Defendant, that the Defendant should be named as the sole purchaser and become registered proprietor of the Parramatta Property. Ms Yang acted for the Plaintiff on the sale of the Curl Curl Property to a third party and on the purchase of the Parramatta Property in the name of the Defendant.

6. [6]

   The Plaintiff asserts that in September 2009 he and the Defendant entered into a written financial agreement (“the Financial Agreement”) pursuant to s 90UB of the FLA: CB 42-49. The Agreement is signed by both parties, is dated September 2009 and contains the following recitals and substantive clauses:

7. [7]

   The Plaintiff claims that “if”, in December 2009, he told the Defendant and Ms Yang that the Parramatta Property was a gift to the Defendant then that was a result of either (or a combination of):

   1. (1)

      his being emotionally dependant on the Defendant;

   2. (2)

      undue influence by the Defendant;

   3. (3)

      his having laboured under a special disadvantage which seriously compromised his capacity to protect his own interests and of which the Defendant was aware.

8. [8]

   Mr B. Zipser of Counsel appears for the Plaintiff, instructed by Vaarzon Morel Solicitors. The Defendant appears for herself. She has previously been represented and her Defence to the Amended Statement of Claim (“ASTOCL”) was prepared by her lawyers then acting, Hamilton Zhao. The Defendant filed a Defence to the Plaintiff’s Further Amended Statement of Claim (“FASTOCL”) which was filed in Court on Monday 24 June 2019 (notice having been given of it in the previous week). The Defendants’ Defence to the FASTOCL refers back, appropriately, to her Defence to the Plaintiff’s ASTOCL. I am conscious that Ms Gao has chosen to represent herself at the hearing, as is her right, and that this has been no easy task for her. She did, however, receive some assistance in relation to her closing written submissions of 28 June 2019 (“DCS”) and, I infer, in respect of her Defence to the FASTOCL. The Defendant also provided me with two documents that are “letters” to the Court which Mr Zipser agreed I should treat as submissions of the Defendant. I have read them but I do not think that they could be regarded as submissions, since they are more in the nature of diatribes. They cannot be treated as evidence and I have paid no regard to them. The same applies to the Defendant’s “solemn declaration” at CB 199.

9. [9]

   In relation to the Financial Agreement, in the Defence to the ASTOCL the Defendant responds in a detailed fashion. She did not explicitly admit that she executed the document but did so inferentially and later stated in her Defence that she will be relying on the Financial Agreement. The DCS accept that the Financial Agreement was entered into by the Plaintiff and the Defendant. I deal later with the Defendant’s evidence in cross examination on that topic.

10. [10]

    From the pleadings and the affidavits the following issues arise:

    1. (1)

       Did the Plaintiff make a gift of the Parramatta Property to the Defendant and, if so, was the gift intended to be a gift of only the legal interest?

    2. (2)

       If he did make a gift of all of his interest in the Parramatta Property, was that gift a result of:

    3. (3)

       Were the Plaintiff and Defendant in a de facto relationship as at December 2009, as the Plaintiff contends?

    4. (4)

       What, if anything, is the significance of the Financial Agreement and should it be set aside pursuant to s 90UM of the FLA?

    5. (5)

       What orders, if any, should be made pursuant to s 90SM of the FLA?

11. [11]

    The Plaintiff claims that from September 2009 he and the Defendant were in a de facto relationship and that from February 2010, on settlement of the purchase in the Defendant’s name, they lived together in the Parramatta Property in a de facto relationship until 2017 when he entered a nursing home. The Defendant denies that a de facto relationship existed between them. I shall detail below how she seeks to characterise the relationship between them.

A Jurisdictional Issue

1. [12]

   At a directions hearing a few weeks before the final hearing, I raised with Mr Zipser and Ms Gao a concern that I had as to this Court’s jurisdiction to hear the claims advanced in the ASTOCL pursuant to the Property (Relationships) Act 1984 (NSW) (the “PRA”), and whether or not they amounted to a “de facto financial cause” within the meaning of the FLA. Sections 39A, 39B and 90RC of the FLA seemed to point to the Family Court and the Federal Circuit Court as being the only courts in which claims arising out of a de facto relationship (of the requisite period and geographical location, and ending after the proclaimed date) could be heard.

2. [13]

   Following the directions hearing, Mr Zipser concluded that his reliance on the PRA was misplaced and he sought and obtained leave to amend the Plaintiff’s claim in a FASTOCL. The FASTOCL replaced that portion of the Plaintiff’s claim relying on the PRA with the provisions of the FLA found in Part VIIIAB.

3. [14]

   Mr Zipser submitted that this Court does have jurisdiction to hear those claims by reason of s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) (the “CVA”). The Defendant’s position was that the matter was not one which should be heard in the Family Court because, on her case, there was no de facto relationship. Mr Zipser relied on the approach taken by Brereton J (as his Honour then was) in Young v Lalic [2006] NSWSC 18; 197 FLR 27 in connection with matrimonial causes (see particularly [32] – [50]), but also the decision of the Full Court of the Family Court in Kavan v Mallery [2015] FamCAFC 82; 295 FLR 326, which was concerned with a de facto financial cause. In Kavan the Federal Magistrate at first instance had ordered the transfer of proceedings involving a de facto financial cause to be heard in the Supreme Court of NSW. The appellant contended that the order made was defective because the NSW Supreme Court did not have jurisdiction to hear the matter. The Full Court said of this ground of appeal (at [30] – [32]):

4. [15]

   Thus, although the agreement entered into by the States and the Commonwealth appears to have been designed to ensure that de facto relationship matters were all heard in the Family Court or the Federal Circuit Court, the State Courts by the CVA are bestowed with jurisdiction. I note that s 39A(5) of the FLA was not specifically mentioned, and it would appear that there have been no relevant cases on that subsection insofar as it relates to the jurisdiction of State Supreme Courts.

5. [16]

   Quite apart from the respect which courts of first instance and intermediate appellate courts in Australia must give to all decisions of appellate courts in Australia (see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]), I regard myself as bound by the decision of Kavan, because the NSW Court of Appeal has held that appeals from this Court on matters falling within the FLA can only be heard by the Full Court of the Family Court (Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394) and s 7 of the CVA provides that appeals from this Court on matters arising under the FLA are to be heard by the Full Court of the Family Court. This produces the result that a single judge of this Court is bound by decisions of the Full Court of the Family Court on such matters: see discussion of this point in my decision in Keramaniakis v Wagstaff [2005] NSWDC 14 at [49]-[59]. It follows from Kavan that I must proceed upon the basis that this Court does have jurisdiction to hear a de facto financial cause under the FLA.

6. [17]

   Mr Zipser quite properly conceded that whether or not this Court should hear a case in respect of which both this Court and the Family Court have jurisdiction is also a matter which I would need to resolve. Since neither the Plaintiff nor the Defendant wanted the matter transferred to the Family Court and the Defendant disputes that she and the Plaintiff were in a de facto relationship, and since the case had been fixed for hearing to commence on 24 June 2019 for 5 days, I did not think it was appropriate to transfer the proceedings and decided not to do so. I heard the Plaintiff’s application for leave to bring the proceedings under the FLA out of time (the relationship having ended in April 2017) and I was satisfied that leave should be granted to the Plaintiff to apply out of time: see T4.29 – T5.40.

The Factual Matters not in Dispute

1. [18]

   There are many matters which are in dispute or which are not clear but I will endeavour to set out here the factual matters that are not in dispute:

   1. (1)

      Mr Perry met Ms Gao in 2009 in a local convenience store in Curl Curl by an introduction from an employee of Chinese extraction. He was immediately attracted to the Defendant and sought to establish a relationship. At that time he was 72 years of age and she was 49 years of age. He was retired and had been a fitter and machinist at an engineering company.

   2. (2)

      Mr Perry had never been married. He had many years earlier harboured hope for a romance with a female work colleague but he was unsuccessful in winning the hand of that person.

   3. (3)

      As at February 2009 he lived alone at the Curl Curl Property and had done so for many years.

   4. (4)

      He sought to have coffee with Ms Gao and he pursued the relationship even though he did not speak Mandarin and Ms Gao did not have a strong grasp of English. Ms Gao was divorced and had a son by her ex-husband. The son lived with her in public housing in Belmore and was 20 years of age in February 2009.

   5. (5)

      On 17 September 2009, Mr Perry and Ms Gao signed the Financial Agreement. According to two separate certificates they were each advised by a different solicitor (although whether Ms Gao was in fact advised is, or at least was at one stage, in issue).

   6. (6)

      I have set out earlier all of the substantive clauses of the Financial Agreement.

   7. (7)

      Arrangements were made to sell the Curl Curl Property through a real estate agent, Mr Yuan Xie of Elders Real Estate Rockdale. It was sold by a contract of sale entered into on 7 December 2009 for $895,000 (CB 58).

   8. (8)

      On 27 October 2009, the Defendant gave the Plaintiff a list of solicitors to choose from and the Plaintiff chose Ms Alice Yang, a solicitor who speaks both Mandarin and English. The Plaintiff and the Defendant went to see Ms Yang in relation to the sale of the Curl Curl Property. Ms Yang prepared a contract of sale and, with the Plaintiff’s agreement, sent it to a real estate agent who had been identified by the Defendant.

   9. (9)

      In December 2009, the Plaintiff agreed to buy the Parramatta Property for $660,000. He instructed Ms Yang to buy that property in the name of the Defendant alone and with the intention that the proceeds of sale from the Curl Curl Property would be used to pay for the purchase in the Defendant’s name: the contract for sale of land is found at CB 69.

   10. (10)

       Ms Yang, in accordance with her instructions from the Plaintiff, arranged for the settlement of the Curl Curl and Parramatta Properties to occur on the same date (9 February 2010) which she was informed by the Plaintiff was the Defendant’s birthday.

   11. (11)

       The settlement of both properties occurred on 9 February 2010 and the Plaintiff and the Defendant moved into the Parramatta Property on 10 February 2010.

   12. (12)

       The Plaintiff and the Defendant lived at the Parramatta Property together until April 2017.

   13. (13)

       They went together to China on at least two occasions, and on a trip in 2015 the Plaintiff suffered a chest or lung infection which led to him being hospitalised in China.

   14. (14)

       The Plaintiff’s health deteriorated after the infection and by late 2017 he was admitted to a nursing home, although I do not intend to suggest that the decline in his health was wholly or even significantly caused by the lung infection.

Credit of Witnesses

1. [19]

   Before embarking upon an analysis of the evidence, I need to address the question of credit of the witnesses.

   1. (1)

      The Plaintiff is now 83 years of age. He lives in a nursing home and was brought to Court and remained at all times in a wheel chair. I have no doubt at all that he was an honest man doing his best to recall the matters about which he was asked. He made concessions at times that were against his interest. The real problem with his evidence was that he was vague and admitted that his memory was poor. At several points I wondered whether he was in fact able to give meaningful evidence at all (T18.5-33, T20.12-49 and T22.21-31) but he was quite clear on other matters: e.g. T27.35-37, T27.3-6, T29.10-15 and T31.48 - T32.20. I think I need to approach his evidence with caution, but not because of any lack of honesty or candour on his part. The three affidavits he swore all indicate in varying degrees a lack of precision and forgetfulness and this was evident during the cross examination. For example, he said in his affidavit dated 9 March 2018 (at para 25): “I don’t remember agreeing to allow my property to be signed over to Min but have come to believe that I did. I don’t know why I would have done that.” He could not recall having signed the Financial Agreement.

   2. (2)

      These witnesses are all relatives of the Plaintiff and gave evidence as to the nature of the relationship between the Plaintiff and the Defendant through affidavits. None of them was required for cross examination, notwithstanding strenuous efforts by Mr Zipser and his solicitor (Mr Troy Martin of Vaarzon-Morel Solicitors) to ensure that the Defendant understood the significance of a failure to cross examine these witnesses (see Mr Martin’s affidavit of 24 June 2019) and also to ensure that they were present and available for cross examination if she did wish to cross examine them. To the extent that issues of fact were already clearly in issue from the affidavits, I do not think that the “rule” in Browne v Dunn (1893) 6 R 67 prevents the Defendant from contesting the evidence of the relatives (see Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at [105] per Campbell JA with whom Allsop P and Basten JA agreed). However, given the absence of credibility of the Defendant, wherever there is a conflict between the evidence of these witnesses and the Defendant I accept their evidence, some of which, I might add, is of very limited relevance.

   3. (3)

      Mr So was briefly cross examined by the Defendant. I have no reason to doubt the veracity of his evidence.

   4. (4)

      The Defendant at all times had the benefit of a NAATI certified interpreter proficient in English and Mandarin. The Defendant was a wholly unsatisfactory witness whose evidence I am unable to accept unless corroborated by independent reliable evidence. I will explain my reasons for this conclusion below.

   5. (5)

      Ms Yang gave evidence as to her engagement by Mr Perry to convey the Curl Curl Property and act on the conveyance of the Parramatta Property. She said that Mr Perry told her that he wanted the Parramatta Property to be a gift to Ms Gao. There are some troubling aspects of Ms Yang’s evidence to which I shall return, but Mr Zipser accepted that Ms Yang was an honest witness endeavouring to recall events of almost 10 years ago, without the benefit of any contemporaneous note of what was said in her conversations.

   6. (6)

      Mr Xie, the agent who sold the Curl Curl Property, said that Ms Gao had found him from advertisements in Chinese newspapers. He described the Curl Curl Property as a dilapidated timber house filled with “tattered goods and furniture that couldn’t be used.” He said Mr Perry told him that he wanted to change to “a good house” that was newer and in a cheaper area. I accept his evidence.

   7. (7)

      Ms Ayoub and her husband live next door to the Parramatta Property. I have no hesitation in accepting Ms Ayoub’s evidence.

   8. (8)

      Mr Li’s evidence was that he was engaged by the Defendant to carry out repairs and renovations at the Parramatta Property. He gave evidence that in 2010 he did not see any items of the Defendant in the Plaintiff’s bedroom and that the Plaintiff did not give him or the Defendant or his workers any help and hid their tools. He said the Plaintiff moved a water heater that they were about to install to the other side of the house. It was not suggested that Mr Li was untruthful, and I accept his evidence, save his conclusion that the Plaintiff “hid” tools, which is really a conclusion as to motive without any details.

Defendant’s Credibility

1. [20]

   I have set out at [19(4)] above my conclusions in respect of Ms Gao’s credibility. I will now explain my reasons for these conclusions:

   1. (1)

      Ms Gao constantly did not answer the questions asked of her, often launching into lengthy non-responsive speeches, and on occasions notwithstanding my having directed that she should confine herself to answering the questions asked: e.g. T64.33 - T65.11, T66.26-32, T68.19 – T69.10, T70.5-9, T70.26-28, T70.49 - T71.6, T76.32–34, T120.32-44, T121.29-39, T123.29-41, T141.29 and T137.10-18. On several occasions I had to stop the interpreter from translating when it was obvious from the length of the answer in Mandarin that it was not responsive to the question asked: e.g. T136.11-17 and T136.43 – T137.6.

   2. (2)

      Ms Gao on a number of occasions sought to blame her responses on her poor English, and this notwithstanding the fact that she had present with her the entire time, both in the witness box and at the bar table, a NAATI certified interpreter proficient in English and Mandarin: e.g. T125.20-38.

   3. (3)

      On a number of occasions the Defendant’s failure to answer questions responsively appeared to be indicative of the problem that she saw as inherent in the question, e.g. she would not answer the question of whether she thought the Plaintiff’s comments indicated he was slightly crazy (T55.9-14); see, also, T71.34 – T72.21 (in relation to the Financial Agreement) and her evidence concerning her boyfriend (T135 – T137, T139.20-46, T133.41 – T135.6), and T138.8-14 in relation to “gift”.

2. [21]

   Ms Gao gave inconsistent answers in relation to a number of topics:

   1. (1)

      In relation to the Financial Agreement she admits that she signed it but said:

   2. (2)

      She mentioned her Mandarin speaking boyfriend a number of times in cross examination. She said that she had resumed a relationship with him in mid-2009 which continued until March 2010 (see T135 – T136), and because he lived in Rydalmere that is why she wanted to live in Parramatta, and that she told the Plaintiff that was the reason: T138.35-44. She had never asserted before the cross examination that it was she who had promoted Parramatta as the location for the new property or that she had told the Plaintiff of that, and there was in early parts of her evidence a strong suggestion that she had ended her relationship with the boyfriend before September 2009: see T53.43 – T54.1, T70.42-47, T75.50 – T76.9, T120.45-50 and CB 167 para 30, although see T21.6. According to the Plaintiff, the Defendant told the Plaintiff (CB 94 para 9) that she had left “a younger English man who spoke Chinese” to be with the Plaintiff.

   3. (3)

      She was asked about when she had moved into the Curl Curl Property (T120.5 to T122.14) and was evasive and inconsistent in her answers. At T120.44 she said that she did not move to Curl Curl and only was there to do some packing and cleaning (also see T121.11), but she then said she had slept there on five occasions but she was not able to recall whether that was in December 2009: see T122.14.

   4. (4)

      She claimed in relation to the sexual relations issue that she had said to the Plaintiff that it was a term of their cohabitation agreement that there would not be any sexual relations (CB 174 para 89) but she gave no evidence of such a conversation before she moved in with him, and there is no mention of such a restriction in the Financial Agreement.

   5. (5)

      She agreed that the Plaintiff had given her a copy of his Will of 23 July 2010 in which he gave her all of his estate (see CB 281) and which she put in a drawer (T163.26), but she claimed that she had not read it (it being in English) and she did not know what it said and showed it to no-one (T163.32). Yet she gave evidence of a conversation with a friend on the train whose name she could not recall (T164.16-29) and who had given her advice about the validity of the Will which could not have been given if she had not made the friend aware of its contents: see T163.30 – T164.44.

   6. (6)

      In relation to the Will she claimed she did not know what it said until the commencement of these proceedings: T163.12-20. She said the Plaintiff did not discuss the Will with her because “we couldn’t communicate [with] each other”: T163.34. At T164.5-10, she said she regarded the Will as “useless”.

   7. (7)

      When asked about cl 3.1 of the Will there was the following exchange at T166.2-31:

   8. (8)

      In May 2010 she made an application to the Department of Housing, some of which is written in the hand of a friend who she says helped her with the application and who wrote in English information which she gave in Mandarin: T154.11-15. The document was designed to ensure the transfer of the public housing which she lived in at Belmore to her son who was also living in that community housing. The document contains the explanation for her departure: “moving to boyfriend’s home” (see CB 212-214). The Defendant was cross examined on this at T155.29 - T156.25 and she said that what she had told her friend to write was “move to Parramatta to look after an old man.” The Defendant by this assertion clearly recognised that what in fact was written was hurtful to her claim that she owned that home.

   9. (9)

      That she and the Plaintiff could never communicate in English: T51.36-38 and T52.47, although she gave evidence of conversations with the Plaintiff in her affidavits.

   10. (10)

       That whilst she had declared in the assets provision of the Financial Agreement that she had no assets she, on her evidence, had $80,000. When she was asked about this discrepancy she said at T75.36-46:

   11. (11)

       She claims that a solicitor (not identified) told her in Chinese in respect of the Financial Agreement that the Plaintiff would be giving her the Curl Curl Property on his death (CB 167), which is inconsistent with the terms of the Financial Agreement and could not have been drawn from that document.

3. [22]

   There are in the Defendant’s case four strands that do not sit comfortably with each other:

   1. (1)

      That the Plaintiff made a gift to her of the Parramatta Property because he wanted her friendship and threatened to commit suicide if she did not agree to move in with him (e.g. T55.16-21, T231.44 – T232.4 (in submissions) and T120.15-22) and, alternatively, that he promised to give her a gift: T149.50.

   2. (2)

      That the Plaintiff made a gift to her of the Parramatta Property because he wanted to prevent his sisters from getting hold of the Parramatta Property when he died: e.g. T143.14-17 (when she says that the Plaintiff “forced me to give me a property”) and see T148.29-33.

   3. (3)

      That the Plaintiff gave her an interest in the Curl Curl Property in return for her agreement to look after and care for him for the six months that he had left to live (on her evidence that is what he told her): see T53.22 – T54.36, T120.5-20 and CB 166-167 para 29. However, at T53.42 – T54.6 she said that the Plaintiff was not in August 2009 proposing that she live with him and look after him.

   4. (4)

      That she was not in a de facto relationship with the Plaintiff and was just the Plaintiff’s carer at all times she lived with him at the Parramatta Property (e.g. T123.24-27, T144.49 – T145.8, T145.42-46), although she said at T54.30-41 that she only agreed to take the Plaintiff to see the doctor if he is sick.

4. [23]

   The Defendant said many times that she had no interest in having any relationship with the Plaintiff who she regarded as “old”: T54.2-6. She painted him as a desperate, lonely old man in whom she could have no interest (T74.1-34 and T120.45-50) and whom she pitied (CB 164 para 14). The Defendant said that the Plaintiff was very excited when she agreed to have coffee with him (T56.31-36) and always cried when she told him she would no longer have coffee with him: T52.30-48 and CB 165 para 18. At T124.21 she said:

5. [24]

   She said in cross examination that she told the Plaintiff that she wanted to live in Parramatta and that was because that is near where her boyfriend lived (in Rydalmere). She claimed that she had told the Plaintiff of both these matters. She denied that she had any interest in living in the Curl Curl Property, describing it as “rubbish” and run down and dirty and she denied that she had moved in there: T120.1 – T120.4. She said she had refused to accept the Curl Curl Property (CB 166 paras 26-27). She appeared to despise that house notwithstanding that under the Financial Agreement which she signed, it was intended that she would enter into a de facto relationship with the Plaintiff (and, inferentially, live in the Curl Curl Property because that was where he lived and that was his only property), and that she was by that agreement due to receive a 15% interest in the property after one year and 50% after five years (and capped at 50%). The Defendant said she felt sick if she slept in the same bed as the Plaintiff (T123.25). The Defendant described the Plaintiff as a burden (T168 – T169) as of 2015 and beyond.

6. [25]

   I have referred in [22(3)-(4)] above to what I shall describe as the “carer” theme. The DCS pick up this theme at 5(b). The idea that an older man in need of care might be willing to promise to transfer his house in return for the provision of care over a period of time is not beyond the realm of possibility. Such an agreement could be rationally based and not produced by any undue influence or amount to unconscionable conduct. However, to effect transfer before any care had been provided, or was even needed, would be immensely unwise and even more so when no details of what that care would entail had been agreed or even discussed. The problem for the Defendant is:

   1. (1)

      As at 2009 and 2010, the Plaintiff was not in need of care or a carer. He wanted a romantic relationship as the Defendant well understood. I set out later in these reasons my conclusion on the state of the Plaintiff’s health in 2009 and 2010: see [40] – [41] below.

   2. (2)

      That is not what the Defendant told Ms Yang was the reason for the transfer.

   3. (3)

      It is inconsistent with the signed Financial Agreement in September 2009.

   4. (4)

      The conversation which the Defendant deposed to in CB 166-167 para 29 was as follows:

7. [26]

   The Defendant was asked a number of times in cross examination to give details of what was said by and to her in connection with moving into the Parramatta Property with the Plaintiff and when, but she avoided providing any meaningful details of the conversation: T134.39 – T135.15, T135.28-46, T138.45 – T140.8. She gave no evidence in cross examination of a conversation in which the Plaintiff said he would give her the Parramatta Property in return for her caring for him. The only paragraphs in her affidavit she identified (at T162) were paras 29, 91 and 101. I have set out para 29 at [25(4)] above. Para 91 is the evidence of Ms Ayoub which I have accepted and para 101 is one in which the Defendant describes laundry arrangements.

8. [27]

   If the conversations with the Plaintiff and conduct of the Plaintiff to which the Defendant deposed are accepted, then in my view the Plaintiff was indeed a vulnerable person infatuated with the Defendant who did not act rationally by bestowing on her all of the proceeds of the Curl Curl Property (of which most was used to buy the Parramatta Property, and the balance was paid into a joint account which either ended up being utilised by the Defendant or has not been accounted for but, on the Defendant’s evidence, he gave to her). On the Defendant’s evidence, this decision to buy her the Parramatta Property was taken at a time when they had not spent even one night together in his property and in which the only contact they had had was to have many coffees together and one dinner: see T134.39 – T135.10.

9. [28]

   That the Plaintiff’s behaviour was bizarre is demonstrated by the fact that on Ms Yang’s evidence the Plaintiff and the Defendant told Ms Yang that they had decided to sell the Curl Curl Property (T96.34) and the Plaintiff told Ms Yang that he wanted to make a gift of the Parramatta Property to the Defendant and when she asked whether they were a couple the Plaintiff said no, notwithstanding that he had entered into the Financial Agreement less than three months earlier and, on the evidence, was as at November 2009 living with her in a de facto relationship at the Curl Curl Property. According to Ms Yang, in a conversation in December 2009 the Plaintiff also agreed that he had told the Defendant that if she did not accept his gift he would commit suicide: T17.40-44 and see T97.50 – T98.22. He did not tell Ms Yang that the Defendant and he were in (or intending to be in) a de facto relationship and nor did he tell Ms Yang that he and the Defendant had entered into the Financial Agreement in September 2009. Ms Yang, I should note, says that she accepted that her instructions were to use the proceeds of the Curl Curl Property to buy the Parramatta Property but there is no suggestion by her (or anyone else) that she gave the Plaintiff any advice or suggested he obtain advice concerning that decision; indeed, Ms Yang said that she had not wanted to “get involved” in matters other than conveyancing: T98.15-19. I proceed on the basis that the Plaintiff received no advice as to the decision to gift the Parramatta Property to the Defendant notwithstanding the fact that three months earlier he had agreed to give 50% of the Curl Curl Property to the Defendant if the de facto relationship continued for five years, and at this time the de facto relationship had existed for only several months (on his evidence) and not at all on the Defendant’s evidence.

10. [29]

    The Plaintiff has established that all of the funds for the Parramatta Property came from a property in which he was the owner. In accordance with normal principles (see Black Uhlans Inc v NSW Crime Commission [2002] NSWSC 1060 at [129] – [130] per Campbell J (as his Honour then was)) that would mean that, although the Defendant held the legal title, the beneficial interest was held by the Plaintiff. That, however, is subject to two matters:

    1. (1)

       The Plaintiff had given the Defendant, by the Financial Agreement, a contingent interest in the Curl Curl Property (i.e. up to 50% over five years provided the de facto relationship continued) and there would be good reason to think that he could not destroy that contingent interest by selling the Curl Curl Property. Whether this is so or not and what may be the legal basis it is not necessary to determine because the Plaintiff does not claim a 100% beneficial interest in the Parramatta Property. Rather he seeks only a 50% interest, perhaps in recognition of the fact that that is what the Financial Agreement contemplated in respect of the Curl Curl Property and because, as matters transpired, they did remain together for at least five years in the Parramatta Property.

    2. (2)

       Whether the Defendant has rebutted the presumption that arises from the provision of the funds for the purchase of the Parramatta Property, the onus being on her: see Nelson v Nelson (1995) 184 CLR 538 at 547 and Black Uhlans at [136].

Legal Principles: Undue Influence and Unconscionability

1. [30]

   Much has been written about the two separate but related concepts of undue influence and unconscionability. Mr Zipser drew attention to Louth v Diprose (1992) 175 CLR 621, Bridgewater v Leahy (1998) 194 CLR 457, Sharkey v Nissi [2015] NSWSC 1266, Badman v Drake [2008] NSWSC 1366, Tulloch v Braybon (No 2) [2010] NSWSC 650 and Thorn v Boyd [2014] NSWSC 1159; 18 BPR 35,179. Louth v Diprose refers to Blomley v Ryan (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, and in Thorn, Robb J referred to what had been said on unconscionability in Aboody v Ryan [2012] NSWCA 395; 17 BPR 32,359 by Allsop P (as his Honour then was) with whom Bathurst CJ and Campbell JA agreed. The DCS referred to a UK decision, Hart v Burbidge [2013] EWHC 1628; WTLR 1191, and Union Bank of Australia Ltd v Whitelaw [1906] VLR 711. Relevantly, for present purposes, I extract the following principles:

   1. (1)

      Examples of unconscionable conduct can be found of a person taking advantage of a person with sickness, advanced age, infirmity of body or mind, lack of assistance or explanation where such is necessary, but there is a general underlying principle of unconscionability – precise matching to a particular earlier case is not required (see Aboody at [64]).

   2. (2)

      Louth v Diprose at 631 per Brennan J (as his Honour then was):

   3. (3)

      Once the disability or weakness “is sufficiently evident such that it is prima facie unfair to procure, accept or retain the benefit from the weaker party’s assent to the transaction”, the onus is on the stronger party to show the transaction to be fair, just and reasonable (see Aboody at [65]).

   4. (4)

      The fact that a solicitor advised the weaker party, whilst relevant, does not preclude a finding of unconscionability (see Aboody at [66] - [67]).

   5. (5)

      Undue influence looks to the quality of consent or assent of the weaker party – unconscionable dealing looks to the conduct of the strong party in attempting to enforce or retain the benefit of a dealing with “a person under a special disability where it is not consistent with equity or good conscience that he should do so” (per Deane J in Amadio, cited by Brennan J in Louth).

   6. (6)

      A central theme of both undue influence and unconscionability is “dominion exercised by one person over another.”

   7. (7)

      In the case of undue influence, the equitable jurisdiction to set aside an alienation of property “is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise affecting the alienor’s will or freedom of judgment”: see Johnson v Buttress (1936) 56 CLR 113, 134 per Dixon J (as his Honour then was).

   8. (8)

      Sometimes independent legal advice is needed to be confident that an elderly vulnerable person has not been the subject of undue influence: Badman v Drake.

   9. (9)

      A presumption of undue influence can be rebutted by showing that the disposition was the independent, well-understood act of a person exercising free judgment: see Tulloch v Braybon at [39].

   10. (10)

       Not all influence is undue influence: Watkins v Combes (1922) 30 CLR 180, 193-94; Hart v Burbidge at [49].

   11. (11)

       In the present context, quoting from Quek v Beggs (1990) 5 BRP 11,761 at 764 per McLelland J:

2. [31]

   I make the following further findings of fact:

   1. (1)

      The Plaintiff and the Defendant did live together in the Curl Curl Property from around late September 2009 and then from February 2010 at the Parramatta Property (based on the Plaintiff’s evidence and on Corey’s evidence).

   2. (2)

      The Plaintiff did not tell the Defendant that he wanted to give the Parramatta Property to her because he felt he had only half a year left to live (see CB 100 para 3(b) in response to the Defendant’s affidavit at CB 166 para 29, and also see my conclusions as to his health).

   3. (3)

      The Defendant encouraged the Plaintiff to sell the Curl Curl Property either because she did not like it or because she wanted to move to Parramatta for reasons that suited her: see para 20 of the Plaintiff’s affidavit of 9 March 2018 at CB 95. She told Diana that she did not want to stay in Curl Curl because it was too far from her son: CB 108. At T133.21-29, she answered rather revealingly in response to my question:

   4. (4)

      The Defendant was well aware of the contents of the Financial Agreement – namely that if she lived in a de facto relationship with the Plaintiff for 1 year she would obtain a 15% interest in that property and if she lived with him for 5 years she would obtain a 50% interest in that property.

   5. (5)

      The Defendant thought that she could persuade the Plaintiff to buy the Parramatta Property and she was correct in that assessment. She told the Plaintiff that she wanted to establish a child care centre. The Defendant looked for and made contact with the real estate agent to sell the Curl Curl Property: T143.

   6. (6)

      The Plaintiff and the Defendant, contrary to the Defendant’s denial, did have a period of sexual relations once the Defendant had moved into the Curl Curl Property and whilst at the Parramatta Property: see paras 16 - 18 and 29 of the Plaintiff’s affidavit of March 2018, Corey’s evidence and Diana Wood’s affidavit at CB 109 para 10. Those relations may not have continued for a long period after 2010 but it is not necessary to determine when they ceased.

   7. (7)

      The Plaintiff was in 2009 desperate for love and affection and was a very lonely man. He was very keen to commence a relationship and willing to do whatever the Defendant asked of him. He remained affectionate towards her throughout the period that they lived together, as evidenced by his comments to Ms Ayoub (T85 – T86), and the presents he gave the Defendant for her birthday (T24.42 – T25.2), even during cross examination (T20.44-48) and some of the photographs in Exhibit 2. The Plaintiff took steps to keep her happy with, for example, a security camera (T85.9-30), and would have liked her to have a piano in the house: T85.15-19.

   8. (8)

      The Defendant did most, if not all, of the cooking at their home, and did the laundry, on her evidence, CB 176 para 101.

   9. (9)

      The Defendant and the Plaintiff went on trips together, including at least two trips to China. The Defendant went on a number of trips to China on her own and the Plaintiff looked after himself on those occasions: see the Plaintiff’s affidavit of 9 March 2018 at CB 97 and Diana Wood’s affidavit at CB 109 para 11.

   10. (10)

       The Plaintiff would pick the Defendant up from the Club when the Defendant went there to meet friends. They would sometimes go to the Club together and play the poker machines: T77.45.

   11. (11)

       The Plaintiff and the Defendant would occasionally go shopping together, but at other times he would do his own shopping.

   12. (12)

       The Defendant persuaded the Plaintiff to exchange his Subaru for a Commodore (see para 27 of the Plaintiff’s affidavit of 9 March 2018). Both the Plaintiff and the Defendant drove the car.

   13. (13)

       The Defendant was well aware that the Plaintiff had prepared a Will in 2010 by which he left his estate to her. He gave her a copy of it and she knew that she was the sole beneficiary of his Will. In relation to the 2010 Will, it should be noted that it was revoked by a Will made on 23 March 2017 (CB 103-105).

   14. (14)

       As at February 2010 he introduced the Defendant to Ms Ayoub as his wife: see T85.10 and Ms Ayoub’s Statement at CB 266. In his Will of 2010 the Plaintiff described the Defendant as his “partner”: see CB 281. At a later time, and I infer when his health was failing in or after 2015, he described the Defendant as his carer: see T85.34 – 44. In relation to the description of “carer”, it does seem that the Defendant had an incentive to be so described since she apparently applied for and obtained a carer’s pension. There is some evidence from Ms Wood relevant to the Defendant’s attempts to have the Plaintiff placed in an aged care facility in early 2017: CB 110 para 14. There are a number of letters written by the Plaintiff which the Defendant tendered (CB 276 - 279) that were not adequately explained by her but seem designed to assist the Defendant.

   15. (15)

       The Defendant arranged for the sale of the Curl Curl Property and the purchase of the Parramatta Property.

   16. (16)

       The balance of the proceeds of sale of the Curl Curl Property was paid initially into a joint account in the name of both the Plaintiff and the Defendant, but the Defendant controlled those monies and later placed the monies in her own name. She managed the finances of the household: see Corey’s evidence at CB 114-15. I do not accept the Defendant’s explanation as to why she took over the finances, but rather see it as another example of her domination over the Plaintiff, albeit after the purchase of the Parramatta Property.

   17. (17)

       I find that the Plaintiff and the Defendant were in a de facto relationship from September 2009 until April 2017, including within the definition of s 4AA of the FLA. From 2015 or 2016, as the Plaintiff’s health declined, the Plaintiff probably also came to regard the Defendant as his carer.

   18. (18)

       As at December 2009 the Plaintiff was very keen to maintain the de facto relationship with the Defendant. He appears to have been willing to do whatever she wanted and to ensure that she stayed with him. His evidence is that the Defendant told him she wanted to move to Parramatta to buy a bigger house out of which she could operate a child care centre (CB 95 para 20 and CB 100 para 3(c)) and the Plaintiff agreed to that even though he did not like the idea of a two storey house. This situation clearly continued well beyond that time as is evidenced by him giving her the balance of proceeds and making the Will in her favour. I conclude on the balance of probabilities that the sale of the Curl Curl Property was brought about at the instigation of the Defendant, that the choice of the Parramatta Property was solely hers and that she wanted that property in her name because she thought that would be in her best interests.

3. [32]

   The Plaintiff says that he cannot recall having said that he did not want his siblings to benefit or that he would like to give his property to the Defendant because he only had half a year to live: see CB 100. On the contrary, he said that he had always had a strong relationship with his siblings: CB 100 para 3(a). Hence, I do not accept the Defendant’s assertion that he made either of those statements. He does not recall having drafted the Will to which I earlier referred, but I find that he did execute the Will on the date which it bears, and it is another indication of his feelings towards the Defendant, albeit after the purchase of the Parramatta Property.

4. [33]

   In Ms Yang’s undated statement, which Ms Yang adopted in the witness box, she gave a version (at para 10) as to what the Plaintiff told her was his reason for the gift to the Defendant:

5. [34]

   At T97.50 – T98.22, Ms Yang gave evidences of having asked the Plaintiff and the Defendant if they were in a relationship:

6. [35]

   At T102.20-45 there was the following exchange covering the same ground but seeking more precision:

7. [36]

   In neither version, on Ms Yang’s evidence, did the Defendant tell Ms Yang that she had agreed to take care of the Plaintiff in return for him buying the Parramatta Property in her name.

8. [37]

   None of the conversation which Ms Yang deposed to in the witness box (set out at [34] and [35] above) is found in her undated statement. There is no reference there to her having asked the Plaintiff or Defendant whether they were together or any mention of suicide. Her only note of the instructions concerning purchase in the Defendant’s name is “Min Gao only on title” (Exhibit 1), a note of 14 December 2009 which she had the Plaintiff and the Defendant sign. Ms Yang accepted (at T109.48 – T110.7) that she was trying to recall what occurred almost ten years ago and could not recall the precise words:

9. [38]

   The reference in Ms Yang’s evidence at T98 to the Plaintiff saying “I want her to look after me” is not repeated in the more precise version of the conversation I set out at [35] above or in T109.30 – T111.25, and nor is it in Ms Yang’s statement. I accept that it must be difficult after so many years with no note of what was said and with one person speaking in Mandarin and one in English to be precise as to what was said by either of them. I accept that the Plaintiff told Ms Yang that he wanted to make a gift of the Parramatta Property to the Defendant and that Ms Yang was not told that the Plaintiff and Defendant had entered into a de facto relationship, or had entered into the Financial Agreement a few months earlier. I also accept her evidence that the Defendant told Ms Yang that the Plaintiff had said he would commit suicide if the Defendant did not agree to live with him, that the Plaintiff did not deny that he had said such a thing to the Defendant, and that he said he wanted the Parramatta Property to be a birthday present for the Defendant. Given Ms Yang’s omission from the conversation when asked to be precise (at T102.20-45) of the reference to wanting the Defendant to look after him (nor is it mentioned at T109 – T111 or in her statement), and having regard to the passage of the years since the conversation, I am not persuaded on the balance of probabilities that the Plaintiff did use those words. However, even if he did use those words, I do not think they equate to the concept of “care” in a nursing sense, particularly having regard to the fact, as I explain below, that the Plaintiff was not at 2009 or 2010 in need of care.

10. [39]

    The Defendant did put to the Plaintiff (see T20, noting that the Defendant’s questions in fact resumed at T20.37 and not at T21.6 as shown in the Transcript) that she had told him that “I wouldn’t love you. I would just look after you” and also “I told you that I don’t want to leave you alone, just in case one day if you pass away, no one knows about it”. The Plaintiff agreed with these propositions, although it was not clear when these statements were said to have been made. It may well be that at the time that the Plaintiff’s health had deteriorated that the Defendant did say to the Plaintiff that she was not (or was no longer) romantically attached to him, but it was not established that she had said that to him at the time of the gift.

11. [40]

    There was some focus on the Plaintiff’s health. I find that in 2015 the Plaintiff suffered a chest infection whilst in China. On his return to Australia he appeared to be in poorer health and his condition deteriorated to the point where in 2017 he was admitted to a nursing home where he remains today. Ms Ayoub noticed the deterioration in his condition and that in the period 2015 - 2016 he ceased, to her observation, undertaking the gardening work that he had previously done from 2010 onwards and would ask for assistance from her husband in lifting items: see T81.47 – T82.36 and T81.21-44. At least up to and including 2016 he was able to take care of himself whilst the Defendant was away in China twice or on trips that she made: CB 97, 109 para 11 per Ms Wood and T171). There are photographs (part of Exhibit 2 tendered by the Defendant) which show the Plaintiff and the Defendant in China that are consistent with the Plaintiff being a relatively healthy man, enjoying a holiday in China with the Defendant, including a trip to what appears to be the Great Wall (30 August 2010).

12. [41]

    I find that as at 2009 and 2010 (and until at least 2015) the Plaintiff was in reasonably good health and mobile, and able to travel to China without any aid or assistance. He was able to lift quite heavy items and did not need assistance in any of his daily activities: see Corey’s evidence at para 25 of his affidavit (CB 116) and Ms Wood’s affidavit (CB 109-110). The Defendant admitted as much (save for the lifting of 20 kg boxes) at T126.28 – T127.8, and Mr Xie gave evidence of him lifting a water heater across the house in 2010. I find that at no time in 2009 or 2010 (or even up until at least 2016) was he in need of a carer whilst domiciled at the Parramatta Property.

13. [42]

    There is some evidence which suggests that it was not the Plaintiff’s intention to bestow his entire interest in the Parramatta Property on the Defendant in December 2009. First, there is the fact that he made a Will in July 2010 giving his entire estate to the Defendant. If the Defendant’s claim is correct, the Plaintiff had no assets left other than his interest, at that time at least, in a joint term deposit which would pass to the Defendant on his death. Secondly, the Defendant said at T148.29-33:

14. [43]

    Whilst I do not think the matter is free from doubt, and whilst I do have some doubt as to the accuracy of Ms Yang’s testimony, the absence of clear evidence from the Plaintiff as to what he said to the Defendant leads me to conclude that the Plaintiff did intend, as at December 2009, to bestow his entire interest in the Parramatta Property on the Defendant, not simply the legal title.

15. [44]

    As I have noted, it is apparent from both Ms Yang’s oral testimony and her statement that she did not give any advice to the Plaintiff concerning his wish or intention to use the proceeds of sale from the Curl Curl Property to buy the Parramatta Property in the Defendant’s name: see T98.15-19.

16. [45]

    If the Plaintiff did intend in December 2009 to make a gift of his entire interest in the Parramatta Property, as I think is more likely, then I find that he did so:

    1. (1)

       Because he was elderly and lonely, and infatuated with the Defendant. He was unable to appreciate that his decision to do so when they had spent very little time living together in a de facto relationship (on his case) and no time living together (on the Defendant’s case) was a very imprudent decision, and entirely disregarded his own interests.

    2. (2)

       Either unaware that the Defendant intended to maintain her relationship with her boyfriend (on his evidence) or aware that she did (on her evidence), making the gift even more unwise.

    3. (3)

       In circumstances where, not three months before, he had entered into the Financial Agreement that protected him to a degree that the gift did not.

    4. (4)

       In circumstances where, on the Defendant’s evidence, she had no real interest in any relationship with him and no affection for him whatsoever but regarded him as a lonely and desperate old man who she could not imagine wanting to live with and, on his evidence, because he hoped for a normal romantic and physical relationship.

17. [46]

    The Defendant in her Defence referred to the fact that she was the registered owner of the Parramatta Property and referred to s 42 of the Real Property Act 1900 (NSW) (the “RPA”). Indefeasibility of title under the RPA does not protect the registered owner from in personam claims (including equitable causes of action): see Barry v Heider (1914) 19 CLR 197, 213, Breskvar v Wall (1971) 126 CLR 376, 385 per Barwick CJ, Bahr v Nicolay (No 2) (1988) 164 CLR 604, Peter Butt, Land Law (Thomson Reuters, 7th ed, 2017) 12.800, 12.870, Spong v Spong (1914) 18 CLR 544 and J. D. Heydon, M. J. Leeming and P. G. Turner, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) at [4-240].

18. [47]

    If I am wrong in concluding that the Plaintiff intended to bestow his entire interest in the Parramatta Property on the Defendant, then the Plaintiff retains a 100% beneficial interest in the Parramatta Property – but as I have noted, he seeks only a declaration that he owns 50% of the property.

19. [48]

    Whilst I have dealt with the matter as an undue influence case, it can also be framed as unconscionable conduct on the part of the Defendant in attempting to retain the benefit that she has obtained by reason of the Plaintiff’s infatuation with her and his vulnerability. The transition from the substance of the Financial Agreement to complete ownership by her of the Parramatta Property was a dramatic shift and has not been explained in any convincing way as in the interests of the Plaintiff. It was very imprudent and I reject the submission made in DCS 4(b) that it reflects “mature financial planning”. The Defendant knew that the Plaintiff had a fixation about her (T52.45-47), that he was an “old, lonely, desperate man” (T53.7) and the transfer was not in his financial interests (T56.6-22); and see T56.39-41, T54.33-34, T55.20, T98 and T102.

The FLA

1. [49]

   In the light of my conclusions on the issue of undue influence and unconscionable conduct, I do not need to consider the issues arising under the FLA. Against the possibility that those conclusions are erroneous, I shall however express my views on this aspect of the case, and what follows is on the assumption that the Plaintiff does not have an interest in the Parramatta Property.

2. [50]

   There are some preliminary issues surrounding the FLA which need to be addressed.

   1. (1)

      Is the Financial Agreement a binding agreement?

   2. (2)

      If it is, what consequence flows from the sale of the Curl Curl Property?

   3. (3)

      Should the Financial Agreement be set aside?

   4. (4)

      Does s 90SM(9) present an obstacle to an order under s 90SM?

   5. (5)

      Are the conditions of ss 44(5) and (6), 90SB and 90SK met?

3. [51]

   It was not submitted by the Defendant that the Financial Agreement was not a binding agreement and in any event it was entered into by both the Plaintiff and the Defendant after they had received legal advice. The terms of the Financial Agreement seem to be fair – a 15% interest after one year of de facto relationship and increasing percentages up to 5 years with a 50% cap.

4. [52]

   The next question is whether the Financial Agreement is an obstacle to the consideration of the Court pursuant to section 90SM of the FLA. Mr Zipser submitted that s 90SA does not have the effect of precluding the operation of Division 2 of Part VIIIAB of the FLA because s 90SA speaks of a Part VIIIAB financial agreement in respect of the property of the parties or either of them. He submits that the Financial Agreement has no application to the Parramatta Property, and hence is not a “matter” to which s 90SA(1) applies.

5. [53]

   I read s 90SA(1) as requiring consideration of whether the parties have in an agreement dealt with the property of the relationship or either of them – if they have, that is sufficient even if the agreement has not dealt with all the property of the relationship or either of them. I do not think it is likely that the legislature intended that a party could bring proceedings for orders under Division 2 of Part VIIIAB in respect of property A of one of the parties if the binding financial agreement dealt with another property, B, of that party.

6. [54]

   I am of the view, however, that the sale of the Curl Curl Property makes it impossible for the Financial Agreement in its terms to be carried out, and that “impracticable” (the wording used in s 90UM(1)(f)) includes “impossible”. I would therefore have set aside the Financial Agreement. This is not to say that the Financial Agreement is not important in determining what is an appropriate adjustment of rights. If, for example, the Plaintiff had sold the Curl Curl Property and lived in a de facto relationship with the Defendant at the Parramatta Property, but had bought the Parramatta Property in his own name, it would be clearly unjust and inequitable for him to deny the Defendant a 50% share in the Parramatta Property after five years of the de facto relationship. Here the fact that the FLA was entered into at a time that the Plaintiff owned the Curl Curl Property is of considerable significance in determining what is an appropriate order now: the Plaintiff’s position accepts that that is so.

7. [55]

   The Defendant in the DCS contended that the Court could not make orders altering property interests pursuant to Division 2 of Part VIIIAB of the FLA without a conciliation conference other than in “exceptional circumstances” (see para 12 of the DCS of 28 June 2019). Section 90SM(9) is in the following terms:

8. [56]

   The subsection does not use the words “exceptional circumstances”. Rather, in (b) it speaks of “any other special circumstance” and in (c) it speaks of the Court being satisfied that it is “not practicable”. In my view, the following reasons make it not practicable to require a conference with a Registrar or Deputy Registrar of the Family Court.

   1. (1)

      The FLA proceedings were commenced in this Court on the first day of the hearing.

   2. (2)

      Whilst the Defendant objected to the FASTOCL being filed she indicated that she did not want the proceedings transferred to the Family Court (or the Federal Circuit Court).

   3. (3)

      The Plaintiff and the Defendant attended a mediation of the matter before Registrar Flaskas of this Court on 7 February 2019.

   4. (4)

      The case commenced on Monday 24 June, the day that I granted leave to the Plaintiff to file his FASTOCL. That FASTOCL dropped a claim propounded on the basis of the PRA and substituted a claim based on the FLA. Similar considerations are involved under the FLA.

   5. (5)

      I raised with both the Plaintiff’s counsel and the Defendant the possibility of settlement discussions being opened up and neither saw any purpose in doing so: see T62.31 – T63.8.

   6. (6)

      The Plaintiff’s age and infirmity encouraged the matter proceeding to a hearing in the week allotted. The Defendant did not at that time seek or suggest that there be a conference or that without such a conference the Court would not be able to make orders under s 90SM.

9. [57]

   Taking all these matters into account, I think that it would not have been practicable to order a conference. Alternatively, there existed special circumstances which militated against making such an order (even allowing for an interpretation that “Registrar” should mean a Registrar of this Court and not the Family Court).

10. [58]

    As discussed at [17] above, I granted leave to the Plaintiff to apply for an order under s 90SM out of time pursuant to s 44(6) of the FLA. I have found that the relationship lasted for more than 2 years, which satisfies the requirement in s 90SB(a). I am also satisfied that both parties were ordinarily resident in NSW in accordance with the geographical requirement in s 90SK.

11. [59]

    In considering the Plaintiff’s application for an order under s 90SM, I have had regard to, and will follow, the approach recommended in Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 504, which is based on the legislative framework and leading authorities (namely, Stanford v Stanford (2012) 247 CLR 108 and Bevan v Bevan [2014] FamCAFC 19):

12. [60]

    On the assumption identified in [49] above, the Defendant owns the only major asset of the relationship, the Parramatta Property. Other than this, the Plaintiff has approximately $11,000 cash in a bank account and receives the Age Pension. The Defendant claims to receive the Newstart Allowance. The Defendant may also have a certain amount of savings, but clear evidence of her current financial position was not presented to the Court. She appears to have retained the car, which was probably purchased out of joint funds. No source of earnings by the Defendant was identified.

13. [61]

    In the DCS, the Defendant drew attention to Chapter 13 of the Family Law Rules 2004 (Cth) (the “Family Law Rules”), which requires parties to an application under s 90SM (among other sections) to disclose their respective financial position. The Defendant submitted that because full and frank disclosure has not occurred in the present matter, that this Court is thereby prevented from making an order under s 90SM: see DCS para 8(b). Leaving entirely to one side the question of whether the Family law Rules should be applied in cases before this Court, no detail has been provided in the DCS as to the respect in which the Plaintiff’s disclosure of his assets have not been full and frank. The affidavits filed on behalf of the Plaintiff establish the absence of assets beyond $11,000. I do not think that there is any basis to suggest that he might have other assets which he has not revealed. The Defendant has, I would add, not set out her current assets and liabilities in her affidavits. In addition, a lack of full disclosure does not necessarily prevent this Court from making an order as the Defendant contends, but would mean that the Court would be more likely to draw an adverse inference against the non-disclosing party: Morrison v Morrison [1994] FamCA 153; (1995) FLC 92-573 at [38] cited in Barker v Barker [2007] FamCA 13 at [112] (Barker v Barker, which is cited in the DCS, is actually a case involving an application to vary or set aside consent orders).

14. [62]

    As the High Court emphasised in Stanford v Stanford (at [35] – [42]) and in Bevan v Bevan, it is necessary for this Court to consider, pursuant to s 90SM(3), whether it is just and equitable to make an order at all. I am of the view that it is just and equitable to make an order in the present case, chiefly for the reason that the relationship has come to an end and there is no longer the “common use” of the property that existed during the relationship, and the Parramatta Property was purchased with the Plaintiff’s money. As the High Court observed in Stanford v Stanford at [42] per French CJ, Hayne, Kiefel and Bell JJ in relation to s 79(2) (which is equivalent to s 90SM(3)):

15. [63]

    As I have observed, the only major asset of the de facto relationship is the Parramatta Property. I regard it as significant that the Plaintiff contributed all of the money for the purchase of this property from the sale of the Curl Curl Property, a valuable asset which he owned independently of the Defendant prior to commencing the de facto relationship but which he gave to the Defendant during the de facto relationship. The Plaintiff also contributed the remaining proceeds of sale of the Curl Curl Property (approximately $181,000) which were initially held in joint accounts but later transferred to the sole name of the Defendant. Again, this was during the de facto relationship. The Plaintiff was the sole source of the contribution of the Parramatta Property to the relationship, albeit by way of gift to the Defendant. The Defendant may have contributed some money to the upkeep and renovation of the house from her own funds but it is unlikely to have exceeded $80,000 even if I were to accept her evidence. The only evidence of what was spent on renovations is an amount of $8,300 in kitchen renovations (CB 218) and Mr Li’s evidence that he was paid more than a further $10,000 but less than $20,000 for his work on the Parramatta Property.

16. [64]

    With respect to non-financial or indirect financial contributions, I accept that the Defendant did most of the cooking and shopping, and was the primary homemaker, although there were no dependent children of the relationship. I also accept that, at least from 2015 or 2016 until 2017, the Defendant provided some care to the Plaintiff. I have found that, at least before his health deteriorated in 2015 or 2016, the Plaintiff also contributed to the upkeep of the household by doing the gardening and some of the shopping. Neither party seems to have been employed during the period of the de facto relationship, but there appears to have been some degree of shared contribution to the running of the household from each party’s savings and/or government entitlements.

17. [65]

    On the basis of these findings, I would assess the Plaintiff’s overall contribution to be substantially greater than 50%. For reasons I explain below, I do not need to be more precise in arriving at a percentage figure with respect to contributions.

18. [66]

    I have had regard to the matters in ss 90SM(4)(d)-(g) and 90SF(3) and regard the following as significant:

    1. (1)

       The Plaintiff, who is 83 years of age, is unwell and lives in a nursing home (s 90SF(3)(a)).

    2. (2)

       The Plaintiff is completely unable to work and only has $11,000 in cash in a bank account (CB 110, para 17) (s 90SF(3)(b)). He cannot afford even the dental care which he requires (CB 98) (s 90SF(3)(a)-(b)).

    3. (3)

       There is no evidence of either the Plaintiff or the Defendant owing debt but the Defendant cross examined the Plaintiff (T27.50) concerning a conversation he had with a doctor who told him that the fact that he did not have a property in his name precluded him from going to a nursing home (s 90SF(3)(b)).

    4. (4)

       The Defendant is 59 years of age and able to care for herself (s 90SF(3)(a)).

    5. (5)

       The Defendant claims she does not work and has not worked in paid employment since she arrived in Australia in 2002 (s 90SF(3)(b)). She does not in her affidavit assert that she is unable to work, although she hinted at this in the witness box (s 90SF(3)(b)), and in her affidavit (at CB 178) she said that due to her age and health she finds it “very difficult to learn English and find a job”. She is not on a disability pension, although she says she is on the Newstart Allowance (s 90SF(3)(f)(i)).

    6. (6)

       It would appear that the Defendant has retained the vehicle purchased out of the joint funds (s 90SF(3)(b)).

    7. (7)

       The Plaintiff has no children. The Defendant has one child who is now 30 years of age. She does not assert that she is responsible for his upkeep (s 90SF(3)(c)).

    8. (8)

       The Plaintiff receives the Age Pension, of which 80% goes to the nursing home (s 90SF(3)(f)(i)).

    9. (9)

       The de facto relationship lasted for over 7 years (s 90SF(3)(k)).

    10. (10)

        The terms of the Financial Agreement signed in September 2009 (s 90SF(3)(r)).

19. [67]

    Mr Zipser made it clear that the Plaintiff seeks no more than 50% of the value of the Parramatta Property. Whilst there are clearly factors which lead me to conclude that, even without that concession, the Defendant is entitled to a significant share in the Parramatta Property, such as her contributions to the household and her care of the Plaintiff in 2016 to 2017 (albeit to a degree that is difficult to assess), and the fact that she is unemployed and does not appear to have good employment prospects (not having worked in paid employment since arriving in Australia), I am of the view that having regard to the Plaintiff’s contributions, he would be entitled to a greater share of the value of the Parramatta Property than the Defendant. However, given that the Plaintiff seeks only 50%, it is not necessary for me to determine to what percentage beyond 50% he would be entitled. Furthermore, although the Financial Agreement related to the Curl Curl Property and I have held that it should be set aside, it is an important document, not only because it was entered into by the Plaintiff and the Defendant after legal advice was given but also because the arrangement envisaged in that agreement has substantially come to pass – the Defendant remained in a de facto relationship with the Plaintiff for more than the 5 years specified in the Financial Agreement and would therefore have owned a 50% interest in the Curl Curl Property had it been retained.

20. [68]

    Having evaluated the matters identified in [63] – [67] above, I have reached the conclusion that the Plaintiff should be awarded a 50% share of the Parramatta Property. As I observe at [67], in my view the Financial Agreement provides a very strong guide as to what is just and equitable between the parties, and in any case the Plaintiff seeks no more than 50%.

21. [69]

    I am conscious that the consequence of an order pursuant to s 90SM is the requirement for sale of the Parramatta Property which will see the Defendant removed from the property unless she can borrow to buy out the Plaintiff’s interest, but the Plaintiff should not be deprived of what is an appropriate distribution of property because he is in a nursing home. There will be no common use of the Parramatta Property (and has not been since 2017) and the relationship has clearly come to an end. As the Full Court of the Family Court said in Bevan & Bevan at [90] per Bryant CJ and Thackeray J, it is “a common outcome of matrimonial proceedings that a party is required to dispose of their home.”

22. [70]

    In my view, the just and equitable outcome pursuant to s 90SM would be that the Plaintiff and Defendant should each have a 50% interest in the proceeds of the Parramatta Property following sale. I would make no order as to other savings or assets of the relationship as the Parramatta Property is the only significant asset and its equal division between the Plaintiff and the Defendant is sufficient to do justice between the parties.

23. [71]

    It follows that if I had not found that the Plaintiff was entitled to 50% of the Parramatta Property on the basis of equitable principles, I would have reached the same conclusion under s 90SM.

Conclusion

1. [72]

   The consequence of these conclusions is that the Plaintiff is entitled to the declarations sought in paras 1 and 4 of the FASTOCL and ancillary orders, namely that trustees for sale be appointed, pursuant to s 66G of the Conveyancing Act 1919 (NSW), for sale of the Parramatta Property and the net proceeds distributed to the Plaintiff and Defendant 50% each, save that an amount should be retained from the portion to be paid to the Defendant to cover the likely amount of the Plaintiff’s costs as agreed or assessed. The Plaintiff, by Notice of Motion dated 8 March 2019 and supporting affidavits, has proposed two persons as trustees for sale – Mr Michael John Morris Smith (accountant) and Mr Peter Hillig (accountant) - and the Defendant has not voiced any opposition to them. Both of these persons have filed affidavits and there are supporting affidavits in respect of each of them. I am satisfied that they are appropriate persons for this role.

2. [73]

   The Plaintiff should prepare draft orders to reflect the conclusions in these reasons.

3. [74]

   I will give the parties an opportunity to be heard on the issue of costs.