【Classic Cases】ZhXXg v HuXXg [2010] NSWSC 4X

IN THX SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 11 February 2010

4XX0 of 2007 YXXN HX ZHXXG –v- AXXXE SIXXN HUXXG

5XX1 of 2007 AXXXE SIXXN HUXXG –v- YXXN HX ZHXXG

JUDGMENT

1 HIS HONOUR: By statement of claim 4XX0 of 2007 filed on 25 September 2007 YXXn HX ZhXXg (“Mr ZhXXg”) claims substantively, against AXXXe SiXXn HuXXg (“Ms HuXXg”) orders for the adjustment of the interests of the parties in property, pursuant to section 20 (1) of the Property (Relationships) Act.

2 Proceedings 5XX1 of 2007 were instituted by AXXXe SiXXn HuXXg in the District Court of New South Wales at Sydney by statement of claim filed in that Court on 1 June 2007. By that pleading, that Plaintiff claims against YXXng HX ZhXXg the sum of $171,800, for money alleged to have been lent by that Plaintiff to that Defendant, together with interest thereon. A defence was filed by Mr ZhXXg on 26 July 2007. Subsequently, on 11 September 2007 an amended statement of claim in those proceedings was filed in the District Court (adding as an alternative count a claim for money paid by the Plaintiff at the request of the Defendant), and later a defence to that amended statement of claim was filed on 20 April 2009.

3 By that defence Mr ZhXXg admits the payments alleged to have been made to him by Ms HuXXg, but denies that such payments were made by way of loan (or that any payments made by him to Ms HuXXg were by way of repayment of any such loan); says that any moneys paid by Ms HuXXg to his account were paid on the footing that they were not repayable to Ms HuXXg; and, as to the whole of the amended statement of claim, says that at all material times the parties were living together in a de facto relationship and that the payments alleged were made as part of a general pooling of financial resources and liabilities between the parties as part of and pursuant to that relationship; and, further, that the moneys paid by the Plaintiff to the Defendant’s account represented in substance a distribution or an allocation of the pooled financial resources of the Plaintiff and the Defendant which had arisen during the course of their relationship.

4 Subsequently, by order of the Supreme Court made on 16 November 2007, those District Court proceedings were transferred to the Supreme Court, becoming proceedings 5XX1 of 2007 in the Supreme Court.

5 On 21 February 2008 an order was made by consent that each of proceeding 4XX0 of 2007 and proceeding 5XX1 of 2007 be heard together and that the evidence in the one proceeding be evidence in the other.

6 Mr ZhXXg claims that he and Ms HuXXg were in a domestic relationship, being a defacto relationship, from about January or February 1997 until May (or 4 June) 2007. Throughout that period of more than ten years Mr ZhXXg was living in Ms HuXXg’s residence at Underwood Road, Homebush, which she had purchased in 1995 and in which she (with her daughter) has resided from then until the present time. Whilst admitting the existence of such a de facto relationship, Ms HuXXg asserts that it did not commence until December 2004, and that it concluded in or about March 2006.

7 Each of the parties was born in China, Mr ZhXXg in 1956 and Ms HuXXg in 1958. They first met in China in about 1972.

8 That acquaintance was renewed in 1995 or 1996 in Australia, after each party had come to this county. By that time Mr ZhXXg had been married and had one child, although it would appear that he was estranged from his wife. HX had migrated to Australia in 1990, and he has subsequently become an Australian citizen. Miss HuXXg also had a daughter by that time. The evidence was silent as to whether she was, or previously had been, married. She had migrated to Australia in February 1989.

9 When, according to Mr ZhXXg, the de facto relationship between the parties commenced in January 1997 Mr ZhXXg was aged 40. HX was employed in a factory at Brookvale, receiving about $39,700 a year.

10 At the time when Mr ZhXXg alleges that the de facto relationship between the parties commenced, in or about January 1997, Mr ZhXXg had the following assets:

Cash $30,000

Moneys in bank account $7,000

Volvo motor vehicle $2,500

Superannuation entitlement $11,000

11 HX had no liabilities at that time.

12 In late 2004, that being the time when, according to Ms HuXXg, the de facto relationship commenced, Ms HuXXg was aged 46.

13 It was not disputed by Ms HuXXg that in January 1997 her assets consisted of a house property situate at Underwood Road, Homebush, ($220,000), furniture and furnishings ($15,000), Honda motor vehicle ($4,500).

14 The house property was subject to a mortgage in an amount of about $30,000.

15 Mr ZhXXg in October 2005 purchased a home unit in Albert Road, Strathfield, in which his former wife and his daughter commenced to reside.

16 At the time when Mr ZhXXg alleged that that the relationship between the parties terminated, on 4 June 2007, his assets consisted of the home unit in Albert Road, Strathfield ($310,000); Ford Falcon taxi ($2,000), moneys in bank account ($4,000), superannuation entitlement ($17,000). HX had no liabilities at that time.

17 In June 2007, Ms HuXXg’s assets consisted of:

House property at Underwood Road, Homebush $900,000

Furniture and Furnishings $70,000

Honda motor vehicle $42,000

House property at Semi Street, Lidcome $240,000

Residential property in China $11,000

Alleged indebtedness of Mr ZhXXg $171,800 (together with interest thereon)

18 The Homebush property at that time was subject to a mortgage in an amount of $240,000.

19 At the time when, according to Ms HuXXg, the de facto relationship terminated, in March 2006, her assets were the same as they were in June 2007. However, at that earlier date, March 2006, the amount of the mortgage debt upon the Homebush property was only $50,000. The subsequent increase in that mortgage debt was as a result of the advance of $190,000 made by Ms HuXXg to Mr ZhXXg on 31 October 2006.

20 It will be appreciated from the foregoing that during the period from the time when Mr ZhXXg alleges that the de facto relationship commenced until the time when he alleges that the relationship terminated various pieces of real property were purchased by each of the parties. However, it should be observed that none of those purchases were made in the joint names of the two parties. Each piece of real property was purchased in the sole name of one or other of the parties.

21 There was no pooling of the assets of the parties during any part of the period during which either Mr ZhXXg alleged that the de facto relationship obtained, or during that part of the foregoing period throughout which Ms HuXXg conceded that the de facto relationship obtained.

22 It was asserted by Ms HuXXg that throughout the period from early 1997 until December 2004 Mr ZhXXg was residing in the Homebush Road property only in the capacity of a lodger, and that for that period of almost eight years the nature of the relationship between Mr ZhXXg and Ms HuXXg was that of a lodger and his landlady.

23 Further, it was alleged by Ms HuXXg that, although Mr ZhXXg continued to reside in the Homebush Road property from about March 2006 until May 2007, during that latter period the de facto relationship between the parties no longer obtained, and they slept in separate bedrooms, and, for all practical purposes, conducted separate lives, although residing in the same premises.

24 During the course of (or shortly after the termination of) their relationship, there occurred a number of incidents which are of significance to the nature of the relationship between the parties and to the duration of the relationship. One was the arrival in Australia, consequent upon an application made by Mr ZhXXg in that regard, of his wife and daughter from China in March 1999. Another incident of significance to the period of the relationship was the occasion in May 2007 when an apprehended violence order was made against Mr ZhXXg at the instance of Ms HuXXg.

25 Other incidents which are of relevance or significance to a determination of the question of the duration of the de facto relationship include an overseas trip by Mr ZhXXg and Ms HuXXg to Canada and the United States in December 2003, and the fact that for a period of almost a year, from late 2000 until November or December 2001, Mr ZhXXg was employed by a cleaning company (AXXXe HuXXg Trading Co Pty Limited) of which Ms HuXXg was the principal.

26 Another incident of significance is the alleged abstraction by Mr ZhXXg of the certificate of title to his Albert Road home unit, which document, according to Ms HuXXg, had been held by her in the nature of a security for the advance which she had made to Mr ZhXXg on 31 October 2006, to assist him in discharging the mortgage in the Albert Road unit. It was that removal of the certificate of title, without Ms HuXXg’s permission, that, according to her, resulted in her having her solicitors demand repayment of the balance of $190,000 and requiring Mr ZhXXg to vacate the Underwood Road premises. HX complied with that latter request by departing Underwood Road on 4 June 2007.

27 I shall later in this judgment make further and more detailed reference to several of those incidents.

28 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the respective claims of Mr ZhXXg and Ms HuXXg.

29 I have had the benefit of receiving a written outline of submissions from Counsel for Ms HuXXg and a chronology and a written list of affidavit and transcript references prepared by Counsel for Mr ZhXXg. Those documents will be retained in the Court file.

30 The jurisdiction invoked by Mr ZhXXg is grounded upon section 20 of the Property (Relationships) Act, subsection (1) whereof provides,

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and 

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:

(i) a child of the parties, 

(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

(2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.

31 At the outset the Court must determine the date upon which the de facto relationship commenced and the date upon which that relationship terminated.

32 Section 4(1) of the Property (Relationships) Act defines a de facto relationship as follows,

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and 

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship, 

(b) the nature and extent of common residence, 

(c) whether or not a sexual relationship exists, 

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, 

(e) the ownership, use and acquisition of property, 

(f) the degree of mutual commitment to a shared life, 

(g) the care and support of children, 

(h) the performance of household duties, 

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. 

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

33 I have already recorded that it was the case for Mr ZhXXg that a de facto relationship obtained between him and Ms HuXXg for a period of more than ten years, from early 1997 until about 4 June 2007 (being the entire period of his residence in Ms HuXXg’s house); whilst it was asserted by Ms HuXXg that the de facto relationship between the parties obtained from December 2004 until March 2006. That is, it was the case for Ms HuXXg that the relationship subsisted for no more than a period of about 16 months.

34 If the Court is satisfied that the relationship was of such a duration as was asserted by Ms HuXXg, then, the relationship being for a period of less than two years, the provisions of section 17 of the Property (Relationships) Act are brought into operation.

35 That section provides,

(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years. 

(2) A court may make an order under this Part where it is satisfied:

(a) that there is a child of the parties to the application, or 

(b) that the applicant:

(i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or 

(ii) has the care and control of a child of the respondent,

and that the failure to make the order would result in serious injustice to the applicant.

36 In the circumstances of the instant case, there is no child of the parties, and there is no suggestion that Mr ZhXXg has the care and control of a child of Ms HuXXg. Accordingly, if the Court be satisfied that the relationship obtained for a period of less than two years, the claim of Mr ZhXXg must fail unless he can establish that he has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which he would otherwise not be adequately compensated if the order were not made, and that the failure to make the order would result in serious injustice to Mr ZhXXg.

37 I have already referred to the fact that in 2001 Mr ZhXXg made an application for his wife and daughter to come to Australia from China. In support of that application, Mr ZhXXg signed a form dated 9 February 1998 (Exhibit 4) which was submitted to the Department of Immigration and Multicultural Affairs. That form (the information wherein Mr ZhXXg declared to be complete, correct, and up to date in every detail) disclosed that his marital status at 13 June 1997, was “married” and that that marriage was “a genuine on-going relationship”, and that his current marital status at the date of the signing of the form, 9 February 1998, was “married”.

38 The form revealed that both at 13 June 1997 and at 9 February 1998 Mr ZhXXg was not in a de facto relationship.

39 Also in connection with the application by Mr ZhXXg for permanent residency in Australia for himself, his wife, and his daughter, Mr ZhXXg on 12 January 2001 made a statutory declaration (Exhibit AH-10 to the affidavit of Ms HuXXg dated 8 April 2008), in which Mr ZhXXg said that his wife and daughter arrived in Australia on “2nd March 1999”, and continued:

9. Since they came, we have been living at the following subleased addresses as below:-

a. XX Green Street, Kogarah, NSW March 1999 – January 2000

b. XX The Boulevard, Strathfield NSW January 2000 – June 2000

c. XX Underwood Road, Homebush NSW June 2000 - Now

10. My wife and myself have been living together as husband and wife and we share the well [ sic ] of each other between us.

11. My wife and I also share our common interest and we participate in our social life in husband as [ sic ] wife.

12. My wife and I will continue to maintain our present relationship as husband and wife forever.

40 Regarding that statutory declaration, Mr ZhXXg in paragraph 22 of his affidavit of 2 May 2008 said that paragraphs 9 to 12 inclusive “are incorrect”; further, that the statutory declaration had been drafted and typed in the office of one StXXXen ChXX, a migration agent, and that Mr ChXX had translated it to Mr ZhXXg in Cantonese before Mr ZhXXg signed the document.

41 Mr ZhXXg continued (paragraph 22 (e)), “I understood my signature on the document to be essential for the application referred to in (b) above [being the application by his wife, his daughter, and himself for permanent residency in Australia]”. On 28 February 2001 Mr ZhXXg, his wife and their daughter were granted permanent residency in Australia.

42 When cross-examined concerning his statutory declaration of 12 January 2001, Mr ZhXXg agreed that when he signed that document he intended to adopt what was in it as being true. HX then asserted that statements in the document were untrue, giving such responses as “I admit that I tell a lie there”, “I was telling false things there”; “I have already admitted I was telling a lie there [concerning the addresses in Kogarah, Strathfield and Homebush at which he stated he had been living with his wife since 1999]”; “I have already admitted I was telling a lie [in respect to the statement that he and his wife had been living together as husband and wife]”; “I already admitted that I was telling a lie for the whole document, I admit that [in respect to the statement that he and his wife shared his common interests and participated in his social life as husband and wife]”; and “ I already said the whole document is lies [in respect to the statement that he and his wife will continue to maintain their present relationship as husband and wife forever]”.

43 At about the same time as Mr ZhXXg made his statutory declaration of 12 January 2001, Ms HuXXg also made a statutory declaration, dated 13 January 2001 (annexure D to Mr ZhXXg’s affidavit of 2 May 2008). That statutory declaration contains the following:

9. Since Ms. ZhXXg and her daughter came to Australia to join Mr. ZhXXg in March 1999, I have always tried to offer my assistance to their family because both Mr. ZhXXg and his wife cannot speak or understand English well.

10. Since June 2000, their family moved in to share the house at 38 Underwood Road, Homebush NSW 2140 with me.

11. From my observation, they are living as husband and wife in a very satisfied and happy family.

44 It was also relevant to the application by Mr ZhXXg to the Department of Immigration for permanent residency for himself, his wife and their daughter, that in 1997 Mr ZhXXg and Ms HuXXg opened a joint bank account. According to Mr ZhXXg, that account was opened soon after he and Ms HuXXg “both started living together” on 20 January 1997, Mr ZhXXg transferred $7,000 from his own bank account to that joint account. Ms HuXXg, however, gave the following explanation for the establishment of the joint account. She said that in about 1997 or 1998, Mr ZhXXg said to her, “I do not currently have a valid visa and if the Department of Immigration finds out they will deport me to China. If you and I have a joint bank account, I can prove to the Department of Immigration that we are a couple. Can you help out with this?” Ms HuXXg said that she agreed, and they then opened a joint bank account in their names. Ms HuXXg did not herself make use of that account, and was not aware of how much money was deposited therein or withdrawn therefrom. She said that to her knowledge the account was closed in or about 2000 after Mr ZhXXg was granted permanent residency.

45 It should also be recorded that Mr ZhXXg’s wife (Ms QXX YiXX ZhXXg, from whom he was divorced in October 2004) provided affidavit evidence on behalf of Mr ZhXXg. In a statutory declaration, dated 12 January 2001, she had made statements to the identical effect (and in almost identical words) of those contained in paragraphs 9, 10, 11 and 12 in the statutory declaration of Mr ZhXXg. Ms ZhXXg in her affidavit evidence said that at least part of the statutory declaration (wherein she stated that she and Mr ZhXXg had been residing together at Green Street, Kogarah) was untrue. In her oral evidence Ms ZhXXg under cross-examination agreed that the information contained in her statutory declaration was untrue (by which I understood her to be referring to the foregoing information in paragraphs 9, 10, 11 and 12 thereof). Under cross-examination Mrs ZhXXg declined to answer questions to the effect that at the time when she signed the statutory declaration Mrs ZhXXg knew that the foregoing information contained therein was untrue.

46 It is quite apparent that Mr ZhXXg, his then wife (Ms ZhXXg) and Ms HuXXg deliberately set out to mislead the Department of Immigration regarding the application by Mr ZhXXg for himself, his wife, and their daughter. In the course of his oral evidence. Mr ZhXXg asserted and maintained that what he had said in his statutory declaration of 10 January 2001 was false. HX used the word “lies” on several occasions. HX was deliberately attempting to deceive the Department of Immigration, and to obtain a benefit for himself, his wife, and their daughter, in consequence of that deception. Ms HuXXg was equally a party to that deception of the Department of Immigration.

47 The Court can have little confidence in the credibility of any of these three persons, Mr ZhXXg, Ms HuXXg and Ms ZhXXg (Mr ZhXXg’s former wife).

48 (It will be appreciated, of course, that if the statements in the statutory declarations and in Mr ZhXXg’s application form of 9 February 1998 were correct, then the affidavit evidence of himself, Ms HuXXg and Ms ZhXXg and the oral evidence of those persons in the present proceedings is deliberately false.)

49 During the course of the hearing (T48) I stated that if the Court finds that the Immigration Department has been deliberately misled concerning applications for permanent residency, or, indeed, for Australian citizenship, the Court has an obligation to inform the Immigration Department about such matters. I have no hesitation in expressing my conclusion that the Immigration Department has been so deliberately misled by Mr ZhXXg, Ms HuXXg, and Mr ZhXXg’s former wife, Ms ZhXXg. Accordingly, I shall make appropriate directions referring these findings to the Department of Immigration (and also to the respective Directors of Public Prosecutions for New South Wales and for the Commonwealth, for consideration of the falsity of the various statutory declarations presented to the Department of Immigration).

50 However, the views which I have just expressed concerning the credibility of the two parties of the proceedings are not determinative of whether a de facto relationship existed between Mr ZhXXg and Ms HuXXg before December 2004. There is no dispute that Mr ZhXXg was residing in Ms HuXXg’s house for seven years before that time. Further, I am entirely satisfied that from the time of her arrival in Australia in March 1999 Ms ZhXXg was not residing with Mr ZhXXg in a married relationship. However, the absence of a married relationship with his wife and the fact that he was living in the residence of another woman do not have the automatic consequence that he was living in a de facto relationship with that other woman. As has already been observed, it was the assertion of Ms HuXXg that for the first seven years while Mr ZhXXg living in her house, he was no more than a lodger and she his landlady.

51 After there had been a dispute between Mr ZhXXg and Ms HuXXg in May 2007. Ms HuXXg instructed her solicitors, Austin Dunhill Barwick, to send a letter of demand to Mr ZhXXg. That letter, dated 16 May 2007 contained the following statement:

We are instructed that the de facto relationship between you and our client ceased on 1 May 2007. 

52 The foregoing statement is inconsistent with the stand now adopted by Ms HuXXg, that the de facto relationship terminated in March 2006. It will be appreciated that, if, as Ms HuXXg asserts, the relationship commenced in December 2004, and continued until 1 May 2007 (as she in May 2007 instructed her solicitors), then the period of the relationship exceeds two years, and the foregoing provisions of section 17 of the Property (Relationships) Act are not called into operation.

53 At about the same time as the foregoing letter was written to Mr ZhXXg, Ms HuXXg’s solicitors on her behalf made to the Burwood Local Court an application for an apprehended domestic violence order, pursuant to section 40 of the Local Courts Act 1982 and Part 15A of the Crimes Act 1900. That application contained the following:

The applicant relies on the following grounds:

The parties have been known to each other for some time and in a de facto relationship for the past three years with that relationship ending during May, 2007. In the past the defendant has acted aggressively within the home damaging things and writing on the walls. Since the end of the relationship the applicant has been asking the defendant to leave her home but he refuses to leave and demanding money telling the applicant that if she does not pay him money he will commence to damage the home and that he will kill her daughter. In the past when the defendant has acted aggressively the applicant will walk away out of fears and now fears that the defendant will carry out his threats

54 Ms HuXXg under cross-examination attempted to explain the statement in the foregoing application that the parties had been “in a de facto relationship for the past three years with that relationship ending during May, 2007”, by saying that she did not fully understand the phrase “de facto relationship” and that, although (according to her) the relationship had terminated in March 2006, the parties were “still in a girlfriend and boyfriend relationship but we lived in separate rooms”. Ms HuXXg said that it was a misunderstanding on her part, and not a mistake on the part of her solicitor. I was not in any way convinced by the foregoing attempted explanation.

55 The evidence of Dr ShiX KwXXg LaX, consultant psychiatrist, concerning a profession visit to him by Mr ZhXXg on 21 October 2006, at which Ms HuXXg was also in attendance, supports the existence of a de facto relationship at that time.

56 I am satisfied that the de facto relationship between the parties obtained until May 2007, and that the relationship commenced no later than December 2004. In consequence, the foregoing provisions of section 17 of the Property (Relationships) Act do not have application.

57 Mr ZhXXg and his wife divorced on 7 October 2004. It was the case for Ms HuXXg that the de facto relationship began only after that divorce. Nevertheless, it should not be overlooked that for at least the preceding seven years Mr ZhXXg had been residing with Ms HuXXg in her home at Underwood Road, Homebush.

58 Although they had opened a joint account with the St George Bank in 1997, I am satisfied that the only purpose of that account was to assist Mr ZhXXg in his application for permanent residency (with a view, presumably, to misleading the Department of Immigration).

59 In the circumstances of the instant case, there was certainly a relationship of some nature between Mr ZhXXg and Ms HuXXg from at least early 1997 until (as I have concluded) 7 May 2007. Throughout that period the parties were residing in the residence owned by Ms HuXXg at Underwood Street Homebush. There was a sexual relationship between the parties from at least December 2004. Whether or not the parties maintained separate bedchambers before that date, it is likely that there was a sexual relationship before that date.

60 There was no financial dependence or interdependence between the parties throughout the entire period of the relationship or during any part thereof. Mr ZhXXg paid an amount (originally $50 a week, later increasing to $100 a week, and later still fluctuating between $50 and $180 a week) to Ms HuXXg. Those amounts paid by Mr ZhXXg covered both his rent and his food.

61 During the period of the relationship there was no pooling of the financial and material resources of the parties. Each of them made independent real property transactions by the purchase and sale of properties, in which the other party had no involvement. Throughout the period before the Plaintiff’s divorce, there was a degree, but not a great degree, of mutual commitment to a shared life. For example, Mr ZhXXg was employed by the cleaning company of which Ms HuXXg was the principal, and in which she also worked. There was no care or support of children by the parties. The household duties were largely performed by Ms HuXXg. Mr ZhXXg’s assertion of his contributions by way of physical work regarding renovation of the Underwood Road premises were denied by Bin Liang, a friend of Ms HuXXg, who in his capacity as a builder and renovator performed most of those renovations in 2001-2003. Until Mr ZhXXg was divorced there appears to have been no reputation or public aspect of the relationship. Despite the sleeping arrangements which obtained between the parties during the trip to North America in late 2003 I am not satisfied that a de facto relationship between the parties commenced until after Mr ZhXXg’s divorce in October 2004.

62 (In this regard I have not overlooked the evidence of LX JX LX, concerning an alleged admission made to her by Ms HuXXg in 1998 that at that time Ms HuXXg was in a relationship with Mr ZhXXg. The witness’s oral evidence, given through an interpreter, was that Ms HuXXg said, “I’ve been with Mr ZhXXg for a while and I do not mind whether I have the title or not”. That oral evidence did not go as far as the statement attributed by the witness to Ms HuXXg in paragraph 2 of her affidavit of 8 February 2008, that on a date in May 1998, Ms HuXXg said, “I am looking for YXXn, we are in a relationship now, and we are living together. HX says he wants to marry me but I don’t care as long as we’re together”.)

63 In my conclusion a de facto relationship of the nature described in section 4(1) of the Act obtained from December 2004 until early May 2007.

64 In approaching a claim for adjustment of the interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act the Court must make a holistic judgment and must not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688; see also Bilous v Mudalia [2006] NSWCA 38, at [43], where Ipp JA said that some situations do not lend themselves to either a pure global approach or a pure asset by asset approach in determining what orders should be made.)

65 In considering the claim of the Plaintiff, the Court should not be diverted from the clear words of the statute, where, by section 20 (1), the Court is required to have regard to the respective contributions of the parties of the nature described in that subsection.

66 In the instant case there has been very little by way of contributions made by either of the parties. I am not satisfied that Mr ZhXXg performed any physical renovation or maintenance on Ms HuXXg’s Homebush residence. HX received the benefit of accommodation and board, in consequence of his regular weekly contributions of specified amounts (fluctuating between $50 and $180). None of the real property purchases made by either of the parties required any financial contribution or involvement by the other party.

67 I am not persuaded that there were any contributions made by either party to the relationship which require the adjustment of the interests of the parties in property.

68 In consequence, the claim of Mr ZhXXg will be dismissed.

69 There remains the claim of Ms HuXXg for the liquidated sum of $171,800, being the balance of the sum of $190,000 advanced by her to Mr ZhXXg on 31 October 2006.

70 It was submitted on behalf of Mr ZhXXg that that advance must be considered in the context of the de facto relationship which at that time obtained between the parties. As I have already recorded, I am satisfied that such a de facto relationship was in existence at the time of that advance. Nevertheless, the existence of a de facto relationship does not preclude one party from lending a sum of money to the other party.

71 The circumstances surrounding that advance by Ms HuXXg to Mr ZhXXg were not really in dispute, apart from Ms HuXXg’s assertion that at the time of the advance the de facto relationship between the parties had already come to an end, and apart from Mr ZhXXg’s denial that the advance was in the nature of a loan that the parties expected would be repaid. Mr ZhXXg, during the course of his employment as a taxi driver, had been assaulted by a drunken passenger, and had, in consequence, been prevented from continuing to earn an income. HX could not afford to keep up the mortgage payments on his Albert Road home unit, and in October 2006 sought financial assistance from Ms HuXXg to discharge the mortgage. Ms HuXXg provided that assistance by way of the advance of $190,000. Both parties were in agreement that at that time they were on good terms with each other and were residing together in the Homebush property.

72 The attempted explanation by Mr ZhXXg concerning his repayment of part of that advance of $190,000 was totally unconvincing. HX attempted to explain the repayments by saying that the full amount was not needed by him, and that he was repaying to Ms HuXXg the surplus amount of that advance. But even after receiving the total amount of $190,000 Mr ZhXXg was still indebted upon his mortgage to the extent of almost $12,000. Neither do I accept the attempt on the part of Mr ZhXXg to characterise the advance of $190,000 as being by way of a gift or as being a contribution towards the relationship which at that time obtained between himself and Ms HuXXg. I am satisfied that the advance is properly characterised as a loan. It has been repaid to the extent of $18,200. There still remains outstanding the balance of $171,800.

73 Ms HuXXg is entitled to receive payment of that balance from Mr ZhXXg, together with interest thereon.

74 I make the following orders:

4XX0 of 2007 YXXN HX ZHXXG –v- AXXXE SIXXN HUXXG 

1. I order that the proceedings be dismissed.

2. I order that the Plaintiff pay the costs of the Defendant.

3. I direct the Registrar to furnish a copy of this judgment to the Director of Public Prosecutions (New South Wales), to the Director of Public Prosecutions (Commonwealth), and to the Department of Immigration and Multicultural Affairs (Commonwealth).

4. The exhibits may be returned.

5XX1 of 2007 AXXXE SIXXN HUXXG –v- YXXN HX ZHXXG 

1. I order that there be judgment for the Plaintiff against the Defendant in the sum of $171,800, together with interest thereon from 15 February 2007 to the date hereof at the rates prescribed by the Civil Procedure Act 2005.

2. I order that the Defendant pay the costs of the Plaintiff.

3. The exhibits may be returned.

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