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Buysers v Dean HC Auckland CP362-SD00 [2001] NZHC 1065; [2002] NZFLR 1; (2001) 21 FRNZ 431 (6 November 2001)

Last Updated: 11 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP362-SD00

BETWEEN T A E BUYSERS
Plaintiff

AND J M DEAN
Defendant

Hearing: 5 November 2001

Counsel: AJ Steele for the Plaintiff
SJ Ropati for the Defendant

Judgment: 6 November 2001

JUDGMENT OF SMELLIE J

Solicitors:
Chamberlains, P O Box 5678, Wellesley Street, Auckland for Plaintiff
Macky & Co, P 0 Box 37622, Parnell, Auckland for Defendant

Introduction

[1] The claim by the plaintiff is for compensation for services as a housekeeper and mother during a de facto relationship which lasted from December 1991 to mid-May 2000. There were two children of the relationship, Chantelle born March 1993 and Sebastian born February 1996.

[2] The plaintiff, although qualified as a civil engineer, did not work throughout the relationship. She accepts also that there were no contributions by her to property and that she had no expectation that she would share in any property acquired by the defendant.

[3] The plaintiff’s claim is purely for compensation for the services referred to above which she qualities as:

Domestic housekeeping $18,650

Child care services $182,777

[4] The plaintiff acknowledges that the defendant maintained her throughout the relationship which included overseas travel, accommodation and use of a car. There is, however, no diminution in the amounts claimed on account of those matters.

Factual findings

[5] As to when the relationship commenced, where the parties lived both here and overseas and maintenance for the plaintiff and the children of the relationship provided by the defendant, there was little dispute.

[6] The plaintiff was born in Holland and met the defendant, who was born in England and was at that time (and apparently still is) married but separated from his wife, when she was in her final year of an engineering degree. The plaintiff maintained that whenever she was able during the relationship she was willing and anxious to take employment as a civil engineer. Most of her applications for employment were unsuccessful but had she been able to obtain a work permit during the period of time when the parties were in Hong Kong, she would have obtained employment in her chosen profession. The plaintiff is obviously a highly intelligent person. She speaks three languages besides English. On coming to this country from Holland, where she had her primary and all but one year of her secondary education, she successfully obtained an engineering degree. The plaintiff’s contention, however, is that both she and the defendant were anxious to give their children the best possible start in life. They both agree that breast feeding is preferable and for that reason it appears she breast fed the first child for two to three years and the second child likewise. In addition, I have no reason to doubt her evidence that she devoted herself fully to the care and upbringing of the children in their infancy. Indeed, in a letter which the defendant wrote to the plaintiff towards the end of the relationship, he said:

“I may not say this often enough for you to hear, but I do know that you truly are a great mother to our kids. You give your best to them, and they really are super children. Our children.”

[7] At the end of his cross-examination I put that passage to the defendant and he somewhat grudgingly accepted that he would not resile from it but matched it with the proposition that he too had been a great father.

[8] The defendant’s perception, on the other hand, seemed to be that the plaintiff had used the children as an excuse not to go out to work. He would have preferred her to obtain employment as an engineer and, indeed, encouraged her to go back to university towards the end of the relationship to “upgrade” her qualifications. Nonetheless, he also contended that if she couldn’t get employment as an engineer, there was no reason why she shouldn’t have pumped petrol at a petrol station or worked at a check-out counter in a supermarket. It is clear that he would have preferred that situation rather than having the plaintiff at home as a devoted mother giving full-time care to their children. The children, he contended, could have been put into day care.

[9] The defendant also is clearly an intelligent person and a skilled electronic electrical technician who from time to time, particularly in Singapore, Hong Kong and Australia, has earned significant income from which he was well able to provide for the defendant and their children.

[10] Generally, the defendant came across as a rather inflexible man with very firm ideas about how his partner should behave, what was necessary for his children’s well-being and whose fault it was that the relationship had failed. During cross-examination the defendant made many criticisms of the plaintiff which had not appeared in his prepared brief or been put to the plaintiff when she was in the witness box. Where the evidence of the plaintiff and the defendant conflicted, I preferred the evidence of the plaintiff.

[11] The plaintiff did not deny that the defendant shared care of the children, particularly in the weekends and on several occasions when he was temporarily out of work, but she maintained that she took the primary responsibility for domestic work and child care. In paras 48, 49 and 50 of her evidence, the plaintiff set out in detail the work that she did. Those paragraphs are set out hereunder:

“48 While living with Jon between March 1993 up to when I left the house at 3/8 Wahanui Road on 14th May 2000, I carried out the following domestic housekeeping chores for Jon:

(a) Daily washing of linen and clothing, folding the clean washing and putting them away.

(b) Daily washing, drying and putting away dishes.

(c) The cleaning of two showers, two toilets, two hand basins and one bath on a weekly basis.

(d) Cleaning of the kitchen sink, kitchen benches and cooking elements.

(e) Mending of clothing as and when required.

(f) Ironing.

(g) Weekly vacuum cleaning of all carpeted areas and other tiled floor areas. Although I would vacuum the lounge and kitchen floors every second day.

(h) Grocery shopping, although I would often be accompanied by Jon and the children.

(i) Washing and cleaning the car as and when required.

(j) Feeding and brushing cat for the 2 years that we had it.

(k) I carried out the alterations to the curtains for the kitchen windows at the Wahanui Road house. I also thoroughly cleaned the houses before moving into a rented townhouse in Melbourne in 1994, 3/8 Wahanui Road in 1995 and in 1998, also when Jon rented the house in Wellington in 1997 (59 Winston St, Chartwell). In addition, I cleaned the windows a few times a year.

(l) Gardening, that is creating and maintaining flowerbeds/border and growing plants in pots. Weeding and planting new plants, sweeping up leaves and, in Melbourne, mowing lawn.

49 The homes where I carried out the housekeeping duties were:

(a) 24b Tawera road, Greenlane, Auckland. This house was approximately 75 square metres and comprised 2 double bedrooms, bathroom includes bath, shower and vanity, separate toilet, kitchen and combined lounge/dining.

(b) 2/19 Lee Ave, Mount Waverley, Melbourne. This house was approximately 130 square metres and comprised 1 double bedroom with walk in wardrobe, 1 double and bedroom and 1 single bedroom, ensuite including vanity, shower and toilet, bathroom includes vanity, shower and bath, separate toilet, laundry, open plan family room/dining/kitchen and separate lounge.

(c) 3/8 Wahanui Road, One Tree Hill, Auckland. This house was approximately 110 square metres and comprised 3 double bedrooms, ensuite including vanity, shower and toilet, bathroom includes vanity, shower and bath, separate toilet, open plan lounge/dining/kitchen.

(d) 59 Winston Street, Chartwell, Wellington. This house was approximately 85 square metres and comprised 1 double bedroom and 2 single bedrooms. Bathroom includes vanity, shower and bath, separate toilet, kitchen and laundry and combined lounge/dining.

(e) 3/8 Wahanui Road, One Tree Hill, Auckland. This house was approximately 110 square metres and comprised 3 double bedrooms, ensuite, includes vanity, shower and toilet, bathroom includes vanity, shower and bath, separate toilet, open plan lounge/dining/kitchen.

Child Care Work Carried Out

50 From the time Chantelle and Sebastian were born, I have provided to Jon the following child care services (in no particular order):

(a) I would attend to all the baby needs of the children when they were very small, including bathing, feeding and changing them. As the children became older, but were still young, they would eat before the adults and I would prepare their dinners.

(b) Supervise the children during bath time, meal times and playing outside. Getting the children dressed in the mornings and in pyjama’s at night, plus cleaning teeth, brushing hair etc. When the children became ill, I would attend to them day or night.

(c) Preparation of school lunches (weekdays). Preparing morning tea and lunch for Sebastian, and afternoon tea for both children on weekdays.

(d) Washing school uniforms (2 to 3 times per week). Doing the washing and all repairs and alterations of children’s clothing.

(e) Changing the children’s clothes. Sometimes this meant three to four changes of clothes in one day.

(f) Supervising homework, reading 5 days per week, poetry in the weekend for 2 school years.

(g) Driving to and from school (most weekdays since Chantelle started school on 27th April 1998).

(h) Supervising Chantelle’s recorder practise (weekly). Recorder lessons were given at school by a teacher. Driving to and from swimming lessons at Lagoon Swim school in Panmure (Sebastian 20+ lessons, Chantelle 35+ lessons on separate days).

(i) Driving to and from, and participating in, children’s creative dancing classes in Wellington (2 children 10 lessons each).

(j) Weekly trips to Auckland Museum with Chantelle for approximately three months (after we returned from Melbourne).

(k) Library pre-school story times for Chantelle. In Melbourne 2 to 3 times weekly. In Auckland 1 to 2 times weekly, in Wellington 3 times weekly. Library story times for Sebastian: In Wellington 3 times in Auckland 1 to 2 times per month (between May 1998 and June 1999).

(l) Walks and plays in the park or playground. Usually we would try and make this into a significant outing, and take some snacks along. Reading and discussing stories. Often we would find lots of books on a particular topic and do drawings or activities on the theme (I did this when Chantelle was a pre-schooler and later with Sebastian).

(m) Organising play sessions with friends for the children at our house or taking the children to friends’ places. Taking the children over to spend time with relatives after school (for Chantelle) or early morning (for Sebastian).

(n) Coming along on and helping with all but two school trips for Chantelle. Taking the children along to organised school holiday activities like shows or performances at shopping malls, children’s programme at the Auckland Art Gallery, trips to Auckland Museum and special story telling sessions.

(o) Collect reference material for topics at school for Chantelle, e.g. Books on fibre and fabrics, volcanoes, Helen Keller, topics in religious education etc. Arts and crafts: for example paper making, making collage from nature finds like autumn leaves, painting, baking etc.

(p) I would help and encourage the children to make decorations for Christmas, help Chantelle to write Christmas cards to her school friends, and help them decorate the Christmas tree.”

[12] In respect of a number of the items, especially cooking (which the defendant apparently enjoys) and care and supervision of the children, the defendant claimed to have made the same contribution or, alternatively, tended to downgrade the significance of what the plaintiff had done.

[13] Nonetheless, I accept the plaintiff’s evidence that she did carry out the domestic work recorded in paras (48) and (49) of her prepared statement of evidence and the child care work in paragraph (50). Furthermore, despite the defendant’s criticism of her performance in these areas, I accept that she did the work conscientiously and well. I am left with the firm conviction that care and upbringing of the children in their infancy by this devoted and intelligent mother has been far more beneficial to them than if she had gone out to work. In that sense, the plaintiff’s contribution was a real benefit to the defendant who, despite the break-up of the relationship, obviously has a deep and abiding affection for the children.

The basis upon which the claim is advanced

[14] The relationship terminated before the Property (Relationships) Act 1976, as amended in 2001, came into force. Accordingly, only equitable and common law principles can be relied upon by the plaintiff. Quantum meruit and unjust enrichment are advanced. Constructive trust is not relied upon because the plaintiff is unable to make a claim on any specific property to which she contributed and which could be regarded as subject to a constructive trust.

[15] Counsel for the plaintiff in his synopsis of argument commenced with this acknowledgment at paragraph 10:

“Whether the plaintiff’s claim is viewed [as based upon] quantum meruit or [upon] unjust enrichment, she must establish that valuable services were supplied to the defendant, that is, that he enjoyed a measurable enrichment by virtue of the services provided.”

[16] It was submitted that both Canadian and New Zealand authority recognises the value of domestic services and child care and support the concepts that such contributions can and should be recognised.

[17] Peter v Beblow (1993) 101 DLR (4th) 621, a decision of the Supreme Court of Canada, concerned a twelve year relationship in which the claimant looked after four children and provided housekeeping services. Unjust enrichment was advanced and a claim made to the house in which the couple had cohabited or, alternatively, monetary compensation. On appeal the Court restored an order of the first instance trial Judge, awarding the appellant the dwelling in question.

[18] McLachlin J, speaking for himself and three others of the seven-man Court, said at p 647, lines (g) to (h):

“The notion that household and child care services are not worthy of recognition by the court fails to recognise the fact that these services are of great value, not only to the family, but to the other spouse . . . The notion, moreover, is a pernicious one that systematically devalues the contributions which women tend to make to the family economy.”

The other three Judges concurred, holding that there had been an unjust enrichment of the respondent by the work of the appellant.

[19] The New Zealand authority primarily relied upon was Gillies v Keogh [1989] 2 NZLR 327 and Horsfield v Giltrap (unreported, 28 May 2001, CA207/00). It was in Gillies v Keogh, of course, that Cooke P, as he then was, at p 303, line 45-50 said:

“. . . several of the doctrinal bases used by the Courts or proposed judicially for determining whether party has a valid claim against the other after the union has ended seem ultimately to come to much the same. Normally it makes no practical difference in the result whether one talks of constructive trust, unjust enrichment, imputed common intention or estopple.”

And further at p 332, line 20 the learned President said:

“I see no reason why the Canadian approach in awarding monetary compensation cannot be applied in New Zealand in suitable cases. It is in harmony with what has been decided about equitable compensation in a broader field in cases including Day v Mead [1987] 2 NZLR 443.”

[20] In Horsfield v Giltrap (supra) the Court of Appeal’s earlier decision in Lankow v Rose [1995] 1 NZLR 277 was relied upon to award the applicant a share in the assets of her former partner on the basis that she had made “an indirect contribution towards the earning of the property in question”.

[21] Drawing all these propositions together, Mr Steele submitted in his synopsis at paragraph 18 as follows:

“If the Court accepts that the services provided by the plaintiff have enriched the defendant, then the question arises as to whether or not it is equitable, in the circumstances of this case, that the defendant be allowed to keep and enjoy the benefit of the enrichment without obligation or responsibility to the plaintiff.”

Quantum meruit

[22] Relief under this head usually involves failed or unenforceable contracts. As the High Court of Australia has pointed out, however, in Pavey & Matthews Pty Limited v Paul [1987] HCA 5; [1986] 162 CLR 221, an implied contract or promise is not a prerequisite to relief. At p 263 of the report, Deane J said:

“What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for a benefit accepted. Ordinarily that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied).”

Mason and Wilson JJ in their judgment at 227 of the report agreed with Deane J’s approach to quantum meruit, saying:

“We are therefore now justified in recognising, as Deane J has done, that the true foundation of the right to recover on a quantum meruit does not depend on the existence of an implied contract.”

[23] Mr Steele submitted that what is required is that an incontrovertible benefit is received by the party against whom the claim is made. Counsel relied on the definition of an incontrovertible benefit propounded by Professor Peter Birks in his seminal work “An Introduction to the Law of Restitution” where he said at p 116:

“. . . Put more simply, no reasonable man would say that the defendant was not enriched.”

[24] The case of Upton-On-Seven Rural District Council v Powell [1942] 1 All ER 220 (CA) cited by the authors of Chitty (28th ed) vol 1 at para 30-186 in dealing with quantum meruit cases illustrates the point. There a householder called the fire brigade, believing the service was free, and the brigade attended, believing the burning property was in the area serviced by it. It turned out that both beliefs were wrong. The Court of Appeal held that despite the property owner’s expectation that the service was free, he must nonetheless pay the cost involved.

[25] Hammond J in a helpful judgment - Daly v Gilbert 10 FRNZ 370 carefully considered the question of the availability of quantum meruit as a form of relief where goods and services were supplied but there was (as here) a clear understanding that no interest in the actual property would pass to the partner claiming. Having referred to the line of cases exemplified by Gillies v Keogh, the Judge said at 377:

“What does not seem to have been fully explored in those cases is the problem (which I think arises in this case) of a claimant who is excluded because of overt expectations from an interest in the property itself; but has nonetheless made a contribution in services thereto and (perhaps) in other ways.”

A few pages later, discussing questions of restitution and unjust enrichment, the Judge recognised that at that point in time the cases appeared to have addressed a situation where a claimant was able to assert a proprietary or possessory interest in a specific property. He said:

“If this is so, it has to be the case that, if no proprietary or possessory interest is established, a plaintiff in the position of P is then thrown back on the general law and equity to recover moneys. That would include such things as quantum meruit claims and (say) the general law (whatever it might be) relating to joint accounts, and such-like principles.”

Referring again to quantum meruit on the succeeding page (381), the Judge said:

“To take a simple example, there is the longstanding claim (quantum meruit) for a reasonable price for goods and services supplied. Little use has been made of this head by counsel in New Zealand. In Canada there is a line of quantum meruit cases for even housekeeping services rendered in de facto union cases. See for example Dwyer v Love (1976) 9 Nfld & PEIR 325 (CA) (‘Their union was one of two individuals both wanting to live their own lives - wanting a relationship but could end at any time - no marriage - no ties, no problem to enter and none of divorce to end’ per Daly JA); Holli v Kost (1972) RFL 77; Herman v Smith (1984) 42 RFL (2d) 154 (QB) (Court awarded ‘average earnings’ of female housekeepers, servants, and related occupations’ over relevant time period and reduced it by 50 percent to reflect free board and lodging); Crispen v Topham (1986) 28 DLR (4th) 754 (QB). But in Kshywieski v Kunka Estate (1986) 21 ETR 229 (CA) and Milne v MacDonald Estate (1986) 3 RFL (3d) 206 (CA) the services were said to have been ‘gratuitous’ and hence not compensable. I have not researched the most recent Canadian cases under this head.”

[26] On the basis of those authorities, I am satisfied that the plaintiff’s claim in quantum meruit is recognised in law and is a means by which she can claim compensation for the services she rendered. Of course I have yet to address the quantum of that compensation.

[27] Mr Ropati, for the defendant, argued that quantum meruit was not available because the services were not rendered on the basis that they were to be paid for and the evidence showed that they were not rendered on any contractual basis but, rather, were rendered gratuitously.

[28] Counsel relied upon the last two Canadian cases referred to by Hammond J in the quote immediately above. The first, Kshywieski v Kunka [1986] 3 WWR 472, a decision of the Court of Appeal of Manitoba. The second, the case of Milne v MacDonald Estate 5 BCLR (2d) 46, a decision of the Court of Appeal of British Columbia. The first concerned a de facto relationship of three years duration, a claim being made on the basis of unjust enrichment. At first instance an award was made but on appeal the Court held there was an absence of an expectation that the services rendered would be compensated. The second case in British Columbia was again a case in which the Court held, in respect of a relatively short de facto relationship, that nursing services were provided gratuitously and there was no property to which the claim made could attach.

[29] Those cases therefore are not directly relevant to this case and, given the later decision of Peter v Bedlow (supra) in 1993 of the Supreme Court of Canada, it is questionable whether those decisions would have stood had appeals been taken on to the Supreme Court. Irrespective, I am not bound by them and I do not find them persuasive compared with the other authorities upon which Mr Steele relied.

Unjust enrichment

[30] Despite Mr Steele’s attractive argument that unjust enrichment should now be recognised in de facto relationship cases (buttressed as it is by the provisions of the Property (Relationships) Amendment Act 2001), I draw back from taking the leap. The law has not shifted from the position set out by me in Equity Corp Industries Group Limited v R [1996] 3 NZLR 586 at 661. That was recently confirmed by the Court of Appeal in Rod Milner Motors Limited v The Attorney-General [1999] 2 NZLR 568 at 576. Furthermore, in the area of the law with which this case is concerned, Hammond J’s caution is Daly v Gilbert (supra) is pertinent. At p 739 he said, having discussed the issues of policy and legal principle surrounding the notion of unjust enrichment:

“The application of broad notions of unjust enrichment to de facto unions illustrates my point exactly. I would have some hesitation, as a matter of legal policy, on the present state of the law in New Zealand in extending the generalised doctrine to de facto unions in an across the board fashion. This for the reason that such an extension has the obvious capacity to ‘end-run’ the comparable solutions adopted by Parliament in the case of married persons. To put this another way, unjust enrichment, broadly applied, could leave parties to a de facto union in a better position than if the parties had been married in relation to the same sort of facts.”

[31] Despite the recent amendments, those comments of the learned Judge still have application. One obvious example is the fact that de facto relationships are not recognised by the Legislature until they have been in existence (with some exceptions) for three years.

Quantum of compensation

[32] The plaintiff called, in support of her domestic services claim, Mr Justine Worsley, general manager of Greenacres Home Cleaning, who gave evidence that the cleaning of the type of property that the parties lived in would be charged at the rate of $50 per week.

[33] Also the plaintiff called Ms Wendy O’Shea, manager of a nanny bureau which coordinates karitane nurses and nannies. She had held that position for six years and was well qualified to give evidence on rates of remuneration for child care as at today. Her evidence was that a live-in nanny position would pay between $300 and $400 per week without deduction for accommodation and food. Furthermore, that a nanny would charge extra for working weekends at $140 per day. Also, that if the family went overseas normally a nanny would go along with them. The witness related her evidence directly to the care which the plaintiff outlined in her evidence which she provided for the children.

[34] The calculation of the claims made is set out in para [5] of the statement of claim as follows:

[a] Domestic housekeeping services from 23 March 1993 to 14 May 2000 in the estimated sum of $18,650 calculated at $50 per week for seven years nine weeks.

[b] Child care services from 23 March 1993 to 14 May 2000 in the estimated sum of $182,770 comprising $350 from Monday to Friday and $140 from Saturday to Sunday for seven years and nine weeks.

[35] It will be seen from the above quantification that the plaintiff makes no claim for domestic services prior to the arrival of the first child. So far as child care services are concerned, however, it will also be seen that a claim is made for caring for the children on Saturdays and Sundays. The total amount claimed is $201,420.

[36] A relevant figure provided by the defendant during cross-examination is his calculation of what precisely he had provided throughout those seven years and nine weeks. The figure was in the vicinity of $555,000.

[37] I have no reason to doubt that the defendant’s figure is a reasonable approximation and it is clear that the plaintiff’s claim is based upon the evidence called. Rates of remuneration of housekeeping and child care may well have been lower over the relevant period than they are today. On the other hand, however, the plaintiff does not claim compound interest or any other capitalisation of the remuneration which she calculates from March 1993.

[38] Taking the view, as I do, that it was entirely appropriate for the plaintiff to stay at home and care for the two infant children over the seven years and nine weeks, some compensation is justified for domestic housekeeping. On the other hand, those services were rendered as much, if not more, for herself and the children as for the defendant. I allow $8,000 under that head.

[39] So far as the claims for child care are concerned, I disallow the portion of that claim which relates to the weekends. I am satisfied that during the weekends, and to some extent when the defendant was not engaged in full-time employment, he shared in the care and upbringing of the children. Furthermore, the child care services were as much for the benefit of the plaintiff, as mother of the children, as for the defendant, as father.

[40] Eliminating the claim for the weekends (calculated apparently at $140 per weekend rather than $140 per day) leaves a claim for $130,000 in round figures. This should be halved on the basis just indicated to allow for a figure of $65,000. Some allowance must also be made, however, for those periods of time when the defendant was off work and at home and for his contribution to child care during the week, especially when the children were very young.

[41] As with my allowance for domestic housekeeping services, the figure to be allowed here cannot be a precise mathematical calculation. It must be, to some extent, a matter of impression gaining such guidance as is appropriate from the evidence that was called. The figure I allow for child care is $50,000. The total compensation awarded is therefore $58,000. The plaintiff will have judgment for that sum.

Interest and costs

[42] The plaintiff claims interest, pursuant to the Judicature Act, but recognises that her right to compensation did not arise until the relationship terminated. Furthermore, the defendant would have been unaware that a claim was to be made against him until the writ was served upon him and thereafter he would require time to assess whether or not he should acknowledge liability and make some offer in settlement. In all the circumstances I allow interest for one year on the sum awarded at the rate of 5%. Although the prescribed rate is currently 7 1/2%, I take judicial notice of the fact that over the last year the return on moneys invested with a bank has been in the vicinity of 5%. The judgment debt, however, will carry interest at 7 1/2%.

[43] So far as costs arc concerned, the plaintiff has succeeded and the normal rule should apply - the loser pays costs. This is particularly relevant in this case because the recovery is not high and the Legal Aid Fund will have some claims against the sum recovered because the plaintiff has been granted aid. I classify the case for costs pursuant to Category number 2 and direct that the Registrar is to fix the costs for a one day hearing. Also the filing fees, witnesses’ appearance and qualifying fees, and the cost of collating and printing the plaintiff’s bundle of authorities (which the Court found helpful) and the collating and printing of the agreed bundle of documents. It appears also from the file that more than one opinion was required before Legal Aid was granted. The cost to the plaintiff of those opinions shall also be included as disbursements.