McGrath v Ter Hedde [1999] NSWSC 1192

New South Wales Supreme Court CITATION : McGrath v Ter Hedde [1999] NSWSC 1192 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2124/99 HEARING DATE(S) : 08/11/99, 09/11/99 JUDGMENT DATE : 7 December 1999

PARTIES : Patricia Aileen McGrath v Gerrit Lambertus Josef Ter Hedde JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A.R. Ridley for plaintiff Mr B.J. Knox for defendant SOLICITORS : Tilbury & Co. Solicitors, Armidale for plaintiff Stephen Rugendyke, Armidale for defendant CATCHWORDS : Family Law. Application under Property Relationships Act 1984 for adjustment of parties' property interests. Orders made for adjustment. No matter of principle. CASES CITED : Black v Black 15 Fam Lr 109. Green v Robinson (1995) 36 NSWLR 96 DECISION : Paragraph 52

- 1- THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Tuesday, 7 December 1999

NO 2124 of 1999 PATRICIA AILEEN MCGRATH v GERRIT LAMBERTUS JOSEF TER HEDDE

JUDGMENT 1 MASTER: This is an application under the Property Relationships Act 1984 for an adjustment of the parties' property pursuant to s 20. The parties are agreed that they lived in a defacto relationship between May 1978 and the end of February1996. There were no children of the relationship and throughout the relationship they did not have any children forming part of the household. The defendant did have children from a prior marriage. The defendant was born on 28 November 1943 and the plaintiff on 7 April 1957. When they met they were respectively 35 and 21 years of age. They are now aged 55 and 42 years respectively. 2 Both parties were qualified and employed as either a printer or a lithoplate maker. At the time they met and for many years thereafter they worked at the University of New England. They commenced cohabitation in May 1978 and in December of 1979 they purchased a property at 67 Dangar Street, Armidale as tenants in common in equal shares for $26,000. The source of the funds was monies borrowed from the New England Credit Union. Apart from one exception towards the end of the relationship, for many years the parties purchased properties as tenants in common in equal shares and they each maintained accounts at the New England Credit Union upon which they drew to finance such acquisitions. In this case each of them borrowed $13,000 from the New England Credit Union to purchase 67 Dangar Street. In December 1983 the parties purchased a quarter share each in Lot 1583 Crescent Head, Kempsy for a total of $37,000. Once again the sums came from the Credit Union and this property was purchased by them along with another family. 3 The defendant's parents had lived in Australia for some time and in 1985 they returned to Holland with a view to living there permanently. They could not settle there and instead they came back to Armidale. This caused a change in the housing arrangements. The defendant's parents provided the parties with a loan for $38,000 and as part of the arrangements the parties executed a lease in favour of the defendant's parents of the property which gave them a right to live there for life with the parties paying rates and taxes and making repayments of $200 per week. The funds provided were used to purchase 140 Barney Street, Armidale for $47,000. This required each of the parties to borrow a further $23,500. A short time later there was also a further advance of $14,000 by the defendant's parents. 4 In October 1989 the defendant who had from time to time also carried on business as a bookmaker, won $25,000 on a Trifecta which he used to reduce the plaintiff's debt by $8,885 and his own debt by $16,000. In December of that year he had a further win of $8,000 and reduced his debt by $6,600. 5 In May 1988 the parties purchased 2 acres of land at 16 Lynches Road, Armidale for $38,000. Over the next 18 months a house was erected on the property. Substantially this was done by the defendant. He employed subcontractors and did a substantial amount of the labouring with assistance from others. In January 1990 the Barney Street property was sold for $92,500 and the proceeds were divided equally between the parties. Towards the middle of 1990 the parties gave up their employment at the University of New England and purchased the Girraween Newsagency for $140,000 plus stock of $15,000. They borrowed funds of $140,000 to make this purchase. The balance of the funds substantially came from the parties' retirement payments when they left the University of New England. The defendant received about $9,000 and the plaintiff $7,000. In July 1993 they purchased the freehold of the newsagency business for $225,000. 6 The parties worked hard in the newsagency business and purchased a sub-agency to increase its turnover. They were working seven days a week for twelve hours a day. In August 1995 they sold the newsagency for $650,000. All the parties' loans were paid out and the balance left over of $160,000 was deposited in an A.N.Z. Cash Management account. 7 In late 1995 without consulting the plaintiff the defendant purchased a unit in a block at the Gold Coast for $108,000. It was in a building in which the defendant's brother also had a unit. On 10 February 1996 the parties separated. In July 1996 they divided the cash management account after various withdrawals had been made by the defendant and each received $19,926 each. 8 On 6 August 1997 the Kemsey property was sold for $57,000 and each party received $14,285. In December 1997 the defendant purchased Nyssa Street, Armidale for $101,000 using a loan from his credit union of $78,000. This was purchased in his own name as had been the unit at the Gold Coast. In February 1998 the plaintiff moved back into the home at 16 Lynches Road she having left it when the parties separated on 10 February 1996. The basis on which she moved back was the subject of some argument at the trial. In December 1998 the defendant received $113,207 from his superannuation. Proceedings were commenced on 9 February 1998.