McKone v Maretta [1999] NSWSC 438

New South Wales Supreme Court CITATION : McKone v Maretta [1999] NSWSC 438 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4354/96 HEARING DATE(S) : 08/02/99, 09/02/99, 10/02/99, 18/03/99, 19/03/99 JUDGMENT DATE : 12 May 1999

PARTIES : Norma Jean McKone v Alfredo Maretta JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A. Blackman for the plaintiff Miss P. Hanna for the defendant SOLICITORS : Messrs Pogson Cronin, Lavington, NSW for the plaintiff Messrs Tress Cock & Maddox for the defendant CATCHWORDS : Family Law. Application for adjustment of parties' property interests under Defacto Relationship Act 1984. Application in respect of different periods. Application for leave under s18. Held only one period has to be for at least 2 yearts. ; Fotherington v Fotherington Court of appeal 28/08/98 followed. DECISION : Paragraph 89

49 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Wednesday 12 May 1999

4354 of 1996 NORMA McKONE v ALFREDO MARETTA JUDGMENT

1 MASTER MACREADY: This is an application under the Defacto Relationships Act for the adjustment of the parties' property interests. According to the plaintiff the parties lived together in a defacto relationship for a number of periods between late 1984 and the middle of 1995. The parties have no children of the relationship although each party had children from a marriage. There is a substantial dispute between the parties as to whether or not a defacto relationship did exist at any stage. There is also a substantial dispute as to whether or not there have been any financial contributions by the plaintiff. 2 It is useful to first set out the parties' contentions in relation to the existence of the defacto relationship in order to put into context the chronology of events which becomes important in the matter. The Plaintiff's version of the relationship. 3 For the plaintiff's part she says that in late 1984 she was residing in rented accommodation at 17A Clissold Street, Ashfield. She had previously met the defendant when she went to work for him in his business. At all relevant times during the period in question up until late 1995 the plaintiff did work in a clerical capacity for the defendant in his business. There are disputes about payment of wages for some of the period. The plaintiff, who appeared to be the defendant's bookkeeper, had duties which included maintaining wage and other financial records. It was September 1976 when she commenced this work. 4 The plaintiff suggests that at some time prior to late 1984 they started seeing each other socially at which time a sexual relationship commenced. Towards the latter part of 1984 the plaintiff was living with her daughter, Melanie, at Clissold Street. Melanie was then engaged to be married in December of that year. According to the plaintiff the defendant moved in to live with her at Clissold Street after Melanie left the home upon her marriage. She says that he continued to reside there until September 1986 when the parties had an argument about his children. According to the plaintiff he then moved to the factory premises at Arthur Street, Leichhardt where he carried on his business. The defendant, according to her, and he concedes this, modified those premises to provide for some minor living accommodation so he could live in those premises. 5 In December 1986 the plaintiff purchased a flat at 4/15 Nagle Street, Liverpool. The purchase price was $41,000 of which $11,000 was paid by the plaintiff in cash and the balance was borrowed. The plaintiff concedes that after its purchase she moved all her furniture into the unit and commenced to live there. She says that in March or April 1987 she moved to the factory and started to live with the defendant at his premises in the factory. According to the plaintiff it was more convenient and saved her travelling. She still maintained the property at Liverpool which was not let. 6 In December 1990 the plaintiff exchanged contracts for the sale of the property at Liverpool which sale was settled in February 1991. The proceeds she retained and placed in an account in her own name. At the end of 1990 she moved with the defendant to his former matrimonial home at Haberfield. The next date of significance in the plaintiff's story is that in April 1992 following a dispute about marriage she moved out of Haberfield and rented a flat in her own name at 2/22 Prospect Road, Summer Hill. She furnished it with her furniture and took a six months' lease in her own name in respect of this property. While she was still living there and prior to her getting together again with the defendant she purchased a unit 11/26 Waterside Crescent, Carramar. She used the funds which she had obtained from the sale of the Liverpool unit and some borrowed funds from St George Bank. She moved in with the intention of living there. In September 1992 the plaintiff and the defendant when they were out one evening at the Apia Club won a cruise to the South Pacific. In that month they both went on that cruise. 7 According to the plaintiff in December 1992 she returned to live in the residence at Haberfield. The defendant had in 1988 resolved his financial affairs with his wife and one of the properties which he retained was the matrimonial home at Haberfield. 8 On 1 July 1995 the relationship, according to the plaintiff, ended. She sold her unit in Carramar and with the proceeds, later in that year, purchased a property at Holbrook in Southern New South Wales to which she moved. The Defendant's version of the relationship. 9 The defendant's version of events was somewhat different. The defendant who was born on 26 September 1933 first had contact with the plaintiff in 1976. This was when she came to work for him. He says that there was social contact between them between 1982 and 1985 and that in 1985 they commenced a sexual relationship. He, according to his evidence, separated from his wife in 1984 when he was living at the matrimonial home at Haberfield. In mid 1985 he moved to a property which he and his wife owned at Brighton-le-Sands and remained there until early 1986. He then moved to the accommodation which he had built in his factory premises. The defendant says that in 1986 his son, Adrian, joined him in the factory premises and for that purpose he constructed an extra room there for Adrian. The defendant freely concedes that from 1985 the parties had a sexual relationship and that they would socialise and go out together. He concedes that the plaintiff would sometimes stay overnight after they had been out or, alternatively, he might stay overnight at the plaintiff's property. 10 On 3 March 1988 there was a property settlement and under that the defendant received the matrimonial home at Haberfield, the factory and one of two Callala Beach properties which the defendant and his wife had owned. Following the property settlement the defendant says that he and Adrian with minimal help from the plaintiff renovated the Haberfield property and that in late 1990 he and his son, Adrian, moved in to live. The defendant says that in late 1990, after the plaintiff had sold her Liverpool unit, she asked if she could move in to Haberfield. He agreed and in early 1991 she moved in to Haberfield. Apparently, according to the defendant, she wanted the bedroom that Adrian, the defendant's son was occupying which meant that Adrian left home. The defendant concedes that the plaintiff resided at Haberfield from February 1991 until April 1992. In April 1992, and in this regard the parties' stories are consistent, the defendant says that the plaintiff moved out and rented the flat at Prospect Street, Summer Hill. The defendant denies that thereafter they had ever lived together although he concedes that they continued to socialise together, occasionally stayed at each other's place and that they had a sexual relationship up until mid 1995. 11 One can see therefore the periods of cohabitation alleged by the plaintiff were as follows:- Late 1984 to September 1986 at 17A Clissold Street, Ashfield. March/April 1987 until late 1990 at the factory. Early 1991 until April 1992 at Haberfield. December 1992 until July 1995 at Haberfield. 12 There are thus two periods of separation, on the plaintiff version, namely, from September 1986 until March 1987 and from April 1992 until December 1992. 13 For the defendant's part he concedes that they lived in the same household from early 1991 until April 1992. He denies that it was even then a defacto relationship.