Ledwos v Angilley [2001] NSWSC 618

New South Wales Supreme Court

CITATION : Ledwos v Angilley [2001] NSWSC 618 revised - 23/10/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4978 of 1999 HEARING DATE(S) : 16 & 17 May, 16 July 2001 JUDGMENT DATE : 12 October 2001

PARTIES : John Ledwos v Jeannine Edith Angilley JUDGMENT OF : Master Macready at 1

COUNSEL : T. Ostini-Fitzgerald for plaintiff B. Knox for defendant SOLICITORS : Calvin Nelson & Co for plaintiff Miller Goddard for defendant CATCHWORDS : Family Law. Application under Property Relationships Act 1984. Consideration of whether contributions before and after the relationship can be taken into account. - Held in circumstances of this case they could. Claim for an adjustment to reflect the rental value of one party's occupation of the home during the relationship not allowed. Consideration of the impact of domestic violence on homeamker contributions. Del Gallo v Fredericksen unreported 23 July 1999 Roy v Sturgeon (1986) 11 NSWLR 454 MacDonald v Stilsa [2000] NSWCA 302 Evans v Marmont (1997) 42 NSWLR 70 Jones v Grech [2001] NSWCA 208 Fotheringham v Fotheringham CASES CITED : Bennett v Horgan Bryson J unreported 3 June 1994 Walter v De Jong (1997) DFC 77659 Fuller v Taaffe (1998) DFC 77740 Foster v Evans Bryson J unreported 31 Oct 1997 Doherty v Doherty (1996) FLC 92-652 Marando v Marando (1997) FLC 92-754 Green v Robinson (1995) 36 NSWLR DECISION : Paragraph 55

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1 MASTER: This is an application in which the plaintiff seeks two principal forms of relief. One of these is for relief under s 20 of the Property (Relationships) Act 1984. The plaintiff also claims relief by way of a constructive trust in respect of the contributions to the construction of a house on the defendant's land which construction occurred prior to the commencement of the parties' de facto relationship. A Judge of the court has ordered that the whole of the proceedings be determined by a Master. 2 The parties had a de facto relationship from 1989 until 29 June 1999. There is a dispute as to the precise starting date but there is no dispute that the relationship was a de facto relationship. There were no children of the relationship. 3 The parties commenced an exclusive relationship in about 1972 and this continued over the years apart from country postings until they commenced their de facto relationship in 1989. At that stage the plaintiff was 35 years of age and the defendant 33 years of age. In 1983 the defendant had purchased a vacant block of land at 16 Eldridge Street, Cherrybrook for $46,500. In 1988 a project home was built on the vacant land at Cherrybrook. The total cost of the home was $94,997.40 in respect of which the defendant says she contributed $61,726.56 and the plaintiff paid $33,270.84. There is a dispute as to the extent of these contributions to which I will return later. 4 The contract for the construction of the home was signed in April or May 1998. At this time the plaintiff had been living in a rented apartment at North Sydney and the defendant had been living with her parents at Pennant Hills not far from the block of land at Cherrybrook. It seems that the builder completed the house at Cherrybrook at the end of 1988 or early in January 1989. During the period of the relationship the parties lived in this house until the defendant vacated it on 28 June 1999. Thereafter as a result of an application made in these proceedings an arrangement was entered into under which the plaintiff purchased the defendant's share based upon a value of the property of $420,000. That purchase was completed on 18 February 2000 and pursuant to the arrangement the defendant received one half of the proceeds. The balance of the funds was invested pending the resolution of the remainder of the disputes in the present proceedings. 5 It is necessary to determine the conflict between the parties as to the commencement date of the relationship. It would seem that after completion of the house a number of people occupied the property. The plaintiff says he occupied the property from January 1989 and there is reference in the evidence to the defendant's sister and now brother in law occupying the property. 6 There is evidence that the defendant was on holiday from March until the end of May when she was overseas with her parents and sisters. When she returned she went to live with her parents for several weeks before moving to Cherrybrook in mid June. In these circumstances it seems to me that the parties commenced their relationship in June 1999. There is no suggestion in the evidence of any earlier periods when the parties lived as a de facto couple. 7 As the house at Cherrybrook was built before the commencement of the relationship it is necessary to decide whether these contributions can be taken into account. There is a debate in the cases on this point. I recently I dealt with this matter again in Del Gallo v Fredericksen unreported 23 July 1999 at paragraphs 32 to 35 where I had the following to say: " Can pre-relationship contributions be taken into account in the adjustment process?