FOWLER v ZOKA [2000] NSWSC 1117

New South Wales Supreme Court

CITATION : FOWLER v ZOKA [2000] NSWSC 1117 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2402 of 1998 HEARING DATE(S) : 05/06/2000, 19/10/2000 JUDGMENT DATE : 13 December 2000

PARTIES : Michael Peter Fowler v Lisa Zoka JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P. Dowdy for plaintiff Mr A.M. Gruzman for defendant SOLICITORS : Cassidy Gibson Howlin for plaintiff Stafford & Associates (Wollongong) for defendant CATCHWORDS : Family Law. Application under Property Relationships Act for adjustment of parties' interests. Time at which property should be valued. Held that in the usual course it should be valued at the hearing. Calverley v Green (1984) 155 CLR 242; Taggart v Gaston Master Macready 7/12/92; Wardman v Hudson (1978) FLC 90-466; Walters v Walters (1986) FLC 91-733; Conganitis v Conganitis (1979) FLC 90-643; CASES CITED : Mackie v Mackie (1981) FLC 91-069; Howes v Howes (1981) FLC 91-044; P v P (1985) FLC 91-605; Hauff v Hauff (1986) FLC 91-747; Faraone v Shabalah (1988) FLC 91-956; McDonald v Morris - Windeyer J; Jones v Jones Master Macready 7.8.92 DECISION : Para 29

- 1 - IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

MASTER MACREADY

Wednesday 13 December 2000.

2402/98 MICHAEL PETER FOWLER v LIZA ZOKA

JUDGMENT 1 MASTER: This is an application under the Property Relationships Act to adjust the parties property interests pursuant to section 20 of that Act. 2 The plaintiff and the defendant lived in a de facto relationship between August 1994 and October 1997. The proceedings were commenced on 13 May 1988. There were no children of the relationship, nor did the parties have any other children as part of the household. Initially the parties resided in rented accommodation in East Sydney. 3 At the time of the commencement of the relationship the personal property of the defendant consisted of a lounge suite valued at $15,000, television and entertainment goods $5,000, whitegoods $12,000 sporting goods, jewellery, artwork and collectables not valued, associated furnishing and chattels valued at $5,000 and a Ford Laser worth about $17,000. These items totalled $54,000. The defendant was also the registered proprietor of a property 13 Wills Road, Woolooware which had been transferred to her by her father earlier that year. The circumstances in respect of that transfer I will return to later. 4 The plaintiff's assets as at the date of commencement of the relationship amounted to a small amount of cash of about $2,000 a motor bike valued at $8,000 on which he owed $4,326, some furniture and personal effects. 5 In February 1995 the plaintiff inherited $30,000 from his mother's estate. As a result discussions ensued concerning a proposal for the parties to move into the property at 13 Wills Road. Although the property had been transferred to the defendant's name by her father it was being offered for sale up until the time of these discussions. It was not then occupied. As a result of the discussions the parties were allowed to occupy the property upon terms that they paid out an amount to the defendant's father's company it having been the original owner prior to the transfer to the plaintiff for a consideration of some $183,000 in June 1994. There is no suggestion that the plaintiff paid this sum. The plaintiff contributed $20,000 and the parties borrowed $180,000 from the National Australia Bank. The total of these amounts namely $200,000 was paid to the defendant's father's company in May 1995 and the parties moved into the premises. 6 After separation the defendant left the home and went overseas. She asked the plaintiff to mind the home while she went away. She came back and in early January 1998 the plaintiff who had remained residing in the home then vacated and the defendant occupied the home. She paid the mortgage repayments from the time of separation and has continued in occupation. 7 There has been valuation evidence as to the value of the property at the time the parties occupied it in 1995. The two valuers, Mr Steege and Mr Hope are agreed that the property in May 1995 had a value of $290,000. In submissions the defendant referred to a note in Exhibit 5 which was a bank manager's file note dated 3 April 1995 showing the property having a "OEMV $320,000". This valuation was neither supported by evidence, cross examined upon or put to the valuers who gave evidence. In the circumstances I prefer the two valuer's agreement of the value at 1995 at $290,000. One of the valuers, Mr Hope for the defendant valued the property in February 1998 at $310,000 and they both valued it at a later time. Mr Steege, the valuer for the plaintiff, valued the property in September 1999 at $430,000 and Mr Hope, for the defendant, valued it in May 2000 at $380,000. 8 It is necessary to resolve this difference as well as determine which is the appropriate time to consider the value of the property. 9 The debate between the valuers as to the present value of the property did not centre at all upon the fact that the plaintiff's valuer valued it at late September 1999 and the defendant's valuer in May 2000. Apart from matters going to the credit of one of the valuers the debate centred upon comparables. Surprisingly the valuers had a different range of comparables and had none in common although each chose a particular villa unit from a development in Denman Avenue, Woolooware as a comparable. 10 In respect of the defendant's valuer, Mr Hope, his first comparable was in Kurnell Road, Cronulla. It is abundantly clear from the transcript that Mr Hope was in error in describing that as a 3 bedroom townhouse. Mr Steege took the trouble to check with the occupier how many bedrooms it had and apparently, according to the information he was given by the occupier it had two bedrooms. Mr Hope said he had been given information that it was three without elaborating on his source of knowledge. I will refer later to his refusal to accept an assumption of this error. In these circumstances it is not really comparable. The two separate units in the same development at Denman Avenue, Woolooware require a consideration of that development. The plaintiff's valuer referred to a sale of unit 16 on 27 May 1999 for $370,000. He described it as a ten year old medium density villa in an inferior location and an inferior property. The defendant's valuer referred to villa 13 which was sold for $375,000 in November 1999 and suggested that it was in a better position near the Woolooware golf course. Matters that emerged as a matter of comparison, quite apart from the fact that this development was 10 years old, in contrast to the 4 or 5 year old subject property, included that the comparables were:-