Braxton v Braxton [2001] NSWSC 878

Reported Decision : [2001] NSWSC 878 [2001] ACL Rep 205 NSW 24

New South Wales Supreme Court

CITATION : Braxton v Braxton [2001] NSWSC 878 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1317 of 1995 HEARING DATE(S) : 3 and 4 October 2001 JUDGMENT DATE : 4 October 2001

PARTIES : Leon Williams Braxton (Plaintiff) Oriel Braxton (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr R A Greenaway (Plaintiff) Mr D M Loewenstein (Defendant) SOLICITORS : MatthewsFolbigg (Plaintiff) Grogan & Webb (Defendant) CATCHWORDS : DE FACTO RELATIONSHIPS - claim for adjustment of property interest CASES CITED : Evans v Marmont (1997) 42 NSWLR 42 Williamson v Williamson (1992) 15 Fam LR 739 DECISION : See paragraph 33 of judgment

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

THURSDAY 4 OCTOBER 2001

1317/95 - LEON WILLIAM BRAXTON V ORIEL BRAXTON

JUDGMENT

1. HIS HONOUR: The plaintiff, Mr Braxton, and the defendant, now Miss Sanlaville, lived together in a defacto relationship from 1966 until November 1993. 2. In proceedings in this Court commenced on 13 February 1995 the plaintiff sought orders under section 20 of the then Defacto Relationships Act 1984 for adjustment of property. By cross-claim filed 17 July 1995 the defendant sought different orders for adjustment. 3. In the ordinary course, I would think this action would have been heard by the middle of 1997 at the latest. It is clear from the file there have been many attempts to settle it by mediation or otherwise. Nevertheless, the matter has been listed before the Registrar on twenty-four occasions and before a Master on five occasions. The costs involved in that could not possibly be justified in an action of the relative simplicity as this one. 4. At the time the relationship commenced the parties had little in the way of assets. The plaintiff had a car and some furniture and some small insurance policies. The defendant had some furniture. 5. The defendant had been married in 1965. There was a child of that marriage, Damian, who lived with the parties until he was fifteen. He was treated by the plaintiff, and, of course, by the defendant, as one of the family and the arrangements for his support were the same as for any other family member. His own father did not contribute to this. 7 6. During the relationship the plaintiff worked with the Department of Navy until 1974. From 1974 until 1977 he worked from home in a metalworking and small repair business. In 1977 that business moved to rented premises at Dee Why. Later, the plaintiff was employed by Warringah Shire Council in the bushfire section. 7. From 1992 he, in partnership with the defendant, ran an amusement vending machine business. It seems that his interest in this was 70 per cent and the defendant's, 30 per cent, at least for income tax purposes. 8. There were three children of the relationship of the parties; Mallory born 1968, Jennifer born 1977, but who died in an accident in 1988 and Catherine, born in 1985. 9. The defendant worked throughout the relationship except during the periods close to childbirth and for a period of about a year when she was studying full-time in a course at Macquarie University, which, for the most part, she attended part-time, and often during the evenings. 10. The parties pooled their earnings. From time to time the plaintiff took on additional jobs. I am satisfied that the plaintiff made substantial contributions to the relationship of a homemaker type and in caring for children while his partner was studying full-time, or on evening courses. 11. On the other hand, the defendant probably contributed more in the way of actual income to the household than did the plaintiff. She was at least an equal career and perhaps somewhat more of the children. It is not necessary or possible for the Court to balance the figures precisely. Over a long period each contributed in a reasonably equal way to the home from the point of view of income and homemaking. Small, individual differences to the joys, trials tribulations, obligations and responsibilities involved in living together in a relationship of about 27 years should not be weighed too closely in the balance. 12. During the relationship the parties in 1970 acquired a property, 65 Ashworth Avenue, Belrose. The purchase price was $23,500. The plaintiff contributed $11,000 to this with moneys, which he inherited from his mother's estate. The balance was provided by bank mortgage. In law, the interest of the plaintiff would be seventeen twenty-thirds, or something like 75 per cent. 13. Later additions were made, partly to provide accommodation for the defendant's parents, who paid for at least part of the costs of the extensions and who continued to live in them until their deaths; some of the money was obtained by way of loan for which both parties were liable. 14. An investment property at Peregian Beach, Queensland, was purchased in 1992 for $152,000, the whole of the money being provided by a bank loan secured on that property and on the Belrose home. It was sold in 1995 for about $159,000; the whole proceeds being paid in reduction of the bank mortgage. 15. It follows from this at the time the relationship ended the parties had two properties; the amusement machine business, a vehicle and some small savings. They owed money to the bank on those two houses and the business. 16. Since the relationship ended, the plaintiff has remarried. He and his wife purchased a supermarket business in Gosford, which failed. He became indebted to a supplier and gave security over his share of the Belrose property. It is accepted that this is his sole responsibility. He and his wife now live in Dubbo in rented accommodation. He is employed as a fitter machinist. 17. Apart from furniture worth about $25,000 and a vehicle under hire purchase, he has no assets, apart from his interest in the Belrose property. He pays maintenance for Catherine assessed under the Child Support Assessment Scheme of $461.08 per month. 18. The defendant has remained in their house since the relationship ended. She has been responsible for the care of Catherine. She has had since, I think, the end of 1996 a de facto partner who is self-employed and who makes some contributions to the household, but little in the way of financial contribution. 19. During this period the defendant has expended about $7000 in maintenance on the property and other outgoings and about $48,600 on mortgage payments. She would, in any event, have been responsible for one half of those. There is very little detail of the mortgage repayments, but they would cover both principal reduction and interest. There is no evidence of the repayments on the Queensland property but, as it was an investment property, it may have paid its way or gone close to it. 20. The Belrose property in November 2000 was worth about $470,000. There is no evidence of its present value. There are some items of property acquired during the relationship. While these should be taken into account in a general way, there is no dispute about their ultimate destination. 21. The metal working machinery and tools acquired for that business, which have been retained by the defendant up to date, is to go to the plaintiff. The Pajero motor vehicle is to be retained by the defendant. A cemetery plot, which is in the name of both parties, is to be transferred to the defendant. Furniture and other items in the possession of either party are to be retained by that party. 22. The defendant in her cross-claim seeks repayment of one half of the loan made to a Robin Ray in 1994 out of joint moneys, the total amount being $3000. The evidence of the plaintiff is that the loan was repaid. There is nothing to contradict this and I accept it, so that claim must fail. 23. There is a claim for return of some moneys to an account, apparently held in trust for Catherine. That claim cannot be made in these proceedings; it seems to be accepted that both parties should make up that amount. 24. In the long run, the real dispute is about the Belrose property. That has been the position since these proceedings commenced. In his Statement of Claim the plaintiff proposed that it be sold and the net proceeds shared 55 per cent to the defendant and 45 per cent to him. At that stage, the operation of the security given over the plaintiff's interest to secure a debt incurred in running the supermarket business had not come into force. The plaintiff now seeks the same proportionate shares as before, but accepts that the debt secured by the caveat must come out of his 45 per cent share, if he is to obtain that share. 25. The defendant, on the other hand, seeks the whole property, presumably subject to the mortgage, but free of the debt secured by the caveat and puts forward an alternative claim to 70 per cent of the net proceeds. 26. Had this action been tried when it ought to have been tried, I do not consider an order for adjustment would have been made more advantageous to the defendant than that sought by the plaintiff. In law, he had an interest in the property well above 50 per cent. The parties contributed more or less equally to the increase in value and more or less equally to the household upkeep and well-being and the support given by the plaintiff to Damien must be borne in mind. 27. If matters since then can be taken into account and having regard to the decisions in Evans v Marmont (1997) 42 NSWLR 70; and Williamson v Williamson (1992) 15 Fam LR 739 at 747, they probably can be, to a limited extent, to determine what is just and equitable then. 28. There is, in my view, no reason to think that the position has changed. The defendant has looked after Katherine and has had some maintenance provided by the plaintiff for this, albeit perhaps not willingly at the commencement. It is likely she will be looking after Katherine for another two years at least. 29. The defendant has lived in the home with Katherine and her new partner and has had the benefit of this and the benefit of the plaintiff leaving his equity there. For this, she has kept down the mortgage payments but, on the evidence, these are less than the rent the plaintiff is paying for his accommodation and in any event, the defendant would be required to pay one half of those outgoings. This accommodation must be taken into account if the care of Katherine is to be taken into account, as I consider it is proper to do. 30. It follows I should make orders, generally, as proposed by the plaintiff. 31. I will hear submissions on these and any submissions as to costs. 32. The exhibits may be returned. 33. I make orders in accordance with the document headed "Orders made 4.10.2001", initialled by me. **********