Bonnici v Bonnici [2003] NSWSC 1148

Reported Decision : (2003) DFC 95-277

New South Wales Supreme Court

CITATION : Bonnici v Bonnici [2003] NSWSC 1148 14, 15, 15 July 2003 HEARING DATE(S) : Application to reopen 29/07/03, 21/08/03 Judgment reserved 03/09/03 JUDGMENT DATE : 5 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION :

CATCHWORDS : Family Law. Applicaion under Property Relationships Act for adjustment of property interests. Consideration of how losses should be taken into account. Sharing of obligations one partner has undertaken to make provision by his will to redress losses incurred during the relationship. Deputy Commissioner of Taxation v Moorebank Pty ltd (1987-1988) 165 CLR 56 Norbis v Norbis (1986) 161 CLR 513 Marriage of Browne and Greene 25 Fam LR 482 Marriage of Kowaliw (1981) FLC 91-092 CASES CITED : Evans v Marmont (1997) 42 NSWLR 70 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Commonwealth v Verwayen (1990) 170 CLR Trident General Insurance v McNeice Bros (1988) 165 CLR 107 Ramage v Waclaw (1988) 12 NSWLR 84 PARTIES : Patricia Mary Bonnici v Martin John Bonnici FILE NUMBER(S) : SC 1014/02 COUNSEL : Mr M Broun QC for plaintiff Mr P. Blackburn-Hart for defendant SOLICITORS : Broun Abrahams for plaintiff Kelvin Solari for defendant

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

Master Macready

Friday 5 December 2003

1014 of 2002 PATRICIA MARY BONNICI v MARTIN JOHN BONNICI JUDGMENT 1 MASTER: This is an application under the Property (Relationships) Act 1984 (the Act) in which the parties seek adjustment in respect of their property pursuant to s 20 of the Act. The parties commenced cohabitation in mid September 1985 and continued to live together, except for a brief period of separation from 21 May 1991 to 22 August 1991, until they separated on 12 April 2001. There is no dispute about the existence of the relationship and these proceedings concern the adjustment of the property interests of the parties. Their main asset at the conclusion of the relationship was a property at 10A Wiltshire Avenue, Cronulla. 2 Although there was a break in the period of the relationship for a short time it is appropriate to have regard to the parties' contribution to the relationship both before and after that period. See Jones v Grech [2001] NSWCA 208. 3 There are two children of the relationship, namely, Nathan Adrian Bonnici born on 11 May 1986, currently 17 years of age and Justine Lyndall Bonnici born 1 March 1989, currently 14 years of age. 4 Immediately prior to separation on 12 April 2001 the parties and their children lived at the property at Wiltshire Avenue, Cronulla which was a three bedroom townhouse. On separation the plaintiff and Justine moved to reside in rental accommodation at Flat 15, 29 Tulembah Road, Cronulla while the defendant and Nathan remained at Wiltshire Avenue for a short period of time before moving to another property. Chronology of events during the relationship 5 The defendant was born on 17 August 1953 and is now 50 years of age. The plaintiff was born on 23 May 1955 and is now 49 years of age. The defendant's mother who owned the home in which the parties lived in a granny flat at the commencement of their co-habitation was born on 14 January 1925. In September 1985 the parties commenced to live together in the two-bedroom granny flat at the defendant's mother's residence at 70 Orchard Road, Bass Hill. The building was described in the evidence as a granny flat but in fact it was a freestanding building. At the commencement of the relationship the defendant was completing a TAFE course to become a licensed builder. He already had skills in bricklaying and carpentry and was at college for some three years getting his qualifications which he eventually obtained in February 1986. 6 At the commencement of the relationship Woolworths Limited employed the plaintiff as an administrative clerk. She continued that employment until she stopped working in April 1986 as a result of the approaching birth of her son, Nathan. She went back to work in mid 1987 on a part-time basis until February 1989 when she stopped work immediately before the birth of her daughter, Justine. Thereafter she did not return to work as she was looking after the children until 1994. 7 In May 1989 the State Bank made the first advance to the defendant in respect of a project in which he was engaged for the Housing Commission at Kingswood. The project was the construction of seventeen units and he obtained a facility of $165,000 by way of overdraft which was secured on his mother's property at Orchard Road. The bank also gave a guarantee in favour of the Department of Housing for $68,150. 8 The construction of the project at Kingswood was subject to a number of delays and difficulties. In October 1989 the facilities were extended to 30 June 1990 due to delays in the project. 9 In February 1990 the plaintiff commenced the project at 10 Wiltshire Avenue, Cronulla. He had intended to purchase the site and develop it but he was introduced to a purchaser, a Mr and Mrs Stevens, who joined in the project. As a result both bought it and the defendant constructed two townhouses on the site and subsequently sub-divided them. After adjustments each partner took one of the townhouses. 10 In April 1990 the plaintiff's mother died. As a result of her death the plaintiff ultimately received a distribution of $39,117.88 in November 1990. Prior to that time, in August 1990, she had purchased a 1990 Mazda 626 for $26,000 from her savings and moneys repaid to her by her sister. 11 It is not clear when the project at Kingswood was completed but it was some time in 1991. It seems clear that the defendant was experiencing financial difficulties from at least July 1991. As I have mentioned there was a separation between the parties between May and October 1991. 12 In June 1991 the overdraft facilities were increased by $35,000 to allow the defendant to complete the project at Wiltshire Avenue. The facilities were also extended to 30 June 1991 to enable completion of that project. 13 The financial difficulties having become apparent to the defendant he told his mother that it was likely that the bank might foreclose on her property. This led to an arrangement whereby the defendant constructed the granny flat (which is also detached from the main building) on his sister's property at Meakins Road. 14 In April 1992 the parties and their children moved into 10A Wiltshire Avenue, Cronulla and the defendant's mother moved to the granny flat which had been completed at Meakins Road. The last debit to the overdraft account of the defendant with the State Bank, when the bank called on the guarantee, was made in August 1992. 15 The bank sold the defendant's mother's property at auction on 12 December 1992 for $250,000. At that state the amount owing was in excess of $269,865. Settlement of the sale occurred on 5 February 1993. At that stage there was a debit balance of some $50,337. This increased with the defendant apparently at some stage making a settlement with the bank whereby he paid them some sum slightly in excess of $20,000. 16 In or about 1992 the defendant had a discussion with his mother about the likely foreclosure by the bank over her property. She accused him of using the loan to pay for the Cronulla property. In response the defendant said that he told his mother that he would repay the money for the house and build a granny flat at his sister Teresa's place for his mother to live. His mother anticipated that the interest on the funds due to her would support her activities at the local club. Shortly before the sale of the house arrangements were made with the defendant's sister Theresa and the defendant built the granny flat on her property. His mother then moved into the granny flat. 17 In 1993 or 1994 the defendant said he had another discussion with his mother when she expressed concerns about her gambling habits and losing money at the club and on the horses. His mother suggested to him that the defendant should leave the money in Cronulla to his sisters in equal shares. To this the defendant agreed. He says he occasionally paid his mother other sums but that these were by way of gift. At the commencement of the hearing the deceased's mother was suffering from dementia and was unable to give evidence and accordingly the only evidence of these matters is that of the defendant. It is to be noted that these promises made by the defendant were not conveyed by him either to his sisters or to the plaintiff in these proceedings, his de facto partner. 18 Between 1994 and 1997 the plaintiff was employed by Brambles. She was then employed between two and four days a week. From 1998 to the end of cohabitation she continued that employment with that company and later Chubb Securities for 30 hours a week. 19 Prior to separation in April 2001 the defendant gave the plaintiff $6,240 to cover rent for six months for her and Justine and the parties moved, as I have earlier recounted. In September 2001 the defendant and Nathan moved to a property at 450 Princes Highway, Blakehurst. These premises were ones which had been constructed by the defendant as one of his property ventures with a partner, a Mr Khoo. 20 Having moved out the defendant rented 10A Wiltshire Avenue to Mr Kevin Solari his solicitor in these proceedings. 21 In June 2002 the defendant started living with Mrs Penelope Russell and her son at 450 Princes Highway, Blakehurst. They had commenced their relationship some six months or so beforehand although they had known each other many years earlier. 22 In December 2002 Mrs Russell and the defendant purchased the property at 450 Princes Highway, Blakehurst from Mr Khoo. The purchase price was $1,270,000. Mrs Russell provided one half of the purchase price, the whole of the stamp duty and legal expenses. The other half of the purchase price was left outstanding as a mortgage back and the arrangement between Mrs Russell and the defendant was that he would repay that loan. Plaintiff's assets at the commencement of cohabitation 23 At the commencement of cohabitation the plaintiff had a 1976 VW motor vehicle worth $3,300. She had some furniture, furnishings and personal effects and cash of $2,985.31. She had an interest in the Woolworth's Staff Superannuation Scheme worth $7,142. The defendant's assets at the commencement of cohabitation 24 The defendant says that he had cash on hand in an amount of between $7,000 and $10,000, a utility worth $5,000, furniture, personal effects estimated at $3,000, tools of trade worth $3,000 and trade debtors totalling about $20,000. Plaintiff's assets at conclusion of the relationship 25 At the conclusion of the relationship the plaintiff had the following assets: Assets Estimated Value 1990 Mazda 626 motor vehicle $4,200.00 Commonwealth Bank account no.10171354 $8,716.00 Police Credit Union account no.61778 S3 $690.00 Police Credit Union account no. 61778 S1 $10,528.00 St George passbook account no. 014551090 $5,979.00 Brambles share options Nil Care Super (superannuation entitlement) $9,161.00 Furniture, furnishings and effects E$2,500.00 NRMA shares (615) (E$2.80) $1,722.00 Coin collection Not known