Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky) [2005] NSWSC 299

Reported Decision : (2005) DFC 95-314

New South Wales Supreme Court

CITATION : Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky) [2005] NSWSC 299

HEARING DATE(S) : 23/08/04; 24/08/04; 25/08/04; 26/08/04; 27/08/04; 24/09/04

JUDGMENT DATE : 13 April 2005

JUDGMENT OF : Nicholas J

DECISION : Paras 138, 139, 140

CATCHWORDS : De facto relationships - adjustment of property under s 20 Property (Relationships) Act 1984 - whether orders should be made to adjust property interests of the parties - matters to which the court is to have regard in making adjustments - assessment of financial and non-financial contributions to the acquisition, conservation and improvement of the property - consideration of homemaking and parenting contributions - whether loan entered into between the parties was repaid

LEGISLATION CITED : Property (Relationships) Act 1984 s 19, s 20

Green v Robinson (1995) 36 NSWLR 96 Hughes v Egger [2005] NSWSC 18 CASES CITED : Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 Mallett v Mallett (1984) 156 CLR 605 Powell v Supresencia [2003] NSWCA 195; (2003) 30 Fam LR 463

Victor Milevsky - Plaintiff PARTIES : Pamela Brenda Carson (aka Pamela Brenda Milevsky) - Defendant

FILE NUMBER(S) : SC 2457/02

P A Campton - Plaintiff COUNSEL : P J Livingstone - Defendant

Brenton Banfield Solicitor - Plaintiff SOLICITORS : Marsdens Law Group - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Nicholas J

13 April 2005

2457/02 Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky) JUDGMENT 1 His Honour: These proceedings are for the adjustment of property under s 20 Property (Relationships) Act 1984. The parties lived together in a de facto relationship for a total period of at least about fifteen years until they separated on 19 November 2001. The duration of this relationship is in issue. 2 The proceedings concern, principally, the property in which they last cohabited, No. 1 Elizabeth Henrietta Circuit, Macquarie Links (Macquarie Links) of which the parties are registered proprietors as joint tenants. Since separation the defendant has continued to live at Macquarie Links. She has been paying the rates, building insurance, electricity and telephone charges and the plaintiff has been paying the mortgage instalments and contents insurance. 3 The plaintiff seeks an order that the defendant transfer her interest in Macquarie Links to him. The defendant, by her cross-claim, seeks orders that the plaintiff transfer his interest to her clear of all mortgage debt, and for the payment of the sum of $153,054.00 on the basis that she is entitled to one half of the assets or their value at trial. 4 The plaintiff puts the commencement of the de facto relationship at January 1983 when he says cohabitation commenced and the defendant and her children moved to live at No. 44 Hoxton Park Road, Liverpool (Hoxton Park Road). He says that they lived together with periods of separation until May 1989 when the relationship ceased. He says that they resumed cohabitation in May 1993. The defendant contends that the relationship was from 1978 until May 1989, and that it resumed in December 1992. 5 It was common ground that, at least from January 1983 to May 1989, and from May 1993 until their final separation on 19 November 2001, the parties lived together in a de facto relationship. 6 The claim of each party for adjustment requires consideration of the contributions made throughout the relationship and hence it is necessary to set out some history. Chronology 7 The plaintiff was born on 1 January 1946 and is now 59 years of age. For many years he has been a property developer and salesman. The defendant was born on 14 March 1945 and is now 60 years of age. She was married to Derek Scott Carson on 26 March 1964 and the marriage was dissolved on 12 December 1977. The children of that union are Pamela Boyle born 8 January 1966, Scott Carson born 23 August 1967, and Derek Carson born 23 December 1968. 8 On 14 September 1973 the plaintiff purchased vacant land at Lot 25 Paris Parade, Katoomba for the sum of $995.00, and on 14 December 1973 he purchased Lot 8 Greens Road, Greenwell Point for the sum of $5,390.00. On 26 February 1974 he purchased vacant land at Lot 29 Genevieve Road, Bullaburra for the sum of $1,850.00. 9 In 1974 the defendant separated from her husband, and he transferred to her his interest in their jointly owned property at No. 26 Kendall Street, Campbelltown (Kendall Street). 10 On 22 March 1978 the plaintiff purchased Hoxton Park Road which was then vacant land for the sum of $17,200.00. It was paid for from part of the proceeds of the sale of his property at Moorebank, which he had bought and developed in about 1969. 11 On 10 August 1978 the plaintiff obtained a loan for the purpose of financing the construction of a house at Hoxton Park Road. Construction was completed on 30 June 1979. 12 Between 10 July and 21 July 1979 the plaintiff was a patient at the Royal North Shore Hospital, Sydney where he underwent an operation and treatment for an injury to his lower back. 13 The defendant says that cohabitation first commenced at Hoxton Park Road during 1978 when she came to live there with her children. This is denied by the plaintiff who says that although they lived together for varying periods of time in 1978 and thereafter, she did not begin to live there until July 1979 and left after a few weeks. 14 On 16 May 1980 the plaintiff purchased Lot 24 Paris Parade, Katoomba for the sum of $4,500.00. 15 In January 1983 the plaintiff says that the parties commenced cohabitation at Hoxton Park Road. 16 During 1983 the plaintiff arranged for the installation of a swimming pool, the construction of a double garage, and landscaping at Hoxton Park Road. 17 On 11 April 1983 the plaintiff purchased vacant land at North Arm Cove, for the sum of $5,950.00. 18 On 21 October 1983 a daughter, Amba, was born to the parties. 19 On 22 August 1986 Vic Milevsky Marketing Pty Limited (the company) was incorporated. The plaintiff was appointed a director and was issued with 95 A class shares and 4 redeemable preference shares. The defendant was appointed a director and secretary, and issued with one redeemable preference share. It was common ground that it is, and has always been, conducted as the alter ego of the plaintiff. It is a vehicle for the plaintiff to earn his salary as a commission salesman and is a holder of investments. It does not trade in its own right. 20 On 9 June 1987 the plaintiff purchased the property at No. 14 David Street, Wentworth falls for the sum of $12,000.00. 21 On 22 March 1988 the plaintiff purchased the property at Lot 3 Wattle Street, Colovale for the sum of $11,700.00. 22 On 11 February 1989 the defendant sold Kendall Street to her daughter, Pamela, and her husband for the sum of $60,000.00, said to be two thirds of its value and to be shared between Scott and Derek Carson. 23 In May 1989 the parties separated. The plaintiff remained living at Hoxton Park Road. The defendant and Amba went to live elsewhere. Subsequently there were proceedings in the Family Court of Australia for orders for custody of, and access to, Amba, for maintenance, and for property, and in this Court for orders for property, and in a Local Court for maintenance. 24 On 23 June 1989 the defendant's share in the company was redeemed, and she resigned as an office holder. 25 In about 1991 the defendant purchased the property at No. 16 Malloy Street, Mollymook. The details of the transaction are uncertain. 26 On 11 June 1991 the plaintiff sold Lot 29 Genevieve Road, Bullaburra for the sum of $92,000.00. He deposited the net proceeds of $80,878.87 into the company's Westpac account. 27 In December 1992, according to the defendant, the parties resumed cohabitation. This is disputed by the plaintiff who says this happened in May 1993. 28 On 21 December 1993 the plaintiff purchased the property at Lot 6 Panorama Road, St George's Basin for $75,000.00 and subsequently built a house there. 29 On 18 October 1994 one redeemable preference share in the company was transferred to the defendant. 30 On 23 November 1994 the plaintiff sold Lot 8 Greens Road, Greenwell Point for the sum of $85,000.00. The proceeds were deposited in an account of the company. 31 On 27 January 1995 the defendant sold No. 16 Malloy Street, Mollymook. 32 On 29 March 1996 the plaintiff sold Lot 24 Paris Parade, Katoomba for the sum of $110,000.00. He deposited the net proceeds of $104,326.19 into a Citibank Mortgage Power account. 33 In October 1996 the defendant deposited a termination payment in the sum of $12,200.00 into a joint St George Bank account. 34 During 1997 the parties commenced a business venture under the name "Doorcam", the funding for which was provided by the company. The venture failed and it ceased in about 1999. 35 In March 1998 the plaintiff and the defendant purchased, as joint tenants, Macquarie Links, then vacant land, for the sum of $195,000.00. The purchase was financed by funds borrowed by the plaintiff from the company. 36 On 24 March 1998 the plaintiff sold No. 14 David Street, Wentworth Falls for $137,500.00. The proceeds were deposited in an account of the company. 37 On 7 May 1998 the plaintiff sold Lot 25 Paris Parade, Katoomba for $120,000.00. 38 In July 1998 the plaintiff borrowed $300,000.00 from the company for the purpose of the construction of a home at Macquarie Links. 39 On 24 July 1998 the plaintiff sold Lot 3 Wattle Street, Colovale for $119,500.00. The proceeds were deposited in an account of the company. 40 In February 1999 the plaintiff borrowed the sum of $42,516.00 from the company to purchase furniture for the house at Macquarie Links. 41 On 11 March 1999 the defendant resigned as a director and secretary of the company. 42 On 22 March 1999 the plaintiff sold Hoxton Park Road for the sum of $242,000.00. The proceeds were deposited in an account of the company. 43 In July 2000 the plaintiff sold the property at Lot 6 Panaroma Road, St George's Basin for the sum of $385,000.00. The proceeds were deposited in an account of the company. 44 On 4 August 2000 the company purchased the property at No. 4 Mitchell Parade, Mollymook for the sum of $406,000.00. 45 On 19 November 2001 the parties separated and the plaintiff left Macquarie Links to live elsewhere. 46 On 7 December 2001 the defendant's preference share in the company was redeemed. 47 In July 2002 Amba Milevsky as trustee of the AMI Trust purchased a home unit at 2/8-10 Bigge Street, Liverpool (Bigge Street) for the sum of $330,000.00. The purchase was financed by a mortgage for $270,000.00 and a loan from the company of $60,000.00. The defendant and Amba are presently living there. The defendant controls the AMI Trust and arranged the purchase. Principles 48 The relevant provisions of the Act are: "20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties".