Hull v Eather [2005] NSWSC 59

New South Wales Supreme Court

CITATION : Hull v Eather [2005] NSWSC 59

HEARING DATE(S) : 03.02.04 04.02.05

JUDGMENT DATE : 16 February 2005

JURISDICTION : Equity

JUDGMENT OF : Acting Master Berecry at 1

DECISION : See paragraph 69

CATCHWORDS : De facto relationship - Factors to be considered in respect of adjustments - Balancing contributions of both parties - Contributions in respect of children brought in by one party.

LEGISLATION CITED : Property (Relationships) Act 1984

Evans v Marmont (1997) 42 NSWLR 70 Dwyer v Kaljo (1992) 27 NSWLR 728 CASES CITED : Stanford v Wallace (1995) 37 NSWLR 1 Powell v Suprasencia (2003) NSWCA 195

Kenneth David Hull PARTIES : Sharon Deborah Eather

FILE NUMBER(S) : SC 4140.02

R Druitt COUNSEL : S Stewart

Karen L Haga & Associates, Castle Hill SOLICITORS : Lili Bulyk, Pitt Town

LOWER COURT JURISDICTION :

- 25 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

A/MASTER BERECRY

16 February 2005

4140.02 Kenneth David HULL v Sharon Deborah EATHER JUDGMENT The application: 1 CORAM: The plaintiff and the defendant resided together, although not married, for a period from approximately December 1994 or January 1995 until November 2001. Both parties brought assets to the relationship, and both parties contributed, financially and non financially, to the relationship. During the course of the relationship, the parties purchased a residential property at Castle Hill. At the end of the relationship, both parties resided in the Castle Hill property. Subsequently, that property was sold and the net proceeds of sale were held in an account controlled by Messrs Ian Bullock Partners, solicitors. 2 On 21 August 2002, the plaintiff commenced proceedings by statement of claim seeking an adjustment pursuant to s20 of the Property (Relationships) Act 1984. The plaintiff claims, inter alia, an order that "both parties forthwith sign all necessary documents, instruments, writings and things, to authorise and director Messrs Ian Bullock Partners to apply and disburse the net proceeds of sale as to 60% to the plaintiff and 40% to the defendant". 3 On 14 October 2002, the defendant filed a defence and a cross claim. The cross claim pleads matters of a similar nature to those pleaded in the statement of claim. The cross claimant seeks, inter alia, seeks an order that both parties forthwith sign all necessary documents, instruments, writings and things, to authorise and direct Messrs Ian Bullock Partners to apply and disburse the net proceeds of sale, together with interest thereon, of the Yaringa Road, Castle Hill property, as to 75% to the cross claimant and 25% to the cross defendant". Background: 4 Prior to residing together, both parties had been married. The plaintiff had two daughters by his earlier marriage and, at the date the parties commenced cohabitation, he was paying maintenance in respect of his younger daughter. That position continued until the end of 1995. The defendant, during her marriage, lived at Moree with her husband and two sons. The plaintiff and his wife owned and resided in a property at West Pennant Hills. The defendant and her husband owned and resided in a property in Moree. That property was unencumbered. 5 The parties met towards the end of 1993 and, throughout 1994, met one another and communicated via the telephone. In late 1994, it was decided that they would cohabit. The defendant placed her Moree property on the market and moved to Sydney with her two children to reside with the plaintiff. 6 They rented a property at Crestwood. There was some dispute concerning the commencement of the relationship however, having regard to the fact that both parties' assertion is within six to eight weeks of the other, and as nothing turns on when the relationship commenced, the starting date is immaterial. The defendant has put on evidence that established that the electricity account for the Crestwood property commenced in January 1995. That is not conclusive evidence that the relationship commenced in January 1995, however in the absence of any other evidence, it seems that in all probability, the parties commenced living together in January 1995. 7 Prior to commencing cohabitation, the defendant was employed in Moree. On coming to Sydney, she gave up her employment in Moree and, for a period of two to three months, was unemployed. 8 The plaintiff was employed prior to, and at the commencement of, the relationship. He conducted his own business under the name of Ken Hull Electrical Services. The plaintiff remained in employment throughout the relationship. 9 The defendant also appears to have been in employment for the majority of the relationship. After her initial period of unemployment, she obtained temporary employment with Drake Services and ultimately obtain full time employment, and continued that with various employers throughout the course of the relationship. Assets at the commencement of the relationship: 10 On commencement of the relationship, the plaintiff had the following assets: