Merkuloff v Yalisheff [2005] NSWSC 105

New South Wales Supreme Court

CITATION : Merkuloff v Yalisheff [2005] NSWSC 105

HEARING DATE(S) : 21, 22, 23 February 2005

JUDGMENT DATE : 14 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraphs 63 - 65

CATCHWORDS : Family Law. Application for adjustment of the parties' property interests under s20 of the Property (Relationships) Act 198A. No matter of principle.

PARTIES : Vladimir Merkuloff v Taisia Yalisheff & Anor

FILE NUMBER(S) : SC 5797 of 2003

Mr B. Ralston for plaintiff COUNSEL : Mr M. Kearney for defendant

Barwick Boitano for plaintiff SOLICITORS : The Argyle Partnership for defendant

LOWER COURT JURISDICTION :

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

Master Macready

Thursday 14 April 2005

5797/03 Vladimir Merkuloff v Taisa Yalisheff and VAT Engineering Services Pty Ltd

JUDGMENT 1 Master: This is the hearing of proceedings for inter alia property adjustment under s 20 of the Property (Relationships) Act 1984. The parties were in a de facto relationship for some 8 years. They now agree that the relationship commenced in January 1994 and finished in August 2002. There were no children of the relationship. The second defendant is a company which the parties incorporated for various reasons related, inter alia, to consulting work that the plaintiff undertook after his retirement. The defendant now owns the company. A Judge of the court has referred the whole of the proceedings to a Master for hearing. 2 The plaintiff was born on 16 July 1939 and the defendant on 12 August 1941. At the commencement of the relationship the plaintiff was in receipt of a Newstart allowance and the first defendant was employed as the Deputy Principal of Prairie Vale Public School. At the commencement of the relationship the plaintiff moved from his unit at Cabramatta to live with the first defendant in her home at Auburn. The parties lived there for about 3 years. They then moved to live in one of the two properties they had built at Sanctuary Point and remained there until the conclusion of the relationship. 3 The second defendant was incorporated in September 1994. In October the plaintiff worked as a consultant through the second defendant for the Water Resources Commission. This continued until August 1995 and the second defendant paid the plaintiff a salary. Such payments continued until October 1997. He did not work thereafter. The first defendant continued working in her position as deputy principal until she retired in December 1996. The property of the parties at the commencement of the relationship. 4 The plaintiff had the following assets at the commencement of the relationship:- 1. Bribie Island unit the value of which does not appear in the evidence. 2. Cabramatta unit the value of which does not appear in the evidence. 3. Ford Falcon station wagon $600. 4. Savings – Credit Union $3,645.03. 5. Furniture, household appliances and moveables $1,000. 6. Superannuation – State super the amount of which was not in evidence. 5 The plaintiff also claimed to have a sum of $30,000 in cash at the time of commencement of the relationship. The first defendant denied this. I do not accept the plaintiff on this aspect of his evidence. It was never mentioned in his affidavits and seems to be an opportunistic attempt to improve his case. 6 The plaintiff had a mortgage secured against Bribie Island in the sum of $30,458.23. 7 The first defendant had the following assets at the commencement of the relationship: - 1. 4/9 Interest in 14 Carnegie Street, Auburn the value of which does not appear in the evidence. 2. Villa at Westmead the value of which does not appear in the evidence. 3. Holden Commodore motor vehicle $13,800. 4. Vacant land at Heritage Estate the value of which does not appear in the evidence. 5. Furniture, personal effects and personalty $10,000. 6. State superannuation the amount of which does not appear in the evidence. 7. Savings $14,179. 8. Long service leave entitlement approx $51,500. 8 The first defendant had a mortgage secured against her Westmead Villa of $79,442.38. She also had a loan from her son Victor of $15,000. Property dealings during the course of the relationship 9 It was the plaintiff who first realised his property and superannuation to fund the purchase and development of the parties' various properties. The first defendant subsequently realised her superannuation after her retirement in 1996. 10 In May 1994 the parties purchased land at Frederick Street, Sanctuary Point in the name of the first defendant for $34,200 financed by way of a $29,000 loan in the name of the first defendant against her Westmead Villa, $5,200 paid by the first defendant from her savings and $1,200 paid by the plaintiff. Subsequently, the parties arranged for the construction of two homes and then the sub-division of the property at a total cost of approximately $189,375.87. 11 In June 19994 the plaintiff sold his Cabramatta unit for approximately $83,000 receiving net sale proceeds of $82,326.92 which was applied as follows:- 1. Discharge of the mortgage secured against Bribie Island in the amount of $25,910.25. 2. Deposits to his bank accounts totalling $22,416.92. 3. Deposit of $20,000 to the first defendant's bank account in reimbursement of funds extended on behalf of the plaintiff on the Frederick Street property. 4. Payment of $14,000 to the first defendant to compensate the plaintiff for the $29,000 she had borrowed for the Frederick Street land. 12 In October 1994 the plaintiff commenced his consulting work as I have earlier mentioned. Also in that month he purchased vacant land at Kenneth Street Sanctuary Point for $35,000. 13 On 11 October 1994 the plaintiff withdrew his superannuation entitlement in the amount of $128,575.11. He applied it as follows: