Penzikis v Brown [2005] NSWSC 215

New South Wales Supreme Court

CITATION : Penzikis v Brown [2005] NSWSC 215

HEARING DATE(S) : 14, 15 February 2005

JUDGMENT DATE : 18 March 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready

DECISION : Paragraph 46

CATCHWORDS : Family Law. Application under Property (Relationships) Act 1984. Application fails as relationship was between same sex partners and relationship ended before commencement of the Property (Relationships) Legislation Amendment Act 1999. - Equity - claim for a constructive trust based upon principles in Baumgartner v Baumgartner. Orders for a constructive trust.

PARTIES : Mary Pennzikis v Christine Dawn Brown

FILE NUMBER(S) : SC 2606/2001

Mr D. Alexander for plaintiff COUNSEL : Miss P. Ryan for defendant

Vagg & Reynolds for plaintiff SOLICITORS : Commins Hendriks

LOWER COURT JURISDICTION :

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

Master Macready

Friday 18 March 2005

2606/01 Mary Penzikis v Christine Dawn Brown JUDGMENT 1 Master: This is a claim for an adjustment of the parties' property interests both under the general law and the Property (Relationships) Act 1984. The parties commenced their admitted de facto relationship in September 1983, which continued on the plaintiffs account until June 1999 and on the defendants account until September 1991. A Judge of the court has referred the whole of the matter to a Master for hearing. Short chronology 2 The plaintiff was born on 19 July 1948 and the defendant on 23 September 1956. In 1981 the defendant purchased a property at 132 Gurwood Street, Wagga Wagga. The purchase price was $35,000 and the defendant borrowed the sum of $30,300 to enable her to complete the purchase.. 3 The parties met in July 1983 and commenced their relationship in September when the plaintiff moved in to the defendant's rented premises in Paddington Sydney. In March 1984 the parties moved to Wagga and resided in the defendant's property after the tenants had vacated it. 4 In February 1986 the plaintiff was arrested and charged with break enter and stealing a sizeable quantity of Grange Hermitage wine. The defendant was charged with being an accessory after the fact. The charges and their defence were a great drain on the parties' finances. Eventually the defendant was acquitted in early 1991 and the plaintiff pleaded guilty to her charges. She was fined and put on a good behaviour bond. 5 Between 1984 and September 1991 the parties lived together at Wagga except for a period of 6 months during 1986 when the plaintiff lived and worked in Sydney. In September 1991 the plaintiff left for Adelaide where she stayed until October 1992 after which she returned to Wagga. The parties then lived in the same house sharing a bed but not having a sexual relationship. This continued until March 1997 when the plaintiff returned to Sydney where she remained, except for visits to Wagga, which occurred at about monthly intervals. According to the plaintiff, after an argument on a visit commencing 20 June 1999, the relationship ended and she returned to Sydney on 24 June 1999. 6 In the year 2000 the defendant sold her property in Wagga for $215,000 netting a sum of about $154,000. These proceedings were commenced on 14 May 2001. The statutory provisions