Giacceri v Fitsimmons [2004] NSWSC 536

New South Wales Supreme Court

CITATION : Giacceri v Fitsimmons [2004] NSWSC 536 HEARING DATE(S) : 15, 16, 17 June 2004 1 November 2004 JUDGMENT DATE : 17 December 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 101

CATCHWORDS : Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Orders for adjustment. No matter of principle. PARTIES : Giacceri v Fitsimmons FILE NUMBER(S) : SC 3488 of 2002 COUNSEL : Mr P Cummings for plaintiff Mr D.M. Loewenstein for defendant SOLICITORS : Boyd Wooi Olsen Lawyers for plaintiff Gillis Delaney Brown for defendant

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

Master Macready

Thursday 23 December 2004

3488/02 Paul Vittorio Giaccari v Leanne Fitzsimmons JUDGMENT 1 Master: This is an application for adjustment property interests under section 20 of the Property (Relationships) Act 1984 NSW. The parties lived together in a de facto relationship for a period of about eight years until they separated on 10 October 2000. The plaintiff puts the commencement of the relationship at 30 May 1992 when he says that the parties commenced cohabitation when the defendant and her children moved to live at 23 Amsdale Ave, Macquarie Hills. The defendant suggests that the relationship commenced in January 1991 when the plaintiff separated from his wife or, alternatively, in November 1991 when the purchase of the Amsdale Avenue property was completed. 2 The plaintiff and the defendant had previously been married prior to commencing their relationship. There were no children as a result of their relationship. The plaintiff was born on 6 June 1957 is now 46 years of age. He was formerly married to Jillian Sue Ace in 1980 and they separated in 1991. The plaintiff had two daughters, Rachael born 9 March 1984 and Sarah born 5 January 1989. Sarah lives with her mother and on occasions Rachael has lived with the parties as part of the household. This was from December 1996 until the parties separated. 3 The defendant had been married in 1981 and separated in 1987. She was divorced in 1990. There were two children of the marriage to her husband a Mr Maguire, Emma born on 20 September 1982 and Shaun born 16 August 1986. These children resided with the parties during the period of their relationship. 4 The plaintiff held a Diploma in Civil Engineering and for many years prior to 1991 he had worked for Allco Steel. The defendant had qualifications as an enrolled nurse have worked at Wallsend District hospital. During 1990 the plaintiff had incorporated a company Brentworth Holdings Pty Ltd ("Brentworth") through which he intended to carry on business with a partner. Unfortunately his partner died and the plaintiff commenced the business after he resigned from Allco Steel on 20 February 1992. He worked with them as a consultant for a few months until he commenced business with his new company. The defendant gave up her work after the commencement of cohabitation and came to work for the plaintiff's company as the company administrator which involved her in clerical and accounting functions. She continued working and was paid a wage from the company until January 1999. 5 The company provided funds for the defendant and funds for the plaintiff over the years until January 1999. Its accounts showed no particular profitable years although it had a substantial turnover and an administrator was appointed to the company on 13 January 1999. It ceased to trade on 29 January 1999 and there was then a scheme of arrangement which concluded in October 1999. As a result of the scheme of arrangement the secured creditor Westpac was paid in full and unsecured creditors were paid a dividend of 82 percent. The company was then deregistered. 6 The relationship between the parties deteriorated during 1999 and 2000. Neither of the parties had any productive employment after the collapse of the company and prior to their separation on 10 October 2000. The date of commencement of cohabitation