Gillard v Heazlewood [2005] NSWSC 806

New South Wales Supreme Court

CITATION : Gillard v Heazlewood [2005] NSWSC 806

HEARING DATE(S) : 16, 17 June 2005

JUDGMENT DATE : 12 August 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 42

CATCHWORDS : Family Law. Application under the Property (Relationsips) Act 1984 for adjustment of the parties' property interests under s 20 of the Act. Orders made. No matter of principle.

PARTIES : Brenda Rose Gillard v David Brian Heazlewood

FILE NUMBER(S) : SC 6399 of 2003

Mr D. Flaherty for plaintiff COUNSEL : Mr R.J. Brender for defendant

Wallbanks for plaintiff SOLICITORS : Sheather & Associates for defendant

LOWER COURT JURISDICTION :

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

Associate Justice Macready

Friday 12 August 2005

6399/2003 Brenda Rose Gillard v David Brian Heazlewood JUDGMENT 1 His Honour: This is a hearing of proceedings for adjustment of the parties' property interests under the Property (Relationships) Act 1984. The parties lived together in a de facto relationship for two periods, namely, from December 1994 until April 1996 and from November 1996 until final separation on 12 September 2003. There were no children of the relationship but the plaintiff's children from her earlier marriage resided with the parties. History of the relationship 2 The plaintiff had married on 21 January 1984. She and her husband purchased her parents property at 12 Bates Street Homebush in December 1991. They separated in February 1992 and orders for a property settlement were made in the Family Court in June 1993. As a result of those orders, the plaintiff was entitled to reside in the property until June 1997 when the property was to be sold. On sale of the property, the proceeds were to be divided 40% to Mr Little and 60% to the plaintiff. 3 They had three children being Andrew born 24 June 1986, Sean born 24 May 1988 and Max born 10 October 1992. 4 The parties met in March 1994 and commenced to live together at the Homebush property in December 1994. In April 1996 the defendant left the property until the parties resumed cohabitation at the property in November 1996. Although there was contact between the parties through 1996 they did not reside together in a de facto relationship. 5 In early 1997 the plaintiff and her former husband agreed that, notwithstanding the terms of the property settlement, he would transfer his half interest in the Homebush property to defendant for $50,000.00 (being a debt of the plaintiff and her husband to his parents) plus 40% of the net balance of the agreed market value. The agreed market value for stamp duty purposes was $300,000. 6 On 12 September 1997 the purchase by the defendant of the plaintiff's husband's share was completed. As a result, the parties then owned the property as tenants in common in equal shares. There were borrowings of $195,000 from the St George Bank which were applied in payment to the father of the plaintiff's former husband the $50,000 debt owed by the plaintiff and her former husband, $92,000 to the plaintiff's former husband for his share and $45,000 to the defendant's cheque account for repayment of the plaintiff's car loan and for planned renovations. $15,000 was spent discharging the car loan and the balance on improvements to the house such as a swimming pool. 7 The defendant commenced paying $1,300 by way of mortgage payments each month to plaintiff's account and this amount was paid to the mortgagee by direct debit. He ceased payments on 17 November 2000 and resumed them in April 2001. This did not cause a problem as the payments were well in advance. 8 The parties separated on 12 September 2003 and the defendant moved out in September 2004. At that time the parties agreed about the mortgage in these terms: "Note the further undertaking of the plaintiff pending final hearing she will: (a) properly maintain the building and improvements on the property and pay all outgoings in respect of the property. (b) pay to the defendant an occupation fee of $300 per week, and it shall be a sufficient discharge for that payment that she pay that sum directly to the mortgagee of the property in satisfaction of the defendant's obligation to pay the mortgage payments." The property of the parties at the commencement of cohabitation 9 The plaintiff owned a half share of the Homebush property the value of which does not appear in the evidence. By mid 1997 the property was valued at $300,000. She had furniture, which was not valued and a 1988 Magna station wagon. The plaintiff owed $25,000 to her former husband's father. 10 The defendant had the following assets at the commencement of the relationship: