Koch v Hackney [2005] NSWSC 328

New South Wales Supreme Court

CITATION : Koch v Hackney [2005] NSWSC 328

HEARING DATE(S) : 4,5,6, April 2005 11,12,13, July 2005

JUDGMENT DATE : 4 August 2005

JURISDICTION : Equity Divison

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : FAMILY LAW - De facto Relationships - orders sought pursuant to s 20 of the Property (Relationships) Act 1984 - treatment of loans by parents of one of the parties - orders made.

PARTIES : Meredith Anne Koch v Peter Wayne Hackney

FILE NUMBER(S) : SC 4188 of 2003

Mr R Schonell for plaintiff COUNSEL : Mr T Sullivan for defendant

Christopher Hughes & Associates for plaintiff SOLICITORS : Budd & Piper for defendant

LOWER COURT JURISDICTION :

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

Associate Justice Macready

Thursday 4 August 2005

4188/2003 Meredith Anne Koch v Peter Wayne Hackney JUDGMENT 1 His Honour: This is an application under the Property (Relationships) Act 1984 (NSW) (the Act) for the adjustment of the parties' property interests under s 20 of the Act. The parties lived in an admitted de facto relationship from April 1987 until August 2001. There are two children of the relationship, namely, Callum Meredith Koch Hackney born on 24 May 1991 and Lachlan Meredith Koch Hackney born 20 May 1997. A short chronology of the relationship 2 The plaintiff was born on 15 November 1964 and the defendant on 12 March 1963. As I have mentioned the relationship commenced in April 1987 at which time the plaintiff was working as a teacher and the defendant was working in various casual jobs. 3 With the approach of their first child the parties traded in their then respective cars and purchased a land cruiser. At this time the plaintiff's father discharged the mortgage over the plaintiff's home, as according to him, he did not want her to be worried about repayments with the approaching birth of her child. The amount paid was $31,965.54. Callum was born on 24 May 1991 4 In 1992, the plaintiff realised an investment she owned at the commencement of cohabitation for $3,000. The balance of the shares was sold on 5 July 1993 and realised the sum of $16,143. The funds were used for the parties' joint purposes. 5 On 24 July 1992, the parties purchased vacant land at Tumbulgum in New South Wales for the sum of $192,140. The sum was funded entirely by the plaintiff's parents. The characterisation of the basis on which these funds were provided is, like other amounts, the subject of some dispute in the case. 6 In March 1994, the plaintiff sold her house at Driver for $182,780 and the sale proceeds were paid to plaintiff's parents in partial discharge of the alleged loan. The parties moved to their new property and lived in a caravan and a shed on the property pending building a house. They commenced construction of the house soon thereafter using funds provided by the parents of the plaintiff. The funds were in the order of $370,000 and their characterisation is a matter of dispute. 7 In October of 1995, the plaintiff cashed in her superannuation entitlements and received the sum of $5,569.25 which she applied to the construction of the home. In December 1995, the plaintiff received an inheritance in the sum of $17,000 which was applied to the construction costs of the home. 8 In 1996 the parties commenced a livestock partnership which raised stock on their property. The parties moved into the house in November 1996. 9 The parties' son Lachlan was born on 20 May 1997. 10 In September 1998, the Koch Hackney Family Trust was established. The trustee of the trust became Callach Pty Ltd. In May 1999, the plaintiff and defendant purchased in their joint names, a property at 24 Buena Vista Drive, Bilambil Heights for the purposes of undertaking a Child Care Centre. The purchase price was $450,000. Callach Pty Ltd as Trustee for the Trust purchased the childcare centre business located on the said land. The cost of purchase was funded by a mortgage advance in the sum of $500,000 from the ANZ bank and a loan from plaintiff's parents in the sum of $37,500. 11 The plaintiff returned to fulltime employment in May 1999 and in June 1999 the defendant commenced working fulltime for the Tweed Shire Council. The parties separated in August 2001. The parties' property at the commencement of the relationship 12 The plaintiff had the following assets at the commencement of the relationship: