Bilous v Mudaliar [2005] NSWSC 71

Reported Decision : (2005) DFC 95-315

New South Wales Supreme Court

CITATION : Bilous v Mudaliar [2005] NSWSC 71

HEARING DATE(S) : 13/09/04-17/09/04

JUDGMENT DATE : 18 February 2005

JUDGMENT OF : White J

DECISION : Direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons.

CATCHWORDS : Property Relationships - Contributions by the parties - Whether an adjusting order is just and equitable having regard to the parties' respective contributions and expectations of continuing relationship.

Property (Relationships) Act 1984 (Cth) LEGISLATION CITED : Supreme Court Act 1970 (NSW)

Del Gallo v Frederiksen [2000] NSWCA 293 Beattie v Read (2002) 31 Fam LR 204 CASES CITED : Davey v Lee (1990) 13 Fam LR 688 Gazzard v Winders (1998) 23 Fam LR 716

John Bilous PARTIES : v Jayanti Mudaliar & 1 Or

FILE NUMBER(S) : SC 5338/03

Plaintiff: Mr D Murr SC & A Givney COUNSEL : Defendant: Mr P Maiden

Plaintiff: The Charlestown Law Firm SOLICITORS : Defendant: Hills Solicitors

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Friday, 18 February 2005

5338/03 JOHN BILOUS v JAYANTI MUDALIAR & 1 Or JUDGMENT 1 HIS HONOUR: This is an application under s 20 of the Property (Relationships) Act 1984 (Cth) for an order adjusting interests in property of the first defendant and for consequential relief. The second defendant is a company of which the first defendant is the sole shareholder and director. Until it becomes necessary to refer to the position of the second defendant, I shall describe the first defendant as "the defendant". Introduction 2 The plaintiff is a schoolteacher by profession. The defendant is a medical practitioner. From either December 1989 or March 1990 the parties lived together in the defendant's house at 29 Hatfield Street, Merewether, a suburb of Newcastle. They lived together as de facto partners until at least Christmas of 1996 or March 1997. At Christmas 1996 the parties had an argument and the police were called. The plaintiff went to stay with friends for a short period. He later returned to the property although the parties then occupied separate bedrooms. In March 1997 he took up an offer of employment as a schoolteacher in Childers in Queensland. The parties continued to communicate by telephone regularly during his residency in Queensland. He returned to the Hatfield Street property during school holidays in 1997. In March 1998 the plaintiff returned to Merewether and again lived with the defendant in her Hatfield Street property. On 21 August 1998 the parties moved from Hatfield Street to a property purchased by the defendant at 11 Shortland Esplanade, Newcastle. On 12 August 1999 they adopted a child. The defendant contends that the parties separated on 20 July 2000, although the plaintiff continued to live in the house at Shortland Esplanade. The plaintiff left the property at Shortland Esplanade on 28 December 2001. Thereafter the plaintiff lived at 1/71 Berner Street, Merewether. That is a property of which the defendant is the registered proprietor and which she holds as trustee of a trust known as the Berner Property Trust. Whether Leave Required 3 The question of whether the parties' domestic relationship ended on 20 July 2000 or at some later time assumed some significance, because the proceedings were not commenced until 17 July 2003. The defendant contended that their domestic relationship ceased on 20 July 2000 and that accordingly the plaintiff required leave to commence the proceedings pursuant to s 18(2) of the Act. However in the course of final submissions, the defendant accepted that if leave were required for the making of the application pursuant to s 18 of the Act, leave ought to be granted. 4 In any event I am not satisfied that the de facto relationship between the parties ceased prior to 17 July 2001. Although the parties experienced difficulties in their relationship after 20 July 2000, and I can infer from their sleeping arrangements that a sexual relationship had ceased, they continued to live together as a family with their child. I do not consider that the application was out of time.