Stanley v Ward [2006] NSWSC 789

New South Wales Supreme Court

CITATION : Stanley v Ward [2006] NSWSC 789

HEARING DATE(S) : 4 and 5 October 2005, 19 April 2006

JUDGMENT DATE : 9 August 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and, if desired, for argument as to costs.

CATCHWORDS : Family Law. De facto relationship. Duration of relationship. Parties still living under same roof. Whether relationship has come to an end. Admissions on pleadings. Adjustment of interests of parties in property. Jointly owned property. Respective contributions of parties to acquisition, conservation or improvement of property and as homemaker.

LEGISLATION CITED : Conveyancing Act 1919 Property (Relationships) Act 1984

CASES CITED : Davey v Lee (1990) 13 FamLR 688

PARTIES : Anne Betty Stanley (Plaintiff) Clive Antony Phendon Ward (Defendant)

FILE NUMBER(S) : SC 1129 of 2004

COUNSEL : Mr. C. Evatt/Mr. M. Rollinson (Plaintiff) Ms. M. Bateman (4 and 5 October 2005), Mr. G. Gould (19 April 2006) (Defendant)

SOLICITORS : Carters (Plaintiff) Proctor Phair (Defendant)

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

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 9 August 2006

1129 of 2004 ANNE BETTY STANLEY –v- CLIVE ANTONY PHENDON WARD JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 By statement of claim filed on 19 January 2004 Anne Betty Stanley claims, substantively, orders adjusting the interests of the parties in respect to the proceeds of sale of and other moneys representing a house property situate at and known as 14 Kepos Street, Redfern ("the Kepos Street property") and in respect to a house property situate at and known as 105 Marriott Street, Redfern ("the Marriott Street property"), as well as in respect to the furniture, fittings and contents of the Marriott Street property and in respect to other assets of each party. 3 The statement of claim also seeks further, or alternative, relief, by way of an order that the Defendant pay maintenance for the Plaintiff pursuant to section 27 of the Property (Relationships) Act; and, further, or in the alternative, orders for the appointment of trustees for sale of the Marriott Street property pursuant to section 66G of the Conveyancing Act 1919. However, at the hearing the Plaintiff did not pursue those items of relief, and confined her claim to seeking an order that she receive a 50 percent interest in the Marriott Street property. Nevertheless, on the final day of the hearing it was stated by Counsel for the Defendant, and noted, that the Defendant consents to the relief sought in prayer 4(d) of the statement of claim (being an order for the appointment of trustees for sale of the Marriott Street property pursuant to section 66G of the Conveyancing Act). It will, however, be appreciated that the Defendant does not consent to the adjustment between the parties of the interests of the parties in the proceeds of such sale. 4 The Defendant named in the statement of claim is Clive Antony Phedon Ward. The Defendant was the registered proprietor of the Kepos Street property, which was sold in 2001. Shortly before that sale the Marriott Street property had been purchased in the names of the Plaintiff and the Defendant as joint tenants in unequal shares. I will shortly refer to the circumstances surrounding the purchase of the Marriott Street property. 5 By paragraph 1 of the statement of claim the Plaintiff alleged that at all material times since about 1 July 1997 the Plaintiff and the Defendant have lived together in a de facto relationship within section 4 of the Property (Relationships) Act 1984. By paragraph 1 of the defence filed on 18 February 2004 the Defendant admitted that allegation. The terms of paragraph 1 of the statement of claim are such that by that paragraph the Plaintiff alleges that the de facto relationship between the parties subsists to the present time. 6 Despite the admission contained in paragraph 1 in the defence, the Defendant on the first day of the hearing sought and obtained leave to amend the foregoing defence by, in effect, limiting that admission to the period from about 1 July 1997 to December 2002. Pursuant to such leave, an amended defence, to reflect that amendment, was filed on 5 October 2005. 7 To the present time both parties are still residing in the Marriott Street property. Although it was alleged in the statement of claim that the de facto relationship between the parties was still in existence at the date of that pleading, the Plaintiff in her oral evidence said that she regarded that relationship as now having come to an end. It was the case for the Defendant that the de facto relationship had ended by December 2002. 8 Nevertheless, it should be recognised that the parties, even to the date of the hearing, have maintained a social relationship. As well as residing in the same premises (although occupying separate bedchambers) the parties since December 2002 have gone on holidays together (for example, to the Philippines in November 2003, to Nelson Bay in February 2004). On occasion the Defendant brings home wine for himself and the Plaintiff to consume and videos for them to watch, the most recent such occasion being three weeks before the commencement of the hearing. Presently the parties conjointly maintain in the house, as a pet, a large canine animal of a breed known as a Rhodesian Ridgeback. 9 The Plaintiff said that at present she has mixed feeling for the Defendant, and that at present the relationship between them is strained. 10 Whilst the domestic arrangements between the parties may be regarded as somewhat unusual, especially when the parties are currently locked into litigation under the Property (Relationships) Act, nevertheless a breakdown in, or the termination of, a de facto relationship is not a prerequisite to the Court granting relief pursuant to section 20 of that Act. 11 Although the existence of a de facto relationship between the parties from about 1 July 1997 to December 2002 was admitted on the pleadings, nevertheless, somewhat curiously, evidence from a number of other witnesses was adduced by each of the Plaintiff and the Defendant, essentially to prove, or disprove, the existence of such a relationship. That evidence was largely unnecessary. 12 At the commencement of the relationship in mid-1997 the Plaintiff was employed as a property manager in a real estate agency at Burwood, where she was earning about $750 gross a week. She had the following assets and liabilities. A house property, standing on 40 acres, known as The Grange, Lot 2, Pacific Highway, Kew Half share in a house property at Laurieton Ford Laser motor vehicle Approximately $2,000 standing in an account with the St. George Bank