Esma Fay Towle -v- John Graham Baker [2007] NSWSC 357

New South Wales Supreme Court

CITATION : Esma Fay Towle -v- John Graham Baker [2007] NSWSC 357 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 29 and 30 November 2006

JUDGMENT DATE : 18 April 2007

JUDGMENT OF : Associate Justice McLaughlin

CATCHWORDS : Family Law. De facto relationship. Relationship was of lengthy duration. Respective contributions of parties. Plaintiff's contributions as homemaker and parent. Defendant's contributions as breadwinner.

LEGISLATION CITED : Property (Relationships) Act 1984

CASES CITED : Davey v Lee (1990) 13 Fam LR 688

PARTIES : Esma Fay Towle (Plaintiff) John Graham Baker (Defendant)

FILE NUMBER(S) : SC 2250 of 2005

COUNSEL : Mr G. Rich (Plaintiff) Mr D. Lloyd (Defendant)

SOLICITORS : Stacks/ Port (Plaintiff) Donovan Oates Hannaford (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 18 April 2007

2250 of 2005 ESMA FAY TOWLE –v- JOHN GRAHAM BAKER JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 The proceedings were instituted by statement of claim filed by the Plaintiff, Esma Fay Towle, on 1 April 2005, naming John Graham Baker as Defendant. By that pleading the Plaintiff claims relief, pursuant to section 20 of the Act, adjusting the interest of the parties in property. 3 It was not in dispute that the Plaintiff and the Defendant had been in a de facto relationship from 1982 until about 5 October 2004. 4 The Plaintiff was born on 16 March 1941, and is presently aged 66. The Defendant was born on 27 April 1947, and is presently aged 59. 5 No children were born to the relationship between the parties. However, the Plaintiff had four children from her marriage (which came to an end in about 1982, although she and her husband did not divorce until December 1987). Her youngest child, Troy, was a member of their household for ten or eleven years. The Defendant had three children from his marriage (which also came to an end in 1982). Those children on occasion stayed for varying periods with their father whilst he was in the relationship with the Plaintiff. 6 At the time of the commencement of the de facto relationship in 1982 the Plaintiff was residing in a residential flat located at 14 Warlters Street, Wauchope, for which she was paying rent of $73.22 a fortnight. That flat was one of two flats in a building owned by the Defendant, who at the time was residing in a residential property at Port Lane, Wauchope. Apparently, the Plaintiff, when she moved into the Warlters Street flat, was not aware that it was owned by the Defendant, with whom she had earlier become acquainted whilst she was still married to her husband. After her separation from her husband the Plaintiff was subsisting on social security benefits. 7 According to the Plaintiff, about three months after she moved into residence in the Warlters Street flat the Defendant and his wife separated, and the Plaintiff and the Defendant then commenced a relationship. The Defendant throughout that period was residing in the flat (also owned by the Defendant) which adjoined that occupied by the Plaintiff. Apparently, it was possible for the two flats to be converted into a single residential unit. Such a conversion was effected about six months after the Plaintiff and the Defendant commenced their relationship. The Plaintiff said that for a few months after they moved in together she continued to pay rent to the Defendant. However, once they were living together the Plaintiff ceased to receive social security benefits. She then had no income, and all household bills were then paid by the Defendant. 8 At the time of the commencement of the relationship the Plaintiff owned a Toyota Corolla motor car and the household furniture and furnishings in her flat. She said that the Defendant owned no household furnishings other than a washing machine, and that he had very little in the way of clothing or bed linen or towels. 9 The parties remained in the Warlters Street residence until about November 1991, when for a price of $200,000 they conjointly purchased a house property situate at and known as 13 Yippen Creek Road, Wauchope (to which I shall refer variously as "Yippen Creek" and "the Yippen Creek property"). That property had an area of five acres (containing two paddocks) upon which stood a four bedroom residence. The Defendant agreed with the Plaintiff's assertion that the Plaintiff, who enjoyed gardening, established the garden at Yippen Creek. However, the Defendant said that most of the plants purchased by the Plaintiff were charged to the Defendant's credit card, which he ultimately paid of by monthly instalments from his own financial resources. The parties resided upon that property from about November 1991 until 5 October 2004, when the de facto relationship came to an end and the Defendant vacated Yippen Creek. 10 The Yippen Creek property was purchased by the parties as tenants in common, the Plaintiff as to one quarter share and the Defendant as to three quarter shares. The Plaintiff said that she became aware of the nature of that co-ownership only after the de facto relationship between herself and the Defendant came to an end. She said that she did not recall discussing this unequal interest with the solicitor who acted upon the purchase and neither did she recall meeting with that solicitor. The Defendant said that their respective interests in the property were discussed between themselves and with their solicitor at the time of the purchase. 11 The purchase of Yippen Creek for $200,000 was funded by a cash advance of $26,000 provided by the Plaintiff, a borrowing of $170,000 (secured by mortgage) from the State Bank/ Rural Bank, and the balance of at least $4000 (probably considerably more, to take account of stamp duty ($6117) and legal costs and associated expenses (about $3000)) being provided by the Defendant. 12 After the Plaintiff and the Defendant moved into Yippen Creek the Defendant rented out one of the flats in the Warlters Street property (which was again divided into two flats), and his son Scott resided in the other flat for several months. After Scott's departure the Plaintiff said that she cleaned that flat, and it would appear that the Defendant then rented out both flats. On occasion the Plaintiff collected the rent money from the tenant of one of those flats.