Murphy v Mimram [2008] NSWSC 679

New South Wales Supreme Court

CITATION : Murphy v Mimram [2008] NSWSC 679

HEARING DATE(S) : 17 and 18 June 2008

JUDGMENT DATE : 4 July 2008

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Order for adjustment in favour of the plaintiff.

CATCHWORDS : DE FACTO RELATIONSHIPS – Section 20 Property (Relationships) Act 1984 – claim for adjustment of property interests – real estate only joint asset – contributions as homemaker where both parties worked and children of household children of one party only

LEGISLATION CITED : Property (Relationships) Act 1984

CATEGORY : Principal judgment

CASES CITED : Howlett v Neilson [2005] NSWCA 149

PARTIES : Philip Gregory Murphy (Plaintiff/Cross Defendant) Susan Leslie Mimram (Defendant/Cross-Claimant)

FILE NUMBER(S) : SC 2996 of 2007

COUNSEL : M B Evans (Plaintiff/Cross Defendant) G Gould (Defendant/Cross Claimant)

SOLICITORS : O'Brien Lawyers (Plaintiff/Cross Defendant) Briggs and Associates (Defendant/Cross Claimant)

- 18 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SYDNEY REGISTRY

Windeyer J

FRIDAY 4 JULY 2008.

2996/07 Philip Gregory Murphy v Susan Leslie Mimram JUDGMENT 1 This is a claim and cross claim under section 20 of the Property (Relationships) Act 1984 (the Act). 2 The plaintiff, Philip Gregory Murphy (Philip) was born on 28 March 1959 and is now aged 49 years. The defendant, Susan Leslie Mimram (Susan) was born on 30 September 1952 and is now aged 55 years. 3 Philip and Susan lived in a de facto relationship from about June 1989 until 20 November 2006. They had no children together. At the commencement of co-habitation, Susan had two children from a previous relationship living with her, Gabrielle Mimram born 28 June 1982 and Sacha Mimram born 11 May 1984, aged 7 and 5 respectively. Philip, Susan and her children Gabrielle and Sacha lived together until Gabrielle moved out in or around June 2003 and Sacha moved out in or around October 2006. 4 In claims for adjustment of property interests under section 20 of the Property (Relationships) Act 1984 it is necessary to establish the assets of the parties at the commencement of the relationship; the assets acquired during the relationship and by whom; the assets of the parties at the end of the relationship; and contributions of each party to the acquisition, improvement and conservation of the separate or joint property. The third step is sometimes said to be the first: Howlett v Neilson [2005] NSWCA 149, but all are necessary. Assets at Commencement of the Relationship 5 There was substantial agreement between the parties as to the assets owned by each party at the commencement of the relationship in June 1989. 6 Philip was the sole registered proprietor of a property at 39 Allen Street, Leichhardt (the Leichhardt property). He had purchased the property on 22 January 1988 for a consideration of $122,000. He paid the deposit of $32,000 from his own money and borrowed the balance of the purchase moneys amounting to $90,000 from the Australia and New Zealand Banking Group Limited (ANZ Bank). The loan was subject to an interest rate of 6%, which was lower than the prevailing market interest rate, because Philip received a discounted home loan as a staff benefit for working for the ANZ Bank. 7 The value of the Leichhardt property at the commencement of the relationship is not agreed. It was purchased on 22 January 1988 for $122,000 and sold in or about November 1993 for $268,500. Susan acknowledged in cross-examination that by June 1989, when the relationship commenced, Philip had already completed the major structural renovations such as demolition of existing walls and construction of a new kitchen, family room, bathroom and laundry. Susan assisted Philip in completing minor work such as internal painting, carpeting and decoration. As I will explain the parties agreed in September 1991 on a value of $230,000. On that basis I find the value at the commencement of the relationship to be about $200,000. 8 Philip owned furniture and effects which he estimated were worth approximately $5,000. I accept that figure. It is supported by Susan's evidence of the items of furniture. 9 There is dispute as to whether Philip owned a motor vehicle. He said that he owned a 1981 Toyota Corona motor vehicle worth approximately $6,000. Susan said that at the commencement of the relationship Philip owned no motor vehicle and that she lent Philip $2,000 to help him purchase the 1981 Toyota Corona. There was no cross-examination of either party on this matter. In a long relationship such as this I consider it can be disregarded. 10 At the commencement of the relationship Susan had the following assets: