Parsons v Storm [2009] NSWSC 166

New South Wales Supreme Court

CITATION : Parsons v Storm [2009] NSWSC 166

HEARING DATE(S) : 11 and 12 March 2009

JUDGMENT DATE : 12 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 12 March 2009

DECISION : Judgment for the Defendant on substance of Statement of Claim and on Cross Claim.

CATCHWORDS : PROPERTY RELATIONSHIPS – Parties in de facto relationship contributed equally to acquisition of residence – title in names of both as joint tenants – no agreement or common intention after separation as to how property should be dealt with – circumstances of parties equal. - HELD: No reason to adjust property rights under s 20 Property (Relationships) Act 1984 (NSW).

LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) – s 14(1), s 15(1), s 15(2), s 17(1), s 18(2), s 20

CATEGORY : Principal judgment

- Baker v Towle [2008] NSWCA 73 - Beavan v Fallshaw (1992) 15 Fam LR 686 CASES CITED : - Bilous v Mudaliar (2006) 65 NSWLR 615 - Kardos v Sarbutt [2006] NSWCA 11 - Paino v Paino [2006] NSWSC 218

PARTIES : Christopher Leo Parsons (Plaintiff) Ann Louise Storm (Defendant)

FILE NUMBER(S) : SC 1027/06

COUNSEL : A.D.B. Fox (Plaintiff) M.J. Watts (Defendant)

SOLICITORS : Blanchfield Nicholls Partners (Plaintiff) Ireland Lawyers (Defendant)

PALMER J.

1027/06 Parsons v Storm

JUDGMENT – Ex tempore

12 March, 2009

1 The Plaintiff and the Defendant lived in a de facto relationship between about May 1995 and January 2000. There were no children of the relationship. The parties brought to their relationship assets of about equal value. They were both employed and had about the same income. They contributed equally to their living expenses. 2 In 1995, after they had commenced their relationship, they purchased as joint tenants a residential property at Botany in which they lived. They borrowed jointly to finance the purchase and by the time the relationship came to an end they had contributed equally to mortgage repayments and other expenses relating to that property. They agree that their contributions to the equity in the Botany property are approximately equal. 3 When the parties' relationship ended in early 2000 they endeavoured to reach an agreement about the disposition of the Botany property. They obtained a real estate agent's valuation which put the property at $700,000. On that basis, their nett equity was then about $503,000. The Plaintiff says that they reached an informal agreement to the effect that he would purchase the Defendant's half interest in the property for a little more than half the value of the nett equity, i.e. $260,000. 4 The Plaintiff says that, by 26 June 2000, the Defendant had received the sum of $251,800 which is almost exactly the amount which she ought to have received. 5 No document evidencing the agreement was signed and neither party did anything to transfer title to the property into the Plaintiff's sole name. 6 In May 2003, the Plaintiff sold the property for $1,210,000. The Defendant denied that an agreement for sale of her interest had been concluded and she required an accounting of the proceeds of sale on the basis that her equity in the property remained at fifty percent. As a result of this dispute the balance of the proceeds of sale, after certain payments out, was retained in a controlled monies account. However it was not until January 2006 that the Plaintiff commenced these proceedings. 7 The Plaintiff concedes that the alleged agreement between the parties is not expressed, that it is not evidenced in writing, that there are no unequivocal acts of part performance, no unequivocal representations by the Defendant, and that no estoppels arise. Mr A. Fox of Counsel, who appears for the Plaintiff, concedes that the alleged agreement is not enforceable either at law or in equity. The Plaintiff therefore invokes s 20 of the Property (Relationships) Act 1984 (NSW) seeking an order for the adjustment of the parties' interests in the property, now represented by the proceeds of sale, so as to effect the alleged agreement. 8 The Defendant has filed a Cross Claim seeking a declaration that the property was held for the parties equally and an order that there be an accounting between the parties of the proceeds of sale upon that basis. 9 The parties agreed that their de facto relationship ceased in January 2000, so that the Plaintiff requires leave under s 18(2) of the Act to bring these proceedings. The Defendant formally opposes the granting of leave. 10 Under s 18(2) the Court, in considering whether to grant leave, is to have regard to the hardship as between the parties in the light of all relevant circumstances if leave were to be refused. It is fair to say that both sides to this dispute have been slow in bringing it before the Court. 11 Between January 2000 and May 2003 both parties seemed content to let the adjustment of their property rights remain in a state of irresolution. It was only when the Plaintiff came to sell the property in 2003, for a much higher amount than the parties had thought achievable in 2000, that the problems became more focused. Even then, neither party did anything to bring the matter to Court for more than two and a half years. Neither side can now point to any circumstance in their financial and personal situations which would result in greater hardship to one or the other if leave under s 18(2) were granted or refused. The issue between the parties is who is entitled to a sum of money which has been reposing in a solicitor's trust account for years. 12 The Court's discretion under s 18(2) is broad. All that the Court requires, to use the words of Bryson J in Beavan v Fallshaw (1992) 15 Fam LR 686, at 687, is a "good reason" for granting leave. In my opinion, it is desirable that all aspects of a dispute which has smouldered for almost nine years be resolved once and for all, one way or another. In my opinion, that is a sufficiently good reason to grant leave to the Plaintiff to bring these proceedings out of time. 13 Leave under s 18(2) of the Act is therefore granted. The parties agree that the prerequisites of s 15(1) and s 17(1) of the Act are satisfied. 14 Section 14(1) provides: "Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both."