Gerwien v Doyle [2008] NSWSC 938

New South Wales Supreme Court

CITATION : Gerwien v Doyle [2008] NSWSC 938

HEARING DATE(S) : 04/08/08, 05,08/08

JUDGMENT DATE : 12 September 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 38

CATCHWORDS : Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Short relationship with no children. Order for adjustment made.

PARTIES : Ronald Gerwien v Josephine Mary Doyle

FILE NUMBER(S) : SC 5509/06

COUNSEL : Mr S Burchett for plaintiff Mr D Dura for defendant

SOLICITORS : Manfred Dougall & Company Galland Elder Lulham for defemdamt

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

ASSOCIATE JUSTICE MACREADY

FRIDAY 12 SEPTEMBER 2008

5509/06 RONALD GERWIEN v JOSEPHINE MARY DOYLE JUDGMENT 1 HIS HONOUR: This is an application under the Property (Relationships) Act 1984 (NSW) in which the parties seek an order under s 20 of the Act for the adjustment of their property interests. The parties although having known each other a little earlier commenced a de facto relationship on 30 November 2003 which continued until the parties separated in March 2006. There were no children of the relationship. Chronology 2 The defendant was born in May 1957 and is now aged 51 years. The plaintiff was born in July 1957 and is now aged 51 years. Since 1987 the defendant had been employed with Department of Defence as a programme modeller. In 1991 he purchased a property at Mackay Place, Gowrie in Canberra for $135,090. 3 In August 2001 the defendant sold a house in Dewhurst Sreet, Goulburn and purchased another property at Kinghorne Street, Goulburn for $112,500. In July 2001 the parties first met and commenced a relationship. They would spend time together at weekends at one or other of their homes. 4 On 1 August 2002 the plaintiff suffered neck injury and was off work until 3 December 2003. In June 2003 the plaintiff commenced working on some alterations to the defendant's home. This consisted of a pergola, a deck and a fence. At this stage the defendant's daughter Aisha had been living with her mother and she moved out in July of that year. At the time of the commencement of the relationship or shortly before the defendant gave her car to her daughter. 5 As mentioned the parties moved to live together in the defendant's home in Goulburn on 30 November 2003. On 3 December 2003 the plaintiff returned to work initially for 3 days a week. 6 In August 2004 the defendant decided to renovate her Goulburn house. At that time she had a mortgage for $96,000 on the property which was in her name. The parties approached the National Bank and a new mortgage was taken out for $126,000 in which the plaintiff was also a party. Out of the additional funds $6,400 was paid off the plaintiff's credit cards and the balance appears to have been used by the defendant for the renovations. 7 At about this time the defendant was approached by a real estate agent in Queensland which led to the plaintiff and the defendant eventually purchasing on 21 August 2004 a property at 9 Cockatiel Circuit, Deception Bay, Queensland. The property was purchased in their joint names and was a combined land purchase and construction purchase with the total purchase price being $333,000. The parties purchased the property using loan funds to meet the entire purchase price such funds being borrowed from the National Australia Bank. The Bank took a mortgage over the plaintiff's Canberra property which was still in his name and the Queensland property. In February 2005 the final settlement occurred for the purchase of the Queensland property. Once the construction of the property was completed the property was let. 8 In December 2004 the plaintiff did further work on the defendant's Goulburn house which included jacking and propping up a floor in the property. 9 In March 2005 the plaintiff suffered a further work injury to his neck and knee and was off work and in receipt of workers compensation thereafter. The plaintiff said that he suffered injuries and appeared from time to time to be in pain. 10 In May 2005 there was an incident when the defendant asked the plaintiff to leave the Goulburn home. The next day the defendant found the plaintiff unconscious with a suicide note. He was resuscitated and hospitalised but suffered some brain damage and came under the care of the Brain Injury Unit. In due course he was discharged to the defendant's care and she assisted the plaintiff with his personal needs and medical appointments. In July 2005 railing were installed in the Goulburn house to allow the plaintiff to move around the house.