NANSCHILD v PRATT [2010] NSWSC 344

New South Wales Supreme Court

CITATION : NANSCHILD v PRATT [2010] NSWSC 344

HEARING DATE(S) : 19-22 April 2010

JUDGMENT DATE : 22 April 2010

JURISDICTION : EQUITY

JUDGMENT OF : Pembroke J

EX TEMPORE JUDGMENT DATE : 22 April 2010

DECISION : See Judgment

CATCHWORDS : DE FACTO RELATIONSHIP - application under s 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order - relationship of some six years duration - significant increase in assets over period of relationship - plaintiff's superior financial position - defendant's weaker position generally - exercise of jurisdiction under s 20 - whether imbalance of contributions between parties - evaluation of any non-financial contributions - whether adjustive orders just and equitable in all circumstances

LEGISLATION CITED : Property (Relationships) Act 1984 (NSW)

CATEGORY : Principal judgment

PARTIES : DEBORAH NANSCHILD TRACY PRATT

FILE NUMBER(S) : SC 277044/08

COUNSEL : G Brzostowski SC for the Plaintiff G F Foster for the Defendant

SOLICITORS : Dobinson Davey Clifford Simpson (Plaintiff) Campbell & Co Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Judge PEMBROKE J

Date THURSDAY 22 APRIL 2010

2008/277044 DEBORAH NANSCHILD v TRACY PRATT JUDGMENT - EX TEMPORE

HIS HONOUR: This is an application for orders pursuant to section 20 of the Property (Relationships) Act 1984 NSW. I heard the evidence from Monday to Wednesday and counsel addressed this morning. As I have reached a clear view and because it is in the interests of the parties, I will give my reasons this afternoon. 1 The plaintiff and the defendant lived together in a relationship which was mutually supportive from August 2000 until December 2005. They continued to live together until June 2006 but their lives were physically separate. 2 During the course of that relationship they intertwined their financial affairs to a considerable degree and in a short space of time acquired jointly, or in the name of the plaintiff, a remarkable number of properties. All of the properties were geared and substantial deductions against gross income were obtained as a result of the interest payments and associated borrowing expenses. 3 They also conducted together a partnership business. It was known as Indigo Alpacas. Each also owned personal property in her own name, including superannuation, which the parties have agreed should be left out of the calculation. 4 The issue on which my judgment is required is the appropriate adjustment to their property interests having regard to the criteria stipulated in section 20 of the Act. A feature of Section 20 is that the adjustment at which the Court is required to arrive must be an adjustment which "seems just and equitable". However, the factors which determine what an appropriate adjustment should be, and which must guide the exercise of that discretion, are constrained. They are relevantly in this case, financial and non-financial contributions made directly or indirectly by each party to the acquisition, conservation or improvement of any of the property of the parties or to their financial resources and any contributions made in the capacity of homemaker to the welfare of the other party to a relationship. 5 The plaintiff claims that there should be an apportionment of the divisible pool of property in her favour in the ratio of 75 to 25. The defendant claims that the apportionment should be, broadly speaking, 50/50. I have no hesitation in rejecting the plaintiff's proposed apportionment, which in my view does not reflect the reality of the evidence. 6 The history of the financial dealings of the parties is as follows: